Protect The 1st, launched in January, is off to a fast start.
From the beginning, one of our primary goals has been to encourage the judiciary to adopt robust interpretations of the constitutional freedoms of speech, religion, press, and assembly. One way we have done this is by filing briefs with the Supreme Court in cases that sharply define the enduring vitality of the First Amendment in the 21st century. Now that the Supreme Court has finished its 2020 term, we want to update you on the results of our continued efforts.
PT1st filed many amicus curiae – "friend of the court” – briefs in this term of the Supreme Court.
One of our first briefs was filed in support of the petitioners in Americans for Prosperity Foundation v. Bonta. That case ended with a spectacular 6-3 decision protecting the freedom of association.
The court considered the proper level of scrutiny when evaluating the constitutionality of a California scheme requiring charities to disclose the names of their donors to the state attorney general. Our brief demonstrated that disclosing donors to the government comes at a cost. Some donors, faced with the prospect of having their personal information disclosed, will choose to not donate at all – especially in this era of doxing, or using social media to target people for harassment and even physical attacks. We also demonstrated that government officials, historically, have used such information to abuse political opponents. And even when they don’t, there is a constant danger that if the information of all donors is centrally compiled, a savvy hacker or hostile leaker could find that information and release it publicly, or an inadvertent mistake could expose it. (This has happened before with disastrous consequences in California.)
The Supreme Court agreed with PT1st and recognized this “chilling” effect. The Court concluded that the risk of harm and the lack of a narrowly tailored means of addressing the state’s claimed need for the information made the California disclosure requirement facially unconstitutional.
PT1st also has urged the Court to consider First Amendment and privacy issues in other cases seeking Supreme Court review.
In Thompson v. Marietta Education Association, PT1st joined a coalition of public policy organizations to urge the Court to hold that it is a violation of the First Amendment to require public-sector employees to accept a single union representative to speak on their behalf, even if those employees object to that representative’s advocacy. Unfortunately, the Court declined to hear that case, but the issue is a recurring one and eventually the Court will be ready to address the question. PT1st also will be ready to file a brief on the merits when that time comes.
Three other cases where PT1st filed a brief urging the Court to take a case are still pending.
First, we filed a brief in Boardman v. Inslee, asking whether the government can constitutionally give information about quasi-public employees to one union alone and not its potential rivals. We argued that the proper resolution of that question could affect the rights of hundreds of thousands of decentralized, quasi-public employees nationwide. This scheme, which insulates incumbent unions from meaningful challenge, undermines the very purpose of unionization—consent to collective action.
Second, we filed a brief in Project Veritas v. Rollins. We argued that a Massachusetts law that forbids public recording poses serious First Amendment problems and should be invalidated. Our brief summarized a list of issues that would be misunderstood—or never disclosed—without the work of undercover journalists. We also explained that because many of us take videos in public with smartphones, the Massachusetts law runs a real risk of making almost every teenager and adult in that state a felon.
Third, just last week, we filed a brief in Crowe v. Oregon State Bar. That case asks whether the government can require attorneys—whose membership in, and payment of dues to, state bar associations are mandatory—to subsidize the political speech of those bar associations, even if they disagree with that speech. We argued that the First Amendment forbids such mandatory association and compelled support for speech. We presented the Court with a list of examples of briefs filed by mandatory bar associations that push one side or another on contested public issues.
We’ll continue to monitor these cases and hope that the Court agrees with the petitioners. In the meantime, we are grateful to have had the chance to further our mission in these cases by helping the Court see the importance of protecting the First Amendment.
In this and in so many other related efforts, we are grateful for your continuing support.
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