In a striking win for advocates of religious freedom (i.e. the vast majority of Americans), Arizona’s Washington Elementary School District agreed to settle a lawsuit brought by Arizona Christian University (ACU) alleging religious discrimination in contravention of the U.S. Constitution and established state law. The settlement walks back the district’s February decision to exclude ACU student teachers from public school classrooms based on the university’s “Statement of Faith” and its traditional, Christian religious beliefs.
For the 11 years preceding the school board’s decision, ACU enjoyed a harmonious and productive relationship with the district, with dozens of its students assisting in the district’s elementary schools as part of the university’s student teaching and practicum requirements. According to the complaint filed by the Alliance Defending Freedom on behalf of ACU, at least 17 of those students went on to be hired as full-time employees. In no instance was there ever any allegation by the district about improper behavior by ACU students, who are required by the Arizona Christian Student Teaching Handbook to “[a]bide by the rules and policies of the assigned school.” That didn’t stop the school board from terminating the longstanding operating agreement between ACU on Feb. 23 after one member brought up concerns about certain language contained in ACU’s mission statement demonstrating the university’s commitment to “biblically informed values that are foundational to Western civilization, including […] the centrality of family [and the] traditional morality and lifelong marriages between one man and one woman.” Following a period of discussion, the board voted unanimously to end the agreement with ACU, causing significant harm to university students in the process of completing their teaching requirements – and doing so solely on the basis of their constitutionally protected religious beliefs. As we noted, many religions and denominations hold beliefs similar to those of ACU. Were a court to uphold the school board’s decision, it would open the floodgates to widespread government discrimination against practicing members of many religions, including Orthodox Jewish and Muslim teachers, as well as those who are Roman Catholic. Instead, this settlement reflects a positive development in the ongoing and seemingly ceaseless fight to defend the free exercise of religion. The school board’s commendable willingness to reverse itself is emblematic of a growing recognition that quality education is commonplace at religious institutions, even if some may disagree with those institutions doctrines and beliefs. So long as good teachers don’t bring their faith into the secular, public classroom, there should be no need to further litigate this issue in a courtroom. “On a Greased Slide to the Supreme Court” St. Isidore, early medieval Bishop of Seville, is venerated as a doctor of the church for writing extracts from ancient literature that preserved classical wisdom. For this reason, Pope John Paul II established St. Isidore as the patron saint of internet users. In the 21st century, because of a dramatic development in Oklahoma on Monday, St. Isidore is now almost certainly destined to also become known as the name of a major, future U.S. Supreme Court opinion.
This is because Oklahoma has become the first state in the union to explicitly approve a religious charter school, the St. Isidore of Seville Catholic Virtual School, to be run by the Archdiocese of Oklahoma and Diocese of Tulsa. Until now, private religious schools have been eligible to participate in some publicly funded programs – Hasidic schools in New York receive some public funds while charging tuition, for example – but St. Isidore will be the first religious charter school fully paid for by taxpayers. No sooner did an Oklahoma state board approve St. Isidore for funding than the Americans United for Separation of Church and State signaled it was preparing a lawsuit. “This case is on a greased slide toward the Supreme Court,” said Gene Schaerr, Protect The 1st general counsel. “It will establish once and for all whether religious schools can be lawfully excluded from charter funding. Recent Court reasoning, from Trinity Lutheran v. Comer to Carson v. Makin, strongly suggests that discrimination against religious charter schools will soon be relegated to the proverbial ash heap of history.” Another university professor is in the news for showing a depiction of the Muslim Prophet Muhammad in a classroom. This is the second such incident involving a portrayal of the Prophet Muhammad to happen this academic year.
In the fall of 2022, Maziar Behrooz, as associate professor of history at San Francisco State University, was teaching a course on Islamic history when he showed his students a drawing of the prophet. Though artistic portrayals of the prophet are considered idolatry by many in the Muslim world, opinions differ. Behrooz, who was born in Iran, said that such drawings can be purchased in street markets in Tehran. A Muslim student objected to the depiction to Behrooz outside of class. Behrooz told the student that as the professor he has the ultimate discretion to decide class content. According to some accounts, the professor showed the image again, which the student took as a taunt, prompting him to issue a complaint. When approached by the chair, Behrooz replied that the student's view is not uniform among all Muslims and that many do own and display depictions of the Prophet Muhammad. The SFSU office of Equity & Compliance informed Behrooz in March that he would face an investigation. Despite appeals from some civil liberties organizations for SFSU to drop the investigation, California law may require the university to investigate the student’s complaint. As SFSU navigates this mine field, it should consider another recent academic drama centered around depictions of the prophet. In fall 2022, Hamline University professor Erika López Prater was fired for showing a depiction of the Prophet Muhammad in her global art history class. The incident was elevated to a national controversy. In January, professor López Prater sued Hamline for religious discrimination and defamation, as well as for damaging her professional and personal reputation. Hamline has since walked back their comments against professor López Prater, and over one-half of full-time Hamline faculty voted to demand President Fayneese Miller resign. In early April, the president announced that she would retire. The president of SFSU, Lynn Mahoney, has approached this case with greater care, issuing a statement that balances academic freedom with protecting students from harassment. As more cases like this occur, nuances could arise regarding the First Amendment – not only professors’ academic freedom, but also the religious liberty rights of students. This is another sign that American universities are in the midst of a major recalibration prompted by an increasingly diverse student body. Such recalibration can never come, however, at the cost of free inquiry, nor can de facto blasphemy laws be enshrined within higher education. Perhaps California law should not mandate such investigations in the first place, but rather give academic leaders flexibility to look into complaints in ways that protect students and academic freedom. Tennessee’s short-lived ban on drag shows finally met its end in federal court on Friday at the hands of a judge who ruled it unconstitutional while explicitly recognizing the right of Tennessee voters to protect children from sexually explicit materials. The question that remains is why legislators so often pass unconstitutional messaging bills that are doomed to die in court.
Tennessee’s Adult Entertainment Act (AEA) banned “adult cabaret performances” on public property or in locations where the performance “could be viewed by a person who is not an adult.” The law not only outlawed male or female impersonators, but also “exotic” dancers. As Protect The 1st pointed out, AEA could conceivably outlaw performances of Shakespeare’s As You Like It, or outdoor showings of Mrs. Doubtfire or Tootsie, or even dancing ladies announcing the circus is coming. The state’s attorney referred to a Tennessee Supreme Court ruling that “harmful to minors” would only include “materials which lack serious literary, artistic, political or scientific value for a reasonable 17-year-old.” In other words, leave it to endless litigation to determine what is literature, art, science, or political discourse, not to mention the rare species of reasonable 17-year-olds. U.S. District Court Judge Thomas L. Parker saw the vacuity of this law. He agreed with the plaintiffs, a Memphis-based theater group threatened with the felony of producing drag shows, that the law’s “harmful to minors standard” is “unconstitutionally vague and substantially overbroad.” In the opening of his brief, Judge Parker gave a ringing description of the First Amendment. He wrote: “Freedom of speech is not just about speech. It is also about the right to debate with fellow citizens on self-government, to discover the truth in the marketplace of ideas, to express one’s identity, and to realize self-fulfillment in a free society.” In the conclusion of his 70-page opinion, Judge Parker wrote: “Let there be no mistake about this Court’s recognition that Tennessee has a compelling government interest in protecting its minor population. Scores of concerned Tennesseans asked the Court to uphold the Adult Entertainment Act because their State supposedly enacted it to protect their children. Tennesseans deserve to know that their State’s defense of the AEA primarily involved a request for the Court to alter the AEA by changing the meaning of ‘minors’ to a ‘reasonable 17-year-old minor.’ In other words, while its citizens believed this powerful law would protect all children, the State’s lawyers told the Court this law will only protect 17-year-olds. This is only one of several ways in which Tennessee asked this Court to rewrite the AEA. “To rewrite this law would not only violate the separation-of-powers principle, but it would also offer perverse incentives for legislators to continue their troubling trend of abdicating their responsibilities in exercising ‘considered legislative judgment.’” The short journey of this law from passage to being overturned is a visible result of a national trend: Namely, voters are sending declining numbers of candidates with law degrees to state legislatures. Perhaps if more legislators were lawyers, they would craft bills that respect the First Amendment and the Constitution. There is nothing easy about Rep. George Santos. His pending legal cases throw into relief two very different takes on the First Amendment – the public’s right to know against legitimate reasons to bestow anonymity.
Congressman George Santos was recently arraigned in a New York court to face a 13-count criminal indictment. Federal prosecutors claim that Rep. Santos stole campaign funds, unlawfully obtained pandemic unemployment payouts, and provided false information to Congress on financial documents. However, the court allowed Rep. Santos to be released on a $500,000 bond cosigned by three anonymous suretors, a decision that has been criticized as highly unusual. Now, The New York Times has filed a motion asking the court to release the unredacted versions of judicial records identifying those who guaranteed Rep. Santos’ bail. The Times argues that “federal common law and First Amendment endow the public with a presumptive right of access to judicial proceedings and records, including to bond proceedings.” The Times’ motion states: “The public interest in openness is particularly strong in this case. The surety records relate to three individuals who have committed large sums of money to ensure that Rep. Santos can remain at liberty, pending further proceedings. This presents an obvious opportunity for political influence, given Rep. Santos's elected position and his dependence on these suretors. That risk is further heightened by the fact that the very crimes Rep. Santos has been charged with involve abusing the political process for personal gain.” The Times makes a valid point. When a congressman is charged with crimes relating to political corruption, shrouding those who bailed him out could obscure telling facts about this case. But Protect The 1st sees a larger interest to protect, one that cuts to the heart of the protection of speech. Since the landmark Supreme Court ruling in 1958, NAACP v. Alabama, the anonymity of donors has been recognized as critical to the protection of speech and the flourishing of the First Amendment. For that reason, we joined with groups ranging from NAACP to ACLU to advise courts to strike down a California law that would have forced non-profits to disclose their donors. The dangers to NAACP donors in 1950s Alabama exist today in a new, modern form – the threat of doxing, the invasions of one’s home and workplace, and punishment ranging from cancelation to violence. If there is some sinister nexus at play, which The New York Times seems to suspect, those facts will likely come out in court. In the meantime, the public’s larger interests may be better served by sticking with the rules as they are. You’ve heard of helicopter parents, but have you heard of the GPS parent?
A Louisiana mother is accused of concealing electronic devices on her elementary school-aged child. The devices not only included a GPS tracker, but also allowed the mother to intercept conversations. The school board obtained a temporary restraining order prohibiting her use of these devices on school property. (Hat tip to Eugene Volokh.) The mother then took to hosting a live web log and making ongoing social media posts rich in complaints about school officials. These officials claimed that she “defamed and slandered the reputations” of the school board and staff. The board promptly obtained a preliminary injunction from a Louisiana court restraining the mother from “making or publishing and/or from engaging in any activity to make, disseminate, publish or broadcast defamatory, slanderous, libelous, frivolous and/or fraudulent claims” about the school board and school employees. This case could serve as a primer for 1L law students about how the First Amendment operates. The injunction presupposes that ongoing and future speech can be judged already to be “defamatory, libelous, and frivolous” without a judicial finding. And since when did “frivolous” speech become actionable? (Jimmy Kimmel, The View, call your lawyers.) The Louisiana Court of Appeals lifted the injunction and gave this remedial lesson on the reason why we do not allow prior restraint of speech in America: “The School Board is correct that the protection of the First Amendment does not extend to defamatory and libelous speech. However, for First Amendment protection to be in jeopardy, there must first be a determination that the words are defamatory. Until words lose First Amendment protection, they are guarded against prior restraint … “We also note that the preliminary injunction issued in favor of the School Board prohibits more than the utterance of allegedly defamatory statements. It prohibits speech that is merely disparaging or ‘frivolous’ – speech that is not within the categories excluded from the First Amendment.” Until a court finds speech to be slander or libel, it is protected by the First Amendment. To hold otherwise would be to allow plaintiffs’ lawyers and courts to preemptively declare someone’s future utterances as defamation and start gagging Americans right and left. The Founders shrewdly left us the liberty to speak – and they also left us to deal with the consequences of our speech. When private and religious schools meet their state’s stringent educational standards, they frequently offer an educational experience superior in quality to public schools and provide a way for parents to express their First Amendment right to the free exercise of religion, extending their faith’s tradition, while knowing their children will be educated in math, science, English, and history. This is why Protect The 1st sees school choice as empowering parents and strengthening both education and a First Amendment society.
States are warming up to this view, though two states are wavering because of strong opposition from politicians in both parties. North Carolina has recently become embroiled in a bitter political fight over school choice between that state’s governor and the general assembly. The governor has declared his opposition to school choice legislation recently passed by the legislature. If the measure is sent to the governor’s desk as a standalone bill, it appears the legislature has the upper hand with a veto-proof majority. In Texas, there are fewer political fireworks, but a handful of rural Republican legislators have nevertheless so far managed to keep school choice from happening in the Lone Star State. Economist Stephen Moore recently noted that the districts these recalcitrant Republican legislators represent have abysmal levels of student performance at or above grade level. Moreover, the Texas school choice bill would direct more dollars per student for rural districts. On the plus side, when Gov. Kevin Stitt signs school choice into law, Oklahoma will have a refundable tax credit for families to put toward private school tuition. This new law, the Oklahoma Parental Choice Act, will also have a common feature of recent school choice bills – it boosts spending for public schools and teacher pay. “We’re excited for what it does for every student, every teacher and school and parent in the state, regardless of what their personal choice is in terms of educating that child,” House Speaker Charles McCall told local media. This year has seen enactments of major expansions of school choice in Indiana (available to 97 percent of K-12 students), Montana, and South Carolina. Four states – Arkansas, Florida, Iowa, and Utah – enacted school choice programs open to all K-12 students, following the trailblazing path of Arizona and West Virginia. These states include language ensuring that private schools must meet state minimum education standards to be eligible to receive funding. Such a move ensures that states can chart their own course with respect to curricular standards that private schools must meet to receive state support, while also providing students and families the resources they need to obtain a quality education. The ability to educate one’s children in the best schools available and according to one’s values or religion should be afforded to every American family. Since funding will now be opened up to a broader array of private schools, many more parents won’t have to choose between sacrificing educational quality for their children or sacrificing their family savings. Perhaps Oklahoma’s addition to the national school choice juggernaut will prompt North Carolina and Texas to overcome political opposition to join a movement that is sweeping the nation. In an amicus brief before the U.S. Supreme Court earlier this year, Protect The 1st told the Court that curtailing Section 230 of the Communications Decency Act of 1996 “would cripple the free speech and association that the internet currently fosters.” Consistent with that recommendation, the Court today declined various invitations to curtail that law’s important protections for free speech.
Joining with former Sen. Rick Santorum, we demonstrated in our amicus brief that Section 230 – which offers liability protection to computer-services providers that host third-party speech – is essential to enabling focused discussions and keeping the internet from devolving into a meaningless word soup. “If platforms faced liability for merely organizing and displaying user content in a user-friendly manner, they would likely remove or block controversial – but First Amendment protected – speech from their algorithmic recommendations,” PT1st declared. We stated that a vibrant, open discussion must include a degree of protection for sponsors of internet conversations. With Congress always able to amend Section 230 if new challenges necessitate a change in policy, there is no need for the Supreme Court to rewrite that law. The Supreme Court had shown recent interest in reexamining Section 230. That could still happen, but the two cases that were before the Court turned out to be weak vessels for that review. On Thursday, the Court declined to consider reinterpreting this law in Gonzalez v. Google and Twitter v. Taamneh, finding that the underlying complaints were weak. The Court neither expressly affirmed nor rejected our approach, leaving these issues open for another day and another case. Protect The 1st will remain vigilant against future challenges to Section 230 that could undermine the freedom of speech online. Happy World Press Freedom Day! If you are a journalist heading out to do an interview, please be careful in your movements, your digital security, and the protection of your sources. In some countries, you might want to check under your car before starting the ignition.
But be advised that even these safety measures may not be enough to protect you. Like many declarations of the United Nations, the 30th anniversary of World Press Freedom Day is observed in the breach in many UN member countries. The UN Secretary General Antonio Guterres said that the number of journalists killed in 2022 was 50 percent higher than the previous year. UNESCO reports that in all, 86 journalists were killed last year. That’s a reporter killed every four days. In Mexico, where many journalists have been murdered, the government and the cartels are the most prolific users of Pegasus, surveillance software that can transform any smartphone into a comprehensive 24/7 surveillance device. This spyware reveals one’s texts, emails, images, and calendar, while turning a smartphone’s microphone and camera against its owner. The New York Times reports that Mexico’s federal spy agency has “targeted more cellphones with the spyware than any other government agency in the world.” And, of course, criminal actors have full use of this technology in much of the world. Cartels used Pegasus to track down journalist Cecilio Pineda Birto hours after he accused the state police force and local politicians of conspiring with violent criminals. He was gunned down while waiting for his car to come out of a carwash. Twenty-six Mexican journalists were targets of interest by a buyer of this technology in recent years. This is in keeping with Secretary Guterres’ statement that “90 percent of the journalists killed” are “covering local issues, human rights violation, corruption, illegal mining, environment problems.” He added that many of the killers “are not only state actors, they are organized crime, drug lords, environmental criminals.” In some parts of the world, the line between state actors and thuggery is nonexistent. Witness the ordeal of Evan Gershkovich of The Wall Street Journal, arrested on specious charges of being an American spy by the judicial puppets of the Vladimir Putin regime. Or Jimmy Lai, the Hong Kong publisher who bravely defied the Chinese Communist Party and has disappeared behind bars. In other parts of the world, journalists are intimidated by online attacks and loose libel laws that keep journalists legally and psychologically intimidated. Throughout, the marriage of increasingly potent surveillance technology and illiberal regimes is making the practice of journalism more difficult. This is true even in the United States. A Texas journalist was arrested for – get this – “misuse of official information.” A Wall Street Journal reporter in Arizona was arrested for doing man-on-the-street interviews. The press can often come at the truth with a slant or a sensational angle. The press can just get a story wrong. But the free and open practice of journalism is in the long run the only way for a free society to self-correct and sift out the truth. As the founders insisted, freedom of the press safeguards society against official corruption, malfeasance, and the lawless exercise of power. While 49 U.S. states have press shield laws, there is no federal law that protects the notes and sources of a journalist from being seized by a federal prosecutor. All the more reason to celebrate World Press Freedom in America by asking Congress to get behind the PRESS Act, which would extend these basic protections to the federal government. Prosecutors in Asheville, North Carolina, are insisting on pressing forward with the prosecution of two journalists for daring to document a police sweep of a homeless encampment.
Matilda Bliss and Veronica Coit were arrested and charged for trespassing on Christmas night, 2021. Their crime? They stood on a rise above the scene in a city park after the park’s 10 p.m. closing time. By the admission of all, the journalists could not have seen the eviction, must less filmed it, from a public sidewalk or lower down in the park. They were where they needed to be to document this story. On April 19, Bliss and Coit were finally convicted of trespassing in a bench trial. They are now exercising their rights to appeal their case before a jury. The U.S. Press Freedom Tracker, which maintains data on press freedom violations, reveals that this is only the fourth such trial in the United States in the last five years. The Tracker has no record of a journalist being sentenced to jail or probation for trespassing since it began documenting the arrests of journalists in 2017. Concerned about the chilling effect such prosecutions have on a free press, Protect The 1st joined with a coalition of civil liberties organizations, in a letter organized by the Freedom of the Press Foundation, to protest these prosecutions to the Asheville city attorney, the police chief, and the Buncombe County district attorney. The letter states that “a government interested in transparency should not want to set a precedent that journalists cannot cover newsworthy events, in plain sight and on public land, at night. “The news does not keep regular business hours and citizens are entitled to know what police are doing at any hour.” The actions of local officials and statements by police, caught on body-cam footage, show no love lost for The Asheville Blade. It is easy to see why. The Blade advertises itself as “a leftist local news co-op focusing on hard-hitting journalism, in-depth investigation and sharp views from our city.” The Blade’s critical eye may make it the bête noir of city and law enforcement officials. But having a point of view doesn’t make this news outlet any less of a journalistic enterprise than the National Review or The Nation. “The continued prosecution of the two Asheville Blade reporters sends a message that authorities can cherry-pick who qualifies as a journalist based on personal preference,” the letter concludes. Protect The 1st will follow the case and report on the outcome of the appeal. REAL CLEAR EDUCATION: Why the School Choice Revolution Should Give Americans Reason for Optimism5/3/2023
Rick Boucher and Bob Goodlatte, former Members of Congress and now Senior Policy Advisors to Protect The 1st, detail the school choice revolution sweeping the country. States are adopting universal school choice – protecting the 1st Amendment right of parents to choose the most appropriate school for their children.
Democracy is often loud. It is often impassioned against prevailing opinion, be it that of a legislative majority, an ideologically conformist college campus, or an overwhelmingly red or blue community. And yes, it is often rude.
While both legislatures and campuses have a right to enforce a degree of civility, they are both spaces where the maximum latitude to criticize is essential to a functioning democracy. Why is this so hard for many on the right, as well as the left, to understand? Protect The 1st has had a lot to say of late about the instances of speakers – mostly conservatives – being silenced on university campuses, mostly by progressive students and faculty. But conservative Republican legislators, in states where they have commanding majorities, are willing to demonstrate that they too can be ready to cancel people with contrary views. So it was with the expulsion of Rep. Zooey Zephyr, the transgender Democrat elected to the Montana Legislature in a district that includes the college town of Missoula. The Montana House debated a measure to ban “gender-affirming care” for minors. The bill later passed by a wide margin and was signed into law by that state’s governor. Proponents of this legislation argued that in a society that doesn’t allow minors to smoke, buy a lottery ticket, or gamble, it makes sense to restrict changes they can make to their bodies. Rep. Zephyr responded that such restrictions would worsen the high rate of suicide among transgender teens. It is on that basis, she said, that those who vote for the bill would have “blood on your hands.” Such invective is in keeping with the 1964 New York Times v. Sullivan opinion in which the U.S. Supreme Court found that “debate on public issues should be uninhibited, robust, and wide-open.” But the Montana Legislature saw it differently. By 68-32 last week, it held that Rep. Zephyr had violated House rules and banned her from the House chamber for the remainder of this legislative year. She will now have to cast her votes remotely. This legislator will be absent from the discussions, deliberations, and horse-trading that occurs as Montana prepares to pass a housing bill and the state budget. “There will be 11,000 Montanans whose representative is missing,” Rep. Zephyr said, calling her expulsion a “nail in the coffin of democracy.” The U.S Supreme Court took a similar view in Bond v. Floyd in 1966, in which the Court, ruling on First Amendment grounds, reinstated civil rights activist Julian Bond to the Georgia House of Representatives after the House clerk refused to seat him. What was the reason Bond was not seated in accordance with the will of his constituents? He had voiced his opposition to the Vietnam War and the draft. “The manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy,” the Court declared in 1966. The majority opinion cited the observation of James Madison that the British Parliament had assumed the power to regulate the qualifications of both the electors and the elected. As a result, the Parliament freely adjusted its qualifications to make sure any debate was always rigged for the majority. Legislative leaders today should avoid rigging the rules against views that defy the majority. They should get used to hearing issues framed in a way they find offensive. They might also want to recognize how self-defeating these heavy-handed tactics can be. Expulsion valorizes the expelled. It gets them interviews on national media. It raises money from donors across the country. And the expelled always come back. Julian Bond returned to the Georgia Legislature, where he went on to serve in the House and Senate for twenty years. The two Tennessee state legislators expelled by that state’s House were reinstated with much fanfare. Zoe Zephyr, an obscure politician from a college town, is now a national celebrity. We will thus predict the re-election of Rep. Zephyr. Agree or disagree with her on transgender issues, pushback from the courts and voters is a sign of health. As Rep. Zephyr says, “You cannot kill democracy that easily.” An op-ed penned by two Harvard professors announces the creation of an academic freedom council to actively protect free speech on that campus. In an op-ed in The Boston Globe, this document declares its purpose as boldly as if it had been nailed to a church door.
Celebrity author and psychologist Steven Pinker and Bertha Madras of Harvard begin their piece by detailing the sorry state of affairs in academia – viral videos of professors being mobbed, cursed, heckled into silence, and sometimes assaulted. They quote the Foundation for Individual Rights and Expression that of the 877 attempts to punish scholars across the United States for expression protected by the First Amendment, there were 114 incidents of censorship and 156 firings. “More,” they note, “than during the McCarthy era.” After detailing the value of open inquiry – apparently, remedial education for some in higher education – Pinker and Madras describe the corruption of ideas caused by censorship. Even when the academic consensus is almost undoubtedly correct, many will still distrust the truth because it “comes out of a clique that brooks no dissent.” Pinker and Madras also describe the incentives that allow those intent on intimidation to take over a campus that once housed the first printing press in British North America. “A cadre of activists may find meaning and purpose in their cause and be willing to stop at nothing to prosecute it, while a larger number may disagree but feel they have other things to do with their time than push back,” they write. “The activists command an expanding arsenal of asymmetric warfare, including the ability to disrupt events, the power to muster physical or electronic mobs on social media, and a willingness to smear their targets with crippling accusations of racism, sexism, or transphobia in a society that rightly abhors them.” And don’t expect an “exploding bureaucracy for policing harassment and discrimination” to be helpful when their professional interests “are not necessarily aligned with the production and transmission of knowledge.” Things are made even worse, they write, when “right-wing muscle” attempts to offset “left-wing muscle” by passing laws to stipulate the content of higher education. To correct this imbalance, Pinker and Madras announced the creation of a Council on Academic Freedom at Harvard. “When an individual is threatened or slandered for a scholarly opinion, which can be emotionally devastating, we will lend our personal and professional support,” they write. “When activists are shouting into an administrator’s ear, we will speak calmly but vigorously into the other one, which will require them to take the reasoned rather than the easy way out.” As of this writing, over one hundred Harvard faculty and staff have signed on to the council. With such leadership at one of the premier universities of the nation, we would not be surprised to see councils on academic freedom pop up on campuses around the country. Last month, North Dakota and West Virginia passed state equivalents of the federal Religious Freedom Restoration Act (RFRA). With these two additions, one-half of U.S. states now have such laws that fulfill the First Amendment’s guarantee of the free exercise of religion.
The original RFRA was enacted by Congress in 1993 in response to the Supreme Court’s decision in Employment Division v. Smith, a case that jettisoned the strong “compelling interest” standard in free exercise of religion cases in favor of a test that allowed the government to burden religion as long as the burden was imposed in a way that was neutral and generally applicable. Since its enactment, RFRA has faced numerous legal challenges and undergone significant interpretations by the courts – some of which expanded its reach, and others which narrowed it, such as the Ninth Circuit’s decision in Navajo Nation v. U.S. Forest Service. In recent years, states have passed their own versions of RFRA to clarify 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, twenty-five states now have their own form of RFRA. State courts have adopted this standard in nine additional states. Supporters of RFRA laws argue that they are essential to protecting religious liberty, a fundamental human right. They contend that government policies and regulations should not be allowed to unduly burden the exercise of religious beliefs and practices, and that RFRA laws provide a necessary check on government overreach. Opponents of RFRA laws see it as justifying discrimination. Some states are aggressively acting against the free expression of religion. Who knows? Perhaps disobedience to the law of the land may well one day soon prompt the U.S. Supreme Court to clarify matters by holding that the “compelling interest” standard that protects the observance of other constitutional rights also protects the free exercise of religion. Until then, state RFRAs and the federal RFRA will have to fill the void left by Smith’s misinterpretation of the Free Exercise Clause. Protect The 1st Policy Director Erik Jaffe on a panel on censorship Tuesday makes a provocative case that almost all government speech constitutes interference with the marketplace of ideas (1:06 mark).
Colorado adopted a first-of-its-kind law that would restrict the ability of physicians to discuss a treatment for women who are having second thoughts about a chemically induced abortion. The new law restricts progesterone treatment, a popular method to reverse a chemical abortion, and forbids physicians from even informing them that such a treatment exists.
This law is the mirror image of legislative proposals in red states that would allow individuals to take civil legal action with high punitive awards against anyone who helps or informs women about obtaining abortions in other states. Whether the intent is pro-abortion or anti-abortion, or the state red or blue, the deployment of penalties, fines, and lawsuits to try to shut up physicians and friends violates the First Amendment. For this good reason, Protect The 1st opposes any such laws that violate the First Amendment by micromanaging physicians’ speech. Objections to the regulation of speech is the prime reason why Colorado Catholic clinic Bella Health and Wellness is going to court to overturn the Colorado law. Bella Health is suing the state because it feels "religiously compelled” to offer this treatment. Here's the backstory: chemical abortions occur when pregnant women take two pills — mifepristone and misoprostol — back-to-back over the course of up to 48 hours. The first, mifepristone, blocks the body’s production of progesterone, a naturally-occurring hormone that is essential to the maintenance of a healthy pregnancy. The second, misoprostol, causes cramping and bleeding to empty a woman’s uterus, which is described as “very similar to an early miscarriage.” While the use of mifepristone and misoprostol is one of the most common means used to terminate a pregnancy, some women reconsider their choice after taking the first pill. To counteract its effects, many healthcare providers offer progesterone treatment, which can sometimes work by providing enough progesterone to maintain the pregnancy. According to Becket, the law firm that represents Bella Health, the Colorado law targets pro-life clinics like Bella by making it illegal to offer women progesterone. Bella can offer the hormone to women in any other circumstance but not if the purpose is to reverse the effects of an abortion pill. If Bella continues to offer and advertise progesterone for women who seek to reverse an abortion, the healthcare provider faces up to $20,000 per violation and the loss of the medical licenses of its providers. The case of Bella Health will appear before Judge Daniel D. Domenico, who has placed a temporary restraining order on enforcement of the law. Any law that seeks to gag healthcare providers and punish them for observing their deeply held convictions – whether pro- or anti-abortion – violates the First Amendment. Not only do doctors lose their freedoms when government dictates what they can or cannot say, such laws also deprive patients of their right to choose the best treatment plan for themselves. The victory of Dominion Voting Systems in securing a $787.5 million settlement against Fox News over its false claims about the election demonstrates that even high-profile plaintiffs can prevail under today’s libel law, despite the higher bar a “public figure” must clear to win.
There has been some concern over whether the distinction between public and private figures has been so blurred by the courts that the prevailing NYT v. Sullivan standard may reach too far beyond its original application, making it too difficult for severely libeled private parties to obtain redress. But Dominion certainly qualified as the corporate equivalent of a “public figure.” And yet it managed, in the court of public opinion at least, to clear that high bar showing “actual malice” on the part of the defendant, Fox News. Tuesday’s settlement – even though it was not a verdict – shows that it is still possible to win under Sullivan. What about the impact of this settlement on a free press? Will this lawsuit have a chilling effect? Probably not. The statement put out by Fox acknowledged the facts of the case, and those facts were egregious. Overall, the outcome appears to be the functioning of a legal principle that worked as intended. We’ve joined with more than a dozen civil liberties organizations in an open letter warning Congress about the dangers of the Restrict Act, which would give the Secretary of Commerce sweeping powers over virtually all information technology. Some versions of the bill would criminalize speech about “national elections.”
“The scope of the act is enormous,” the coalition letter reads, “and may allow the administrative state to issue regulations affecting telecommunications, cryptocurrencies, press freedoms, and the use of and access to the Internet itself.” The bill would create criminal penalties that carry up to 20 years in prison and up to $1 million in fines, as well as civil asset forfeitures. If enacted, the Restrict Act would necessitate and likely authorize even more domestic spying on Americans than currently occurs, while making every American a potential suspect for communicating the “wrong” idea on the “wrong” platform or equipment. The Restrict Act would turn the Commerce Secretary into the nation’s telecommunications and speech czar. It is loaded with flagrant violations of the First Amendment. Rep. Aaron Bean (R-FL), chairman of the House Committee on Education and the Workforce, presided over a hearing Tuesday in which witnesses appealed to the heart as well as the head in making a persuasive case for school choice and the Educational Choice Act for Children. This latter is a bill, now before the House, that would amend the IRS code to allow tax credits for donations to create a national, $10 billion fund for private school scholarships for elementary and secondary school students. Supporters and opponents all agreed that the bill would provide a workaround on school choice for states in which the expansion of private options for children are stymied by local political forces. Witnesses testified there is solid evidence school choice has positive effects on civic engagement, crime reduction, and student safety. Not only do students in school choice do better academically, but many studies show the competition provided by school choice has a beneficial effect on public school performance. Protect The 1st supports school choice not just because of the demonstrated superiority of many private schools, but also because school choice enables parents to enjoy the First Amendment’s guarantee of the free exercise of religion. It does this by allowing them to send their children to a school that reflects their heritage and foundational beliefs. In Tuesday’s hearing, it was noted that if all U.S. Catholic schools were a state, their 1.6 million students would rank first in the nation across the NAEP reading and math scores for fourth and eighth graders. But in this hearing, policy points were overwhelmed by personal stories and moral appeals. “When a district school is failing or unsafe, school choice provides an exit option previously foreclosed to most families,” said Lindsey Burke of the Heritage Foundation. “But school choice is far more than an escape hatch; it is the mechanism that will create a rising tide that will lift all boats.”
Burke followed up on a comment made earlier by Rep. Warren Davidson (R-OH) that money should follow students rather than schools. “Pell Grant recipients aren’t assigned to particular colleges,” she said. “Food stamp recipients aren’t assigned to the grocery store closest to their home. Yet in K-12 education, students are assigned to the district public school closest to where their parents can afford to buy a home, even if that school is a poor fit for that child.” Asking why the future of children should be limited to their ZIP code, Rep. Burgess Owen (R-UT) said that school choice is “a civil rights issue.” He noted that 75 percent of African-American boys in California in 2017 could not pass standardized reading and writing tests. He said they are being denied the right to “read, write, think or dream.” Rep. Owens added that “no one in this room would send their child to such [an underperforming] school,” but there is a lack empathy for families that currently have no other choice. And those that are trapped are, he said, predominately “Black, Hispanic, those who cannot defend themselves.” Many persuasive witnesses spoke. But the show stealer was Denisha Allen of the American Federation for Children. Growing up in a distressed neighborhood in Jacksonville, Florida, Allen said: “I failed third grade – twice – because I couldn’t read. I felt so insecure. I just knew I was stupid. I was regularly humiliated by my peers because I was two years older than my classmates. Teachers sighed when I walked through the door. Unsurprisingly, I hated school.” “To me, school was not the window to opportunity but an obligation,” she said. “I thought school was a place I had to go so my biological mother would not go to jail – because that had happened before ... It seemed that my life path would follow in the same path as many of my family members, with dropping out or worse.” In the summer of her sixth-grade year, Allen moved in with her godmother, who applied for a Florida tax-credit scholarship to enroll in a small private church school. “I didn’t know my life was about to change. Every day at my new school, my teachers greeted me with a smile. I felt loved and seen,” she said. “Because I didn’t read on grade level, teachers would meet with me one-on-one to help me. They saw potential in me that I never had. My confidence grew. They didn’t view me as a chore but as a child of God – as a student capable of learning. “I went from making Ds and Fs, believing I would become a teen mom and a high-school dropout, to making As and Bs, becoming the first in my family to graduate from high school, then undergraduate college, and grad school – earning a master’s degree and going on to work full-time in this field to ensure that as many other students as possible get this incredible opportunity. “I wasn’t a failure. The public school system had failed me. Imagine all the students today who are like I once was – the ones who are trapped in poor-performing schools, who don’t read on grade level, are destined to drop out of school, become a teen parent, or spend the rest of their life behind bars. “Imagine telling those beautiful faces that there was a feasible alternative, that their liberation can come in the form of education freedom – but only if their state leaders prioritized students' needs above the systems that had failed them. “Yet in many states, the opportunity for America’s students, including its 7.7 million Black public school students, to access these potentially life-changing learning options remains out of reach,” Allen said. “The sad reality is students in many states will never access this type of life-changing opportunity unless Congress acts. There are many proposals to provide more options to parents – like the Education Choice for Children Act – it would allow parents to have education freedom now more than ever.” Watch the whole hearing here, with Denisha Allen at the 40-minute mark. In Tuesday’s oral argument in Groff v. DeJoy, Justices of the U.S. Supreme Court struggled to define a proper test for workplace rules that balance respect for employees’ religious liberty with their employers’ need for efficiency.
This case revolves around former postal worker Gerald Groff, an evangelical Christian in Pennsylvania who alleged that his civil rights were violated when the Postal Service denied his right to refrain from working on Sunday. A central question emerged: when an employee wants to take time off due to religious beliefs, is the prevailing standard of hardship that must experienced by employers too expansive – too generous – to the employer? Another question: How can a court measure the degree of hardship an employer must suffer from an employee’s regular absence on a day of religious observance before it becomes actionable? Justice Neil Gorsuch said there is “common ground” that a hardship standard that is de minimis (or trivial) “can’t be the test, in isolation at least, because Congress doesn’t pass civil rights legislation to have de minimis effect, right? We don’t think of the civil rights laws as trifling, which is the definition of de minimis.” Justice Samuel Alito criticized the precedent created by the Supreme Court’s 1977 decision in Trans World Airlines, Inc., v. Hardison, which held that employers can fire workers who refuse to work on a seventh day sabbath, as “an exercise in constitutional avoidance.” Solicitor General Elizabeth Prelogar said that under Hardison, the lower courts have interpreted that decision in a way that properly respects the rights of minority religions. Justice Alito responded sharply: “[W]e have amicus briefs here by many representatives of many minority religions, Muslims, Hindus, Orthodox Jews, Seventh Day Adventists, and they all say that is just not true, and that Hardison has violated their right to religious liberty.” The quest for “common ground” was repeated by several Justices, a ray of hope that the Court may craft a new doctrine with more latitude for the religious. Based on Tuesday’s oral arguments, it would be foolhardy to predict how the Justices will come down on this one. Protect The 1st can only direct attention to Justice Thurgood Marshall’s dissent in Hardison: “The ultimate tragedy is that despite Congress’ best efforts, one of this Nation’s pillars of strength – our hospitality to religious diversity – has been seriously eroded. All Americans will be a little poorer until today’s decision is erased.” In a system in which the government provides for public libraries, the selection and weeding of available books will never be free of politics. In the scenic Texas Hill country, the commissioners of Llano County replaced its library board in 2021 and asked the newbies to do a content review of all books in its three branches.
Twelve books, all for children and young adults, were selected for removal. They include Caste: The Origins of Our Discontent by Isabell Wilkerson, They Called Themselves the K.K.K.: The Birth of an American Terrorist Group, by Susan Campbell Bartoletti, Being Jazz: My Life as a (Transgender) Teen by Jazz Jennings, and Gary the Goose Has Gas on the Loose. When these books were removed, seven residents sued claiming that their rights under the First and Fourteenth Amendment were violated. On March 30, federal Judge Robert Pitman in a preliminary injunction ordered the Llano County Library System to return the books and not remove any more. He indicated that the removals and close content regulation would not likely pass constitutional muster. The commission responded by debating the closure of Llano County’s entire library system. Reasonable objections to ideological extremes can sometimes veer into political frenzy. Llano County, a popular place in deer hunting season, has yet to make it on the map as a hotbed of 1619 activism and Frankfurt School cultural Marxism. As a native Texan named Laura Bush said, “I have found that the most valuable thing in my wallet is my library card.” To be fair, some books are too obscene or deranged to belong in a public library. It would be a shame, however, to pulverize a center of learning out of pique at a judge and a moral panic over a flatulent goose. In Santa Fe, Democratic Gov. Michelle Lujan Grisham and her fellow Democrats in the New Mexico Legislature took a commendable step to improve a law they championed to make sure it now observes the religious freedom of physicians.
That law is the Elizabeth Whitefield End-of-Life Options Act, which went into effect in 2021. The law required doctors who objected to administering fatal drugs to a patient to refer them to a physician who would. The Christian Medical & Dental Associations filed suit earlier this year, objecting that this law would force dissenting physicians and private physician organizations to be complicit in a practice they find offensive to their beliefs. Here's where Santa Fe has a lot to teach people on both sides of the aisle in Washington, D.C. Instead of seeking a maximalist victory, sponsors of the original bill and the governor agreed that there were problems with the law. They proactively supported a measure to revise the law to observe the First Amendment rights of physicians and their private organizations. Lawsuit dropped. The rights of all respected. Protect The 1st affirms that communities have a right to protect children from public performances that are sexually explicit. But such laws need to be focused on extreme content and obscene behavior, or else they run the risk of outlawing legal and even innocuous content.
A new law in Tennessee would have outlawed explicit performances, limiting “adult cabaret performances” on public property to shield them from the view of children. This would have included strippers, exotic dancers, and male or female impersonators. Such a law could, conceivably, outlaw a public performance of the original Cabaret musical, with its depictions of the goings-on in the KitKat Klub in Berlin, or Rosalind becoming a boy called Ganymede in Shakespeare’s As You Like It. Could the law outlaw an outdoor movie showing of Jack Lemmon and Tony Curtis in Some Like It Hot, or Tootsie, or Mrs. Doubtfire? Jonathan Winters playing Maud Fricket? How about anything British and funny, from Benny Hill to Monty Python? And what about dancing ladies who come to town to advertise that the circus is coming? U.S. District Court Judge Thomas L. Parker clearly sees the problem of over-broadness in this law. He recently issued an order delaying the enforcement of the order for two weeks while he considers if the ban is unconstitutional. Judge Parker wrote that “given the Defendants’ lack of a clear answer to the Statute’s purpose considering current state obscenity laws, along with the Parties’ present filings on the Statute’s legislative history, the Court finds that Plaintiff has made a likely case for subjecting the Statute to strict scrutiny here.” We’ll keep an eye out for Judge Parker’s decision. Last year, Sens. Ron Wyden and Martin Heinrich revealed that the Department of Homeland Security had tracked millions of wire money transfers by Americans. Now, thanks to a Freedom of Information Act request from WIRED, we’ve learned of a legal tool used by another part of DHS, Immigration and Customs Enforcement (ICE), to extract data from elementary schools, news organizations, and abortion clinics.
Called 1509 customs summonses, these requests are authorized by law to be used in criminal investigations about illegal imports or unpaid customs duties. WIRED examined ICE’s subpoena tracking database and found agents issued more than 170,00 customs summonses from the beginning of 2016 through August 2022. Congress granted this power to ICE to allow it to efficiently follow up on customs issues without having to wait for a warrant from a judge. Among the targets of ICE customs summonses are a youth soccer league, surveillance video from a major abortion provider in Illinois, student records from an elementary school in Georgia, health records from a state university’s student health service, data from three boards of elections or election departments, and data from a Lutheran organization that aids refugees. WIRED reports: “In at least two instances, agents at ICE used the custom summons to pressure news organizations to reveal information about their sources.” In 2017, ICE had also illegally used a custom summons to try to force Twitter to reveal the owner of an anonymous account. ICE spokesmen told WIRED that there were reasonable explanations for these requests, including investigations into the spread of child sex abuse material. But many civil liberties observers are skeptical of any claim made by federal agencies. ACLU’s Nathan Freed Wessler said that without access to the underlying subpoenas, there is no way to tell if ICE had abused its authority. This is a clear case where Congressional oversight is mandatory. The House and Senate Judiciary Committees must investigate the rationales for these customs summonses – especially those that were aimed at news organizations. And they should take the next step by passing the PRESS Act to protect journalists from being compelled by federal prosecutors to reveal their sources. California’s “Special Kind of Chutzpah” A new lawsuit in California challenges a state policy that bars religious parents and schools from using special education funding to serve children with disabilities. Jewish parents and schools filed Loffman v. California Department of Education, claiming the California policy violates their 1st and 14th Amendment rights by prohibiting federal and state special education funding for disabled children at religious private schools while allowing it for secular private schools.
This funding originates with the Individuals with Disabilities Education Act, a federal law ensuring that all children with disabilities in America can receive a free appropriate public education that meets their needs. However, the California legislature allows only secular private schools to participate in this benefits program and has categorically excluded religious schools from participation. Eric Rassbach, Vice President and Senior Counsel at the Becket Fund, which represents the plaintiffs, said: “It takes a special kind of chutzpah to deny Jewish kids with disabilities equal access to special education benefits.” In a Twitter thread, Rassbach pointed out that a majority of Californians would like to see funding for students with disabilities opened up to non-secular schools. The suit cites Espinoza v. Montana Department of Revenue, a landmark case that struck down a similar restriction. In that case, the U.S. Supreme Court held that restrictions in government programs for no other reason than the fact that they are religious are “odious to our Constitution and cannot stand.” In Carson v. Makin, the Court struck down a Maine law that, like the California law, would allow private secular schools and families to access public funding but exclude religious schools and families. Carson builds on a long line of cases holding that religious people cannot be excluded from government benefits programs solely on the basis of their religion. PT1st supported the plaintiffs in Carson v. Makin, in which the Court ruled 6-3 to uphold the rights of religious families. We wrote: “With a solid win for religious liberty in Carson v. Makin, we can expect future cases will explore the freedom of publicly funded religious charter schools to include religious instruction.” Should Loffman make it before the U.S. Supreme Court, it seems likely that the Court will strike down the California restriction. We supports the plaintiffs and the Becket fund 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. The California legislature, by restricting resources, forces parents with a disabled child to violate their religious conscience, leaving them with inadequate options for their child’s education. We look forward to further developments in this case. |
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