TIME FOR ‘UNFETTERED COMPETITION’
“School choice is sweeping the nation,” writes Harvard economics professor Roland Fryer in a recent piece for the Wall Street Journal. “But school choice as we know it won’t fix the American education system.” What is needed, he argues, is “unfettered competition” instead of the piecemeal, “half a loaf” approach with which we are currently saddled.
Fryer alludes to the stunning groundswell of support for school choice in recent years. Since 2021, ten states have passed universal choice measures. It’s a positive development for the world’s most prosperous and powerful nation, which incongruously lags behind many of its peer and non-peer competitors in scholastic outcomes. As Fryer points out, the United States came in 36th in math and 13th in reading in the 2018 Program for International Student Assessment. It’s hardly an adequate result for a nation as bold and innovative as our own.
Despite some encouraging signs when it comes to school choice, Fryer argues that our current system remains “more patchwork than panacea.” Against the backdrop of standardized and homogenous public-school curricula, a full-fledged embrace of the free market is necessary if we are to fully unlock our young people’s potential.
Protect The 1st believes school choice supports the full expression of the First Amendment. The First Amendment’s guarantees of free speech and the free exercise of religion must include room for parents to choose schools that reflect their beliefs. Doing so will have the added, bonus effect of alleviating some of the non-stop controversies that so dominate the educational discourse of late.
Consider the endless arguments over textbooks and curricula, from the banning of literary classics like 1984 in Iowa to the “stench of animus” towards religious student groups in California. Consider the persistent attempts to incorporate ideological instruction for children as young as four years old.
With public schools having a monopoly on public education dollars, the only option for many who can’t afford private schools is to accept what’s dished out or simply pick up and move. More choice means more freedom for parents to guide their children’s education by selecting schools that align with their values, or offer education of superior quality.
There has to be a better way, and Fryer is correct that our current Balkanized approach won’t cut it. Advocates must be bolder, he says, submitting that if “we can fully commit to free market principles in education, we can create an education system that unlocks the talents of every student in our lifetimes.”
One way to do that is through education savings accounts, which he writes “allow parents to channel public funds to a variety of educational services, from private-school tuition and microschools to tutoring and online courses.” By funding ESAs at a level comparable to public schools, you give parents real purchasing power. Competition and innovation will result. That is the true underlying principle upon which school choice operates.
Want to send your child to a school that meets all the state requirements but is also a Christian, Jewish, or Muslim school? Want to send your kids to a school with a great literature program? Or one with more of an emphasis on STEM? School choice does that, but first you have to end the public monopoly on education for everyone to have those choices. And we won’t get there unless advocates double down.
Across America, from small towns to Washington, D.C., officials are misusing their authority to punish journalists.
In April, Protect The 1st reported that on at least two occasions, agents at ICE used a legal tool meant to aid in criminal investigations to pressure news organizations into revealing information about their sources.
In May, we reported that the FBI raided the home of a journalist, seizing his computer, hard drives, and cellphone, after he published embarrassing outtakes of a Fox News interview – which had already been posted online.
In August, Protect The 1st reported on the death of an elderly publisher in rural Kansas shortly after local police raided her home.
In November, we reported on an Alabama district attorney who arrested a publisher and a reporter for reporting on leaks from a grand jury about the mishandling of Covid funds.
Also this month we reported on the “ticketing” of a local journalist by Calumet City, Illinois, for having the temerity to send 14 emails over a nine-day period to city officials seeking comment on local flooding.
The First Amendment is clear, but the trend against it continues in the wrong direction, with such incidents piling up recently. The question is: why? We believe these clumsy attempts to punish the press can only be the result of the poor civics education of these officials in their youth. It also reflects an increasing appetite by politicians of all stripes to weaponize the law.
There is, fortunately, a bulwark against such local abuses. Forty-nine states have passed press shield laws that protect journalists and their sources. Yet Congress has not enacted a national shield law to protect reporters from federal prosecutors and courts. The Protect Reporters from Exploitive State Spying (PRESS) Act would limit the ability of prosecutors to expose the sources and notes of journalists in federal court. The PRESS Act passed through the House Judiciary Committee to the full House by a unanimous 23-0 vote in July.
The PRESS Act would have made a difference in the case of CBS News senior correspondent Catherine Herridge who, earlier this year, was ordered by a judge for the U.S. District Court for the District of Columbia to reveal the identity of a confidential source or sources she used for a series of 2017 stories published while she worked at Fox News. Her stories covered Chinese-American scientist Yanping Chen, subject of a federal counterintelligence probe. Chen subpoenaed Herridge and Fox News, with the hope of unmasking the source(s) for the stories. Herridge has since refused to reveal her source(s), and Chen’s lawyers are asking the judge to hold the journalist in contempt of court.
The Herridge case is all the more reason for a federal shield law in the form of the PRESS Act. No federal legislation, however, can change the dysfunctional, constitutionally illiterate, and illegal acts by government officials against reporters. That is not a matter of law, but of culture and education. Press freedom is strong only when people and the powers that be understand it and respect it.
Public Versus Private Speech On and Off Campus: Can a Professor Be Fired for Espousing Extreme Views?
The Academic Freedom Alliance recently released a guidance statement regarding campus protests over the Israeli-Gaza war. It’s a stirring call for a recommitment to basic principles of free speech at colleges and universities. It’s also a reminder to differentiate between private speech by professors in their personal capacities versus efforts by some to politicize the classroom.
Reposted in full by the Volokh Conspiracy blog, the statement reads (in part):
“Professors must enjoy the liberty to discuss and even promote controversial ideas and to present controversial materials to students in their classes. Professors have an obligation, however, not to take advantage of their captive audience of students by introducing ideas or materials that are not germane to the subject matter of their class. Likewise, professors have a responsibility not to exploit their privileged position to attempt to indoctrinate students or to subject them to political or ideological litmus tests or pressures in their classroom assignments. Nor do professors have a right to compromise the education of their students by conducting their classes in a manner designed simply to advance their favored political causes. Universities must resist calls to censor what is taught in classrooms, but they must also ensure that classes are used for proper educational purposes.
“Professors, like other members of the campus community, should enjoy the freedom to speak and act as citizens. When speaking in public in their personal capacity, professors may give voice to controversial and even extreme political and social opinions that others might find offensive or disturbing. When professors at American universities speak in public in a manner that is lawful under the First Amendment, universities should stand behind their right to express such views. Universities should insist that professors, as well as other members of the campus community, adhere to content-neutral regulations regarding the time, place, and manner of public speech on campus, but universities must strive to apply those rules in an even-handed and consistent manner regardless of the substantive views of those expressing themselves. Universities should refrain from punishing members of the faculty simply because some think their private political speech is intemperate, uncivil, dishonest, or disrespectful. Professors should be judged and held accountable for their professional speech and conduct, not for their political views.”
It's hard to disagree with such a cogent defense of free expression on campus, which indeed is the place where difficult subjects should be respectfully discussed and debated. But we do.
We agree that it is important, as the statement points out, to consider the fora when adjudicating the appropriateness of speech content by professors. On the other hand, we must recognize that many American colleges and universities are private institutions with their own speech rights. Unless they are substantially funded by the public, schools are perfectly justified in reacting reasonably to the speech of their employees.
Case in point: When Cornell University history professor Russell Rickford told a group of pro-Palestinian demonstrators that he was “exhilarated” by the Oct. 7 attacks against Israel, he faced criticism from the administration, a petition drive to fire him, and demands from Sen. Kirsten Gillibrand (D-NY) for his termination. Instead, Rickford received permission to take a leave of absence. But make no mistake, Cornell would have been well within its rights to have fired Rickford.
There will always be a tension between the personal speech rights of a professor and the right of free association at a public university. Given the different status of public and private universities, it is impossible to describe a neat methodology for dealing with incendiary speech – just as it is difficult to legislate academic outcomes.
Consider Florida’s attempt to implement the Stop WOKE Act, which sought to ban schools and companies from promoting ideas of race- or sex-based blame to “privileged” students and employees. To be fair, there is no lack of idiotic ideology on campus and in the corporation. But that law, had it gone into effect, would have significantly chilled speech by professors within the classrooms, creating fear among anyone that so much as touched on race in the course of a lesson plan.
In enjoining the Stop WOKE Act, Chief U.S. District Judge Mark Walker called it outright Orwellian, noting that the law “officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints.” The law remains blocked as of this writing. It is critical that we have such baseline principles for the preservation of free inquiry and academic debate on campus.
What such principles won’t do is negate the free speech and associational rights of private institutions. Nor will they inoculate a public university against the invisible hand of the higher education marketplace, which may well withdraw donor support and student applications because of vitriolic commentary, even when professors speak in a private capacity.
In the private sector, employers can hold employees responsible for what they say. Yes, they can fire them for it. And that’s okay.
On either side of the abortion issue, advocates and legislators have become so entrenched that they often lose sight of the constitutional forest for the trees. Consider two cases out of Colorado and New York that illustrate the lengths to which some will go to restrict speech about any choice they don’t like.
In April, we wrote about a Colorado law restricting the ability of physicians to discuss a treatment for women who are having second thoughts about a chemically induced abortion. That law limits prescribing progesterone, a popular method of reversing a chemical abortion. It forbids physicians from even informing pregnant women that such a treatment exists.
It’s essentially the inverse of legislative proposals in red states that would permit civil actions against anyone informing women about abortion options in other states. At Protect The 1st, we oppose any effort to gag physicians and other health care providers from informing patients about treatment options – particularly when it conflicts with closely held religious beliefs.
Such was the case with Bella Health, a Catholic healthcare clinic in Colorado that offers life-affirming care to pregnant women (among others). That includes offering progesterone.
With help from the Becket Fund, Bella Health sued the State of Colorado in federal court. Bella Health has now been granted a preliminary injunction barring implementation of the law and allowing the clinic to continue its work. U.S. District Court Judge Daniel D. Domenico wrote:
“There is no question whether [the law] burdens Bella Health’s free exercise of religion. It does. Bella Health considers it a religious obligation to provide treatment for pregnant mothers and to protect unborn life if the mother seeks to stop or reverse an abortion.”
Domenico further criticized the state for failing to even attempt to make the case for a compelling government interest, which is necessary for overcoming a strict scrutiny review. The fact is, which Domenico seemingly recognized, the law was a nakedly partisan response to recent developments on the national stage – an effort to punish those on the other side of this contentious issue by trampling over their First Amendment rights.
In a similar case out of New York, the state passed a law in 2022 authorizing the New York State Department of Health to conduct a study on “limited service pregnancy centers on the ability of women to obtain accurate, non-coercive health care information and timely access to a comprehensive range of reproductive and sexual health care services.” (“Limited service pregnancy” centers is how the state describes clinics that do not offer abortion services.)
The statute further permitted the state to demand “data and information” from any center that does not offer abortion services or referrals. That included Sisters of Life, a Catholic community of nuns who offer holistic care for women in crisis, often providing housing, maternity clothes, baby formula, and other necessities. Sisters of Life sued to overturn and enjoin enforcement of the law, rightfully concerned about the vast amount of sensitive personal data that would have be turned over – including, according to the complaint, “organizational funding; membership in umbrella organizations; services provided and most frequently sought; the number of women who access services, the geographic regions in which each woman resides, and ‘basic demographic information about each woman, including race, age, and marital status.’”
In more good news for the First Amendment, the Sisters dropped their lawsuit after reaching an agreement with the state stipulating that the state will not “take any enforcement action of any kind against Plaintiff based on Plaintiff’s nonresponse to or noncompliance with any survey, document request, or information request of any kind authorized by or issued by Defendant.” It’s a total surrender on the part of New York, which seems largely embarrassed by the whole ordeal.
State attorneys should be embarrassed. Regardless of your views on abortion, passing coercive laws to shut down speech and punish religious organizations makes a farce of the First Amendment. And while we should celebrate these victories, we must also remember that such threats to our foundational rights remain ever present – coming from the right as well as the left.
The Religious Freedom Restoration Act of 1993 (RFRA) turns 30 years old tomorrow. RFRA was a landmark bill signed into federal law by President Bill Clinton that ensures religious freedom is protected from government overreach. Thirty years on, RFRA has become a cornerstone of religious freedom, putting statutory muscle behind the promise of the free exercise of religion in the First Amendment.
Congress drafted RFRA in response to the Supreme Court’s decision in 1990 in Employment Division v. Smith, which held that government can burden religious exercise so long as it uses a neutral, generally applicable law to do so. This sounds reasonable but it had the practical effect of permitting overweening rules and regulations to throttle religious practices, from Sikhs wanting to carry a kirtan in public, to U.S. Navy sailors wishing to wear a kippah, to Native Americans wishing to worship at sites that have been held sacred for hundreds of years.
RFRA has dramatically expanded the latitude for religious freedom for this increasingly diverse American society.
Lori Windham, Vice President and Senior Counsel at the Becket Fund, writes that “although some predicted that RFRA’s standard would be a recipe for anarchy, it has instead proven that religious liberty works remarkably well in practice.” She adds that “RFRA has served as a bedrock protection for religious groups ranging from Apache feather dancers to Catholic religious sisters.”
Although RFRA applies to all faiths and creeds, it has been essential in preserving the rights of religious minorities by giving them their “day in court.” As Becket argues, despite assertions that RFRA “opens the floodgates … for imposing Christian values in the areas of abortion, contraception, and gay rights,” RFRA primarily benefits these minorities. According to Becket, a comprehensive empirical study of religious freedom cases from 2012 to 2017 reveals that religious minorities are significantly overrepresented in religious freedom cases.
The federal RFRA has been so successful and popular that, in recent years, half of all states have passed their own versions of RFRA to strengthen the legal protections afforded to religious beliefs and practices within their borders. With North Dakota and West Virginia joining the list of states with RFRA laws earlier this year, twenty-five states now have their own form of RFRA. State courts have adopted this standard in nine additional states.
Religious expression is not some isolated activity which we schedule for certain parts of the week. It is fundamental to our identity, which is why it is included among our first freedoms. The growth of state RFRAs in the last thirty years is a testament to the bipartisan interest in the vitality of religious liberty. As Protect The 1st blows a birthday candle, we wish that perhaps thirty years from now there will be a RFRA in every state.
On Thursday, November 16th at 12:00 pm ET, the Orrin G. Hatch Foundation will host a panel on “Thirty Years of the Religious Freedom Restoration Act: Reflecting on the Past, Looking to the Future.” We urge our readers to attend online.
Most reporters aspire to superlatives like “dogged,” “tenacious,” and “persistent.” In Calumet City, Illinois, such traits are seen by some as a liability. In fact, they can you ticketed. That’s what happened recently to Daily Southtown reporter Hank Sanders, who was cited for “interference/hampering of city employees” after sending 14 emails over a nine-day span to a handful of city officials seeking comment about flooding in the small town.
Sanders had previously reported that outside consultants told Calumet City officials that their stormwater infrastructure was in poor condition prior to historic flooding that occurred in September. Subsequently, Sanders continued his efforts to get to the bottom of the story – which apparently did not sit well with city officials like Mayor Thaddeus Jones, who was listed as a complainant on Sanders’ citation.
Likewise, Sanders’ persecution at the hands of smalltown city officials didn’t sit well with the editorial board of the Chicago Tribune (which shares a parent company with the Daily Southtown). In an editorial, they called the city’s behavior “clownish.” Executive editor Mitch Pugh went a bit further:
“[Calumet City’s actions] represent a continued assault on journalists who, like Hank, are guilty of nothing more than engaging in the practice of journalism. From places like Alabama to Kansas to Illinois, it appears public officials have become emboldened to take actions that our society once viewed as un-American. Unfortunately, in our current political climate, uneducated buffoonery has become a virtue, not a liability, but the Tribune will vigorously stand up for Hank’s right to do his job.”
There is no room to be dismissive of this event. It is yet another recent example in a worrying trend in small-town America where power-drunk officials attempt to punish reporters for committing the act of journalism.
One instance to which Pugh refers we recently wrote about: a small town publisher and reporter were arrested in Alabama for reporting on a grand jury leak about the alleged mishandling of COVID relief funds in a local school district. The other we wrote about in August – police in Kansas raided the Marion County Record in an effort to track down an informant who revealed information about a local restauranteur’s DUI.
In that instance, the paper’s 98-year-old co-owner died a day after her home was raided.
The Calumet City controversy has a happier ending. On Nov. 6, the city attorney – who seems roundly embarrassed by the whole ordeal – sent a letter to Tribune lawyers dropping the citation. And the Tribune itself seems to be enjoying a deserved bout of schadenfreude over the city’s capitulation. The trend line, however, is declining respect for the First Amendment and a free press. Reporters must feel free to pursue stories of public interest without fear of reprisal.
Sanders himself perhaps put it best: “I will continue to be reaching out to the correct department or employee for comment when I want a comment from that department or employee. To do otherwise is unethical.”
There is something poignant and noble about the ACLU’s defense of the right to engage in antisemitic speech. From its founding through the civil rights era, ACLU has been led by many lawyers, advocates, and donors who were and are Jewish. They and their families would be the first ones to perish under the regimes of the people whose constitutional right to speak are defended by the ACLU.
The ACLU in 1978 famously defended the right of neo-Nazis to parade though Skokie, Illinois, where many Holocaust survivors were living. Now former ACLU president Nadine Strossen and social psychologist Pamela Paresky – both proudly Jewish – are taking a stand against efforts to use the law to punish offensive remarks about the recent mass slaughter in Southern Israel.
In particular, they criticize a proposal from Sen. Tom Cotton (R-AR) to empower the Department of Homeland Security to pull student visas and deport any foreign national on American soil who expresses support for Hamas. They write that such a policy would fly in the face of the First Amendment, which Supreme Court precedents extend to foreign nationals on American soil.
On the other hand, Strossen and Paresky are correct to call out Joseph Massad of Columbia University for writing that Hamas’ slaughter of innocents was “awesome” and Russell Rickford of Cornell for saying “I was exhilarated.” Strossen and Paresky correctly note in their Free Press piece, “Imagine if, days after the murder of black worshippers in a Charleston church by a white supremacist, Proud Boys marched across campuses celebrating their deaths.”
Or, we would add, if a professor called the murder of the worshippers “exhilarating.”
The condemnation of such speech by university administrators, professors and students would be deafening. At Cornell, Jewish students have had to shelter-in-place and avoid kosher dining halls to avoid violence. There has been a large number of similar, chilling incidents on other campuses. And the response by university presidents? By and large, mealymouthed statements that amount to profiles in cowardice.
It is hard to imagine students making the most of the promise of academic freedom when they must fear for their lives simply because of their religion. The academy has gone from creating “safe spaces” for students to avoid hearing dissenting views, to having to create safe spaces to protect them from actual violence.
At the other extreme, Strossen and Paresky are right that outlawing offensive speech, even if it has implications that could be dangerous, does not make bad ideas go away. As we’ve said before, banning anti-social speech tends to pump it up with a neon allure. And the only thing worse than the flag-waving Nazi next door is the secret Nazi next door who pretends to be normal but would denounce you if the moment were ripe.
We agree with Strossen and Paresky that people and institutions have – and should exercise – a First Amendment right to react negatively to offensive speech. They support, as we do, the right of university donors to withhold funding. But how far should critics go? Strossen and Paresky write: “We should also consider the cultural effects of such retribution. People say ill-conceived, stupid, even evil things all the time. Should they be cast out into the wilderness? Their livelihoods jeopardized?”
Perhaps the answer to these questions should be “yes.” We agree that the extremes of cancel culture have degraded the free exercise of speech in our First Amendment society. But make no mistake, “cancellation” or calls for disassociation by private parties and companies itself is a protected form of speech and association. Nobody needs to associate, in business or in life, with those who wish them or people they care about ill.
Where Strossen and Paresky are squeamish about firings and shunning, we are more worried about the cultural effects of maintaining tenure for professors and scholarships for students who advocate the mass murder of innocents. If someone is highly critical of Israel, the bombing of Gaza, or is pro-Palestine, they are well within the parameters of a fair debate. But if someone can respond to the murder of babies and find it “exhilarating,” then we question if it’s just the speech that’s evil.
It is important to remember that the First Amendment means no government suppression of speech. Private actors can respond to bad speech with speech of their own, including the right of association – or, by implication, disassociation, commonly called firing. Discrimination against people for what they say and do can be a good thing. Such distinctions mark the boundary between a culture of lively debate and a nihilist culture moderated by violence.
If you follow this blog you are probably concerned about growing ignorance of, or contempt for, the First Amendment, as well as an increasing appetite for weaponizing the law to punish disfavored speech. A case out of Castle Hills, Texas, is illustrative of this weaponization.
While some underlying motives are in dispute, the facts – per the Fifth Circuit Court of Appeals – are stark. Sylvia Gonzalez was elected to a seat on the Castle Hills city council in 2019. After learning that many of her constituents were unhappy with the performance of the city manager, Gonzalez helped organize a petition for that official’s removal. During her first city council meeting, a resident of Castle Hills submitted the petition, which somehow wound up in Gonzalez’s personal binder of documents. After being asked for it by the mayor, Gonzalez found the petition among her effects and handed it over during that same meeting.
The mayor initiated an investigation of Gonzalez under a Texas Penal Code statute that provides that “[a] person commits an offense if he […] intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record.” A warrant was subsequently served against Gonzalez, who was taken to jail and later resigned from her post.
Why Gonzalez would want to hide a petition she helped organize is far from clear. Gonzalez argues it was an honest mistake. The warrant affidavit speculates that Gonzalez hid it because a resident claimed she convinced them to sign it under false pretenses.
What is not disputable is that Gonzalez was arrested, handcuffed, and detained for the purported crime of placing a document in her folder during a meeting. The 72-year-old Gonzalez claims her arrest was retaliatory, stemming from her support for removing the city manager.
Sylvia Gonzalez brought suit in U.S. district court, alleging two counts of retaliation. The city respondents, in turn, filed a motion to dismiss based on qualified immunity, a legal doctrine that generally protects government officials from lawsuits unless it can be shown they violated a “clearly established” statutory or constitutional right. The city officials argued that the existence of probable cause rendered Gonzalez’s claims moot.
The district court, for its part, denied the government’s motion to dismiss based on a 2019 Supreme Court opinion in Nieves v. Bartlett. The court held that retaliatory arrest claims may proceed where probable cause exists (as it technically did with Gonzalez), but in cases in which officers “typically exercise their discretion not to do so.”
This is what is more commonly known as the “jaywalking exception,” and it guards against law enforcement arresting people for petty crimes for less than noble purposes. As Justice Sonia Sotomayor admitted in her memoir, “I jaywalk with the best of them.” Everyone jaywalks, but very few are actually arrested for it. It is an infraction, however, that could be used as pretext to arrest someone.
In such circumstances, the U.S. Supreme Court held, a plaintiff must present “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”
Gonzalez, attempting to satisfy the Nieves exception, presented evidence that not one of 215 grand jury felony indictments in Bexar County under a tampering statute over the preceding decade involved an allegation remotely similar to the one levied against her. The district court found this “objective evidence” sufficient.
In the appeal, the Fifth Circuit held that Nieves requires comparative evidence of individuals who engaged in the “same” criminal conduct but were not arrested. In other words, going by the Fifth Circuit’s interpretation, Gonzalez would have to find specific instances of people who misplaced government documents but were not arrested.
If the Fifth Circuit’s decision is left in place, it would make it easier for law enforcement or other government officials to punish critics for expressing protected speech based on novel applications of relatively minor criminal laws. It also sets the evidentiary bar so high that few could ever hope to prove their case in a court of law.
Gonzalez’s conduct was so benign that the only inference one can reasonably draw is that she was indeed the target of retaliation. That reasonable inference standard is what is required to overcome a qualified immunity defense. But varying interpretations of Nieves stand in Sylvia Gonzalez’s way.
A brief supporting cert from the Cato Institute, American Civil Liberties Union, and the Foundation for Individual Rights and Expression seems to have enticed the U.S. Supreme Court to hear this case. The Court has a historic opportunity to bring clarity to qualified immunity and resolve a circuit split. The Seventh and Ninth Circuits have interpreted Nieves to allow more flexibility in the type of evidence plaintiffs must show in making a retaliation claim. The Fifth Circuit, unfortunately, has not.
The Fifth Circuit’s standard would all but enfranchise the most egregious abuses. At a time when liberals and conservatives worry about the weaponization of the law, a reasonable standard to hold officials to account for abuses is needed now more than ever.
Forbids Newspaper from Reporting on Crime, Seizes Cellphones from School Board Members and Publisher
Much digital ink has been spilled about the arrest of a small-town publisher and reporter in Atmore, Alabama, for reporting on a grand jury leak about the alleged mishandling of COVID relief funds in the local school district. But events surrounding the arrests of these two journalists should be of even greater concern to First Amendment advocates.
While Alabama law makes it a crime for grand jurors, witnesses, and others directly involved in a grand jury proceeding to disclose information from these secret hearings, this prohibition does not include journalists. Moreover, a long line of U.S. Supreme Court precedents, harking back to the Pentagon Papers, make it clear that journalists can report leaks, even when the leak is illegal. This is judged necessary for freedom of the press. Time and again, such reporting has broken loose the logjam of secrecy, incompetence, and inside-dealing that often hardens inside powerful institutions.
But the plain facts and the law did not stop Escambia County District Attorney Stephen Billy from charging Atmore News publisher Sherry Digmon and reporter Don Fletcher with a felony charge of reporting grand jury information, carrying a penalty of between one to three years imprisonment and a fine of $5,000.
Worse, from a constitutional perspective, are bail terms that prohibit the journalists from reporting on “ongoing criminal investigations.” In this one brilliant move, District Attorney Billy ventured from criminalizing reporting into the worst offense against free speech – prior restraint.
“The bail terms would be unconstitutional even if they only restricted the journalists from further reporting on the grand jury investigation of the school district, especially when there was no legal or constitutional basis to punish that reporting in the first place,” said Seth Stern, director of advocacy at the Freedom of the Press Foundation. “That overbreadth turns an already flagrantly unconstitutional gag order into a fundamentally un-American attempt at retaliatory censorship to silence the free press. Everyone involved should be ashamed of themselves.”
The Atmore News today posts a straightforward, factual account of the arrests of its publisher and reporter. Could that be construed by the district attorney as a bail violation? It is not clear. And when legal standards are not clear, the free practice of journalism suffers.
In a separate action, District Attorney Billy dispatched sheriff’s deputies with search warrants to seize the cellphones of four members of the Escambia County Board of Education who voted not to renew the contract of the local school superintendent. One of the board members was publisher Sherry Digmon. The stated purpose of the raid was to investigate a possible telephone violation of Alabama’s Open Meetings Law by the four board members, even though violations are a civil matter under Alabama law. It is not a crime.
It would be easy to dismiss this case as an outlier by a bumbling local district attorney. As the Dude says in The Big Lebowski, “this aggression will not stand, man!” It is all but certain District Attorney Billy and his case will not fare any better than did that of the small-town police chief in Kansas who raided the local newspaper and seized all its equipment over the reporting of a local businesswoman’s DUI record.
But even when intimidation fails, the hassle and embarrassment of an arrest and the confiscation of phones and equipment cannot be far from the minds of local journalists these days.
That such cases are beginning to pop up around the country is one more sign that America is drifting away from our constitutional moorings.
The Ninth Circuit Court of Appeals in March issued a controversial opinion in Twitter v. Garland that the Electronic Frontier Foundation calls “a new low in judicial deference to classification and national security, even against the nearly inviolable First Amendment right to be free of prior restraints against speech.”
X (née Twitter) is appealing this opinion before the U.S. Supreme Court. Whatever you think of X or Elon Musk, this case is an important inflection point for free speech and government surveillance accountability.
Among many under-acknowledged aspects of our national security apparatus is the regularity with which the government – through FBI national security letters and secretive FISA orders – demands customer information from online platforms like Facebook and X. In 2014, Twitter sought to publish a report documenting the number of surveillance requests it received from the government the prior year. It was a commendable effort from a private actor to provide a limited measure of transparency in government monitoring of its customers, offering some much-needed public oversight in the process. The FBI and DOJ, of course, denied Twitter’s efforts, and over the past ten years the company has kept up the fight, continuing under its new ownership.
At issue is X’s desire to publish the total number of surveillance requests it receives, omitting any identifying details about the targets of those requests. This purpose is noble. It would provide users an important metric in surveillance trends not found in the annual Statistical Transparency Report of the Office of the Director of National Intelligence.
Nevertheless, in April 2020, a federal district court ruled against the company’s efforts at transparency. In March 2023, the Ninth Circuit upheld the lower court’s ruling, sweeping away a substantial body of prior restraint precedent in the process.
Specifically, the Ninth Circuit carved out a novel exemption to long established prior restraint limitations: “government restrictions on the disclosure of information transmitted confidentially as part of a legitimate government process.”
The implications of this new category of censorable speech are incalculable. To quote the EFF amicus brief:
“The consequences of the lower court’s decision are severe and far-reaching. It carves out, for the first time, a whole category of prior restraints that receive no more scrutiny than subsequent punishments for speech—expanding officials’ power to gag virtually anyone who interacts with a government agency and wishes to speak publicly about that interaction.”
This is an existential speech issue, far beyond concerns of party or politics. If the ruling is allowed to stand, it sets up a convenient standard for the government to significantly expand its censorship of speech – whether of the left, right or center. Again, quoting EFF, “[i]ndividuals who had interactions with law enforcement or border officials—such as someone being interviewed as a witness to a crime or someone subjected to police misconduct—could be barred from telling their family or going to the press.”
Moreover, the ruling is totally incongruous with a body of law that goes back a century. Prior restraints on speech are the most disfavored of speech restrictions because they freeze speech in its entirety (rather than subsequently punishing it). As such, prior restraint is typically subject to the most exacting level of judicial scrutiny. Yet the Ninth Circuit applied a lower level of strict scrutiny, while entirely ignoring the procedural protections typically afforded to plaintiffs in prior restraint cases. As such, the “decision enables the government to unilaterally impose prior restraints on speech about matters of public concern, while restricting recipients’ ability to meaningfully test these gag orders in court.”
We stand with X and EFF in urging the Supreme Court to promptly address this alarming development.
Texas is going big on school library content curation. A new law aims to keep “sexually explicit” books off of school library shelves, which brings to mind the old saw about killing a fly with an elephant gun.
HB 900 – also known as the Restricting Explicit and Adult-Designated Educational Resources (READER) Act – requires vendors who sell books to public schools to rate those books based on their degree of sexual content. Any book judged “patently offensive” will be deemed “sexually explicit” and removed from shelves entirely, while books deemed “sexually relevant” – publications with general depictions of sex that are nonetheless related to the curriculum – will require parental consent.
Dystopian concerns aside about outlawing a number of classics, the biggest issue with this law is its implementation. The only guidelines for judging whether a book is “patently offensive” involve a highly subjective “contextual analysis” to be performed by the vendors.
The term “vendor” means “any entity that sells library material to a public primary or secondary school in this state.” In practice, that’s everyone from Amazon to the smallest independent bookstore, often with two people on staff – and one of them might be a cat. Essentially, this law places the responsibility for protecting Texas’ children on private companies and small outfits.
Even the largest independent bookseller – BookPeople in Austin – has about 100 busy employees and little bandwidth to screen the potentially thousands of books it might sell to schools any given year. What’s more, the law applies retroactively, meaning vendors will have to issue recalls on “sexually explicit” materials that may still be in circulation. If vendors fail to comply with the new law’s requirements, they’ll be barred from selling to public schools. If they are able to comply, costs will go likely go up – both for the schools and, by extension, for the taxpayers.
As BookPeople CEO Charley Rejsek put it: “We’re losing all school business forever. That’s how it’s going to hurt us.”
Protect The 1st has reported about increasing efforts to censor school reading materials. Texas is at the forefront of this controversy. According to a study from the American Library Association, the Lone Star State saw the most attempts to ban books in 2022.
As we’ve also written, what is most needed in the context of book curation for school-aged minors is common sense. As a nation, we should seek to strike a balance between protecting the innocence of young people and throwing out material of great literary value just because it may include a few arguably inappropriate (for some) passages. Parents and teachers should be at the helm in these decisions – not private companies.
What HB 900 purports to do is legislate common sense. Logistically, that’s hard achieve. As one bookseller analogized, this situation would be like a movie studio releasing a film and then requiring individual theaters to rate it. Who’s to say how interpretations might differ from Regal to AMC to Alamo Drafthouse?
Again, curation is absolutely necessary for children’s books, but it should be the responsibility of schools to know what they are buying. And it should be the responsibility of the legislature to pass laws that are not untenably vague.
Asked whether Larry McMurtry’s Pulitzer Prize-wining Lonesome Dove – the great Texas novel – would be removed under the new standards, READER Act sponsor Rep. Jared Patterson said: “I don’t care if it’s ‘Lonesome Dove’ or any other novel — if it has sexually explicit material, I would view that as an incredible win for the students of the state to not have that material in the library.”
Such a decision would be up to an individual bookseller. In this litigious age, with the threat of losing access to a lucrative market, the likelihood is that whenever there is any judgment call, the bookseller will have to always go “thumbs down.” These will always be business decisions, not literary and cultural judgements.
Unsurprisingly, the READER Act is currently embroiled in litigation. Judge Alan D. Albright enjoined the law’s implementation on Sept. 18, citing its “unconstitutionally vague requirements.” The Fifth Circuit Court of Appeals subsequently blocked that move, allowing the law to take effect as it considers the case. Oral argument is currently scheduled for Nov. 29.
We’ll continue to monitor how this law unfolds.
O’Connor-Ratcliff v. Garnier
The U.S. Supreme Court on Tuesday wrestled with a question of increasing urgency: When public officials block critics on social media, are they acting in their official roles and therefore liable for violating the First Amendment?
Arguments stemmed from two cases with differing outcomes. In O’Connor-Ratcliff v. Garnier, two California school board members blocked a couple – the Garniers – who regularly posted critical messages on the board members’ Facebook pages. The Ninth Circuit ruled that blocking the couple constituted state action due to the nature and character of the board members’ accounts, which frequently featured posts about official government business.
In a separate, joined case (Lindke v. Freed), a Michigan city manager blocked a constituent – Lindke – following critical comments Lindke made regarding the city’s COVID-19 policies. There, the Sixth Circuit came to the opposite conclusion, finding that the city manager’s account was predominately personal in nature. That court held that a public official’s social media activity only constitutes state action when they are engaged in official duties.
The Court’s questioning in Tuesday’s hearing offered no clear delineation between conservative and liberal justices. All nine, however, recognized the difficulty in determining when an official is acting in a public versus private capacity. “This is all a question of how broadly do we define authority or duty,” Justice Amy Coney Barrett said.
The Biden Administration, through an amicus brief, sided with the public officials in both cases, arguing that officials have a right to block people from their social media accounts because those accounts constitute a type of private property. Chief Justice John Roberts and Justice Samuel Alito questioned the government’s position from different angles.
“It doesn’t cost anything to open a Facebook page,” said Alito. “To make so much turn on who owns the Facebook page seems quite artificial.”
Justice Roberts added, “In what sense is this really private property?”
Lawyers representing the parties offered their own varying tests for determining what constitutes public versus private action.
Hashim Mooppan, representing the school board members who lost in the Ninth Circuit, asserted that, the “only principled and workable test is to ask whether they exercised any duties or authorities of their job.” Justice Elena Kagan then asked if that would mean President Trump was acting in a private capacity when he blocked critics on his Twitter account (a lower court previously ruled that he was not). Mooppan conceded that, under his test, President Trump would be acting as a private citizen.
Representing the Garniers, attorney Pamela Karlan offered a different test: if the board members were broadly doing their jobs when they blocked the Garniers, then it should be presumed as state action. Justice Alito, in turn, expressed concern about the breadth of Karlan’s test, noting that officials “have told me they’re always on call.
They’re always doing their job. They’re always being approached by constituents.”
Representing Kevin Lindke, the Michigan resident who lost in the Sixth Circuit, attorney Allon Kedem argued that “a public official who creates a channel for communicating with constituents about conduct in office and then blocks a user from that channel must abide by the Constitution.”
Justice Clarence Thomas pointed out a key distinction between the two cases, which is that the board members in California only had a few personal posts on their Facebook pages, while the city manager in Michigan had many.
It’s unclear where the Court will land on this issue. As Justice Neil Gorsuch said, there is a “profusion of possible tests” available.
In an amicus brief filed by the foundation of Protect The 1st in O’Connor-Ratcliff v. Garnier, we argued that “no single factor is required to establish state action; rather, all relevant factors must be considered together to determine whether an account was operated under color of law.”
In other words, a holistic test is likely appropriate here. More practically, “governmental bodies can and should adopt clear rules separating official accounts from private ones,” as Congress has done. Doing so would safeguard First Amendment rights for public officials and citizens alike.
In May, Iowa Gov. Kim Reynolds signed into law Senate File 496, a landmark parental rights bill that, among other things, requires schools to remove books that depict a “sex act.” The expansive reach of this law is leading school districts to toss out thought-provoking books and classics of Western literature. The Bible, if it could be admitted to a public school library, might face a similar fate over the Song of Solomon.
The Iowa City Community School District removed 68 books to comply with the law, including James Joyce’s Ulysses and Jodi Picoult’s Nineteen Minutes, Margaret Atwood’s The Handmaid’s Tale, and Toni Morrison’s The Bluest Eye. Among the hundreds of other books removed by other Iowa school districts are George Orwell’s 1984, Aldous Huxley’s Brave New World, Kurt Vonnegut’s Slaughterhouse-Five, and Winston Groom’s Forrest Gump. These books have enriched the reading lives of high school students for decades.
Let us propose one test for any content restriction law: if your bill bans 1984, you might be a little too much like the book.
In Arkansas, plaintiffs before a federal court are contesting two provisions in the state’s Act 372. One provision creates a misdemeanor criminal liability for librarians and booksellers, and even parents, who “[furnish] a harmful item to a minor.” The second creates a process by which any citizen can challenge the appropriateness of any book and have it removed from a school or other public library, applying local community standards, with final decision-making power in the hands of local county quorum courts or city councils.
As the plaintiffs assert, the first provision would result in either the widespread removal of books or an outright ban on young people under 18 from entering libraries or bookstores. The second one, they argue, would allow vocal minorities to tell entire communities what they can and cannot read. The judge in this case found the plaintiffs likely to succeed in both claims on the merits based on the overbreadth of these provisions.
If prohibitions, such as the elimination of “sex” from literature is too broad, what kinds of content should be legitimately challenged by parents? As if to answer this question, the Montgomery County Board of Education in Maryland maintains as part of its elementary school curriculum requirements controversial readings of sexually charged subjects, such as gender transition, and fetish topics like leather and drag queens.
A balance is needed. Our laws have always recognized the need to delineate age-appropriate materials. But laws that are overly broad and vague risk trampling on legitimate First Amendment interests, degrading the educational experience of students, and will only result in costly legal battles.
When legislators stick to crafting laws that support appropriate content curation for school libraries and avoid doomed efforts at censorship, everyone is better off. Legislators would save themselves the embarrassment of having their laws invalidated by courts when they pass messaging bills that are clearly unconstitutional. Parents can be assured their children will be protected from inappropriate content. And students can enjoy the best works from the best writers.
When Protect The 1st filed an amicus brief before the Ninth Circuit seeking to stop a land swap that would transform the sacred lands of the Apache tribes into a giant mining pit, we had no lack of company.
Sponsors of the brief included the Jewish Coalition for Religious Liberty, the International Society for Krishna Consciousness, The Church of Jesus Christ of Latter-Day Saints, and the Sikh Coalition.
We declared: “While, on its surface, this case concerns Native American religious rights, the district court’s erroneously narrow standard for what qualifies as a substantial burden under RFRA (the Religious Freedom Restoration Act) will harm Jewish, Muslim, Sikh, Buddhist, Hare Krishna, Christian and all manner of religious communities, organizations and individuals.”
Now the Ninth Circuit, after an extraordinary en banc rehearing, is considering the fate of lands recognized by the U.S. government as sacred and held in trust since 1852. If the foreign mining consortium is allowed to proceed, it will transform the Apache’s sacred lands, leaving a hole in the ground as long as the Washington Mall and as deep as two Washington monuments.
The ability of the government to ignore RFRA and utterly destroy a religious site is drawing protest from Christian faith leaders and those of other religions who will make a Prayer Rising pilgrimage to Oak Flat on Saturday, Nov. 4. Dr. John Mendez, retired pastor of Emmanuel Baptist Church in Winston-Salem, North Carolina, says: “It’s not just the Apache struggle, it’s all our struggle.”
UPDATE: Should Religious Students with Disabilities Get Special Education Funding Available to Others?
Loffman v. California Department of Education
In March, religious parents and schools in California brought a lawsuit challenging a state policy barring them from accessing special education funding for children with disabilities. In August, the U.S. District Court for the Central District of California ruled against the plaintiffs, dismissing the case despite clear, contravening Supreme Court precedent supporting their claims. Now, the plaintiffs (represented by the Becket Fund) are appealing before the Ninth Circuit.
It is hard to understand how California can fail to recognize the constitutional implications of its policy, which permits federal and state special education funding for disabled children at secular private schools but prohibits it for religious private schools. This funding originates with the Individuals with Disabilities Education Act (IDEA), a federal law ensuring that all children with disabilities in America can receive a free, appropriate public education that meets their needs. (The word “public” in this context is a term of art that refers to a “public expense” – either at public or private schools.)
What’s more, there is direct, on-point precedent prohibiting such policies. The U.S. Supreme Court in Carson v. Makin struck down a Maine law which, like the California law, allowed private secular schools and families to access public funding but excluded religious schools and families. Further, in Fulton v. City of Philadelphia, the Court held that a law burdening religion triggers strict scrutiny if it allows for discretionary exemptions. There is no compelling government interest in discriminating against religious people; nor does categorically exluding religious institutions from receiving public funding constitute narrow tailoring.
The plaintiffs in this case are Los Angeles-area Orthodox Jewish families who wish to send their special-needs children to Orthodox Jewish schools, as well as two Orthodox Jewish schools that want to welcome children with special needs. Such accommodations are expensive, and IDEA dollars go toward paying for staff training, assistive technology, and programmatic expenses. By all rights, the plaintiffs should be able to access these funds.
Protect The 1st continues to support the plaintiffs and Becket attorneys in their efforts to ensure all students with disabilities in California can receive a quality education in line with their academic needs and religious heritage. To quote Becket’s brief, the California legislature forces parents to “choose between the Jewish education that is their birthright and the governmental special-education assistance they are entitled to as Americans.”
Protect The 1st believes the issue before the court is a simple one: Parents shouldn’t have to choose between the free exercise of their religion under the First Amendment and support for their disabled children.
The Apache Stronghold’s case to protect Oak Flat, sacred tribal lands within Arizona’s Tonto National Forest, is still in play. If a previously government-approved transaction is allowed, Oak Flat will be turned over to a foreign mining consortium, Resolution Copper, to be transformed into a crater as long as the Washington Mall and as deep as two Washington Monuments. Although a federal district court initially ruled in favor of the Apache, the Ninth Circuit U.S. Court of Appeals in 2022 reversed the lower court ruling.
Then the Ninth Circuit veered back and reheard the Apache’s case in an en banc hearing. We are currently awaiting a decision and hoping for an Apache victory. Now there’s yet another reason for cautious optimism.
The Biden Administration, in a letter from Forest Service Associate Deputy Chief Troy Heithecker to Terry Rambler, chair of the San Carlos Apache tribe, expresses hopes to finalize a memorandum of understanding to set parameters around formal talks. The San Carlos Apache Tribe has for years pushed for a consultation agreement, so this letter comes as a heartening development.
Meanwhile, the Ninth Circuit, which reheard oral argument in March before a full panel of 11 judges en banc, remains a wild card.
At issue is whether the Oak Flat mining deal constitutes a “substantial burden” of the free exercise of religion guaranteed by the First Amendment and the Religious Freedom Restoration Act (RFRA). Granting requests for a rehearing are exceedingly rare, limited to about one-half of one percent of cases. So the rehearing served as a rare chance for the court to reverse itself. At worst, dissenting judges can get their opinions on record as fodder for a bid for the U.S. Supreme Court to hear the case.
If the Supreme Court were to accept an appeal, it could fundamentally alter the calculus in favor of the Apache. The shadow of Justice Neil Gorsuch looms large over Native American issues. Gorsuch has ruled in favor of Native American tribes in nearly a dozen cases, often casting his vote to give the Court’s liberal wing a rare majority. When the Ninth Circuit recently ruled against a different Native American tribe in favor of the government in a similar case out of Oregon, the government agreed to a settlement once it seemed possible the case could land before the Supreme Court.
Protect The 1st is pleased by the developments in the Apache Stronghold’s case to protect Oak Flat. The negotiation between the Apache and the Biden Administration should not deter the Ninth Circuit from finding in favor of the Apache on religious liberty grounds. As defenders of the First Amendment’s guarantee of freedom of religion, we look forward to further developments in the protection of sacred lands.
Last year, the Protect The First Foundation filed an amicus brief urging the Ninth Circuit Court of Appeals to hear the plight of the Yakima Nation and the Confederated Tribes of Grand Ronde. These two Native American groups sued when the federal government widened U.S. Highway 26 in Eastern Oregon, demolishing an ancient stone altar and grove of trees sacred to the religion of these Americans.
The U.S. District Court in Oregon had first found that the U.S. Federal Highway Administration had not violated the religious rights of the tribes under the Religious Freedom Restoration Act (RFRA). A Ninth Circuit Court panel further did not see that it had the authority, or a need, to attempt remediation. Compounding injury with insult, the Ninth Circuit ruled the government was not responsible for the destruction of the sacred site and dismissed the case as moot. Accordingly, Protect The 1st, along with the Jewish Coalition for Religious Liberty, the Sikh Coalition, and the American Islamic Congress, petitioned the U.S. Supreme Court to reconsider the matter.
Perhaps not wanting to face a High Court notably protective of the First Amendment and religious expression, the federal government quickly agreed to a settlement. The government will replant the grove of native trees, pay for the reconstruction of the sacred stone altar, and recognize the historic use of the site by Native Americans. The restoration of the sacred site is set to be completed by spring 2024. The good news comes from the Becket Foundation, which helped the tribes file their petition.
“Our nation has a long, dark history of needlessly destroying Native American sacred sites without consequence,” said Luke Goodrich, Vice President and Senior Counsel at Becket. In a thread on X (Twitter), Goodrich said, “The government can never fully undo the damage it caused in this case. But this agreement is one step in a better direction--allowing these tribal members to resume religious practices that the government had taken away.”
The stunning about-face comes despite the government’s consecutive wins in lower and appellate courts. Perhaps the government took note that Justice Neil Gorsuch has ruled in favor of Native American tribes in nearly a dozen cases, often casting his vote to give the Court’s liberal wing a rare majority.
The settlement comes as other cases involving Native American land are still pending. The Ninth Circuit is still considering Apache Stronghold v. United States. In that case, the federal government is seeking to give away another Native sacred site to a multinational mining giant which plans to turn the site into a copper mine.
Protect The 1st congratulates the Yakima Nation and the Confederated Tribes of Grand Ronde as well as the Becket Foundation for their victory. The religious liberty protections of the First Amendment apply to all Americans, but most especially to religious minorities more vulnerable than faiths with many adherents.
We hope this settlement will send a message to careless government bureaucrats to be more respectful of Native American religious sites. We especially hope this same change of heart will also come for the Apache and their case now before the Ninth Circuit.
Can a distinction be made in school libraries between book censorship and sensible curation?
Some books most people would agree are clearly inappropriate – especially for children. On the other hand, giving in to moral panic and succumbing to our more censorial instincts can deprive young people of vital information, not to mention the ability to access many classic literary touchstones.
Consider Florida, where 40 percent of all book bans nationwide took place during the last school year. In July, the state legislature passed HB 1069, revising processes for parental objections to educational materials. The new law allows parents to unliterally ban books by performatively shocking the conscience of school board members through public readings of sexually charged paragraphs. The provision reads:
“Parents shall have the right to read passages from any material that is subject to an objection. If the school board denies a parent the right to read passages due to content that meets the requirements under sub-sub-subparagraph b.(I), the school district shall discontinue the use of the material.”
The language provides a specific roadmap for concerned parents, allowing them to attend school board meetings and read the most explicit passages aloud. If board members order them to halt a reading, the book in question is automatically removed.
According to some accounts, readers are advised by groups, which have targeted books like Slaughterhouse Five and The Kite Runner, that: “You want to get shut down. Only read the dirtiest bits that we give to you.”
Context is everything, of course, and most of us will recognize that books with passages that could be considered objectionable in a vacuum may also convey higher meaning or represent great literary achievements. To Kill a Mockingbird, The Color Purple, The Adventures of Huckleberry Finn, Of Mice and Men, Ulysses, The Grapes of Wrath, The Catcher in the Rye – all contain racy passages and have been subject to book bans at one point or another.
An opposite danger is ignoring the rights of concerned parents. In 2022, the Montgomery County School Board introduced a series of “LGBTQ+-inclusive texts” as part of its required curriculum for children as young as four years old. These include works focusing on gender transition and same-sex infatuation, even sexual fetish topics like leather and drag queens – subjects that are obviously outside a four-year-old’s understanding. Parents were outraged for good reason.
We should all be able to agree that foisting gender ideology discussions on children barely able to tie their shoes is inappropriate. Yet, the board refused to allow parents to opt-out, violating their sincerely held religious beliefs in the process.
In another example of misguided curation policy, the commissioners of Llano County, Texas, responded to complaints about book removals by debating the closure of the Llano County Library System entirely.
In Arkansas, the legislature passed a bill making it a crime for librarians to provide purportedly “harmful” material to minors, but the bill defined this broadly as any book with a description of “nudity, sexual conduct, sexual excitement, or sadomasochistic abuse.” A judge enjoined the law, pointing out that – as written – any reading material deemed harmful for a five-year-old minor would also be deemed harmful for a 17-year-old minor, despite obvious differences between the two in maturity and comprehension of adult themes and issues. The Supreme Court addressed this concern in Virginia v. American Bookseller’s Association, Inc., suggesting that an interpretation of the term “harmful to minors” that includes speech protected for older minors would raise First Amendment concerns.
Instead of legislation and lawsuits addressing fringe debates, what is most needed in the context of book curation for school-aged minors is common sense. As a nation, we should seek to strike a balance between running roughshod over the rights of parents and throwing out material of literary value or useful for personal development just because it may include a few arguably inappropriate (for some) passages.
As the Supreme Court suggests, teenagers have a right to access reading materials consistent with their age-level and understanding. And, from a public policy perspective, they should also be able to learn about the adult world they are about to enter.
Parents, meanwhile, have a right to direct the upbringing of their children (especially young children) in accordance with their own values, and should absolutely have a say in what they read.
As in all things, moderation – not knee-jerk censorship – is key.
The Buckeye Institute, a public policy institute in Ohio, is challenging a long-standing federal law that requires the IRS to demand that nonprofit institutes hand over the identities of their largest donors.
The think tank’s case against IRS collection of sensitive, personal data from Form 990 Schedule B rests on a solid foundation of precedent and practice. Similar measures at the state level, from Alabama to California, have already been stricken by the U.S. Supreme Court on First Amendment grounds.
The bedrock principle regarding donor privacy and the First Amendment was established by the Supreme Court in 1958, when it struck down a State of Alabama requirement that the NAACP reveal its donors. That potential for compelled disclosure would almost certainly have led to “harassment, economic reprisal, and physical harm” – danger enough for the Court to act to protect the First Amendment.
That reasoning carried through to 2021 when the Supreme Court struck down a California requirement for compelling donor disclosure for nonprofits. Though the California Attorney General promised to keep this private information under lock and key, the state had already compiled an impressive history of accidental disclosures and vulnerability to hackers.
In the majority opinion, Chief Justice John Roberts noted early on “that it is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as [other] forms of governmental action.”
Protect The 1st added at the time that the disclosure of donor information would be doubly dangerous in the era of flash-mobs, doxing, and cancellation of careers.
In Buckeye’s favor as well is the IRS’s long history of failing to protect taxpayer information.
In late September, federal prosecutors charged a former IRS consultant, Charles Littlejohn, with the crime of stealing and releasing the tax returns of thousands of Americans between 2018 and 2020. The IRS also had to pay out millions of dollars in settlements to nonprofit organizations who suffered increased scrutiny like Buckeye, and had their confidential applications for tax-exempt status released to the press. In addition, the IRS has repeatedly fallen victim to external data breaches due to inadequate security.
The Buckeye Institute is mounting a long-needed challenge to a law that threatens to intimidate free expression. The chilling implications of this IRS statute on the First Amendment alone should be enough for the court to rule in Buckeye’s favor.
An FBI raid on the home of a Tampa-based journalist, and the seizure of his computer, hard drives, cellphone and all they contain, is raising questions about the fidelity of the Department of Justice to a year-old revision to its News Media Policy announced by Attorney General Merrick Garland. Under that policy, the Department is forbidden from using compulsory legal processes to obtain the newsgathering records of journalists, except in extreme circumstances.
Now a wide spectrum of press freedom and civil liberties organizations are asking the Department of Justice to provide transparency about this FBI raid in May. The FBI executed its search warrant at the home of journalist Tim Burke, which he shares with his wife, Tampa city councilwoman Lynn Hurtak. The credibility of this extreme action is highly questionable, leaving the Department to explain how this ransacking of a journalist’s home and seizure of his devices differs from the now-widely ridiculed police raid on a newspaper in rural Kansas.
Burke is a former staffer of The Daily Beast and Deadspin. The reporting that put him in crosshairs of the FBI ran in Vice News and Media Matters for America (MMFA). Yet many civil libertarians are voicing suspicions, based on a government response brief, that DOJ may not regard Burke as a valid journalist worthy of the enhanced protections afforded reporters under the Privacy Protection Act of 1980.
What we can say is that the FBI criminal investigation involves purported “hacking” of Fox News under the Computer Fraud and Abuse Act and wiretapping laws. Burke reported on embarrassing outtake videos from former Fox News commentator Tucker Carlson’s interview with Ye – formerly known as Kanye West – which were then published by Vice News MMFA.
In the outtakes, Ye comes across as deranged and in serious need of help, voicing one ugly, juvenile antisemitic conspiracy theory after another. Carlson cut these lengthy and offensive rants from the interview, making Ye appear far more thoughtful than he is. Carlson concluded his show by saying that Ye is “not crazy” and is “worth listening to.” It is easy to see why even after Fox News fired Carlson that it would find these outtakes embarrassing.
Fox News has since been intent on identifying the source of the leak. Fox sent a letter to MMFA earlier this month, demanding the outlet stop airing videos that were “unlawfully obtained.” MMFA president Angelo Carusone responded: “Reporting on newsworthy leaked material is a cornerstone of journalism ... Like any respectable media outlet, we won’t discuss confidential sourcing of any of our materials.”
For his part, Burke says he obtained the unaired portions of the Tucker Carlson interview with Ye by visiting a publicly available website used to transmit live feeds of broadcasts. Fox News had apparently uploaded the video to the public site without encrypting it or keeping anyone from downloading it.
Burke did use a user ID and password for a “demo account” provided to him by a source. That source, Burke says, found the credentials on a public website, without any restriction on their use. Given these facts suggest an impingement on the First Amendment and the practice of journalism, Attorney General Garland should direct the Department of Justice to provide a degree of transparency in this case. Among questions that need to be answered:
Burke claims he obtained the outtakes from a public source, with help from a source who knew how to access publicly posted credentials to download the raw interview.
There may be legitimate answers to some of these questions that put the Department’s actions in a better light. If they do not, however, DOJ and the FBI run the risk of resembling the bumbling, Barney Fife-like police chief in Kansas who raided a newspaper and, by the way, just resigned.
California’s efforts to run roughshod over the Second Amendment by violating the First is hitting a wall in the courts.
Readers may remember that in 2022, PT1st reported that the state had passed AB 2571, which prohibits the marketing of firearms or related products in a manner that “reasonably appears to be attractive to minors.” This law banned advertising for youth groups that promote firearms as a sport, with safety instruction every step of the way. Nominally intended to tackle soaring rates of gun violence, the law had only succeeded in taking down those youth groups and sporting activities.
California tried to inoculate itself against legal challenges by passing another law that would make plaintiffs who attempt to test the constitutionality of California’s strict gun laws in court and then lose to have to pay all attorneys’ fees and costs. So, not only was the state going to trample over plaintiffs’ constitutional rights, but they were going to make them suffer for challenging them. Things got dicey for California when the state Attorney General Rob Bonta said he “won’t defend the validity” of the law, a step in the right direction.
In September, the U.S. Court of Appeals for the Ninth Circuit enjoined enforcement of the state’s ban on firearm advertisements to minors, holding that it was likely to violate the First Amendment in the upcoming case, Junior Sports Magazines, Inc. v. Bonta. The district court had denied plaintiff’s request for a preliminary injunction, but the Ninth Circuit, no conservative bastion itself, reversed the lower court’s ruling.
In that decision, the Ninth Circuit held that AB 2571 “does not directly and materially advance California’s substantial interests in reducing gun violence and the unlawful use of firearms by minors.”
Circuit Judge Kenneth Lee writes, “There is no evidence in the record that a minor in California has ever unlawfully bought a gun, let alone because of an ad. Nor has the state produced any evidence that truthful ads about lawful uses of guns—like an ad about hunting rifles in Junior Sports Magazines’ Junior Shooters—encourage illegal or violent gun use among minors … Junior Sports Magazines has shown a likelihood of success on the merits …”
In sum, the state Attorney General has declared he won’t defend punitive measures meant to punish constitutionally minded litigants.
California’s gun-advertising restrictions have been blocked, pending a final decision by the Ninth Circuit. And the Ninth Circuit itself has stated that firearm sporting enthusiasts are likely to win on the merits. PT1st is pleased to see this sharp turn in fortunes for California and we hope these events encourage the state to reverse course.
The Religious Land Use and Institutionalized Persons Act (RLUIPA) is a multifaceted law. It protects the rights of prisoners to religious expression and the rights of houses of worship to be free of burdensome impositions by the government.
Protect The 1st has invoked RLUIPA in asking the U.S. Supreme Court to recognize the rights of a condemned man to have his pastor lay hands on him while he is being executed. And we have invoked RLUIPA in asking the Ninth Circuit to spare the long-acknowledged sacred lands of the Apache people from being uprooted by a foreign mining company.
These are just some of the important religious liberty cases touched by RLUIPA.
It is with gratitude, then, that we note that the U.S. Department of Justice is celebrating the 23rd anniversary of the signing of RLUIPA with a public awareness campaign, from online resources to special events around the country.
The first outreach event on RLUIPA will be held at Seton Hall Law School in Newark, New Jersey, on Oct. 30. This event will include remarks from officials from the Justice Department Civil Rights Division, the U.S. Attorney’s Office of New Jersey, attorneys, and religious leaders representing the wide spectrum of worshippers who’ve been protected by RLUIPA over the years.
“We are pleased to see Attorney General Merrick Garland and the Justice Department go the extra mile in making sure the public understands this important law,” said Rick Boucher, Senior Policy Advisor for Protect The 1st and former Congressman from Virginia.
Ninth Circuit Slaps Down School District’s Shut Down of the Fellowship of Christian Athletes – Again
The long-running effort by the San Jose Unified School District to keep the Fellowship of Christian Athletes (FCA) from being a recognized student club is finished. The FCA is now allowed back on campus for after-hours school meetings, just like any other recognized student organization.
This case revolved around the FCA’s requirement that students adhere to Christian teachings. A teacher, later portrayed by a federal judge as launching an “inquisition” against the FCA, drilled down into FCA websites to discover that this Christian organization holds the same position on marriage as, unsurprisingly, many Christian dominations. After an onslaught of personal attacks on the FCA and its student-members coordinated by faculty, the FCA was kicked off San Jose campuses.
The FCA sued. After winning a lower court ruling, the school district lost in 2022 before the Ninth Circuit Court of Appeals. In a sharp rebuke, Judge Kenneth E. Lee – one of two judges on the three-judge panel that decided for the FCA – wrote that the school district “portrays a stench of animus against the students’ religious beliefs.”
Undeterred, the school district doubled down and asked for a hearing before an en banc panel of the Ninth Circuit, in which 11 judges would hear the district’s justification for the removal of this student club. That decision came down this month.
The Ninth Circuit ruled that “anti-discrimination laws and the protections of the Constitution work in tandem to protect minority views in the face of dominant public opinion.” The court also said the District had regrettably used a discriminatory “double standard” against the FCA that failed to treat “FCA like comparable student groups” and instead “penalized it based on religious beliefs.”
The Ninth Circuit’s opinion held that just as high schools’ Senior Women club has all-female members, or the honors clubs sets standards of “good moral character” for their members, so too does it make “equal sense that a religious group be allowed to require that its leaders agree with the group’s most fundamental beliefs.”
The court concluded that the First Amendment counsels “mutual respect and tolerance for religious and non-religious views alike.” We would only add that the use of lawfare to cancel this group or that group is inimical not just to the U.S. Constitution, but to respect for pluralism that is at the heart of the American ideal.
Starting next year, every family in North Carolina will have the option to send their children to the school of their choice.
On Friday, the North Carolina General Assembly approved in the state budget a nearly 300 percent funding increase for its Opportunity Scholarship program, which since 2013 has offered vouchers for lower income students to attend private schools. At the same time, the legislature eliminated all income-based restrictions for the school choice initiative, meaning that every young person in the state who wishes to attend a private educational institution will now be able to do so (though scholarship amounts decline with higher income levels). Meanwhile, state employees – including public school teachers – will receive a seven percent raise.
North Carolina adds to evidence from Illinois – where public school funding is up by almost $2 billion despite a (now-endangered) tax credit for donations to private schools – that educational choice is not a zero-sum game.
North Carolina’s action makes it the tenth state in the nation to offer universal school choice. Governor Roy Cooper announced that he will back off a threat to veto the funding. The program’s future is all but guaranteed.
School choice offers families the chance to create better lives for the next generation. It allows parents to choose a school that fits their child’s particular needs and reflects their own values – options Protect The 1st believes empower parents to exercise their First Amendment rights by extending their standards and values across generations. Moreover, it provides a hopeful alternative for those children relegated to under-performing public schools.
Protect The 1st applauds the North Carolina General Assembly and congratulates Tar Heel State parents, who will no longer have to choose between an empty bank account and limited options in educational choices for their children. Our eyes turn next to Texas, where Gov. Greg Abbott intends to call a special legislative session next month to address this same issue. Will Texas become the 11th state?
Protest can be uncomfortable. It’s often meant to be. From the very outset of our American experiment, protest was a means of shaking up the status quo and communicating hard truths – dating back to the 1688 Germantown Quaker petition against slavery and continuing today through the Black Lives Matter movement.
This tradition is fully protected under the First Amendment, though sometimes local authorities can lose their way under pressure and cave to censorial instincts.
Take the case of Dr. Faraz Harsini and Daraius Dubash, two animal welfare advocates prevented by local authorities from exercising their right to free speech in Houston’s downtown Discovery Green Park. Both immigrants to the United States, Harsini and Dubash are members of Anonymous for the Voiceless, a grassroots advocacy group dedicated to combating animal cruelty. Dr. Harsini, a cancer and infectious disease expert, fled Iran after nearly being killed for protesting against the government. Dubash comes from India, where people enjoy substantially fewer free speech protections than in the United States. But it wasn’t until Dubash came to the United States that he was arrested for peaceful advocacy.
Here’s the backstory: In the summer of 2022, Harsini and Dubash held an educational series in Discovery Park. This park has a long history of protest, without incident hosting pro-choice protests, anti-NRA protests, LGBTQ demonstrations and more.
In the eyes of authorities, however, Harsini and Dubash went too far when they held a “Cube of Truth” – a bodily held television screen playing excerpts from the film Dominion, which documents factory farming practices. Looking at the screen – small enough for a protestor to hang on a harness – could be easily avoided by passersby. The two men were respectful, only speaking to passersby who engaged with them first.
Yet nearly every time Harsini and Dubash visited the park, police asked them to leave at the request of park management (Discovery Green Conservancy), which found the documentary’s content “offensive.” Each time they complied – until Dubash finally explained his First Amendment right to be there to the police. Police arrested Dubash for his troubles and charged him with criminal trespass. The district attorney subsequently dismissed the charges.
Now, the Law & Religion Clinic at the University of Texas and the Foundation for Individual Rights and Expression (FIRE) are bringing suit against the City of Houston, the Discovery Green Conservancy and two individual police officers for First and Fourth Amendment violations.
As the U.S. Supreme Court recognizes, public parks – like public sidewalks – have long been places for “assembly, communicating thoughts between citizens, and discussing public questions.” In their communications with Harsini and Dubash, police argued that Discovery Green is a private park – an assertion that is false on its face.
The City of Houston acquired the land and principally funded the park’s creation. Its “Covenants as to Use” state that “[s]uch property shall be used solely as an urban public park of high quality, reputation and natural beauty.” The fact that the city contracts with the private Discovery Green Conservancy for management does not absolve them from violating the First Amendment.
Authorities’ assertion that the documentary’s content is “offensive” is unlikely to get them off the hook, either.
Protest speech can be offensive, it just can’t be obscene. In 1972, the Supreme Court laid out a tripartite test for determining whether speech falls into that unprotected category. Courts now evaluate: 1) whether “the average person, applying contemporary community standards” would find that the message appeals to “prurient interest,” (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) whether the work, “taken as a whole,” lacks serious literary, artistic, political, or scientific value.
In the case of Harsini and Dubash, the images they depicted are of standard, lawful industrial meat production practices. Those images may be upsetting. That’s the point, and one can hardly argue they lack serious political value in the context of an ongoing national debate about farm animal welfare. As such, Houston authorities cannot justify this content-based censorship.
Houston might do well to follow the lead of the D.C. Circuit Court, which has repeatedly upheld the rights of citizens to speak freely on the U.S. Capitol grounds, rejecting arguments that they are a “special type of enclave” immune from the guarantees of the First Amendment.
In cases like Jeannette Rankin Brigade v. Chief of Capitol Police and Lederman v. United States, that court has repeatedly shot down, on the basis of their very public character, the idea that those grounds constitute a nonpublic forum.
Similarly, a well-designated public park that has traditionally held demonstrations cannot suddenly be deemed private based on an official’s subjective interpretation of what is offensive. Constitutional law will make that determination and will, more than likely, vindicate Harsini and Dubash in the process – and their right to display their Cube of Truth.