​Sometimes an opposing party makes your argument for you.

In Suncor Energy v. Boulder County, the City and County of Boulder are seeking damages from Suncor and ExxonMobil for the alleged local effects of global climate change. At the certiorari stage, Boulder presented the lawsuit principally as a conventional application of state tort law, invoking nuisance, unjust enrichment, trespass, and civil conspiracy.

Protect The 1st’s amicus brief urged the U.S. Supreme Court to look past those labels. We explained that Boulder’s theory of liability turns substantially on speech – specifically, claims that the companies misled the public about fossil fuels, emissions, and climate change – despite the complexities of this issue.

Boulder has now filed its merits brief. Right at the outset, it confirms what we said all along.

The brief characterizes the lawsuit as one seeking damages “for deceptive marketing and sales (rather than emissions).” It later alleges that the companies, “through their advertising,” misled the public about climate change and the role of fossil fuels. Its table of contents even devotes a section to arguing that “the deception claims are not preempted.”

To be precise, Boulder’s statutory consumer-protection claims were dismissed without prejudice and are not before the Supreme Court. But its surviving tort theories still rely heavily on the same allegation: The companies caused harm by communicating a deceptive message. That is inescapably about speech.

A similar lawsuit brought by Honolulu, which failed before the Court, shows how far such theories can reach. Plaintiffs there sought to depose hundreds of third-party witnesses, including alleged “climate-denial leaders and authors of climate disinformation,” public-relations strategists, scientists and academics, media organizations, think tanks, and interest groups. Such sweeping discovery targets not just commercial advertising, but public commentary and expressive associations engaged in scientific and political debate.

Misleading commercial speech can, of course, be regulated. But government plaintiffs cannot evade First Amendment scrutiny merely by declaring contested speech about a controversial issue as indisputably false and then packaging that speech as nuisance, trespass, and unjust enrichment. Courts must distinguish provably deceptive commercial claims from protected participation in public debates.
​
Agree or disagree with what the companies said, Boulder has now made it clear that the case turns substantially on just that.

​Can a state decide that religious schools are welcome to participate in a public program, but only if they set aside their core religious beliefs?

That is the question before the U.S. Supreme Court in St. Mary Catholic Parish v. Roy. Protect The 1st provides answers to that question in our amicus brief on the merits of this case. We urge the Court to reject Colorado’s attempt to exclude religious preschools from that state’s universal preschool program because they adhere to traditional religious teachings.

At first glance, this may appear to be another dispute over government funding and religious schools. It is much more than that.

Protect The 1st demonstrates that the First Amendment’s guarantee of the free exercise of religion means little if government officials are free to decide which religious beliefs are acceptable and which are not. A state may not condition participation in a public benefit on abandoning sincerely held religious convictions. Nor may it redefine “religion” so narrowly that only a faith stripped of its actual doctrines qualifies for constitutional protection.

The danger of such government overreach extends far beyond Colorado.

If government can require a Catholic preschool to disregard Catholic teaching in order to participate in a generally available public program, the same principle could be applied to Orthodox Jewish schools, Muslim schools, Protestant ministries, or any religious institution whose beliefs fall out of political favor. Today’s disagreement may concern sexual ethics. Tomorrow it could involve environmental stewardship, immigration, medical ethics, or any number of contested public issues.

Protect The 1st’s brief reminds the Court that religious liberty protects the freedom to live one’s faith, not merely to profess it. The Constitution does not permit government to reward religious organizations only after they surrender the religious practices that define them. The First Amendment was adopted precisely to prevent government from becoming the nation’s theological referee.

That principle should unite Americans of every faith and those of no faith at all. Once government acquires the authority to decide which religious beliefs are acceptable, every religious community becomes vulnerable to the political fashions of the day.

The Supreme Court now has an opportunity to reaffirm a foundational constitutional principle – government may regulate conduct within constitutional limits, but it cannot manipulate religious belief by attaching ideological conditions to public benefits.

The Free Exercise Clause protects religious diversity precisely because it denies government the power to choose which faiths – or which doctrines within those faiths – deserve equal treatment.
​
We look forward to hearing robust oral arguments on these points in the Court’s upcoming October Term.

​When Rights Have No Remedy

A right without a remedy is no right at all. That is why Protect The 1st is disappointed that the U.S. Supreme Court last week did not uphold the right of a Rastafarian prison inmate to seek damages after Louisiana prison officials forcibly shaved off his dreadlocks.

The Religious Land Use and Institutionalized Persons Act (RLUIPA), shorn of such a remedy, will now offer less than full protection for profound violations of the free exercise of religion for people of all faiths – Jews, Muslims, Christians, Sikhs, and others.

“Looking at the broader defense of religious freedom, however, PT1st remains optimistic,” said Gene Schaerr, PT1st general counsel. “Today’s opinion is unfortunate, but this Supreme Court has been the strongest ever in supporting the free exercise of religion. Protect The 1st looks forward to advancing the cause of religious freedom in future cases.”

Prison officials threw the law into a trash bin

The case arose from the experience of Damon Landor, a devout Rastafarian who had grown his dreadlocks for nearly two decades as an expression of his faith. After being transferred to a different Louisiana prison only weeks before his release, Landor explained that his religion prohibited him from cutting his hair. He even presented prison officials with documentation showing that courts had already recognized his right to maintain his dreadlocks under RLUIPA.

Instead, officers threw the court decision into the trash, restrained Landor in a chair, and forcibly shaved his head. 

Turning the law into an unenforceable “parchment promise”

When the Supreme Court agreed to hear the case, Protect The 1st noted that RLUIPA was enacted to ensure that incarcerated Americans do not surrender their religious liberty at the prison gate. Congress recognized that prisoners are uniquely vulnerable to arbitrary government action and therefore provided robust protection for their sincerely held religious beliefs.

The issue before the Court was whether those protections include the ability to recover damages from officials who knowingly violate the law. Without that remedy, many violations will never receive meaningful judicial review. Sometimes, prisoners’ rights are violated before courts can issue injunctions, leaving no practical consequence for officials who disregard religious rights. That, of course, is what happened to Landor. And, as we warned when the Court accepted this case, legal protections risk becoming little more than a “parchment promise” if they cannot be enforced retroactively through monetary relief. 

The Court has now concluded that RLUIPA does not authorize damages against individual state officials. As a practical matter, that means many future victims of similar violations will have little recourse once the immediate injury has passed. 

Yet this decision should not obscure the larger trajectory of religious liberty at the Supreme Court. Over the last decade, the Court has repeatedly reaffirmed that government must respect the free exercise of religion, whether the claimant is a church, a religious school, a family-owned business, or an individual seeking to live according to conscience.
​
Protect The 1st will continue advocating for Americans of every faith and no faith to ensure that the First Amendment’s promise of religious liberty remains meaningful. Even after this setback, we remain hopeful that the cause of religious freedom is moving forward, one case at a time.

​When the COVID-19 pandemic swept across the nation, employers and governments faced difficult decisions. But difficult circumstances do not erase constitutional principles. That is why Protect The 1st has filed an amicus brief urging the U.S. Supreme Court to hear Petersen v. Snohomish Regional Fire & Rescue, a case involving firefighters who sought religious accommodations from a COVID-19 vaccine mandate. 

At stake is a fundamental First Amendment freedom – the free exercise of religion.

The firefighters in this case did not refuse to work. They sought accommodations that would allow them to continue serving the public while remaining faithful to their sincerely held religious beliefs. For roughly 20 months, the department allowed safety measures such as testing, masking, distancing, and other precautions. Then, despite those accommodations, the firefighters were placed on leave. 
​
Protect The 1st’s brief argues that lower courts have drifted away from the Supreme Court’s recent decision in Groff v. DeJoy (2023), which strengthened protections for religious employees under federal law. Under Groff, employers must show that a requested accommodation would impose a substantial burden on their operations. Mere speculation or generalized concerns are not enough. 

That standard matters because the facts surrounding COVID-19 changed rapidly. By the time many vaccine mandates were being enforced, enough Americans had received vaccinations or acquired immunity from prior infection to bend the herd-immunity curve and significantly reduce the risk of catastrophic spread. The nation was no longer in the desperate early days of the pandemic.

Protect The 1st’s brief points to expert testimony showing that vaccinated and unvaccinated individuals could both transmit the virus, that natural immunity provided substantial protection, and that alternative mitigation measures remained available. 

None of this means vaccines lacked value. Millions of Americans chose vaccination, and those decisions helped protect vulnerable populations and reduce severe illness. But the existence of broad public compliance is precisely why reasonable religious accommodations were often possible. When most of a workforce is vaccinated and additional safeguards are available, granting a limited exemption to a small number of religious objectors is far less likely to impose a substantial burden on an employer.

The First Amendment has always protected minority beliefs. Religious liberty would mean little if it applied only when a person’s beliefs aligned with popular opinion or government policy.

The Supreme Court has repeatedly affirmed that government may not treat religious exercise as a second-class right. Whether the issue involves houses of worship, religious schools, or employees seeking accommodations in the workplace, the principle remains the same: Americans should not be forced to choose between their faith and their livelihoods unless the government or employer can demonstrate a truly compelling need.
​
Protect The 1st’s brief asks the Court to ensure that religious Americans receive the protections Congress intended and that the Supreme Court recognized in Groff. Emergencies may require extraordinary measures. They do not suspend legal protections for religious liberty.

​Oak Flat in Arizona has been a sacred site for Apache people for centuries – a place of worship, ceremony, and spiritual connection with the Creator. Now the federal government has transferred the land to Resolution Copper, the foreign-held Rio Tinto-BHP mining venture that will turn the site into a crater nearly two miles wide and as deep as two Washington Monuments stacked end to end.

That destruction would permanently prevent Apache believers from practicing their religion at a place that is essentially their Vatican, their “Wailing Wall.”

Protect The 1st last week filed an amicus brief urging the federal Ninth Circuit to rehear this case en banc (before eleven of its judges), demonstrating that the court’s earlier decision in Apache Stronghold v. United States fundamentally misread federal religious-liberty law. That decision also failed to resolve contradictory understandings of the law within different rulings of that same en banc panel. 

Our brief explains how the court effectively held two irreconcilable ideas at once:

• First, that the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA) should be interpreted consistently; and

 

• Second – “substantial burden” on religion – means something entirely different depending on which of these two statutes applies. 

That legal contradiction matters because RFRA and RLUIPA are considered “sister statutes” enacted precisely to provide broad protection for religious exercise against government interference. The U.S. Supreme Court has repeatedly said these laws should be interpreted broadly in favor of religious exercise. And if RFRA cannot protect against the complete destruction of a sacred site central to Apache worship, then one must ask: What exactly can it protect?

The Ninth Circuit previously insisted that – in the land-use context – a “substantial burden” exists only when the government coerces believers into violating their faith or discriminates among religions. Our filing points to two recent Supreme Court decisions that further undermine this reasoning.

• In Mahmoud v. Taylor, the Supreme Court held that parents challenging mandatory exposure of their children to school materials conflicting with their religious beliefs were likely to succeed under the Free Exercise Clause – even absent direct coercion.

 

• Likewise, in Mirabelli v. Bonta, the Court sided with parents objecting to California school policies involving gender identity and parental notification, again recognizing a significant burden on religious exercise without requiring outright coercion. 

If parents can establish a substantial burden because school policies threaten to undermine religious teachings, surely Apache worshippers can establish a substantial burden when, as Justice Neil Gorsuch wrote in a dissent, “the government’s plan” will permanently destroy the Apache’s historical place of worship.

Again, if that is not enough to describe a burden on the free exercise of religion, it is hard to imagine what would be. Most important of all, the impact of this case defines the rights of all minority religions.

If the government can knowingly destroy a sacred Native American religious site while claiming no “substantial burden” exists, then all religious-liberty protections become hollow promises – especially for minority faiths lacking political power.

Protect The 1st believes religious liberty is indivisible. The rights of all Americans are strengthened when courts protect the faith practices of minority communities, including Native Americans whose sacred places have too often been treated as expendable.
​
Our brief concludes with an undeniable fact – the Ninth Circuit’s decision is “at war with Supreme Court precedent, at war with the text of RFRA, and at war with itself.” 
The court should grant rehearing en banc and give the Apache people – and their First Amendment rights – the protection these American citizens deserve.

When the Founders drafted the First Amendment, they were not writing on a blank slate. They were responding to a long, bitter history of governments punishing disfavored speakers – especially critics of official power.

That history is not abstract. It is the core of a new amicus brief filed by Protect the First Foundation and its co-amici – Neutral Principles and the Center for Individual Rights – challenging four executive orders targeting law firms that have drawn the ire of President Trump. It warns that what is happening now has happened before. And the warning comes with a remedy – the Founders’ gift of the First Amendment to protect speech.

At issue are executive orders that impose penalties on law firms because of the clients they represent, the lawyers they have hired, and the arguments they have made. That is not just politics. It is viewpoint discrimination – government retaliation for disfavored speech and association.

The Founders Knew This Playbook

Long before the American Revolution, English rulers used licensing systems to control who could speak and publish. Printers needed government approval. Critics were denied licenses. Dissenters were punished. And the secret Star Chamber enforced these rules without juries or meaningful safeguards. Its purpose was simple – to punish opposition.

America’s Founding generation saw this clearly. As the brief explains, these systems were “among the very evils they identified as threats to the freedoms they would later enshrine in the First Amendment.” What mattered was not just outright censorship. It was targeted punishment – the government’s ability to choose who could speak and publish, and who could not.

That same dynamic is at work today when the government uses its power to deny contracts, revoke access, or impose regulatory burdens on disfavored speakers.

The Stamp Acts – Regulation as Suppression

The British Crown did not always silence critics directly. Sometimes it taxed them into submission. The Stamp Acts imposed costs on newspapers and pamphlets, especially those used to spread political dissent. Meanwhile, pro-government publications were spared or supported. The result was predictable – critics were marginalized, and government-approved voices flourished.

The Founders understood this as a direct assault on the freedom of the press. As the brief notes, even indirect burdens – when applied selectively – were understood as assaults on freedom. 

That principle matters today. You don’t need to ban speech outright to violate the First Amendment. You can burden it, isolate it, and punish it through the selective use of government power. Witness the attempts by Federal Communications Commission Chairman Brendan Carr and Federal Trade Commission Chairman Andrew Ferguson to punish journalists and commentators.

Or consider the executive orders that would have stripped lawyers of the ability to obtain security clearances, do any kind of business with the government, or enter a federal building – perhaps including a courthouse.

“Seditious Libel” – Punishing the Critics

The clearest historical parallel is the doctrine of seditious libel – the crime of criticizing the government. Under British law, even truthful criticism could be punished. As one formulation had it, “the greater the truth, the greater the libel.”

The colonial trial of John Peter Zenger in 1735 became a turning point. Prosecuted for criticizing a royal governor, Zenger was acquitted by a jury that rejected the idea that government could punish its critics.

The Zenger case underscored for the Founders, who would later write the Constitution, that a government that can punish its critics is a government without limits.

The amicus brief draws a direct line from that history to today, noting that punitive actions against lawyers for representing unpopular clients or advancing disfavored arguments were understood as classic violations of core freedoms. 

Executive Power Was Meant to Be Limited

The danger is compounded when such actions are justified as exercises of executive discretion. The Founders had just fought a revolution against a king who claimed broad, unchecked authority. They determined not to allow any form of Caesarism in their new country.

As the brief explains, the Constitution’s grant of “executive Power” was understood to be narrow – focused on carrying out the law, not creating new authorities and punishing political opponents. Unchecked discretion was not a feature of the new system. It was the very abuse the Constitution was designed to prevent.

The Modern Echo

We have seen in the Biden Administration’s attempts to secretly censor “disinformation” on social media, and now in the Trump Administration’s attempt to punish speech, a return of concepts like licensing regimes, the Stamp Act, and seditious libel in modern form.

The Founders did not trust government – or anyone – to police speech fairly. That is why they wrote a rule, not a suggestion, forbidding the government from abridging the freedoms of speech, press, or association. Full stop.

It doesn’t matter what you think of a journalist, a law firm, or a commentator. An authority that can be used against them can one day be used against you.

If the punishment of speech is allowed to return, the First Amendment becomes not a shield for dissent – but a relic of a freedom we once had.

The Founders saw this danger clearly. The question now is whether we still do.

​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.

​Former U.S. Senator Rick Santorum today joined with Protect The 1st to urge the U.S. Supreme Court to reject the petitioners’ argument in Gonzalez v. Google that the algorithmic recommendations of internet-based platforms should make them liable for users’ acts.
 
Santorum and Protect The 1st told the Court that curtailing Section 230 “would cripple the free speech and association that the internet currently fosters.” As a senator, Santorum had cast a vote for Section 230 to send the bill to President Bill Clinton’s desk for signature in 1996.
 
The Protect The 1st amicus brief informed the Court:

• Section 230 enables focused discussions: Section 230 is a law that “has created a thriving online marketplace of ideas in which diverse individuals can have their voices amplified and can freely associate with friends, journalists, thought leaders, and government officials.”
  
  
• Without Section 230 immunity, the internet would devolve into word soup: The benefits of Section 230 would be eroded if the Court adopted the petitioners’ argument. Without immunity, internet platforms could not organize content in a way that would be relevant and interesting to users.
  
  
• Section 230 explicitly allows some editorial functions: “Section 230 not only bars claims that treat platforms that host third-party content provided by others as ‘publishers’ of that content, but also identifies as protected services those that ‘filter,’ ‘choose’ and ‘organize’ content. Organization of content is an inherent aspect of any effort to effectively present vast quantities of information to the public, and it falls squarely within Section 230’s bounds.”
  
  
• Constitutional protection: Moreover, the brief states, “sorting, grouping, and placing content is also an editorial decision presumptively protected by the First Amendment.”

The brief described for the Court the harm to society that would occur if the Court were to disregard Section 230’s inclusion of First Amendment-protected editorial judgments. The brief tells the Court:

• Provocative, counterintuitive content would be blocked: “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 …”
  ​
• But filters could not stop bigots and pornographers: Imposing liability on platforms for their organization of content “would also make it virtually impossible for platforms to use algorithms that allow users to find content from like-minded sources and, equally important, to avoid content, like pornography and bigoted speech, that they find objectionable.”

 
And there is no need for the Supreme Court to rewrite Section 230: As amici explained, Congress can choose to amend Section 230 if new challenges necessitate a change in policy. For example, Congress recently eliminated Section 230 immunity when it conflicts with sex trafficking laws, and Congress is currently debating a variety of bills that would address specific concerns about algorithm-based recommendations.
 
The Protect The 1st’s brief states: “The judiciary is never authorized to interpret statutes more narrowly than Congress wrote them, but it is especially inappropriate to do so when Congress is already considering whether and how to amend its own law.”
 
Background:

This Protect The 1st amicus brief answers the question before the U.S. Supreme Court in Gonzalez v. Google: “Does Section 230(c)(1) of the Communications Decency Act immunize interactive computer services when they make targeted recommendations of information provided by another information content provider?”
 
Th case pending before the Court centers around the murder of Nohemi Gonzalez, a 23-year-old American who was killed in a terrorist attack in Paris in 2015. A day after this atrocity, the ISIS foreign terrorist organization claimed responsibility by issuing a written statement and releasing a YouTube video that attempted to glorify its actions. Gonzalez’s father sued Google, Twitter, and Facebook, claiming that social media algorithms that suggest content to users based on their viewing history makes these companies complicit in aiding and abetting international terrorism.
 
No evidence has been presented that these services played an active role in the attack in which Ms. Gonzalez lost her life. A district court granted Google’s motion to dismiss the claim based on Section 230 of the Communications Decency Act, a measure that immunizes social media companies from content posted by users. The U.S. Court of Appeals for the Ninth Circuit affirmed the lower court’s ruling.
 
The Supreme Court is scheduled to hear oral arguments Feb. 21.

CLICK HERE FOR THE AMICUS BRIEF 

​On December 28th, the Protect The 1st Foundation filed an amicus brief in the upcoming case Kristine Kurk v. Los Rios Classified Employees Association. The case is currently being heard in the United States Court of Appeals for the Ninth Circuit and concerns whether the First Amendment protects a public employee’s right to resign union membership at will.
 
Twenty-five years ago, Kristine Kurk signed a form allowing the Los Rios Community College District to deduct fees from her salary and send them to her union, the Los Rios Classified Employees Association. Recently, when Kurk attempted to resign her membership, the Union used a California statute’s authorization of “organizational security agreements” to force Kurk to remain a full member, including requiring her government employer to seize money from her paycheck and give it to the union.
 
Requiring Kurk to remain a member would mean her dues would be used to support political candidates and legislation that she may have no interest in supporting. In essence, Kurk’s forced membership is akin to forced expression and thus violates the First Amendment.
 
As stated in our amicus brief, “The Ninth Circuit and other courts of appeals have consistently tried to evade the First Amendment’s requirements as articulated in Janus. In doing so, they have blessed ‘maintenance-of-membership’ statutes that burden speech and association at the core of the First Amendment’s protections. Compelled speech and association, whether it lasts a few months or, as in this case, a few years, raises the specter of a First Amendment violation. This Court should grant the petition to affirm Janus’s underlying principle that states and unions may not conspire to compel speech or association on matters of public concern.”
 
For reasons explained at length in our brief, Protect the 1st strongly believes that a law violates the First Amendment when it substantially impedes a union member’s ability to resign his or her membership in response to the union’s spending the member’s dues on speech with which the member disagrees.

​When the founders drafted the First Amendment forbidding the abridgement of freedom of speech, “pamphlet wars” were common, with opposing sides handing out flyers and inviting passersby to listen to their opinions. Even in this age of tweets, most Americans recognize parks, sidewalks, and other public spaces as venues where people are allowed to hand out flyers and politely ask passersby to hear them out.
 
The federal courts, however, are split on the question of whether this form of expression, as old as colonial America, must be respected today under the First Amendment.
 
Concerned about this encroachment on speech, Protect The 1st petitioned the U.S. Supreme Court to hear a case from a street preacher who was silenced by university officials and police. This happened when evangelist Rodney Keister stood on city-owned sidewalks on a public street in Tuscaloosa, Alabama, near the University of Alabama. By agreement with the city, the UA campus police oversee a portion of the public sidewalk at an intersection near – but not on – the campus. The campus police more than once warned Keister that he could not preach on this public sidewalk. Fearing arrest, the preacher left but filed a lawsuit that was eventually heard by the Eleventh Circuit Court of Appeals.
 
The question as to whether a city-owned public sidewalk is a traditional public forum should be a slam-dunk in favor of free speech. But federal courts are split on the issue.
 
The Ninth, Tenth, and D.C. Circuits stick with the First Amendment analysis in these public forum cases, allowing speech. But other circuits hold that streets open to the public but adjacent to college and university buildings are limited public forums. Speech there can be restricted.
 
In one public forum case, the D.C. Circuit ruled against the government, which attempted to prohibit a demonstrator from holding a sign or distributing leaflets on the grounds of the U.S. Capitol building. While these grounds are obviously under the control of federal authorities, they are parklike and open to the public. Making this distinction, the D.C. court rejected any claim that the grounds were a “special type of enclave” that had to be protected from free expression. That court held that “because of their historical association with the exercise of free speech,” streets, parks and sidewalks are quintessential examples of public forums.
 
The Eleventh Circuit, on the other hand, held that even though the sidewalk in Tuscaloosa was open to the public and owned by the city, the maintenance of that sidewalk by the university necessarily involves the university’s intent toward expressive activity.
 
Protect The 1st asks the Supreme Court to consider if courts can “apply an amorphous and manipulable balancing test that relies on the government’s or its delegee’s intent to restrict speech as a justification for doing so.” We also informed the Court that by “denying ‘public forum’ status to a place that has traditionally been a public forum – sidewalks tied to public streets – the decision below threatens the First Amendment not merely in Tuscaloosa, but throughout the Nation.”
 
In our petition, Protect The 1st tells the Supreme Court that the “use of multifactor balancing tests makes the outcomes in any given case unpredictable and unprincipled. There is a better way. Relying on the text of the First Amendment, read in light of history and tradition, providers a surer approach.”
 
Protect The 1st believes this case not only raises important constitutional questions on which the courts of appeal are divided, but also presents an excellent vehicle for the Supreme Court to resolve them.

The Supreme Court’s 6-3 majority opinion in favor of the right of Bremerton High School football coach Joseph Kennedy to pray after games on the 50-yard line is big win for religious liberty.
 
The issue is important because it involves how public institutions should manage the balance between the First Amendment’s guarantees of the free exercise of religion and speech against its prohibition of the establishment of religion. For decades, under the Lemon test, religious expression had come to be treated as radioactive material to be handled with an iron apron and tongs.
 
The majority opinion states:
 
“Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s. Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.”
 
The majority rejected the idea that the prayer constituted government speech merely because Coach Kennedy was a government employee. “When Mr. Kennedy uttered the three prayers that resulted in his suspension, he was not engaged in speech ‘ordinarily within the scope’ of his duties as a coach … He did not speak pursuant to government policy. He was not seeking to convey a government-created message. He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as a coach.”
 
This logic led the Court to adopt a view that is almost a verbatim quote from the amicus brief Protect The 1st filed in this case. The court ruled that if the standard sought by the school district held, then:

“On this understanding, a school could fire a Muslim teacher for wearing a headscarf in the classroom or prohibit a Christian aide from praying quietly over her lunch in the cafeteria.”
​
Quoting the First Amendment – “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech” – the majority opinion concluded: “A natural reading of that sentence would seem to suggest the Clauses have ‘complementary’ purposes, not warring ones where one Clause is always sure to prevail.”
 
Protect The 1st applauds the Court for standing up to protect private speech and the free exercise of religion.