If the State of North Carolina has its way, the U.S. Supreme Court could soon hear its first case addressing the constitutionality of so-called “ag-gag” laws, statutes that aim to punish whistleblowers and undercover activists.
North Carolina passed the Property Protection Act (PPA) in 2015, seeking to codify a ruling emanating from a late-1990s conflict between Food Lion and ABC News in which two journalists posed as employees and covertly recorded unsafe food-handling practices. Food Lion sued the network, and the Fourth Circuit Court of Appeals eventually found in the supermarket’s favor. The legislature’s 2015 codification of that ruling, in theory, creates an employee disloyalty cause of action and allows for damages resulting from work stoppage.
It’s a clever framing, but the reality is that the PPA is a little more than an unconstitutional “ag-gag” law designed to shield North Carolina’s large-scale farming industry from journalistic scrutiny. That’s certainly what PETA – which brought the case – believes. And two prominent federal courts have now sided with them.
PETA’s argument is that the PPA unconstitutionally burdens its investigative efforts. Specifically, the organization takes issue with a provision in the law that allows employers to sue for damages any employee who “without authorization records images or sound occurring within” the nonpublic areas of the employer’s private property “and uses the recording to breach the person’s duty of loyalty to the employer.” (Three other provisions are also at issue, each prohibiting similar conduct.)
A federal district in North Carolina agreed with PETA, striking down the law as a content-based restriction on speech. The Fourth Circuit upheld that ruling insofar as it pertained to newsgathering efforts by PETA and similar animal welfare groups but did not rule on the law’s constitutionality applied to other situations. North Carolina subsequently filed a certiorari petition before the U.S. Supreme Court.
What the State of North Carolina is effectively asking the Supreme Court to do is create a new category of unprotected speech – information collected by an undercover investigation in non-public areas. From a policy standpoint, it’s anathema to the very notion of a free press.
America’s venerable tradition of investigative journalism goes back centuries, and is exemplified by trailblazing reporters like Nellie Bly, who became an inmate at the Women’s Lunatic Asylum at Blackwell’s Island to expose deplorable conditions there. It continues today in the form of citizen journalists like Darnella Frazier, who received a Pulitzer Prize citation for recording the murder of George Floyd by a policeman in Minneapolis in 2020.
The right to record is closely linked to investigative journalism, which is and must always be protected under the Constitution. Judge Henry Floyd of the Fourth Circuit perhaps put it best:
“…while we agree that an employer could freely choose to deny entry to journalists who seek to secretly record its inner workings, it does not follow that a State can create ‘new categories of unprotected speech’ to punish those journalists. The First Amendment limits the government; the government does not limit the First Amendment.”
Both the Ninth Circuit and Tenth Circuit have invalidated “ag-gag” laws as incompatible with First Amendment press protections. Eight of 11 “ag-gag” laws passed on the state level have been found unconstitutional. If the Supreme Court agrees to hear oral arguments in this case, the Court will find plenty of precedent.
Exhibit A for the PRESS Act – Judge Orders CBS’s Catherine Herridge to Reveal Her Confidential Sources
With perfect timing, Judge Christopher Cooper of the U.S. District Court in DC provided the U.S. Senate today with ample to reason to follow the example of the House and pass the PRESS Act. The judge seeks to compel CBS News senior correspondent Catherine Herridge to reveal her confidential source or sources for a news series she published when she was a journalist at Fox News.
Confidentiality is the lifeblood of a free press. From Watergate to Harvey Weinstein, confidential sources have helped journalists bring to light malfeasance and hidden crimes that otherwise would have continued. And a strong reporting culture is a counter to the growing surveillance state enabled by technology. That is why in September, 2022, the House unanimously passed the bipartisan Protect Reporters from Exploitive State Spying, or PRESS Act – and the House Judiciary Committee unanimously approved it again on July 19 of this year.
This measure would bring the federal government up to speed with 49 states by shielding reporters from choosing between jail or ratting out whistleblowers and sources as ordered by a federal judge or prosecutor. The PRESS Act is reasonable legislation, allowing for exceptions in extreme cases.
Protect The 1st supports Herridge and all journalists who face similar dilemmas. This is all the more reason why the House should again pass this bill and the U.S. Senate should take up the PRESS Act when Congress returns after August recess.
Communities have the power to pass laws that protect vulnerable minors from clearly inappropriate material, even in cases where adults have a First Amendment right to view and distribute that material to each other. But such laws have to be precise in how they enforce restrictions. And, one would hope, they’d include solutions to actual problems – not just a response to political passions.
Plaintiffs before a federal court – including bookstores, libraries, and patrons of those establishments – take issue with two specific provisions in Arkansas’s Act 372. The first is Section 1, which creates misdemeanor criminal liability for librarians and booksellers, and even parents, who “[furnish] a harmful item to a minor.” The second is Section 5, which creates a process by which any citizen can challenge the appropriateness of any book in a state library according to local community standards, with final decision-making power in the hands of local county quorum courts or city councils.
As the plaintiffs assert, Section 1 would result in either the widespread removal of books or an outright ban on young people under 18 from entering libraries or bookstores. Section 5, they argue, would allow vocal minorities to tell entire communities what they can and cannot read.
In a remarkably restrained order and opinion, Judge Timothy L. Brooks found that the plaintiffs were likely to succeed on the merits of their case based on the overbreadth of Section 1 and the vagueness of Section 5.
Regarding Section 1, Arkansas code defines “harmful to minors” as “any description, exhibition, presentation, or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse” that lacks “serious literary, scientific, medical, artistic, or political value for minors” or would be deemed “inappropriate for minors” by the average adult, based on potentially restrictive local community standards. Factoring in the state’s very broad definition of “nudity,” it’s clear that Section 1 would result in the censorship of a vast swath of popular books, including many with only fleeting or insubstantial references to sexual conduct. It would certainly cover any book with even the most innocuous depiction of same-sex affection.
Moreover, defense counsel candidly admitted in court that, under their interpretation of the law as written, any reading material deemed harmful for a five-year-old minor would also be deemed harmful for a 17-year-old minor, despite obvious differences between the two in maturity and comprehension of adult themes and issues. The U.S. Supreme Court addressed this issue in Virginia v. American Bookseller’s Association, Inc., suggesting that an interpretation of the term “harmful to minors” that includes speech protected for older minors would raise First Amendment concerns.
Regarding Section 5, Judge Brooks agreed with the plaintiffs that the provision is likely “void for vagueness” because the term “appropriateness” is left entirely undefined. He further notes that it “would permit, if not encourage, library committees and local governmental bodies to make censorship decisions based on content or viewpoint.”
It's worth pointing out that Arkansas already prohibits the provision of obscene material to minors. Accordingly, Judge Brooks asks, “[w]hat has happened in Arkansas to cause its communities to lose faith and confidence in their local librarians? What is it that prompted the General Assembly’s newfound suspicion? And why has the State found it necessary to target librarians for criminal prosecution?”
It is better for legislators to focus on protecting children from real harms, instead of passing sure-to-be-voided legislation.
A New York Times op-ed by two U.S. senators offers a bipartisan counter to the power of Big Tech – eliminate the legal liability protections that have been the cornerstone of the internet since 1996, while imposing “an independent, bipartisan regulator charged with licensing and policing the nation’s biggest tech companies.”
The ability to license and police is, of course, the ability to control some of America’s largest social media platforms. If enacted, this measure proposed by Sens. Elizabeth Warren (D-MA) and Lindsey Graham (R-SC) would strip away the ability of minority opinion and contentious views from being heard, while subjecting speech to official, top-down policing by a regulator.
The op-ed doesn’t name Section 230, the law that protects platforms that host third-party speech from legal liability. We respect the earnest desire of these two senators to improve the state of online speech, but replacing Section 230 with the vague mandate of a regulator could be profoundly dangerous for the First Amendment’s guarantee of free speech, the lifeblood of democracy.
Section 230 restricts the legal liability for illegal acts to the speaker, not the website. It holds those who break the law online accountable for their actions, while holding platforms accountable for preventing serious federal crimes, like posting child abuse sex material. It empowers minorities of all sorts, allowing controversial or unpopular opinions to have their day.
Without Section 230, the internet would devolve into a highly sanitized, curated space where any controversial statement or contentious argument would be red penciled. The elimination of Section 230 would take away the vibrant clash of opinions and replace it with endless cat videos and perhaps the regulator’s officially sanctioned views.
Many believe, and we agree, that Section 230 needs reform. The bipartisan PACT Act would require platforms to give speakers a way to protest having posts removed, while respecting the First Amendment rights of both companies and speakers, with less risk of government heavy-handedness and censorship.
Judge Enjoins Federal Agencies from Urging Social Media Companies to Moderate Content– But Where Is the Line?
On July 4th, Judge Terry A. Doughty, Trump appointed judge of the United States District Court for the Western District of Louisiana, issued an opinion and order enjoining listed 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.” The decision follows outcries from some conservatives that government agencies are pressuring social media companies to remove or modify content posted by conservative voices. The order was rapidly stayed by the Fifth Circuit Court of Appeals. One can be assured that the debate will continue.
We have questions.
The case, Missouri v. Biden, stems from accusations of government censorship and viewpoint discrimination against conservative speech – specifically, posts related to whether vaccines are effective as a COVID-19 treatment, the origins of the COVID pandemic , the efficacy of lockdowns to slow the spread of the disease, and other content. Unsurprisingly, many on the right lauded the ruling as a victory against the administration’s “Orwellian ‘Ministry of Truth’” (quoting Doughty himself). Others decry it as politically driven theater, which could have significant, deleterious consequences on the government’s efforts to stem the flow of mis- or disinformation.
Judge Doughty found that the posts in question did not fall within the narrow category of speech that is unprotected by the First Amendment (e.g., incitement to violence). He further cited specific examples of exchanges between the White House and various agencies and social media companies that could reasonably be interpreted as coercive.
On the other hand, many reading the same comments could also interpret them as mere requests – intended to promote public health and safety. Herein lies the difficulty.
What is clear from this case is that this issue is far from resolved. The Fifth Circuit on July 16th temporarily paused Doughty’s order and agreed to expedite the administration’s appeal. Ultimately that court will decide whether an injunction is appropriate (and, perhaps, another court after that). In the meantime, we are left with those pesky questions.
Is government advice to social media companies helpful? The government possesses intelligence gathering capabilities far superior to those of any social media company. Do platforms welcome advice derived from those capabilities about the harmfulness of content? Or does the sharing of information constitute undue pressure? Is this a fact-specific inquiry? Where is the line between violating First Amendment rights and protecting public safety? Should the recipient’s perception matter at all?
These questions merit an informed public debate. In our view, the best means of doing so would be to hold public, bipartisan congressional hearings (arguably not achieved by recent hearings held by the House Judiciary Select Subcommittee on the Weaponization of the Federal Government). The witness list for the hearings should prominently feature executives from the social media platforms who can address the questions directly.
It’s true that courts make policy all the time, but such critical policy debates should not be resolved by injunction (or by reactive, piecemeal state legislation). A robust discussion at the national level is a far better means of comprehensively parsing the many nuances at play when it comes to social media and free speech.
If it is determined that the government is threatening social media platforms, then that’s a problem that must be addressed – by the courts or by Congress, or both. But at the same time, the government must also be able to speak to private actors, including private companies, and especially on issues of public concern. (You might say it’s fundamental to the very concept of governance.)
One thing lacking from Judge Doughty’s opinion is any articulable roadmap for distinguishing between legitimate government speech and coercion. We need one.
As such, we might urge some of our more enlightened statesmen on both sides of the aisle: it’s time to speak up.
The Foundation for Individual Rights and Expression is back in court again to remind the school system that they don’t have the power to curtail student speech outside of the classroom. The organization is representing a 17-year-old rising senior who was suspended by his Tennessee public high school for posting memes making fun of the principal’s dour personality.
In August of 2022, Tullahoma High School’s principal Jason Quick and assistant principal Derrick Crutchfield called the student, whose name is not mentioned, to their office and interrogated him about three memes he posted to Instagram off school grounds and outside school hours. As a consequence, Quick suspended the student based on a school policy prohibiting students from posting images on social media which “embarrass,” “discredit,” or “humiliate” another student or school staff.
As FIRE attorney Conor Fitzpatrick said, “The First Amendment bars public school employees from acting as a 24/7 board of censors.” He added that “as long as a student’s posts do not substantially disrupt school, what teens post on social media on their own time is between them and their parents, not the government.”
FIRE is representing the student in the hopes the courts will solidify their 2021 ruling in Mahanoy Area School District v. B.L. In that case, also filed by FIRE, the Supreme Court held that Pennsylvania’s Mahanoy Area High School violated former high school cheerleader Brandi Levy’s First Amendment rights by suspending her from the cheerleading team for voicing her frustrations with the school in a Snapchat post. In an 8-1 decision, the Court held that Levy’s comment, similarly posted while off-campus, was directed to her “private circle” of online friends. The Court affirmed that the incident did not constitute the “sort of ‘substantial disruption’ of a school activity or a threatened harm to the rights of others that might justify” disciplinary action.
By filing this suit, FIRE cements its hard-fought precedent by standing up for students’ First Amendment rights. The phrase used to be that students don’t have to “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” How far we’ve come that now we need lawsuits to remind schools that students don’t shed their First Amendment rights at home either. PT1 is very pleased to express our support for FIRE’s position in the litigation.
PT1 is pleased that the House Judiciary Committee reported H.R. 4250, the Protect Reporters from Exploitative State Spying (PRESS) Act, to the full House by a unanimous 23-0 vote.
This bill, long supported by Protect The 1st and civil liberties sister organizations, would protect journalists and their sources by granting a privilege to shield confidential news sources in federal legal proceedings. It contains reasonable exceptions in cases where application of the privilege could result in serious harm.
Former Rep. Rick Boucher (D-VA), PT1 Senior Policy Advisor, said:
“The PRESS Act was approved today because courts continue to hold journalists in contempt and even jail them for refusing to reveal their confidential sources. The Committee today made a bold statement that this is not acceptable. I am heartened to see such a strong, bipartisan stand for a free and unintimidated press.”
Former Rep. Bob Goodlatte who served as Chairman of the House Judiciary Committee, and now as PT1 Senior Policy Advisor, said:
“Journalism and the right to report on government actions must be better protected. We’ve all seen law enforcement officials under multiple recent administrations issue secret orders to surveil the private communications of journalists. Their freedom to report on government misdeeds is critical to maintaining a free society, and I encourage the broader House of Representatives to swiftly approve this legislation, as they have in the past.”
We would like to extend our gratitude to Reps. Kiley and Raskin for their leadership in introducing the bill, as well as to Chairman Jordan and Ranking Member Nadler for their support in moving it through committee.
The PRESS Act’s passage is the result of overwhelming bipartisan support for freedom of the press guaranteed by the First Amendment of the Constitution. Protect the 1st hopes the full House will take up and pass this important legislation soon.
In the First Council of Nicaea in the 4th century AD, Christians assembled to debate and set Christian doctrine under the watchful eyes of the Roman emperor Constantine. In the 21st century, some try to settle theological disputes through costly and frivolous lawsuits under the eyes of a secular judge. The role of secular law in theology arises from Janay Garrick’s complaint against her employer, the Moody Bible Institute, for gender discrimination.
The MBI affirms the traditional Catholic doctrine of male-only ordination to the priesthood, a belief as old as the church itself, but one which has become increasingly controversial over the last half century. In fact, the question of women’s ordination is a crucial doctrinal split among Christians today.
Garrick calls herself an “egalitarian Christian” because she affirms the ordination of women. Garrick is herself an ordained minister and worked as Instructor of Communications in MBI’s Communications Program from 2014 to 2017.
Garrick disclosed her beliefs as an egalitarian Christian during the interview process, but it wasn’t until she attempted to file her status as an ordained minister to receive certain institutional benefits that conflict with her employer began. MBI subscribes to the theological principle of Complementarianism, the belief that God intended different roles for men and women within the church. As such, MBI provides its ordination-related benefits to men only.
In her suit, Garrick argues that MBI “both tolerated and cultivated an environment that was hostile to female faculty and students.” But while such complaints may have merit in any other context, in a constitutionally-protected religious organization whose views on women’s ordination were clear and unambiguous prior to her hiring, Garrick’s challenge should fail.
It is necessary to the proper functioning of any religious order or organization to be able to enforce core doctrinal beliefs. Otherwise, institutions would collapse under the weight of dissent. The Constitution protects this right.
But the great feature of the First Amendment is that it protects the religious liberty of church and parishioners alike.
Garrick has the right to practice her faith as she sees fit, and this means that she is free to worship or pursue employment at one of the hundreds of denominations in the United States more theologically aligned with her beliefs. Just as it would be an infringement on the rights of the Moody Bible Institute to force everyone else within it to accommodate one dissenter, so would it be a violation of Garrick’s rights to force her to profess theological beliefs contrary to her own.
We look forward to further developments in this case.
While school choice has been advancing steadily across the country, sometimes progress can be two steps forward, one step back. This week, the Wall Street Journal editorial board penned an article calling attention to the stunning success of political efforts to enshrine school choice in the state of Ohio. Where Pennsylvania recently backed down on a school voucher proposal, Ohio has just opened a state voucher program to all families.
Under Ohio’s pre-existing EdChoice Scholarship Program, families earning under 250% of the federal poverty level were eligible to receive K-12 school vouchers. The program was also offered to families with students attending the state’s worst-performing schools; however, the recent legislation has expanded the eligibility for vouchers to all families, irrespective of income or school attendance. K-8 students will be eligible to receive scholarships totaling $6,165 which rises to $8,407 for high school students. According to the Ohio Legislative Service Commission, this change will make over 90,000 students currently attending private schools without a scholarship eligible for the program.
The picture is just as rosy for the state’s charter schools. Charters will receive about a 12% increase in state funding and $1,000 per student in facilities funding. High-performing charters, which receive extra financial benefits, could receive around a 40% boost in funding, bringing them nearly on par with the resources provided to the state’s public schools.
We are pleased by Ohio's bold step forward in providing resources to the state's private schools. With the expansion of the voucher program and increased funding for charter schools, Ohio is solidifying its commitment to school choice and creating more opportunities for families to access quality education options. It serves as a striking contrast to Pennsylvania's recent setback in pursuing school voucher initiatives, where Ohio has chosen to support educational freedom and empower parents in their children's education.
The Office of Information and Regulatory Affairs (OIRA) is a division within the Office of Management and Budget that has the power to review regulations proposed by federal agencies. Since the days of Presidents Carter and Reagan, the White House has used OIRA as a way to maintain cost-benefit analyses of regulations, and to make sure that they do not conflict with public policy.
One clear public policy goal for any administration is to make sure that the national shortage of doctors and nurses on the front line of care is not exacerbated by thoughtless federal regulations. Now the Biden administration has proposed rescinding a Health and Human Services regulation to OIRA adopted during the Trump administration that protects the conscience rights of medical professionals – a move that could, in fact, reduce medical care, especially among underserved populations.
Conscience rights protect doctors and nurses who object to performing certain procedures, such as abortion. Surveys demonstrate that 90 percent of religious health professionals would stop practicing medicine if ordered to violate their conscience.
So far, we are looking at the administration’s OIRA maneuver through a glass darkly. There may be nothing to it other than paper shuffling, and there may be justification for amending the regulation. On the other hand, if the administration is preparing to force healers to perform procedures they object to, the result will be the departure of thousands of doctors and nurses from the front lines of care, especially those who work for less pay among the underserved.
If so, such a move doesn’t sound like smart politics, either. We would bet that even a majority of Americans who are pro-choice would find the idea of compelling physicians to choose between performing abortions, or leaving the practice of medicine, morally objectionable.
Let us hope that this is not where the administration wants to go.
Mesha Mainor is a lawmaker in the Georgia House who represents a heavily Democratic Atlanta district in which some schools have 3 percent proficiency rates, and many children are utterly innumerate. Disgusted by the inferior performance of public schools, Rep. Mainor gave her support to the growing movement for school choice.
“When I decided to stand up on behalf of disadvantaged children in support of school choice, my Democrat colleagues didn’t stand by me,” Rep. Mainor said. “They crucified me.”
In her words, she was “voting yes for parents and yes for children, not failing schools.” After her rough treatment, Mainor switched parties and registered as a Republican.
“There is no good reason for officeholders to treat school choice as a partisan issue,” said Rick Boucher, former Democratic congressman from Virginia and Protect The 1st Senior Policy Advisor. “A RealClear Opinion Research poll found that support for school choice among Democrats rose from 59 percent to 68 percent between 2020 and 2022. In fact, support for school choice among Democrats exceeds that of independents by one point.
“Millions of parents see school choice as a lifeline out of poverty,” Boucher said. “The commitment of Democrats to equality, opportunity, and pluralism should make school choice our issue.”
The resignation of Rep. Mainor from the Democratic party is just the latest sign that school choice has hardened into a partisan dividing line. Democratic supporters of school choice were initially elated when governors of two major blue states – Gov. J.B. Pritzker of Illinois, and Gov. Josh Shapiro of Pennsylvania – endorsed modest school choice programs in their states.
But this Democratic school choice moment did not last.
After the ultra-powerful teacher’s union went to work on the governors, both soon backtracked on the bold stands they had taken while running for office. Gov. Pritzker acquiesced to the elimination of a state tax credit for private donations that sent 9,600 low-income students to quality private schools. Now the governor is talking about ways to “wind down” the program as these children return to subpar public schools.
Gov. Shapiro boldly declared he stood by school choice because “every child of God” deserves a “quality education.” Yet Gov. Shapiro similarly backed down from his support for a $100 million scholarship plan for children trapped in the state’s lowest-performing public schools. Now these children of God will be returned to schools with abysmal track records.
“It is easy to understand what Govs. Pritzker and Shapiro were seeing on the stump,” Boucher said. “School choice is immensely popular with Democrats, especially among disadvantaged and minority communities. Given our party’s legacy of support for families and children, we should show that in our party, children from struggling families come first.”
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.”
State by State, School Choice Movement Sweeps – and Falters
What’s behind the mushrooming success of the school choice movement? Why is school choice spreading like a prairie fire, from Oklahoma’s recent refundable school tuition tax credit, to major expansions in recent years from Florida to Utah, from Arizona to West Virginia?
This movement is fueled by a desire to bring competition to the often disappointing – and in some cities, alarmingly bad – performance of public school systems. But something else is also at play: school choice fulfills the guarantees and values of the First Amendment writ across generations. From coast to coast, parents are expressing their desire to transmit their values and beliefs through the choice of state-accredited private schools.
But with success comes inevitable pushback and disappointment.
Protect The 1st praised Democratic Gov. J.B. Pritzker of Illinois during the election season last year for supporting “The Invest in Kids Act,” which provides a tax credit for thousands of children to avoid public schools with decades-long records of failure. But the goal of a viable state-supported choice alternative for Illinois families has yet to be realized. Under political pressure from the teachers union, and unfounded fears public schools would be short-changed, the Illinois legislature killed the program – consigning thousands of children to return to dysfunctional public schools.
Protect The 1st also had high hopes for Texas, where Republican Gov. Greg Abbott pushed the legislature in Austin to pass a statewide school choice bill. Conservative Republicans in the Texas House, however, killed the measure out of fear that a school choice program would divert funds away from rural public schools.
Such fears about school choice are unfounded.
School choice doesn’t degrade public schools – it improves them. Randomized control trials of voucher programs found moderate evidence of improvement in academic achievement from private school vouchers – a welcome result given America’s persistently mediocre place in international school rankings. Moreover, out of 28 studies that explored the causal relationship between school choice and the performance of public schools, 25 found that school choice improves educational attainment in traditional school systems.
“In terms of social-scientific validity, that’s a slam dunk,” writes Alexander William Salter, economist at Texas Tech University.
What about Republicans’ fears about the impact of school choice on rural schools?
States like Arizona and Florida that have expansive school choice policies have witnessed an increase both in rural private-school enrollment and public-school performance. Since the enactment of state school choice policies, Arizona’s rural schools have increased performance in students’ fourth- and eighth-grade reading and math scores, while the performance of rural schools nationwide has declined.
The critical role school choice can have in young lives explains why Sen. Tim Scott (R-SC) called school choice a “civil rights issue.” And it explains the brave stand of Democratic Gov. Josh Shapiro of Pennsylvania who said he is open to school choice because:
I believe every child of God deserves a shot here in the Commonwealth of Pennsylvania, and one of the best ways we can guarantee their success is making sure every child has a quality education.
Last week, the U.S. District Court for the Western District of Washington at Seattle handed down a ruling that drew a sharp line between constitutionally protected speech and acts of vandalism on public and private property.
The case, Tucson v. City of Seattle, had to do with a city ordinance that held a person is guilty of property destruction if he or she intentionally damages the property of another and writes, paints, or draws on any public or private building, structure, or personal property owned by any other person. Though a seemingly straightforward proscription on public or private acts of vandalism, overly broad and vague language within the ordinance made it susceptible to legal challenges.
What about washable paint or chalk? What about some public spaces, like sidewalks, on which people routinely chalk messages?
The case involved plaintiffs who wrote political messages critical of the Seattle police department in charcoal both on public sidewalks and on temporary walls outside the police precinct. The court preliminarily enjoined the ordinance, concluding that “Plaintiffs have demonstrated a strong likelihood of success on the merits of their First Amendment overbreadth argument.”
The problem with the ordinance is that it, as the court stated, is so broad that it “criminalizes innocuous drawings (from a child's drawing of a mermaid to pro-police messages written by the Seattle Police Foundation that can hardly be said to constitute ‘visual blight’ and which would naturally wash away in the next rain storm.”
We are pleased by the court’s ruling and agree that in cases involving reasonable restrictions on the First Amendment, such as the defacing of property, there needs to be clearly-defined boundaries that give maximal protection for free expression. Without these protections, laws risk curtailing a host of valid speech.
Such was the case of a 13-year-old girl in 2019, who inadvertently used spray paint instead of washable chalk paint during a climate protest at Seattle City Hall. A man was also arrested in conjunction with the incident for mistakenly providing the girl the wrong kind of paint. The girl was eventually released to her parents, but not before the Seattle Police Department was criticized for arresting her instead of using the incident as a teachable moment. Some felt that incidents where damage is clearly not intended, if the girl had used the correct washable spray paint, should not receive the same severity as other clearly malicious actions. Others point to the damage, which is egregious.
Going forward, legislators should clearly define terms and limits when drawing the line between First Amendment activities and vandalism.
Information consumers no doubt face more “noise” in public channels than ever. A new article by Prof. Justin (Gus) Hurwitz suggests a novel, but misguided, approach to regulating speech – one that reflects a new spirit of hubris in many legal, academic, and political circles.
The article, dubbed “Noisy Speech Externalities,” presents something of a counterargument to Justice Holmes’ dissent in Abrams v. United States, which introduced the idea that more speech is the best answer to bad speech – what he called a “free trade in ideas.” In light of recent scholarship, free and unregulated speech seems to some to be too quaint for our times.
“Consumers of information face a glut of information that overwhelms their ability to process it all,” Hurwitz argues. Excessive “noise,” he suggests, harms the underlying goal of allowing unfettered speech because people become too confused to filter out the legitimate information.
Hurwitz has a solution to this “market failure” in speech. He wants to utilize an EPA-like pollution control framework that would require social networks to use “best available” content moderation technologies that would filter out speech that muddies the public discourse. Who decides whether some speech should be silenced as “pollution” or “noise” remains conspicuously unclear.
We should, it seems, just leave those questions to the “experts” and their “best available” algorithms.
Hurwitz draws on Claude Shannon’s “information theory,” which posits that a signal-to-noise ratio governs the extent to which a listener may distinguish good information from bad information. In other words, the more noise, the less discernible a signal. No question, this is the reality of social media today.
What Hurwitz fails to reckon with is the practical application of his theoretical framework. In arguing that excessive speech constitutes a market externality meriting a gag order, Hurwitz suggests that post-grad tech workers should be the arbiters of our civil discourse, with virtually no constraints on their power. This, he says, should be the contingent basis upon which Section 230’s liability shield is applied.
Speech theorists of this sort seem to lack a basic appreciation for the efficacy of speech over time. Surely, the revolutionary mobs who protested the Stamp Act were “noisy.” So, too, were civil rights demonstrators whose cacophonous outcries muddled the signal-to-noise ratio in the 1960s.
Passionate, inflamed speech may result in short-term discomfort; in the long run, it’s still the only way to build consensus for or against a starkly new proposition. Witness the shifting debate on the origins of covid, or the efficacy of masks and lockdowns. Applying outmoded “command-and-control” regulatory solutions is sure to repress valuable insights.
This paper has glimmers of the thinking of Marxist philosopher Herbert Marcuse. In his influential essay, Repressive Tolerance, Marcuse argued for the censorship of ideas and the repression of people who advocate positions that could stymie what to him was the clear Marxist direction of history. “Suppression of the regressive ones,” Marcuse wrote, “is a prerequisite for the strengthening of the progressive ones.”
Can one concoct a turn of phrase more thoroughly Orwellian than “repressive tolerance”? In a similar though less strident vein, Hurwitz suggests that social media organizations should make First Amendment policy decisions based on their own vague – and likely biased – interpretations of what constitutes a vibrant marketplace of ideas with an appropriate noise level.
There may well be a better answer on social media discourse and content moderation. The best answer of all is quality education. Better schooling is the missing piece needed to make consumers more discerning. The best information filters are the ones we carry in our heads.
Applauds Reps. Kiley and Raskin, and Sens. Wyden and Lee, for Leadership in Introducing Important Bill
The PRESS Act – Protect Reporters from Exploitive State Spying Act – was introduced in the U.S. House and Senate this morning.
This legislation would limit the ability of prosecutors to expose the sources and notes of journalists in federal court. While 49 U.S. states have such press “shield laws,” the federal government has no such protections. This has led to federal intrusions into the records of the Associated Press, The Washington Post, and The New York Times, as well as advocacy journalists on the left and right.
The PRESS Act had previously passed the House with unanimous, bipartisan support in September 2022. Today, it was introduced by Rep. Kevin Kiley (R-CA) and Rep. Jamie Raskin (D-MD), and in the Senate by Sen. Ron Wyden (D-OR), and Sen. Mike Lee (R-UT).
“Support for the PRESS Act sweeps across ideological divisions in both houses of Congress because it is widely recognized that the basic liberties of all are at stake,” said Bob Goodlatte of Virginia, former Chairman of the House Judiciary Committee and Senior Policy Advisor of Protect The 1st. “At a time when voters and constituents in both parties are concerned about the potential for federal power to be abused and misused, passing the PRESS Act into law this year should be a point of pride for any incumbent.”
Rick Boucher, former Virginia congressman, member of the House Judiciary Committee, and now Senior Policy Advisor of Protect The 1st, also stressed the need to pass this legislation in 2023. He was also the lead sponsor of a forerunner bill, the federal press shield legislation that passed the House in 2007 and 2009.
“Journalists have been held in contempt and jailed for refusing to reveal their confidential news sources,” Boucher said. “When big scandals, corruptions, and misdeeds that harm the public interest come to light, it is usually because some brave soul on the inside was willing to speak to a reporter.
“Let’s protect that whistleblower,” Boucher said. “And let’s protect that journalist as well. By doing so, we protect all our rights.”
“While every one shall sit in safety under his own vine and fig tree”
The First Amendment of the Constitution guarantees the free exercise of religion, just as it forbids the official establishment of a religion. The latter, by implication, protects the free expression of all religions.
President George Washington made this clear in his famous letter to a Rhode Island synagogue: “May the Children of the Stock of Abraham, who dwell in this land, continue to merit and enjoy the good will of the other Inhabitants; while every one shall sit in safety under his own vine and fig tree, and there shall be none to make him afraid.”
What does it say about us that 18th century America was a safer place for worship than it is today? In 2023, we can only yearn for the days when houses of worship were seen as sanctuaries by all. Friday’s conviction of a 50-year-old hater for the killing of 11 worshippers at the Tree of Life synagogue in 2018 is a reminder how just much our free exercise of religion is endangered in the most basic of ways.
The largest such shooting of a house of worship occurred in Sutherland Springs, Texas, when a deranged man killed 26 worshipers, from ages 5 to 77, in 2017. Two years before that, a white supremacist killed nine worshippers at a prayer meeting at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina. There has been violence and threats since against churches, synagogues, and mosques.
Somehow, as a nation, we must recognize that the free exercise of religion must begin with the most basic right of all – the right to live to worship freely.
The U.S. Press Freedom Tracker reports that the overwhelming majority of police arrests of journalists occur while they are reporting on ongoing protests. When journalists are arrested, they often lose access to their phones and their computers. The potential for police review of the content stored on their cameras makes journalists particularly vulnerable targets.
For this reason, reporters have begun writing what are known as “legal support numbers” – names and phone numbers of their attorneys -- on their inner arms or bodies. After all, one’s contact lists aren’t much use if one’s phone is confiscated or destroyed.
However, criminal prosecutors are now starting to argue that writing contact information on your body prior to attending a protest is evidence of criminal intent. This is because not only journalists are writing legal support numbers, but so too are protestors and activists. The argument is that, if a person is writing numbers on their body which would only be useful if they is jailed, then that person reasonably expects they will get into an altercation with the police. The outcome would be to effectively criminalize legal support numbers.
Freedom of the Press Foundation argues that if prosecutors succeed in criminalizing legal support numbers for protesters, it’s just a matter of time before the same arguments are made against journalists. For that reason, more than 40 organizations are seeking to challenge prosecution arguments against legal support numbers on the basis that criminalizing them would violate the First Amendment as well as the Sixth Amendment right to legal counsel.
The National Lawyers Guild, leading this coalition, states that “[p]eople write these numbers on their arms in preparation for demonstrations precisely because they know they may be unjustly detained, and because they know that police use mass arrest as a form of crowd control that is calculated to disrupt protected speech.”
Protect The 1st is alarmed to see prosecutors targeting Americans for taking steps to ensure their access to legal counsel in the event they are arrested.
When the charges brought against arrested protestors can include domestic terrorism, access to counsel is vital. It also has the added benefit of being a constitutional right. Journalists fulfill a vital role in our democracy, and assuming guilt simply for writing a phone number will only serve to chill speech and undermine our First Amendment rights.
PT1st looks forward to further developments in this story, and in these cases.
A Failure of “Prescribed Messaging”
Controversial new realities in American life often require a period of discussion on how to accommodate them and how to square them with existing paradigms. It’s an important precursor to social progress and a fundamental part of existing in a pluralistic society founded on free and open debate.
The issue of transgender athletes is a relatively new one. Trans athletes have every right to compete in sports. So, too, do biological women who endure hard work and sacrifice to win in swim competitions, often with scholarships at stake. To the extent a collision of rights exists here, it can only be resolved by discussing the issue freely and without fear of reprisal.
Yet, when respected voices are silenced in furtherance of a particular agenda, debate – and, by extension, progress and resolution – becomes impossible. Consider the case of Dr. Michael Joyner, a renowned physiologist and professor of anesthesiology at the Mayo Clinic who studies male and female athletes. Earlier this year, Joyner was subjected to disciplinary action for comments he made to the New York Times in an article about transgender swimmer Lia Thomas.
“There are social aspects to sport,” he said, “but physiology and biology underpin it. Testosterone is the 800-pound gorilla.”
In a scathing email, a Mayo Clinic administrator responded to Joyner’s perceived affront with a formal reprimand, an unpaid suspension, the denial of an annual salary increase, and the overt threat of termination – all for the apparent crime of conveying scientific information related to one of his core competencies. Specifically (bordering on satirically), the email cites Joyner’s failure “to communicate in accordance with prescribed messaging.” (The Clinic also took issue with Joyner’s use of “idiomatic language.”)
This is important because the Mayo Clinic is one of the world’s leading medical institutions and the top-ranked hospital in the country according to U.S. News and World Report. As an important hub for academic medical research, its doctors are regularly called upon to offer insight into difficult, health-related topics with national implications. In 2020, the Clinic adopted a “Freedom of Expression and Academic Freedom Policy,” which includes the right to “discuss and present scholarly opinions and conclusions without fear of retribution or retaliation if those opinions and conclusions conflict with those of the faculty or institution.”
While the Mayo Clinic is a private institution with a First Amendment right to speak as it wishes, the organization’s actions against Dr. Joyner plainly conflict with its own policies and are further inconsistent with vigorous, science-based academic debate. Punishing a medical professional for offering valid, scientific statements that happen to clash with emerging or trending social mores is wrong – and will have a chilling effect on science, speech, and academic freedom going forward.
If we are to honestly address the difficult topic of transgender athletic competition – without, for example, simply resorting to knee-jerk, blanket bans, it is incumbent on us to allow a robust debate and hear from all sides, including and especially those with pertinent knowledge. It’s a reality – and a requirement – of our American experiment.
The approach of the Fourth of July reminds us once again that vigilance is the price of freedom. A new report from the U.S. Department of State puts that duty into stark relief, illustrating the horrific toll that accompanies the abdication of human rights and the proliferation of religious bigotry and intolerance abroad.
The annual survey on religious freedom, submitted to Congress under the requirements of the Religious Freedom Act of 1998, documents continued and worsening persecution of religious minorities in a variety of countries around the world.
As Secretary of State Anthony Blinken said: “Governments in many parts of the world continue to target religious minorities using a host of methods, including torture, beatings, unlawful surveillance, and so-called re-education camps.” If your mind goes straight to China’s ongoing persecution of its Muslim Uyghur minority, you’re right on the mark.
But China is far from the only serial abuser of human rights and religious freedom on the global stage. The new report is a tough read – a compendium of horror stories that illustrates the world of difference between those nations that value the free exercise of religion and those that do not. Below, find a few of the biggest takeaways.
When it comes to our trading partners, China remains the biggest human rights offender. However, India is also called out in the report as a habitual violator of religious liberty, with a range of documented, targeted attacks against religious minorities and a majority of its 28 states affirmatively prohibiting religious conversion by law.
The United States is unique in its radical protections for the free exercise of religion. We are duty-bound and bound by law to respect our differences, despite not-infrequent attempts of overweening bureaucrats to diminish that mutual respect. As we look forward to celebrating Independence Day, we say to “ bigotry no sanction, to persecution no assistance.”
And we can reflect on how fortunate we are to have the First Amendment as a shield against religious bigotry.
U.S. Ed Dept Balances First Amendment Principles in Revised Guidance on Prayer, Religious Activity in Schools
The founders left us with a balancing act on religion: the First Amendment guarantees the free exercise of religion, but forbids the government establishment of one. On the whole, an updated policy from the Biden Administration’s Department of Education does a good job of explaining – and promoting – that balance in its new guidance for state and local education agencies on what is, and what is not, permitted in prayer and religious expression in elementary to secondary schools.
Comparing the additions and deletions of this policy from the Trump administration’s version reveals – as one might expect from a left of center administration – added emphasis on the “no establishment” clause. But the new policy contains no shocking departures from traditional constitutional protections. Instead, it doubles down on the distinction between religious expression that is government-sponsored, and that which is privately expressed.
After noting Supreme Court jurisprudence that “it is no part of the business of government to compose official prayers for any group of the American people,” the updated policy declares that “nothing in the First Amendment, however, converts the public schools into religion-free zones, or requires students, teachers, or other school officials to leave their private expression at the schoolhouse door.”
Somewhat defensively, the policy notes that the “principles outlined in this updated guidance are similar” to the 2020 guidance. The new policy clearly responds to the U.S. Supreme Court’s Kennedy v. Bremerton School District opinion (2022), aka “the praying coach case,” in which the Court upheld the right of a coach to pray on a football field after a game.
It cautions that schools have some right to discipline a schoolteacher, coach, or other employee for improper speech. It particularly empowers schools to discipline teachers who “pressure or encourage” students to join private prayer. “However,” the policy adds, “not everything that a public-school teacher, coach or other official says in the workplace constitutes governmental speech, and schools have less leeway to regulate employees’ genuinely private expression.”
The new policy upholds the right of teachers and other school employees to meet for prayer before school or during breaks. It upholds the central place religion has held in music, history, and literature. It allows philosophical questions concerning religion, the history of religion, comparative religion, religious texts as literature, and the role of religion in the history of the United States. It recognizes that much classical music has religious themes, which is no bar to the classics being played or sung by students.
The updated policy affirms the right of students to “express their beliefs about religion in homework, artwork, and other written and oral assignments free from discrimination based on the religious perspective of their submissions.”
Most commendably, the policy calls for the teaching of these twin First Amendment principles as an “opportunity to assist America’s youth in developing an understanding of these constitutional protections as they apply to people of all faiths and no faith and an appreciation for the core American values and freedoms that undergird them.”
In an age of culture wars, it is refreshing to see a policy from a Republican administration revised by a Democratic administration with stronger emphasis – as you would expect -- on government neutrality, while maintaining the enduring respect for religious freedom rooted in the U.S. Constitution.
The Pines Church in Bangor Maine, after noticing that many of its congregants lived in nearby Hermon, decided to make the move to this small town; however, Hermon (population 6,461) has a scarcity of available rental space. After searching around, The Pines Church turned to leasing space from the local high school as an after-hours, weekend option for worship services.
This seemed a no-brainer. After all, a number of groups rent space from the local school district, including Black Bears Basketball, Hermon Recreation, the Boy Scouts, the Girl Scouts, and various baseball clubs. To show support to the community, the church offered to pay $400 above the original price.
After filing the request form, the church received a questionnaire from Superintendent Micah Grant, a member of the school board. Grant forwarded questions from a school board member:
After receiving responses it regarded as disappointing, the school board rejected the church’s application for a six-month or a year-long lease. The Pine Church responded by suing to protect its First Amendment right to the free exercise of religion, with equitable treatment under the law.
“Public institutions that seek to lease their facilities for revenue should not be able to discriminate based on religious or political conviction,” Mariah Gondiero, an attorney for Advocates for Faith & Freedom, said in a statement.
This small-town drama is just one manifestation of a controversy playing out across the United States, one in which traditional views on sexuality conflict with public mandates on “diversity, equity, and inclusion.” This is the core of a legal struggle in California, where a school district is fighting in court to enforce its ban on the Fellowship of Christian Athletes as a recognized student group, all because that organization adheres to traditional beliefs.
As a matter of law, traditional religious beliefs are protected under the free exercise of religion clause in the First Amendment. Given this constitutional basis, Protect The 1st expects the courts to side with The Pine Church. But continuous clashes like this will not be solved by law alone. This is a cultural issue in which a little dialogue might work wonders.
Dialogue is needed because it sometimes seems as if many public officials hold a caricature of traditional religions as being just an inch away from hateful groups like the infamous Westboro Baptist Church. Whatever one’s beliefs about traditional marriage, it bears noting that it is not just evangelical Christians who hold this belief, but also millions of Roman Catholics, Orthodox Jews, and Muslims. In our experience, most religious groups are the opposite of hateful, welcoming all comers, charitable, and tolerant in the extreme.
Beyond the lawsuits and the constitutional issues at stake, it would behoove those in positions of authority to recognize that one can disagree with traditional beliefs while respecting our fellow Americans’ right to hold them.
That is exactly what Congress did when it passed the Respect for Marriage Act, signed into law by President Biden in December 2022.
With the vote of every congressional Democrat and many Republicans, that law not only protected same-sex marriage in statute, but also expressly affirmed that those who hold traditional beliefs on that subject should not be treated as bigots. Congress declared:
“Diverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises. Therefore, Congress affirms that such people and their diverse beliefs are due proper respect.”
Mashaud v. Boone, Court Opinion Cites Eugene Volokh, Protect The 1st
In October, famed legal scholar and law professor Eugene Volokh demonstrated to an en banc hearing of the highest court in the District of Columbia that a Washington, D.C., anti-stalking statute that outlaws communications that inflict “significant mental suffering or distress” is overbroad, and thus violates the First Amendment.
Today, the D.C. Court of Appeals issued an opinion in Mashaud v. Boone in agreement with Volokh, who represented Protect The 1st as an amicus in this case. The court also agreed with Volokh’s contention that the court should narrow the law to speech that fits within First Amendment exceptions long recognized by courts – threats, obscenity, defamation, fraud, incitement, and speech integral to criminal conduct.
The law in this case, D.C.’s anti-stalking statute, “prohibits any speech that one should know would cause another to feel ‘seriously alarmed, disturbed, or frightened” or suffer “emotional distress.” The court vacated a lower court ruling that held an aggrieved husband liable for emails and social media posts that embarrassed a man who had conducted an extramarital affair with his wife.
The court based its reasoning in part on demonstrations by Volokh, Protect The 1st, and other amici who “argue the statute is constitutionally overbroad and would need to be struck down if it is not susceptible to a narrowing construction.” The court found that emotionally distressing speech as a category could subsume much speech that is necessary:
“Doctors deliver life-shattering prognoses that surely send reasonable people to suffer emotional tailspins of distress. Spouses knowingly inflict emotional distress by revealing longstanding paramours and demanding divorce. Police officers deliver news of loved ones having been killed. Judges pronounce death sentences. Employers tell staff that they are fired. They all know, or should know, the extraordinary distress their messages bring, and so fall within the statute’s prohibitions. Distressing speech is an important and often valuable part of life.”
The court turned to political communication at the highest rung of First Amendment-protected speech. Activists, from advocates of animal rights to the pro-life position on abortion, often hurl insulting words or graphic images. “Both speak on issues of public concern and are therefore entitled to the strongest First Amendment protections” despite the emotional distress such statements and images may inflict. Thus, the court reasoned, “a statute that prohibits speech indiscriminately based solely on its propensity for causing such distress is a constitutional nonstarter.”
Perhaps the court’s take on speech can be reduced to a quote from a 1973 U.S. Supreme Court decision, “the First Amendment needs breathing space.”
As Volokh has pointed out, the court did not strike down the D.C. law, but narrowed it to those discrete categories of speech that fall outside the scope of the First Amendment’s protection.
“We are overjoyed at this opinion from the Court of Appeals,” said Gene Schaerr, general counsel of PT1st. “We are proud to have been ably represented by Eugene Volokh and to have help vindicate the First Amendment’s protection against any laws that encroach on the freedom of speech.”