National Rifle Association v. Vullo
In this age of “corporate social responsibility,” can a government regulator mount a pressure campaign to persuade businesses to blacklist unpopular speakers and organizations? This is the central question the U.S. Supreme Court faces in National Rifle Association v. Vullo.
Here's the background on this case: Maria Vullo, then-superintendent of the New York Department of Financial Services, used her regulatory clout over banks and insurance companies in New York to strongarm them into denying financial services to the National Rifle Association. This campaign was waged under an earnest-sounding directive to consider the “reputational risk” of doing business with the NRA and firearms manufacturers.
Vullo imposed consent orders on three insurers that they never again provide policies to the NRA. She issued guidance that encouraged financial services firms to “sever ties” with the NRA and to “continue evaluating and managing their risks, including reputational risks” that may arise from their dealings with the NRA or similar gun promotion organizations.
“When a regulator known to slap multi-million fines on companies issues ‘guidance,’ it is not taken as a suggestion,” observed Gene Schaerr, PT1st general counsel. “It’s sounds more like, ‘nice store you’ve got here, it’d be shame if anything happened to it.’”
The U.S. Court of Appeals for the Second Circuit reversed a lower court’s decision that found that Vullo used threats to force the companies she regulates to cut ties with the NRA. The Second Circuit reasoned that: “The general backlash against gun promotion groups and businesses … could (and likely does) directly affect the New York financial markets; as research shows, a business's response to social issues can directly affect its financial stability in this age of enhanced corporate social responsibility.”
You don’t have to be an enthusiast of the National Rifle Association to see the problems with the Second Circuit’s reasoning. Aren’t executives of New York’s financial services firms better qualified to determine what does and doesn’t “directly affect financial stability” than a regulator in Albany? How aggressive will government become in using its almost unlimited ability to buy or subpoena data of a target organization to get its way? Can government stymie the speech rights of a national advocacy organization with 5 million supporters?
Even if you take Vullo’s justifications at face value, the government cannot override the Bill of Rights to slightly reduce the rate of corporate bankruptcies. The dangers of a nebulous, government-imposed “corporate social responsibility standard” is a grave threat to all constitutionally protected individual rights.
Protect The 1st is far from alone in this view. The ACLU, which also filed a brief in favor of the NRA, writes: “This is a critically important First Amendment fight: if government officials can pressure the businesses they regulate to blacklist the NRA in New York, then officials in other states can punish other advocacy organizations in the same way – including the ACLU itself.” Other not aligned with the NRA are alarmed as well. James P. Corcoran, former New York Superintendent of Insurance, in his amicus brief writes that while he does not support the National Rifle Association, he believes “that the threat to free speech at issue here could equally harm groups aligned with his own political views if left unchecked."
For all these reasons, we urge the Supreme Court in this case to put the First Amendment first.
If you follow this blog you are probably concerned about growing ignorance of, or contempt for, the First Amendment, as well as an increasing appetite for weaponizing the law to punish disfavored speech. A case out of Castle Hills, Texas, is illustrative of this weaponization.
While some underlying motives are in dispute, the facts – per the Fifth Circuit Court of Appeals – are stark. Sylvia Gonzalez was elected to a seat on the Castle Hills city council in 2019. After learning that many of her constituents were unhappy with the performance of the city manager, Gonzalez helped organize a petition for that official’s removal. During her first city council meeting, a resident of Castle Hills submitted the petition, which somehow wound up in Gonzalez’s personal binder of documents. After being asked for it by the mayor, Gonzalez found the petition among her effects and handed it over during that same meeting.
The mayor initiated an investigation of Gonzalez under a Texas Penal Code statute that provides that “[a] person commits an offense if he […] intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record.” A warrant was subsequently served against Gonzalez, who was taken to jail and later resigned from her post.
Why Gonzalez would want to hide a petition she helped organize is far from clear. Gonzalez argues it was an honest mistake. The warrant affidavit speculates that Gonzalez hid it because a resident claimed she convinced them to sign it under false pretenses.
What is not disputable is that Gonzalez was arrested, handcuffed, and detained for the purported crime of placing a document in her folder during a meeting. The 72-year-old Gonzalez claims her arrest was retaliatory, stemming from her support for removing the city manager.
Sylvia Gonzalez brought suit in U.S. district court, alleging two counts of retaliation. The city respondents, in turn, filed a motion to dismiss based on qualified immunity, a legal doctrine that generally protects government officials from lawsuits unless it can be shown they violated a “clearly established” statutory or constitutional right. The city officials argued that the existence of probable cause rendered Gonzalez’s claims moot.
The district court, for its part, denied the government’s motion to dismiss based on a 2019 Supreme Court opinion in Nieves v. Bartlett. The court held that retaliatory arrest claims may proceed where probable cause exists (as it technically did with Gonzalez), but in cases in which officers “typically exercise their discretion not to do so.”
This is what is more commonly known as the “jaywalking exception,” and it guards against law enforcement arresting people for petty crimes for less than noble purposes. As Justice Sonia Sotomayor admitted in her memoir, “I jaywalk with the best of them.” Everyone jaywalks, but very few are actually arrested for it. It is an infraction, however, that could be used as pretext to arrest someone.
In such circumstances, the U.S. Supreme Court held, a plaintiff must present “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”
Gonzalez, attempting to satisfy the Nieves exception, presented evidence that not one of 215 grand jury felony indictments in Bexar County under a tampering statute over the preceding decade involved an allegation remotely similar to the one levied against her. The district court found this “objective evidence” sufficient.
In the appeal, the Fifth Circuit held that Nieves requires comparative evidence of individuals who engaged in the “same” criminal conduct but were not arrested. In other words, going by the Fifth Circuit’s interpretation, Gonzalez would have to find specific instances of people who misplaced government documents but were not arrested.
If the Fifth Circuit’s decision is left in place, it would make it easier for law enforcement or other government officials to punish critics for expressing protected speech based on novel applications of relatively minor criminal laws. It also sets the evidentiary bar so high that few could ever hope to prove their case in a court of law.
Gonzalez’s conduct was so benign that the only inference one can reasonably draw is that she was indeed the target of retaliation. That reasonable inference standard is what is required to overcome a qualified immunity defense. But varying interpretations of Nieves stand in Sylvia Gonzalez’s way.
A brief supporting cert from the Cato Institute, American Civil Liberties Union, and the Foundation for Individual Rights and Expression seems to have enticed the U.S. Supreme Court to hear this case. The Court has a historic opportunity to bring clarity to qualified immunity and resolve a circuit split. The Seventh and Ninth Circuits have interpreted Nieves to allow more flexibility in the type of evidence plaintiffs must show in making a retaliation claim. The Fifth Circuit, unfortunately, has not.
The Fifth Circuit’s standard would all but enfranchise the most egregious abuses. At a time when liberals and conservatives worry about the weaponization of the law, a reasonable standard to hold officials to account for abuses is needed now more than ever.
The Ninth Circuit Court of Appeals in March issued a controversial opinion in Twitter v. Garland that the Electronic Frontier Foundation calls “a new low in judicial deference to classification and national security, even against the nearly inviolable First Amendment right to be free of prior restraints against speech.”
X (née Twitter) is appealing this opinion before the U.S. Supreme Court. Whatever you think of X or Elon Musk, this case is an important inflection point for free speech and government surveillance accountability.
Among many under-acknowledged aspects of our national security apparatus is the regularity with which the government – through FBI national security letters and secretive FISA orders – demands customer information from online platforms like Facebook and X. In 2014, Twitter sought to publish a report documenting the number of surveillance requests it received from the government the prior year. It was a commendable effort from a private actor to provide a limited measure of transparency in government monitoring of its customers, offering some much-needed public oversight in the process. The FBI and DOJ, of course, denied Twitter’s efforts, and over the past ten years the company has kept up the fight, continuing under its new ownership.
At issue is X’s desire to publish the total number of surveillance requests it receives, omitting any identifying details about the targets of those requests. This purpose is noble. It would provide users an important metric in surveillance trends not found in the annual Statistical Transparency Report of the Office of the Director of National Intelligence.
Nevertheless, in April 2020, a federal district court ruled against the company’s efforts at transparency. In March 2023, the Ninth Circuit upheld the lower court’s ruling, sweeping away a substantial body of prior restraint precedent in the process.
Specifically, the Ninth Circuit carved out a novel exemption to long established prior restraint limitations: “government restrictions on the disclosure of information transmitted confidentially as part of a legitimate government process.”
The implications of this new category of censorable speech are incalculable. To quote the EFF amicus brief:
“The consequences of the lower court’s decision are severe and far-reaching. It carves out, for the first time, a whole category of prior restraints that receive no more scrutiny than subsequent punishments for speech—expanding officials’ power to gag virtually anyone who interacts with a government agency and wishes to speak publicly about that interaction.”
This is an existential speech issue, far beyond concerns of party or politics. If the ruling is allowed to stand, it sets up a convenient standard for the government to significantly expand its censorship of speech – whether of the left, right or center. Again, quoting EFF, “[i]ndividuals who had interactions with law enforcement or border officials—such as someone being interviewed as a witness to a crime or someone subjected to police misconduct—could be barred from telling their family or going to the press.”
Moreover, the ruling is totally incongruous with a body of law that goes back a century. Prior restraints on speech are the most disfavored of speech restrictions because they freeze speech in its entirety (rather than subsequently punishing it). As such, prior restraint is typically subject to the most exacting level of judicial scrutiny. Yet the Ninth Circuit applied a lower level of strict scrutiny, while entirely ignoring the procedural protections typically afforded to plaintiffs in prior restraint cases. As such, the “decision enables the government to unilaterally impose prior restraints on speech about matters of public concern, while restricting recipients’ ability to meaningfully test these gag orders in court.”
We stand with X and EFF in urging the Supreme Court to promptly address this alarming development.
In July we analyzed an order issued by Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana that enjoined the Biden Administration and a wide range of federal agencies from “urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms.”
Last month, PT1st covered a subsequent ruling from the Fifth Circuit Court of Appeals, which significantly narrowed the scope of the district court’s injunction, reducing the district court’s ten prohibitions on government communications with social media platforms to one, and greatly limiting the agencies subject to the injunction to the White House, the FBI, the surgeon general’s office and the CDC. Now, acting on a request for review by the government, the U.S. Supreme Court has agreed to hear the case, staying the lower courts’ injunction in the meantime.
At least until the High Court rules on the case, Biden Administration officials are not barred from interacting with social media platforms to combat what they view as misinformation. Justice Alito, joined by Justices Gorsuch and Thomas, dissented from granting the stay, writing: “At this time in the history of our country, what the court has done, I fear, will be seen by some as giving the government a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news. That is most unfortunate.”
Protect The 1st is not so sure. Given that the Court is now set to hear this case, executive branch officials will have good reason to be especially circumspect in the interim.
Whatever happens, this case will be of great importance for the First Amendment’s application to online speech and permissible levels of government involvement in urging platforms to moderate content.
And it is only one of several big cases set for consideration before our highest court in the coming months. The Supreme Court also recently agreed to hear a dispute stemming from Florida’s and Texas’ efforts to prohibit social media companies from engaging in some forms of content moderation, which the platforms have always viewed as protected by the First Amendment. In another case set in a hearing later this month, the Court will tackle the question of whether public officials can block their critics on social media.
Regarding the present controversy, the Fifth Circuit ruled in September that the White House, the Surgeon General’s office, the FBI, and the CDC either coerced or significantly encouraged social media platforms to moderate protected speech primarily regarding election misinformation and misinformation about the pandemic.
In the stay application, Solicitor General Elizabeth B. Prelogar argued that the platforms are private entities that made independent content moderation decisions. The government’s interactions with them, in turn, constituted routine advice consistent with its duties to protect public health and safety.
“A central dimension of presidential power,” wrote Prelogar, “is the use of the office’s bully pulpit to seek to persuade Americans – and American companies – to act in ways that the president believes would advance the public interest.”
The attorneys general of Missouri and Louisiana, both plaintiffs in the case, responded that the bully pulpit “is not a pulpit to bully,” arguing that the administration went too far in its communications by engaging in threatening and coercive behavior. As such, they assert, the decisions to remove or downgrade certain posts and accounts constituted government action.
“The government’s incessant demands to platforms,” they wrote, “were conducted against the backdrop of a steady drumbeat of threats of adverse legal consequences from the White House, senior federal officials, members of Congress and key congressional staffers — made over a period of at least five years.”
If, in the end, the Supreme Court determines that the government is threatening social media platforms, that will be a consequential finding. As the dissenting Justices write, “Government censorship of private speech is antithetical to our democratic form of government ...”
At the same time, the government must be able to speak to private actors, including social media platforms, on issues of public concern.
Ultimately, we need a roadmap for distinguishing between legitimate government action and coercion. A robust discussion at the national level is best suited to parse the nuances at play when it comes to social media and free speech. Congress should hold bipartisan hearings to determine the circumstances where government advice may be helpful to platforms’ content moderation decisions versus the circumstances where such advice may be coercive.
We’ll be watching this case closely as it progresses.
Will Supreme Court Review Fifth Circuit Ruling on Pressure to Modify Content in Government Communications with Social Media Platforms?
Earlier this summer, we wrote about an opinion and order issued by Judge Terry Doughty of the U.S. District Court for the Western District of Louisiana in the case of Missouri v. Biden. The controversy stemmed from accusations of government censorship and viewpoint discrimination against speech – under both the Biden and the Trump administrations – most notably social media posts related to COVID-19.
The plaintiffs argued that the government pressured social media platforms to such a degree that it interfered with the First Amendment right of the platforms to make their own content moderation decisions. Judge Doughty agreed.
The district judge’s controversial order enjoined the White House and a broad range of government agencies from engaging in a wide array of communications with social media platforms, with 10 separate provisions laying out the parameters. The administration appealed to the Fifth Circuit, which stayed the injunction.
Now, a three-judge panel from the Fifth Circuit has weighed in. Broadly, they side with Judge Doughty’s finding that the White House, the Surgeon General’s office, the FBI, and the CDC either coerced or significantly encouraged social media platforms to moderate protected speech.
At the same time, the court significantly reduced the scope of the injunction order, striking nine out of the 10 prohibitions for vagueness, overbreadth, or redundancy. Further, the court found that a range of enjoined parties – including former NIH Infectious Disease Director Anthony Fauci and the State Department – did not engage in impermissible conduct.
What we are now left with is a much narrower new injunction with a single prohibition reading as follows:
“Defendants, and their employees and agents, shall take no actions, formal or informal, directly, or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies’ decision-making processes.”
Unsurprisingly, the Biden administration is appealing the ruling – this time to the highest court in the land. The U.S. Supreme Court granted the administration’s request for an administrative stay of the Fifth Circuit injunction as the administration prepares to file a petition for certiorari by Oct. 13 (which would allow the Supreme Court to hear the controversy this term).
While it is at least reasonably likely that the Court will agree to hear this case, we stand by our prior position on the issue – that questions surrounding the limits of government interaction with social media companies merit a vigorous, informed public debate. We again urge Congress to hold bipartisan hearings to examine among other questions whether social media platforms find the communications with government to be unwelcome pressure or whether they find the information provided to be helpful.
In order to combat a tide of Covid misinformation, in 2021 the White House began closely monitoring social media companies’ health related postings.
The sense of urgency felt by federal officials was soon reflected in sometimes hyperbolic communications to the public that reflected the deep concern with a flood of harmful misinformation that they believed was getting in the way of the provision of accurate Covid related information to the public. In July 2021, at a White House presser, the Surgeon General accused social media companies of “enabl[ing] misinformation to poison” the public. Soon after, President Biden responded with his own comment about social media “killing people” and the White House publicly discussed legal options. Social media companies apparently understood the message, changing internal policies and making new efforts to deplatform users like the “disinfo dozen,” a list of influencers deemed problematic by the White House. Still, the administration continued its public messaging, with the White House Press Secretary at one point expressing explicit support for Section 230 reforms so the companies can be held accountable for “the harms they cause.”
Of course, the government must be able to communicate freely to the public and with private companies, especially on matters of public health and safety. The parties released from the District Court’s injunction likely exercised that right appropriately. There is danger, however, when the government works with social media silently to remove content, with no public transparency, especially if there is a hint (or more than a hint) of coercion.
What is that danger, exactly? Reasonable people agree there are public health messages that are irresponsible and harmful. But secret censorship, no matter the justification, is the royal road to a censored society.
Protect The 1st hopes that congressional hearings and a high Court review will bring clarity on the question of government communications with social media, now America’s main public square.
In 2000, the U.S. Supreme Court in Hill v. Colorado found that restrictions on speech-related conduct outside abortion clinics was content-neutral and thus subject only to intermediate scrutiny, a lesser degree of protection. Since that time, lower courts have upheld similar state and local restrictions on speech based on this binding precedent – and despite a raft of subsequent cases that call Hill’s reasoning into question.
The recent case of Vitagliano v. County of Westchester is a perfect exemple of these ongoing challenges. It is now up for potential review before the Court. It offers a good opportunity to overturn Hill and the unconstitutional legal trend it originated.
Here are the facts of the case: Debra Vitagliano is a devout Catholic whose mission is to offer compassionate counsel to women seeking abortions at the last minute, when such counsel might be most effective. Westchester County, like many jurisdictions before it, passed a law establishing a 100-foot buffer zone around reproductive health care facilities (encompassing public sidewalks), prohibiting anyone looking to offer such assistance from getting within eight feet of another person unless they receive explicit consent.
Critics of the Hill decision, including 14 states that recently filed an amicus brief, argue that Hill misapplied the legal test for determining whether a speech restriction is content-based. Specifically, they argue that the Court erroneously relied on Colorado’s references to “access” and “privacy” as justification for the statute’s purported neutrality. Since 2000, the Supreme Court has conspicuously refrained from drawing on Hill’s reasoning, and in Dobbs v. Jackson went so far as to call it a distortion of First Amendment doctrines.
Whenever the government passes a speech restriction that is obviously content-based (as it is here) it must be looked at through the lens of strict scrutiny. It must be narrowly tailored to serve a compelling government interest. This means a government cannot simply abridge its citizens’ First Amendment rights because of some particular policy preference – for example, in another context, the idea that protest should not be allowed outside military recruitment facilities because it discourages young people from enlisting.
It’s clear that Hill was a policy decision, and while one may agree with its intent, it also opened the door to overstepping when it comes to restricting speech in public places.
The sidewalk has long been held to be a public forum. In fact, it’s arguably the place where speech about contentious political issues most belongs. As the Supreme Court wrote in McCullen v. Coakley, sidewalk speech reflects the First Amendment’s goal to “preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.” Criminalizing certain speech on public sidewalks endangers that goal. And preventing Debra Vitagliano from engaging in peaceable, non-violent conversation amounts to the kind of overbreadth that seals the deal when it comes to a law’s unconstitutionality, particularly when laws already exist prohibiting assault, trespass, and blocking clinical access.
Whatever your views on abortion, Hill was a bad decision that should be overturned. To quote First Amendment scholar and Harvard professor Lawrence Tribe, the case was “slam-dunk simple.” Its ruling: “slam-dunk wrong.”
In April, Protect The 1st reported on two pending cases before the Supreme Court, O’Connor-Ratcliff v. Garnier and Lindke v. Freed, addressing the question of what constitutes a public forum on Facebook. In both lawsuits, public officials blocked criticism from constituents on their social media sites; in both instances, the constituents sued.
Now, the U.S. Supreme Court is set to deliberate the urgent question: When does a personal account become public? This is the first time the Court will address the difference between public and private fora against the backdrop of the digital age. In our Protect The First Foundation amicus brief in O’Connor-Ratcliff, we write:
“The state action question in this case implicates two vital First Amendment rights: that of citizens to access government fora, and that of public officials to control with whom and how they communicate when they speak in their private capacities. As this case demonstrates, those rights are in tension when it is not immediately apparent whether a government representative is operating a social media account in her public or private capacity.”
The petitioners argue that they should be able to block constituents from their social media profiles, on which they discussed government business, as long as their actions aren’t affirmatively required as one of their government duties and they don’t explicitly invoke state authority.
In short, they wish to summon their own First Amendment rights to silence their critics in a public forum.
For many years now, Members of Congress have segregated their personal and public accounts. They are correct in doing so, and this situation shows why. The legal issue is at what point does a public official’s actions constitute “state action.” And here, the officials’ social media pages are draped in their status as public servants – even though they began as personal campaign pages. With great regularity, they post about official government business and use their accounts to facilitate their government duties. As such, they cannot then claim that when they operate those accounts they are private actors.
Government officials, like everyone else, have First Amendment rights. But they cannot have their cake and eat it too by speaking with the authority of government while erasing the access of their critics to that speech.
The fact is that we must – now – delineate the limits and boundaries of social media’s power in the context of public service. If you are a public official, you cannot – must not – be able to silence your critics in a public forum under the auspices of your own First Amendment rights.
Sorry. Sometimes you just have to take the heat.
The Supreme Court made the right call on Tuesday when it reversed (7-2) the conviction of a man convicted in Colorado under that state’s anti-stalking laws, establishing in the process a new standard for the criminal prosecution of “true threats.”
While the First Amendment broadly protects speech – including and especially controversial speech – exceptions exist for obscenity, incitement to violence, and other discrete categories. “True threats” constitutes one of those categories.
Yet until Tuesday, some judicial disagreement persisted on the question of how to properly evaluate a purported “true threat” – particularly in the online arena. To quote Justice Kagan, “Courts are divided about (1) whether the First Amendment requires proof of a defendant’s subjective mindset in true-threats cases, and (2) if so, what mens rea standard is sufficient.”
In this case, petitioner Billy Counterman was convicted of stalking by a Colorado court after he sent repeated online messages to a female musician that caused her to fear for her safety. The court convicted Counterman using an objective test employing a “reasonable person” standard. In other words, the court asked whether a “reasonable person” would interpret Counterman’s messages as threatening. The Colorado court found that they would.
On appeal, attorneys for Counterman argued that any determination of whether speech constitutes a “true threat” should take into account the defendant’s intent – i.e. his state of mind (mens rea). The Supreme Court agreed.
In a majority opinion authored by Justice Elena Kagan, the Court found that “the State must prove in true-threats cases that the defendant had some subjective understanding of his statements’ threatening nature.” However, according to the Court, the government need not show that the defendant’s purpose was to threaten; instead, they must merely prove that “the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”
This “recklessness” standard, Kagan writes, “offers ‘enough ‘breathing space’ for protected speech,’ without sacrificing too many of the benefits of enforcing laws against true threats.” And it’s a true compromise, too – one where both sides walk away a little unhappy. “The rule we adopt today is neither the most speech-protective nor the most sensitive to the dangers of true threats,” Kagan writes. “But in declining one of those two alternative paths, something more important is gained….”
While the majority recognized that some prosecutors may face a higher burden of proof in future true-threats cases, they correctly weighed that burden against the potentially chilling effects of a purely objective test. Kagan writes: “The speaker’s fear of mistaking whether a statement is a threat; his fear of the legal system getting that judgment wrong; his fear, in any event, of incurring legal costs – all those may lead him to swallow words that are in fact not true threats.”
Legally, incorporation of the “mens rea” element in true-threats cases has been a long time coming. The Court has gradually built that element over the years in cases like Virginia v. Black and Elonis v. United States. In other words, it’s legally consistent with prior opinions – but it’s also good policy.
The American Civil Liberties Union, long an ardent defender of even the most offensive free speech, notes: “[O]ne person’s opprobrium may be another’s threat. A statute that proscribes speech even where the speaker does not intend to threaten, as does the Colorado statute at issue here, runs the risk of punishing protected First Amendment expression simply because it is crudely or zealously expressed.”
This is especially true in the context of online speech, which is “often abbreviated, idiosyncratic, decontextualized, and ambiguous.” Statements made on social media platforms can be accessible to impossibly large, diverse, and unpredictable audiences; how they may interpret such speech is anyone’s guess. Thus, the objective test becomes something like a negligence standard – it criminalizes mistakes. Writes the ACLU: “If First Amendment protections are to enjoy enduring relevance in the twenty-first century, they must apply with full force to speech conducted online.”
An amicus brief co-authored by the Electronic Frontier Foundation and the Student Press Law Center builds on this point, suggesting that the objective standard could “incorrectly capture a staggering amount of humor, hyperbole, sarcasm, art, and even malicious speech that was never supposed to reach a particular person, and/or never intended to be read as threatening.”
Counterman may well be convicted on remand based on the new, subjective standard for true threats. As for the rest of us, we now have a lot more certainty on the extent to which the First Amendment protects even our coarsest civil discourse – particularly in the online arena.
We applaud the Supreme Court’s ruling, one that protects all manner of speech that may be critical or harsh or hyperbolic – but non-threatening all the same.
The U.S. Supreme Court ruled 6-3 in 303 Creative LLC v. Elenis to uphold the First Amendment right of a digital designer not to be compelled to write, design, and create websites that violate her beliefs.
Protect The 1st applauds the Court’s decision and the reasoning behind it. Despite the religious roots of the appellant’s beliefs, this is fundamentally a case about the free exercise of speech. The Court correctly decided that web design is an expressive industry, and that no writer should be compelled to write something to which they object.
Lorie Smith owns 303 Creative LLC, a web design company she wanted to expand into the wedding industry. But 303 Creative’s expansion ran headlong into the State of Colorado’s Anti-Discrimination Act (CADA), which would have required her to design websites for same-sex weddings in violation of her religious beliefs. Smith and 303 Creative lost before a U.S. District Court and the Tenth Circuit Court of Appeals before being heard in oral arguments before the Supreme Court last year.
In a ringing defense of speech, Justice Neil Gorsuch wrote in the majority opinion of the inviolability of free speech under the Constitution. The majority opinion states:
“A hundred years ago, Ms. Smith might have furnished her services using pen and paper. Those services are no less protected speech today because they are conveyed with a ‘voice’ that resonates farther than it could from any soapbox.”
The Court noted that the Tenth Circuit, which ruled against Smith, had reasoned that Smith’s speech was involved in this case, but that “Colorado could compel speech from Ms. Smith consistent with the Constitution.” The majority concludes that First Amendment precedents “teach otherwise.”
For those who are inclined to see this ruling as the beginning of a discriminatory approach to services, Justice Gorsuch fleshed out the consequences if the Court were to uphold the lower court’s logic.
“Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message—if the topic somehow implicates a customer’s statutorily protected trait … Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty.”
Justice Gorsuch then painted a convincingly realistic dystopian outcome for people on all sides, quoting a dissenting judge on the Tenth Circuit.
“The government could require ‘an unwilling Muslim movie director to make a film with a Zionist message,’ or ‘an atheist muralist to accept a commission celebrating Evangelical zeal,’ so long as they would make films or murals for other members of the public with different messages. Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage.”
Justice Gorsuch made it clear that there are sharp limits for this ruling, one that pertains to speech and expressive industries.
“[W]e do not question the vital role public accommodation laws play in realizing the civil rights of all Americans …”
Quoting a prior ruling that public accommodation laws “vindicate the deprivation of personal dignity that surely accompanies denials of equal access to public establishments,” Justice Gorsuch noted that Smith’s “voice is unique; so is everyone’s. But that hardly means a State may coopt an individual’s voice for its own purposes.”
Protect The 1st agrees with the Court’s reasoning and urges people on all sides to take the same cool look at the consequences that would have flowed from an alternate ruling.
One doesn’t have to agree with a particular belief to agree with the principle that speech should never be coerced. The Court’s opinion provides a narrow exception, one to be kept within the boundaries of the exercise of speech.
Groff v. DeJoy: Protect The 1st Applauds SCOTUS Decision to Revive Postal Worker’s Request for Religious Accommodation
The U.S. Supreme Court today unanimously revived the case of a former postal employee, Gerald Groff, an evangelical Christian who claims his rights under Title VII of the civil rights law were violated when the Postal Service denied his request to refrain from working on Sunday.
In oral argument in April, the Justices had focused on how much disruption and hardship an employer would have to suffer in order to justify denying an employee a religious accommodation. In today’s ruling, the Court threw out the prevailing standard that businesses shouldn’t be required to suffer more than “de minimus” harm from a religious accommodation. Instead, the Court held that a business or other employer must accommodate a religious practice unless the accommodation would create a “hardship” that is “substantial in the overall context of an employer’s business.”
Writing for the unanimous Court, Justice Alito also made clear that the range of cognizable hardships is narrow: “An employer who fails to provide an accommodation has a defense only if the hardship is ‘undue,’” he wrote, “and a hardship that is attributable to employee animosity to a particular religion, to religion in general, or the very notion of accommodating religious practice cannot be considered ‘undue.’”
Justice Alito also wrote that it is not enough for an employer to conclude that forcing other employees to work overtime would constitute an undue hardship. “Consideration of other options, such as voluntary shift swapping, would also be necessary.”
“In throwing out the lower court ruling, the Supreme Court today took a major step toward widening respect for religious liberty,” said Gene Schaerr, general counsel of Protect The 1st. “In this unanimous ruling, the Justices made clear that, absent serious harm to the actual practice of a business, Title VII – which reflects in the private sphere the First Amendment’s protection for free exercise of religion in the public sphere – requires employers to respect an employee’s religious needs.”
Erik Jaffe, PT1's Policy Director and PRI adjunct fellow in legal studies and one of America’s top constitutional lawyers, joins us for his annual preview of the hot Supreme Court cases that will be handed down before the end of the term. They discuss cases involving private property rights, tech, college admissions policies, legislative gerrymandering, and more. They also explore the controversy over Supreme Court ethics and the mystery of why we still haven’t found the Supreme Court “leaker.”
Protect the First to SCOTUS: Sidewalk Preacher Case Is an “Excellent Vehicle” to Resolve Public Forum Speech Issue
Protect The 1st on Wednesday filed a reply brief answering claims from the University of Alabama against our petition for the U.S. Supreme Court to hear Keister v. Bell.
We told the court that this case is an “excellent vehicle” to resolve a split in appellate courts on the proper analysis of what constitutes a public forum. The case revolves around the right of evangelist Rodney Keister to stand on city-owned sidewalks on a public street in Tuscaloosa, Alabama, near the University of Alabama. The UA campus police enforced an agreement with the city to clamp down on expressive activity at that portion of the sidewalk, warning Keister not to preach on this portion of a public sidewalk.
At stake is the right of Americans to use public spaces to engage in speech – a practice that was embedded in American life long before colonials handed out Thomas Paine’s Common Sense pamphlets. The Tenth Circuit Court of Appeals, for example, recognizes that “traditional public fora are open for expressive activity regardless of the government intent.” On the other hand, the Eleventh Circuit ruled against Keister with a multifactor balancing test and allowed the University to forbid expressive activity on the sidewalk.
Protect The 1st wrote: “Even assuming the propriety of a balancing test, the Eleventh Circuit’s circular reliance on the University’s intent to suppress speech was an improper fulcrum for converting the most quintessential of traditional public fora into a limited forum allowing suppression.”
Protect The 1st is hopeful the Court will take this chance to resolve a split in the courts and uphold the traditional right of Americans to use public property for expression and speech.
Observers of the U.S. Supreme Court have long wondered if Justice Clarence Thomas would lead his colleagues to hold internet companies that post users’ content to the same liability standard as a publisher.
In a concurrence last year, Justice Thomas questioned Section 230 – a statute that provides immunity for internet companies that post user content. Justice Thomas noted that the “right to cut off speech lies most powerfully in the hands of private digital platforms. The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions.”
In the case heard today, Gonzalez v. Google, the family of a woman murdered by terrorists in Paris is suing Google not for a direct post, but for a YouTube algorithm that temporarily “recommended” ISIS material after the crime. In oral argument, Justice Thomas posed a more skeptical note.
“If you call information and ask for al-Baghdadi’s number and they give it to you, I don’t see how that’s aiding and abetting,” he said. Justices returned to precedents about lending libraries and bookstores not being held accountable for the content in their books.
Protect The 1st joined with former Sen. Rick Santorum in an amici brief before the Court arguing that Section 230 protections are absolutely needed to sustain a thriving online marketplace of ideas. Social media companies make a good faith effort to screen out dangerous content, but with billions of messages, perfection is impossible.
Google attorney Lisa Blatt brought this point home in a colorful way, noting that a negative ruling would “either force sites to take down any content that was remotely problematic or to allow all content no matter how vile. You’d have ‘The Truman Show’ versus a horror show.”
The tone and direction of today’s oral argument suggests that the Justices appreciate the potential for an opinion that could have negative unforeseen consequences for free speech. Justice Brett M. Kavanaugh added that the court should not “crash the digital economy.”
Protect The 1st looks forward to reading the Court’s opinion and seeing its reasoning.
Jonathan Savas v. California State Law Enforcement Agency
Protect The 1st filed a brief on Friday in favor of a Supreme Court petition from 21 current and former lifeguards who are being forced to remain for years against their will as dues-paying members of a public employee union.
In September 2019, these California Department of Parks and Recreation lifeguards signed forms that authorized a public union, the California State Law Enforcement Agency, to enroll them as members and deduct union dues from their wages.
On the form was a vaguely worded statement that there were limitations to withdrawal from the union. This may have seemed like boilerplate since a Supreme Court opinion in June 2018, Janus v. American Federation of State, County, and Municipal Employees, held that public-sector unions cannot require non-member employees to pay agency fees covering the costs of even non-political union activities.
The form did not explain that if members wished to resign their union membership, they could only do so during a single thirty-day period every four years. This means the lifeguards who signed the form will be forced to remain union members until July 2023. Over this time, any political stance or activity taken by the union will be done in the name, and with the money, of these unwilling members.
The lifeguards sued to protect their First Amendment rights. In April, the federal Ninth Circuit Court of Appeals ruled against them.
In our brief before the Supreme Court, Protect The 1st informs the Court:
“The front page of the California State Law Enforcement Agency (‘CSLEA’) website currently sports a banner reading ‘My Union, My Choice!’ But when Petitioners asserted their choice to leave that union, the union and the state of California sang a different tune. California has a ‘maintenance of membership’ agreement with CSLEA, which forces employees to remain union members and pay full union dues for four years, all the while subsidizing union speech they no longer wish to support.
“Compelled speech and association—especially of a political nature—is not permissible under the First Amendment. And it is particularly shocking in this case, where the State seizes money from Petitioners’ paychecks and gives it to the union, which in turn supports political candidates and legislation through multiple election cycles.”
Our brief demonstrates three reasons why the Court should take up this case.
The “Member Maintenance” Agreement Compels Political Speech
California is forcing these government employees to support union speech, including political speech and candidates supported by the union, for up to four years. The repeated injuries to First Amendment rights over such a long period of time are especially egregious.
Even De Minimis Violations of the First Amendment Are Illegal
Compelling speech from American citizens for four years is unconscionable, but any compelled speech or association that violates the First Amendment, even if that compulsion includes only a few words or lasts for a few moments, is objectionable. As the Supreme Court held in 1976, “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”
The Lower Courts Are Eviscerating Janus’s Protections
Before the Ninth Circuit’s ruling against the lifeguards in April, the Third and Seventh Circuits had also imposed improper limits on the Supreme Court’s Janus decision. The Court had made it clear that “compelled subsidization of private speech seriously impinges on First Amendment rights.” Yet lower courts continue to allow such violations.
“This petition gives the high Court the means by which to reinforce the plain meaning of its ruling in Janus to the lower courts,” said Gene Schaerr, general counsel of Protect The 1st. “It upholds the obvious principle that the erosion of our First Amendment rights for even a minute is unacceptable – and the maintenance of that violation for years is obscene.”
Protect The 1st Joins Jewish, Muslim and Sikh Coalition to Defend the Religious Rights of Native Americans
Petition to Supreme Court in Slockish v. U.S. Department of Transportation
Protect The 1st today joined the Jewish Coalition for Religious Liberty, the Sikh Coalition, and the American Islamic Congress in petitioning the U.S. Supreme Court to review the harms inflicted on religious liberty by a Ninth Circuit Court of Appeals decision.
This petition concerns a case that began in 2008 when the U.S. Highway Administration, ignoring the objections of members of the Yakima Nation and Grande Ronde tribes, bulldozed Native ancestral burial grounds and dismantled a stone altar. The site was razed to widen U.S. Highway 26 in Oregon, while a tattoo parlor on the other side of the highway was left untouched.
After this desecration of their sacred lands, tribal members sought relief for this infringement in federal court. On Nov. 24, 2021, the Ninth Circuit Court of Appeals ruled the government would not be held responsible for destruction of the sacred site and dismissed the case as moot.
On Nov. 4, 2022, a coalition of Jews, Muslims, Sikhs, and Protect The 1st petitioned the Supreme Court to consider the threat to religious liberty, especially non-Western and Indigenous religious groups lacking political clout, by this cavalier treatment of a faith by the federal government.
The coalition’s petition demonstrates three errors driving the Ninth’s egregiously wrong decision, which threatens to gut the protections of the free exercise of religion under the First Amendment, the Religious Freedom Restoration Act (RFRA), and the Religious Land Use and Institutionalized Persons Act (RLUIPA).
First, The Ninth Circuit took a ‘our hands-are-tied approach.’ The court ignored that under RFRA, the government must rule out any possibility of remedying a religious freedom violation—including remedies that might partially satisfy the plaintiffs’ religious beliefs. The court uncritically accepted the government’s position that any relief would, somehow, involve “safety” regarding the highway easement.
For example, the Ninth Circuit refused to consider actions that could be taken without impairing highway safety, such as planting trees or medicinal herbs in the surrounding areas, or whether any part of the sacred site could be rebuilt outside of the narrow strip of land covered by the easement.
The coalition’s petition informs the High Court that the failure of the Ninth Circuit to consider the possibility of some measure of relief “is especially troubling here, where the Ninth Circuit was deciding the rights of minority religious adherents. Especially in such cases, courts must thoroughly evaluate what sorts of accommodations believers of minority faiths might find acceptable …”
Second, the Ninth Circuit’s decision ignores RFRA’s broad grant of authority to the judiciary to redress government interference with religious practice. The coalition brief explains that the Ninth Circuit decision here “flouts RFRA’s text” and Supreme Court precedent. “In holding that courts are powerless to redress statutory and constitutional violations because some remedies might (in the government’s view) implicate a state agency’s right-of-way, the Ninth Circuit got things exactly backwards.”
Instead, when federal courts confront federal actions that infringe on religious rights, the authority of courts to act in defense of those rights is strong.
Third, the Ninth Circuit took at face value the government’s claims that no remedy was feasible, instead of analyzing that claim under RFRA and RLUIPA. The coalition concludes: “If left standing, the Ninth Circuit’s decision would gut RFRA, permitting government actors to simply claim ‘infeasibility’ whenever they find accommodating religious practice inconvenient.”
“This case is a matter of heartbreak for American citizens of Native faiths,” said Gene Schaerr, general counsel of Protect The 1st. “It should also be a matter of deep concern for Sikhs, Jews and Muslims who wish to wear outward manifestations of their faith, as well as Christians and people of all faiths who want to preserve the protections of the Religious Freedom Restoration Act.”
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.