​The U.S. Supreme Court is set to address several critical free-speech cases this session related to speech rights in the context of social media. One of those questions was recently settled, with the Court ruling on whether an official who blocks a member of the public from their social media account is engaging in a state action or acting as a private citizen. Answer: It depends on the context.
 
Writing for a unanimous Court in the case of Lindke v. Freed, Justice Amy Coney Barrett reaffirmed that members of the public can sue a public official where their actions are “attributable to the State” (consistent with U.S.C. §1983). In order to make that determination, the Court issued a new test, holding that:
 
“A public official who prevents someone from commenting on the official’s social-media page engages in state action under §1983 only if the official both (1) possessed actual authority to speak on the State’s behalf on a particular matter, and (2) purported to exercise that authority when speaking in the relevant social-media posts.”
 
This is a holistic analysis, consistent with the Protect The 1st amicus brief filed in O’Connor-Ratcliff v. Garnier. We argued that “no single factor is required to establish state action; rather, all relevant factors must be considered together to determine whether an account was operated under color of law.”
 
That case, along with the Court’s banner case, Lindke v. Freed, is now vacated and remanded for new proceedings consistent with the Court’s novel test. When, as the Court acknowledges, “a government official posts about job-related topics on social media, it can be difficult to tell whether the speech is official or private.” So the Court set down rules. A state actor must have the actual authority – traced back to “statute, ordinance, regulation, custom, or usage” – to speak on behalf of the state. However, should an account be clearly designated as “personal,” an official “would be entitled to a heavy (though not irrebuttable) presumption that all of the posts on [their] page were personal.”
 
In Lindke v. Freed, the public official’s Facebook account was neither designated as “personal” nor “official.” Therefore, a fact-specific analysis must be undertaken “in which posts’ content and function are the most important considerations.” As the Court explains:
 
“A post that expressly invokes state authority to make an announcement not available elsewhere is official, while a post that merely repeats or shares otherwise available information is more likely personal. Lest any official lose the right to speak about public affairs in his personal capacity, the plaintiff must show that the official purports to exercise state authority in specific posts.”
 
When a public official blocks a citizen from commenting on any of his posts on a “mixed-use” social media account, he risks liability for those that are professional in nature. Justice Barrett writes that a “public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.”
 
It's always been good policy to keep official and private accounts separate. The public must be able to have access to government-issued information, whether through a social media account or a public notice posted on the door of a government building. Moreover, citizens should be able to speak on issues of public concern, whether through Facebook or in a public square. Officials – presidents and former presidents included – should take note.

​In November, we reported on a controversy in the San Antonio suburb of Castle Hills, which epitomizes the growing trend of using the law to punish disfavored speech. The Supreme Court’s recent argument reveals several justices showing solidarity with the arrested party.
 
Here are the facts: Sylvia Gonzalez was elected to a seat on the Castle Hills city council in 2019. During her first council meeting, a resident submitted a petition to remove the city manager – a petition spearheaded by Gonzalez – and it wound up in Gonzalez’s personal binder of documents. After being asked for the petition by the mayor, Gonzalez found it among her effects and handed it over.
 
The mayor initiated an investigation into Gonzalez under a Texas statute providing 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 resigned from the council in humiliation. 
 
Gonzalez claims her arrest was retaliatory – trumped-up charges based on a little enforced statute and stemming from her support for removing the city manager. At issue is a legal doctrine known as the “jaywalking exception,” which guards against law enforcement arresting people for protected speech under the guise of some other petty statutory violation.
 
In Nieves v. Bartlett, the Supreme Court held that retaliatory arrest claims may proceed where probable cause exists – as it technically did with Gonzalez – but a plaintiff is arrested in a situation where officers “typically exercise their discretion not to do so.”
 
In such circumstances, 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.”
 
Attempting to satisfy the exception, Gonzalez 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 Fifth Circuit found this insufficient, holding 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. How would anyone even find such instances? The Fifth Circuit tasked her with proving a negative.
 
If the Fifth Circuit’s decision is left in place, Protect The 1st explained 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.
 
During oral arguments, several justices seemed to agree. Justice Gorsuch, speaking about the many unenforced statutes on the books, said:
 
“You're saying they can all sit there unused, except for one person who alleges that ‘I was the only person in America who's ever been prosecuted for this because I dared express a view protected by the First Amendment,’ and that's not actionable?”
 
Justice Kagan, clearly thinking along the same lines, said the plaintiff has “solid objective evidence” that they were treated differently than similarly situated persons, noting:
 
“You should be able to say, ‘They've never charged somebody with this kind of crime before and I don't have to go find a person who has engaged in the same conduct.’”
 
Justice Jackson made similar remarks, while Chief Justice Roberts, who authored Nieves, seemed to take the other side, questioning whether expanding the evidentiary basis for refuting probable cause is consistent with the Court’s earlier ruling. It “seems to me to be inconsistent,” he said. Justice Kavanaugh likewise noted, "If you intentionally stole a government document at a government proceeding — that's not nothing.”
 
Why Gonzalez would want to hide a petition she helped organize is far from clear. Her conduct was so benign that the only inference one can reasonably draw is that she was the target of retaliation. Protect The 1st hopes the Court sides with her and makes it clear they will hold public officials accountable for weaponizing the law against those who speak their minds.

​The Ninth Circuit Court of Appeals’ ruling against the Apache Stronghold, unless overturned, will allow the Apache’s Oak Flat religious site to be destroyed by a private mining company.
 
These lands have long been recognized by the U.S. government as the singular, sacred site of the Apaches’ worship. Set to be transformed into a crater twice as deep as the Washington Monument, not only is Oak Flat in danger of being destroyed, but with it the religion that centers around that site.
 
The least we can say is that this one was painfully close, a 6-5 split decision. The Ninth Circuit asserted that the transfer of this land, revered as the center of the Apache religion for centuries, did not (somehow) even trigger an inquiry under, much less violate, violate the Religious Freedom Restoration Act. That Act requires strict scrutiny of any law that burdens religious freedom. Judge Mary H. Murguia issued a stinging rebuke of the majority in her dissent:
 
“We are asked to decide whether the utter destruction of Chí’chil Biłdagoteel, a site sacred to the Western Apaches since time immemorial, is a ‘substantial burden’ on the Apaches’ sincere religious exercise under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb to bb-4. Under any ordinary understanding of the English language, the answer must be yes.”
 
Unless the U.S. Supreme Court grants cert. and overturns the Ninth Circuit’s unduly narrow conception of what constitutes a “burden” on religion, the Oak Flat religious site will become one of the nation’s largest copper ore mines, the result of a midnight deal in Congress. This scenic place of worship will become an ugly pit.
 
What was the reasoning of the majority? This en banc decision relied on a U.S. Supreme Court case, Lyng v. Northwest Indian Cemetery Protective Ass’n (1988), which held that government disposition of property does not violate the Free Exercise Clause so long as it “compels no behavior contrary to … belief.” It is doubtful that the Ninth Circuit’s broad reading of that statement remains valid, if it ever was. If barring people from entering a place of worship under COVID restrictions raises serious free exercise problems, it is hard to see how completely destroying a religion’s essential place of worship does not at least impose a burden sufficient to trigger strict scrutiny under RFRA.
 
People of all faiths should be concerned that the circuit court took such a miserly view of the free exercise of religion. Imagine the outcry from Catholics if the government decided to turn the Basilica of the National Shrine of the Immaculate Conception into dust. Or the outcry of American Jews if a midnight deal in Congress targeted the Touro Synagogue in Rhode Island – the oldest still standing in the United States, and where George Washington welcomed Jews into the heart of America – to become a seemingly bottomless pit. The notion that such acts would not even “burden” the exercise of religion goes well beyond the implausible and into the absurd.
 
We hope the Justices of the Supreme Court dwell on the words of our first President, who famously wrote to the congregants of the Touro Synagogue: “Every one shall sit in safety under his own vine and fig tree, and there shall be none to make him afraid.” Can we say that is true for everyone in our country now? To again quote the dissenting judges, “the destruction of the Apaches’ sacred site will prevent worshipers from ever again exercising their religion.”
 
Luke Goodrich, senior counsel at Becket who represented the Apache, tweeted: “We fully expect SCOTUS to take this case, confirm the plain meaning of federal law, and hold that Native Americans are entitled to the same protection of their religious freedom that every other American enjoys.” Protect The 1st is also hopeful the Court will see that the Apaches’ free exercise of religion is inextricable from the preservation of this uniquely holy place.
 
For the Supreme Court to review this case would be a prayer answered.

​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.

​They say, “misery acquaints a man with strange bedfellows,” and to most followers of the national discourse, no pair of institutions could make for an odder couple than the National Rifle Association and the American Civil Liberties Union. Yet in keeping with its principles, the ACLU has decided to represent the NRA before the Supreme Court, and it’s causing some consternation within the group.
 
The ACLU of Texas announced on December 15 that it would not join with its national organization in siding with the NRA’s suit against New York’s Department of Financial Services. They join the New York Civil Liberties Union, who said in a statement: "The NRA is among the most powerful advocacy organizations in the country, with resources to secure the nation’s finest lawyers. It does not need the ACLU to volunteer for that job."
 
The case, National Rifle Association v. Vullo, asks whether former New York State Department of Financial Services Superintendent Maria Vullo violated the First Amendment by encouraging banks and insurance companies to stop doing business with the NRA following the 2018 Parkland, Florida high school shooting. The U.S. Court of Appeals for the Second Circuit ruled against the NRA, arguing that “government officials have a right — indeed, a duty — to address issues of public concern.”
 
The NRA, which is also represented by Brewer Attorneys and Counselors as well as constitutional scholar and Protect the First Senior Advisor Eugene Volokh, believes the case was erroneously decided. In their certiorari petition, they write:
 
“The Second Circuit’s opinion below gives state officials free rein to financially blacklist their political opponents – from gun-rights groups to abortion-rights groups, to environmentalist groups, and beyond. It lets state officials ‘threaten[] regulated institutions with costly investigations, increased regulatory scrutiny and penalties should they fail to discontinue their arrangements with’ a controversial speaker, on the ground that disfavored political speech poses a regulable ‘reputational risk.’ … It also permits selective investigations and penalties targeting business arrangements with disfavored speakers, even where the regulator premises its hostility explicitly on an entity’s political speech and treats leniently, or exempts, identical transactions with customers who lack controversial views.”
 
For their part, the ACLU has made clear that they disagree with the NRA’s overarching policy goals. In a statement, they said: “The ACLU does not support the NRA or its mission. We signed on as co-counsel because public officials shouldn’t be allowed to abuse the powers of the office to blacklist an organization just because they oppose an organization’s political views.”
 
We could not agree more, and the NRA makes a compelling argument that Vullo overstepped her bounds. In fact, the Supreme Court has already ruled in Bantam Books v. Sullivan from 1963 that the government violates fundamental First Amendment rights when it targets an organization through “informal sanctions,” including “coercion, persuasion and intimidation.”
 
We applaud the ACLU for standing up for what’s right, even – and especially – when it’s hard to do so. We look forward to further developments in this case.

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 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 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.

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.”

​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.

​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.

​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 …”
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• 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 

​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:
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“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 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.

​Protect The 1st is covering the growing likelihood that the split between the Eleventh and Fifth Circuit courts over the social media moderation content laws of Texas and Florida make it likely that the U.S. Supreme Court will resolve what decisions about political speech – if any – can be made by states.
 
As we reported last week, the Florida law – which would prohibit social media platforms from removing the posts of political candidates – was stricken by the Eleventh Circuit. The Texas law, which bars companies from removing posts based on a poster’s political ideology, was upheld by the Fifth Circuit. Both laws aim to address questionable content moderation decisions by Twitter, Meta, Google, and Amazon, by eroding the Section 230 liability shield in the Communications Decency Act.
 
Cert bait doesn’t get more appealing than this. Consider: A split between federal circuits. Laws that would protect free expression in the marketplace of ideas while simultaneously curtailing the speech rights of unpopular companies. Two similar laws with differences governing the moderation of political speech. The petition for SCOTUS reviewing the Texas and Florida laws practically writes itself.
 
We were not initially surprised when we heard reports the Supreme Court was stepping into the Section 230 fray. The Court, however, is set to examine a different set of challenges to Section 230 in a domain that is oblique to the central questions about political content posed by Texas and Florida.
 
The court will examine whether the liability protections of Section 230 immunize Alphabet’s Google, YouTube, and Twitter against apparently tangential associations in two cases involving terrorist organizations. Do the loved ones of victims of terror attacks in Paris and Istanbul have an ability to breach 230’s shield?
 
We don’t mean to diminish the importance of this question, especially to the victims. As far as the central questions of political content moderation and free speech are concerned, however, any decisions on these two cases will have modest impact on the rights and responsibilities of these platforms, a crucial issue at center of the national debate.
 
It is our position that taking away Section 230 protections would collapse online commerce and dialogue, while violating the First Amendment rights of social media companies. Love social media companies or hate them – and millions of people are coming to hate them – if you abridge the right of one group of unpopular people to moderate their content, you degrade the power of the First Amendment for everyone else.
 
We continue to press policymakers to look to the principles behind the bipartisan Platform Accountability and Transparency Act, which would compel the big social media companies to offer clear standards and due process for posters in exchange for continuing the liability protection of Section 230.

Protect The 1st congratulates Justice Ketanji Brown Jackson on her swearing in. Now that she is on the nation’s highest court, Justice Jackson will be able to employ her well-honed jurisprudence to set strong precedents. We are hopeful Justice Jackson will use her authority to vigorously defend all the enumerated rights of the First Amendment.

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.”
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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.