Coach May Take a Knee: Supreme Court Holds Termination for Private Prayer in Public at Public School Event Is Impermissible



Kennedy v. Bremerton School District, No. 21-418.  Opinion released June 27, 2022


Joseph Kennedy, a football coach for the Bremerton School District in Washington, lost his job because he knelt in prayer at the football field midpoint after games.

No formal proceedings or games were underway at the time.  

Fearing violation of the Establishment Clause, the school district disciplined the coach because the school district believed that observers would think that the school district endorsed the coach’s beliefs.

The Court found the school district erred in its perception of the law.  Writing for the Court, Justice Gorsuch commenced:

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.

After several years of what appeared to be unobjectionable prayer at practice, positive feedback from another school caused Kennedy’s school district to be concerned about the impression he was creating with ‘inspirational talks,’ on-field prayer, and locker room prayer.  The school forbade Kennedy to engage in any religious activity to “avoid the perception of endorsement.”  Slip Op. at 3.  The school opined that school employees’ Free Exercise rights must yield to the school’s interest in precluding a perception of endorsement.

The coach ended his prayer practices after receiving correspondence spelling out the school’s position.  Nonetheless, after a game, he return alone to pray on the football field because he sensed that he had broker his commitment to God.

No one was in the studio at the time.

Kennedy asked that the school district permit him to continue his post game solitary prayer practice.  

The school district denied his request, reiterating that the couch could not while on duty engage in activities that might suggest endorsement. 

Media coverage was sparked when the coach bowed his head at midfield after the game.  Others joined the coach in prayer, while the Bremerton team was occupied singing the school fight song.

The School District posted notices forbidding public access to the filed, while discussions among officials observed that the issue was changing from the coach leading the students to the coach engaging in private prayer.  

Several rounds of testing and resetting prayer limits and accommodations ensued.  The School District issued a public explanation of its choices and rationales.

Coach Kennedy’s annual performance evaluation for 2015 was poor and rehire was not recommended.  The evaluation said that the coach failed to follow policy and failed to supervise student athletes after games.  Slip Op. at 8.

Kennedy sued the school district.  He was denied injunctive relief on his Free Speech and Free Exercise claims at the trial and appellate level. The U.S. Supreme Court denied certiorari, cautioning that denial of the petition did not indicate agreement with the courts below. 

Another round of litigation ensued.  The coach’s free speech claim was denied and he was again denied relief for his Free Exercise claim at the trial and appellate level.  The trial court held that the school district had a compelling interest in prohibiting post-game prayers which if permitted would violated the Establishment Clause. Slip Op. at 9. 

The Ninth Circuit, observing that the coach was on the football field only because of his position with the school, held that the School District would have violated the Establishment Clause if it failed to stop the prayer.  Avoidance of Establishment Clause violation was seen as a compelling state interest. 

Rehearing en banc in the Ninth Circuit was denied, with concern that it was error to hold that had the school not disciplined the coach, the school district would have violated the Establishment Clause. Others dissenting from the denial of rehearing questioned the perception that the Establishment Clause comes into play in any case in which a “reasonable observer” could perceive endorsement. Slip Op. at 10. 

The Supreme Court opinion in Kennedy stresses that the Free Speech and Free Exercise clauses work together, and that the Free Speech clause protects expressive religious activities, while the Free Exercise clause protects religious exercise as such. 

The added protection for free religious expression int he free speech clause reflects the Founder’s distrust of government attempts to regulate religion.

If a plaintiff meets his initial burdens, the state must show its justification is in compliance with case law.

The school district admitted its intent was to suppress Kennedy’s religious activity and its policies were not neutral. The performance evaluation included standards not generally applicable, such as post-game supervision of students.

Precedent recognizes that First Amendment rights are not shed at the schoolhouse gate.  Tinker v. Des Moines Independent School Distinct, 393 U.S. 503, 506 (1969).

Precedent also suggests a two-step inquiry will help to understand how free speech and government employment are to be approached.  At times, state efficiency in managing its services may outweigh a public employee’s free speech interests.  Slip Op. at 16.

Coach Kennedy’s prayers were not related to his public duties.  Any mantle of public investment in his role as a teacher had limits, including limits that would prevent private activity.  Slip Op. at 19.

Although generally the school district must satisfy strict scrutiny to justify its actions, in this case the school district could not prevail under a more lenient standard.

The Supreme Court has rejected the idea that the school district was justified in disciplining the coach, for to have forgone discipline, in the school’s view, would have violated the Establishment Clause.  Such a reading suggests a Constitution at war within its clauses, rather than acting in a complementary fashion. Slip Op. at 21. 

The Court announced that it has not only rejected Lemon v. Kurtzman, 403 U.S. 602 (1971), but also the extension of Lemon to an “endorsement” component featuring the perceptions of a “reasonable observer.”  Slip Op. at 22.  

The Establishment Clause cannot serve as a “hecklers’ veto” to proscribe religion based on “perception or “discomfort.”  Id.  

The government has no obligation to purge any material that an observer might consider to involve religion.  

History, practice, and understanding are to serve to analyze Establishment Clause claims in lieu of Lemon.  Slip Op. at 23.  

The Court was unpersuaded by what it perceived to be an 11th hour argument that petitioner coerced students to pray with him, as no support for this can be found in the record.  Slip Op. at 24-27.  Assertions of tacit or implied authority, relying on hearsay, offer no substantiation for such a claim.  Slip Op. at 27.  Coercion cannot be manufactured by ‘deeming’ any religious behavior to be coercive.  Slip Op. at 28. 

The Court vigorously rejected the nation that the First Amendment compels conflict among constitutional guarantees, concluding;

Respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head. Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment. And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination. 

Slip Op. at 31-32.

Justice Thomas concurred to question whether the Court ought to consider the limited “public concern” Free Speech protection accorded public employees.  The Court does not indicate what an employer must do to justify any restriction on religious activity.  As there was no need to do so because the Court found the school district  could offer no constitutionally sound reason for its behavior,  Justice Thomas questions the intimation that the “balancing” test applied in free speech cases might be imported to srve in free exercise claims.

Justice Alito concurred to observe that the decision at hand does not establish what standard ought to apply to expression under the Free Speech clause, only that retaliation for expression “cannot be justified on any of the standards discussed.” 

Dissenting Justices Sotomayor, Breyer and Kagan found no authorization in the Constitution which would permit the conduct at issue in this case.  Moreover, overruling Lemon in this decision is of great consequent, as in doing so the Court rejects decades of concerns about endorsement. 

The majoriey read the record far too narrowly, Justice Sotomayor writes, overlooking the real community disruption caused by the petitioner. 

The issue was incorrectly framed, in her view.  The question is not the protection of private prayer at work but whether persona religious beliefs may be incorporated into a public school event. Sotomayor, dissent, Slip Op. 13-14.

The majority has overlooked that the public prayer at a public school comes close to being speech within the coach’s official duties, winch view would cause the speech to lose any First Amendment protections without regard to the conflict between the  clauses.

Permitting an individual’s religious practice in the context described violates the Establishment Clause,  particularly where public schools must maintain neutrality to fulfill their obligations.

Failure to address the tension between the constitutional clauses silently elevates one constitutional interest over another, an undesirable practice.

The idea that the perceptions of a reasonable observer ought to be considered in evaluating Establishment Clause claims ought not be so handily dismissed, for it is that very perception that has give rise to much concern in public schools.  Nor should the question of coercion be dismissed, as it is not unreasonable to consider whether by their very nature public schools, in structure and administration, embody at least a modicum of coercion. 

21-418 Kennedy v. Bremerton School Dist. (06_27_2022)

 

If Maine Subsidizes Secondary Schools, It May Not Exclude Sectarian Schools, Supreme Court Concludes


CARSON, AS PARENT AND NEXT FRIEND OF O. C., ET AL. v. MAKIN, No.  20-1088.  U.S. Supreme Court June 21, 2022.


Maine is the most rural state in the nation.  Some geographic “School Administrative Units” have no public secondary schools through which to provide the education promised by the state. To ameliorate the strain families who must make arrangements for their children, Maine offers tuition assistance to parents so that their children may access secondary education through qualified schools outside the geographic confines of the School Administrative Units.

At one time, Maine did not distinguish between sectarian and non-sectarian schools for purposes of funding parents’ preferences.  In 1981, Maine determined that this practice was in violation of the Establishment Clause of the First Amendment.

Parents who selected schools with religious orientation challenged Maine’s denial of tuition assistance as violative of the First Amendment Free Exercise Clause, triggering what appears to be an annual (or at least semi-annual) head on collision between the Establishment Clause, which precludes government endorsement of religion, and the Free Exercise Clause, which forbids government interference with religious practice.

While the petitioners’ litigation was pending, the Supreme Court struck down a Montana statute that forbade aid to any church controlled school as offensive to the Free Exercise Clause.   Espinoza v. Montana Department of Revenue, 591 U. S. ___ (2020).  While this removed from the consideration of the U.S. Court of Appeals for the First Circuit any reliance on prior precedent that would affirm Maine’s refusal to provide tuition assistance that would permit students to attend sectarian schools.

Nonetheless, the First Circuit distinguished away Espinoza because Maine, unlike Montana, concerned itself with religious use of funds as opposed to a blanket prohibition based on religious identify. Moreover, the First Circuit perceived another distinguishable difference between Montana and Maine, because Maine intends to provide the equivalent of a public school education not otherwise available in a student’s location.  As public school education is secular, no constitutional harm is done by limiting tuition assistance to parents whose children will attend secular schools.

The Supreme Court’s majority has concluded that the Maine tuition assistance scheme fails to comport with the Free Exercise Clause because it conditions the availability of an otherwise available public benefit based on a requirement of ‘non-sectarianism’ within accredited schools.

That the Free Exercise Clause prohibits indirect burdens on religious exercise has recently been re-emphasized by the Court, not only with respect to participation in public contracts, as in Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ___ (2017), but also with respect to providing funding assistance to private education, as in Espinoza, supra.  In neither case can religion be interposed as a disqualifier precluding access to benefits otherwise available to all. 

The Court noted that a state need not fund private education.  If a state chooses to do so, however, the state may not preclude participation because of religious affiliation. 

In dissent, Justice Breyer expressed fear that the majority view — which requires other citizens to subsidize, through taxation — aid to religious views they might find objectionable — threatens to foment the kind of discord that the tension between the Establishment and Free Exercise Clauses were intended to inhibit.  This is all the more so in this case, where not just religious affiliation but religious instruction within the curriculum is in issue. 

In Justice Breyer’s view, the Religion Clauses serve the nation well by precluding state involvement in religion and by prohibiting state restraint of religion.

Justice Breyer sees the majority’s decision as introducing religion into public education, the provision of which is contemplated by Maine’s statutory scheme.  

Notwithstanding the not infrequent tension between the religion clauses, their overall purpose is to function as complements in creating a government that is benevolently neutral. The Court has previously expressed that the Religion Clauses ”permit religious exercise..without sponsorship or interference,” as this would “insure that no religion be sponsored or favored, none commanded, and none inhibited.” Walz v. Tax Comm’n of the City of New York, 397 U.S. 664, 669 (1970).  

Separately dissenting, Justice Sotomayor has expressed dismay that the Court has chartered a dangerous course, essentially eviscerating the Establishment Clause in service of the Free Exercise Clause.  Justice Sotomayor observes that, rather than stressing that the government need not fund religious activity, the Court has embraced the idea that the states may now be compelled “to subsidize religious indoctrination with taxpayer dollars.”  Sotomayor, J., Dissent, Slip. Op. at 3.

Carson v. Makin, 596 U.S. ____ (2022)

Supreme Court Vacates Stay of Injunction Precluding Effectiveness of Texas’ Law Addressing Perceived Social Media Censorship

Net Choice, et al. v. Paxton, Attorney General of Texas, No. 21A720, 596 U.S. ____. Order granting emergency petition entered May 31, 2022.



Texas legislation prohibiting content-based deplatforming or deprioritizing of social media posts remains subject to an injunction precluding its effect pending determination of the merits of challenges of the constitutionality of the statute. The Supreme Court has vacated the Fifth Circuit’s stay of a district court injunction precluding the effect of the law. 

Justice Alito has dissented from the grant of the petition, stressing that the questions presented by the case invite the Court’s review, particularly as those questions do not fit squarely within First Amendment precedent.  Neither public event, publication, public marketplace, or common carrier provisions anticipate the advent of and market power of social media platforms.  

The dissenting justice notes that the state perceives impossible incongruity between the social media platforms’ position that they may enjoy immunities under Section 230 of the Communications Decency Act of 1996 for publication of others’ content while at the same time enjoying First Amendment protection for refusing to publish that content.

Justice Alito observes that the likelihood of success on the merits must be demonstrated as to all aspects of the injunctive relief provided, but this is not the case with respect to the disclosure requirements of the Texas law concerning social media platforms’ publication standards, which are to be reviewed under less stringent standards for constitutional review of commercial speech.

Of importance is that the Texas law applies only prospectively, a circumstance which, in a certain light, renders injunctive relief pending review somewhat superfluous, as no action against any social media company has yet occurred and any action remains open to constitutional challenge if and when it occurs. 

The novelty of the questions presented, while inviting exploration, does not justify federal interference in state sovereignty, which is the result where, as here, the Supreme Court serves as a source of preclearance authority.

Justice Alito’s dissent has been joined by Justices Thomas and Gorsuch.  Justice Kagan would deny the emergency petition, but has neither joined the dissent nor written her own opinion.

Netchoice, LLC v. Paxton, 21A720, 596 U.S. ____ , May 31, 2022

The Eleventh Circuit Opines that Much of Florida’s New Regulation of Social Media May Violate the First Amendment, in Contrast to Recent Orders of the Fifth Circuit to the Contrary Now Awaiting Emergency Review in the Supreme Court


NetChoice, LLC and Computer & Communications Industry Association, d/b/a CCIA v. Attorney General of the State of Florida, et al., No. 21-12355 (11th Cir.) Order and Opinion issued May 23, 2022, affirming in part and vacating in part an injunction issued by the United States District Court for the Northern District of Florida.


Several states, including Florida and Texas, have enacted legislation aimed at compelling social media to be open to all, without banning, de-prioritizing, or de-platforming entities or posts because they present disfavored views. Texas’s law applies to the general practices of large social media sites, while Florida has addressed access by political candidates and journalists.

When the U.S. Court of Appeals for the Fifth Circuit refused to enjoin the effectiveness of Texas’s statute, NetChoice and CCIA presented an emergency petition to the U.S. Supreme Court on May 13, 2022. Just as briefing closed on the emergency petition, the Eleventh Circuit issued its opinion, which has been added to the record of the emergency petition as supplemental authority.

Unlike the Fifth Circuit, holding its legal cards close to the vest, so to speak, and issuing a non-unanimous order without opinion, the Eleventh Circuit has published a 67 page opinion examining whether it is likely that NetChoice and CCIA will succeed in demonstrating that Florida’s law is unconstitutional. Concluding that it is likely that the law will be shown to be unconstitutional, and observing that ongoing infringements of First Amendment rights are presumed to cause irreparable harm, and noting that neither the state nor the public has any interest in enforcing unconstitutional law, the Eleventh Circuit has upheld most, but not all, of the injunctive relief granted by the Northern District of Florida.

Principles Endure. The Eleventh Circuit opened its opinion by noting that new principles are not necessarily needed when new technologies emerge. The First Amendment continues to prohibit government interference in speech while protecting the speech of private actors.

‘Not Really Private’ Private Entities. Florida asserts that social media platforms are not truly private entities and has enacted legislation prohibiting de-platforming political candidates, de-prioritizing messages about political candidates, or removing content provided by an “journalistic enterprises” because of its content.

The Eleventh Circuit Disagrees. The appellate court has found that social media entities are private actors that enjoy First Amendment protections. Editorial judgement about content are protected. That protection would be unconstitutionally burdened by Florida’s legislation, not only in its editorial and content-based directives but also in its demands for disclosure of a rationale supporting any and all content moderation decisions. These observations support enjoining aspects of the Florida law.

How It Works. The Eleventh Circuit has offered a ‘primer’ about what social media platforms are” collectors of others’ speech, broadly defined to include text, photography, and video “posts” published to others. Platforms may have billions of users or exist as smaller sites for specialized interests. Several social media platforms are household names: Facebook, Twitter, and YouTube.

Private Enterprises, Private Choices. No one is obliged to avail themselves of the content social media entities provide. The government cannot restrict citizens’ access to social media platforms but that right of access attaching to citizens does not include a right to compel the platforms to accept or consume any content.

Whose Speech Is It? Much, if not most, speech on social media platforms is not created by the platforms themselves, but some speech belongs to the platforms, as is the case with publishing terms of service or community standards defining what is permitted, or creating addenda or warning, or publish a platform’s own content.

Neither Conduits nor Storage Devices, but Curators. Social media enterprises are best seen as curators and arrangers of content according to users’ wishes, while at the same time removing content that violates the terms of service or community standards.

These activities make the platforms active intermediaries who have created virtual spaces where participants can be both speakers and listeners.

The Eleventh Circuit views content moderation as curation that promotes the creation and development of niches and communities, and promotes values and points of view.

Why Florida Sought Legislative Intervention. Florida’s social media legislation was intended to address perceived silencing of conservative views by technology ‘oligarchs’.

Florida perceives social media platforms to be akin to public utilities which, as common carriers, are to remain accessible to all and to viewpoints.

Sweeping and Problematic. The Eleventh Circuit notes that Florida’s law, while aimed at “big tech oligarchs,” as defined by size and revenue, does sweep in smaller sites, such as Wikipedia and Etsy. An initial specific exclusion of Disney Corporation was repealed.

Three features of the Florida legislation are problematic, in the appellate court’s view: content moderation, disclosure obligations, and user data retention.

Strict in Theory, Fatal in Fact. The Eleventh Circuit perceives that Florida’s legislation regulates speech within the meaning of the First Amendment, and its content moderation provisions are subject to strict scrutiny, making it unlikely the legislation will survive.

Pre-Emption Awaits Another Day. As the court based its analysis on the First Amendment, it is not necessary to consider the issue of federal preemption of the Florida law by 47 U.S.C. Section 230.

Gutting Editorial Discretion. Denying social media platforms the ability to prohibit some posts, as the Florida law does, impairs the very exercise of discretion that the First Amendment prohibits, the Eleventh Circuit observes.

Not an Indiscriminate Host. The notion that by opening a social media space to some — essentially serving as a host to speakers — a social media enterprise must open that speech to all, following historic decisions, failed to persuade the Eleventh Circuit with respect to the Florida legislation.

Social Media’s Own Speech. If the issue of mandating open doors and open access were not enough to impair the social media companies’ editorial discretion, and by extension, their First Amendment rights, the Florida law, in the court’s view, impedes the platforms’ capacity to exercise their own speech rights.

Common Carrier Analogy Fails. Seeking to minimize the impact of First Amendment review, the state has relied heavily on the notion that social media platforms are common carriers indefensible to society, an idea rejected by the Eleventh Circuit notwithstanding that the court was uncertain whether the state asserts that the common carrier status has already been attained or whether the state would legislate that status into existence.

Social media platforms do not behave as common carriers available to all to transmit communications of their own choosing, the Eleventh Circuit observes. Social media platforms may appear to be open to all but in fact users must accept the platforms’ terms and community standards. Moreover, Supreme Court opinions have not considered cable operators to be common carriers, and the Court has declined to place online media on the same footing as broadcast media for supervisory and regulatory purposes.

The Eleventh Circuit sees that online platforms as analogous to cable providers that retain editorial discretion over their offerings.

Finally, Congress has specifically distinguished and exempted internet services form other communications media in the Telecommunications Act of 1996 and within the same legislation has protected social media from liability for publication in ways not extended to common carriers that must serve all, the Eleventh Circuit reasoned.

What Part of “Constitutional Guarantees” Did Florida Not Understand? If the social media platforms are not already common carriers, which the appellate court finds they are not, the state possesses no power to legislate the platforms’ First Amendment rights out of existence by nomenclature. Even if the social media platforms’ vast market powers suggest that they ought to be treated as common carriers, this would not carry the day. Legislation cannot create in social media the fundamental characteristics inherent in and required of common carriers to hold themselves out to the entirely of the public, without exception. While some entitles may come to be a means of rendering services of public interest, marketplace success in itself will not compel forfeiture of First Amendment rights.

The exercise of expressive editorial judgment by the social media platforms means that those platforms are not common carriers. Any imposition of limits on their First Amendment rights must survive strict scrutiny, which, with some exceptions, is not the case with Florida’s law.

The Nature of the Violations. Florida’s law would restrict editorial judgment through forbidding de-platforming political candidates, manipulating the presentation of content by or about candidates, and censoring or manipulating journalistic enterprises. Legislatively requiring consistency in decision- making and imposing time limits on restrictions present similar, if less obvious, impositions on social media platforms.

Permitting users to opt out of the platforms’ curation would interfere with the editorial processes and discretion exercise by the platforms to those users.

Compelled disclosures of platform activities inherently burden editorial judgment, but such commercial disclosures are subject to lesser scrutiny.

The Eleventh Circuit finds no First Amendment issues arise with respect to requiring platforms to permit users to access their stored records for at least sixty days after de-platforming.

Gimlet Eye or Casual Glance: Standards of Review. Content based speech regulations must survive strict scrutiny. While the state has admitted that the aim of its legislation is to address perceived mistreatment of conservatives and conservative views, this does not persuade the Eleventh Circuit to adopt the technology associations’ argument that this causes the entirety of the legislation to fail.

The state’s motivation in enacting legislation is not outcome determinative in review of an otherwise facially constitutional law. Moreover, the applicability of the law to some social media platforms and not others, while of concern, is insufficient to condemn the legislation in its entirety.

The Eleventh Circuit’s Reasoning. The appellate panel has concluded that NetChoice and CCIA may succeed on the merits of their content moderation claims. As some provisions refer specifically to content messaging, those trigger strict scrutiny, whereas de-platforming and opt-outs are neutral.

The “consistency” demanded of the social media platforms partakes both of content-based and neutral regulation. Because at their core they involve expressive activity, intermediary scrutiny is triggered, but even at that level, they are not likely to survive.

Disclosure of factual information in commercial settings need not meet even intermediate scrutiny, and may be reviewed on a rational relationship basis, making those regulations likely to survive.

The Eleventh Circuit has concluded that none of the content moderation measures would survive intermediate scrutiny and that the ‘explanatory’ disclosure requirements — why decisions were made — is likely unconstitutional. However,there is no likelihood of success on the merits of the rest of the legislation.

When intermediate scrutiny is applied to the legislation’s content moderation restrictions, the court is asked to consider whether the content moderation restrictions are narrowly drawn, that is, no greater than is essential, to further a substantial government interest unrelated to speech suppression.

The content moderation restrictions do not, in the court’s view, further any substantial government interest, which does not seem to have been seriously argued by the state. (Slip op. at 53.)

While it might be that the state, had they pursued such arguments, would claim an interest in curtailing private censorship, or in fostering use of of the internet, the government has no interest in “leveling the expressive playing field,” nor may it intervene where there is no right to a social media account.

The idea of restricting the speech of some to enlarge the voices of others is “wholly foreign to the First Amendment,” the Eleventh Circuit has concluded. (Slip op. at 59, quoting Buckley v. Valeo, 424, U.S. 1, 48-49 (1976)).

The assertion of a state interest in “promoting the widespread dissemination of information from a multiplicity of sources” would fail, as social media platforms do not act as gatekeepers, exercising control over most or all information. (Slip. Op. at 49, quoting Turning Broadcasting System v. FCC, 512 U.S. 622, 662 (1994).) A wealth of communications resources exist and are available to speakers Even if they are not of the magnitude of the social media platforms, this does not justify inhibiting the speech rights of private social media companies as the Florida law would do.

Moreover, the appellate court thinks it unlikely that the government has an interest in private utilities’ consistent application of rules or in prohibiting users from changing messages within certain time frames, in addressing sequencing of content, or in permitting or precluding participation in these processes.

Even if a substantial government interest were found, there is little likelihood that the preclusive restrictions and mandated activities are “no greater than is essential to the furtherance of interests.” (Slip op. at 61, citing United States v. O’Brien, 391 U.S. 367, 377 (1968).

Prohibitions on “deplatforming, deprioritizing, or shadow-banning” would make it impossible to address obscenities or terrorist threats, and indeed raises the specter of minors’ access to pornography. (Slip op. at 62). This wide a sweep stands the narrowness constraints applicable to legislation of speech regulations on its head, the court concludes.

Compelled disclosures. Disclosure requirements will survive constitutional scrutiny if as commercial speech they are related to protection of consumers, which is a recognized state interest, and are not unjustified or unduly burdensome, effectively chilling protected speech. (Slip op. at 63, citing Milavetz, Gallop & Milavetz v. United States, 559 U.S. 229, 250 (2010).

An exception to the likely unconstitutional disclosure requirements is requiring that information be provided to consumers about the terms of access to the platform and that the content moderation policies are not misleading. The court observed that there has not been a sufficient showing that publications of standards or that providing information about rules changes, views, and advertising information would be unduly burdensome.

The court has agreed with NetChoice that requiring detailed justification for and notice of each content moderation is likely unconstitutional even under commercial speech standards. The time constraints, compliance burdens, and prohibitive fines for insufficient “thoroughness” compound those burdens.

And in Conclusion. The remaining factors requiring review to substantiate injunctive relief are easily met, the Eleventh Circuit has determined. Ongoing First Amendment violations are presumptively irreparably harmful, and neither the state nor the public has any interest in enforcing an unconstitutional statute.

The district court’s order will be upheld in part and vacated in part, and the case remanded.

WHERE MATTERS STAND. JustLawful is not sage enough to know what the Supreme Court will do now that there is an apparent, if only partially articulated, conflict between two federal circuit courts of appeal. Others’ prognostications are welcomed.

In a Nutshell. Here is a link to the Eleventh Circuit’s synopsis of its parsing of the Florida statute.

Summary 11th Cir. Opinion

And in Full:

Here is the entire opinion.

NetChoice v. Florida No. 21-12355 (11th Cir.) Opinion May 23, 2022

 

Social Media Platforms Resist Regulation as Electronic Public Squares, Seeking U.S. Supreme Court Intervention in Ongoing Federal Appellate Litigation Against Texas

Netchoice, LLC and Computer and Communications Industry Association v. Ken Paxton, Attorney General of Texas, No. 21A720 (U.S. Supreme Court). Emergency Application filed May 13, 2022


When the state of Texas passed legislation that would limit the ability of internet social media sites such as Facebook, Twitter, YouTube and others to remove or to ban content the sites deemed undesirable or outside the private companies’ internal rules and user agreements, those companies immediately sought to enjoin the legislation, arguing that Texas’s bill violates the corporations First Amendment rights, including but not limited to exercising editorial discretion over content provided by others. 

The associations advocating for the social media sites successfully obtained an injunction halting the operation of the Texas law.  Recently the United States Court of Appeals, without issuing an opinion detailing its reasoning, stayed the operation of the injunction, prompting the associations to seek the United States’ Supreme Court’s intervention to vacate the appellate court’s order.

Texas, by its Attorney General, observes that the massive online presences of social media sites has caused them to become modern public squares and, as such, when a site its open to some views, it must be open to all.  Alternatively, Texas asserts that the platforms’ conduct may be regulated much as the conduct of common carries is, and that it is not speech but the act of removal of content or banning of posts or accounts that is open to statutory intervention without concern for the First Amendment. 

Social media sites strenuously resist being required to offer appeals from removal of content or banning of accounts, and complain that that reporting requirements imposed by Texas are overwhelming.  The companies state that compliance with Texas’s regime would be prohibitively costly and would require remaking of the corporations business methods, actions which would take a decade to accomplish.

The sites are extremely concerned because active operation of the Texas legislation will impact all operations throughout the United States. 

The petitioning associations enjoy the support of more than a dozen industry-related entities, First Amendment advocates, and others with interest in online activity.

Texas, by comparison, is supported by other states and a few critical voices.

The timing of issuance of a decision on the emergency petition, addressed to Justice Alito as justice for the Fifth Circuit, but in light of the stringent briefing deadline imposed on the parties, it may be that a decision will be forthcoming very soon.

The legislation in issue:

Text of Texas H.B. 20

The emergency petition, Texas’s opposition, and petitioners’ reply:

21A720 Supreme Court Vacatur Application

21A720 Response to Application

21A720 Reply in Support of Emergency Application

Amicus Submissions for Applicants:

21A720 Amicus Brief of Christopher Cox

21A270 Amicus Brief of Reporters Committee for Freedom of the Press, et al.

21A720 Amicus Brief of Professor Eric Goldman

21A720 Amicus Brief of Floor64 d/b/a/Copia Institute

21A720 Amicus Brief of Center for Democracy and Technology, et al.

21A720 Amicus Brief of TechFreedom

21A720 Amicus Brief of Chamber of Progress, et al.

21A720 Amicus Brief of The Cato Institute

Amicus Submissions for Respondent:

21A720 Amicus Brief of Philip Hamburger, et al.

21A720 Amicus Brief of Florida and 11 Other States

 

 

 

 

 

 

 

 

Federal Officials Cannot Evade First Amendment Constraints on Speech Suppression Through Intimidation and Collusion with Internet Platforms, or Creation of an Unauthorized Disinformation Governance Board, State Attorney Generals Assert in Suit Against an Array of Federal Officials


Missouri and Louisiana v. Biden, et al.., No. 3:22-cv-01213-TAD-KDM (W.D. La.).  Complaint filed May 5, 2022.

Missouri and Louisiana v. Biden, et al., No. 3 22-cv- 01213 (W.D. La.) Complaint filed May 5, 2022

Missouri and Louisiana Attorney Generals, claiming injury to state constitutional interests and to state citizens’ speech freedoms, have filed a complaint against President Biden and multiple executive officials and federal agency heads, asserting that the Biden administration has colluded with technology platforms such as Facebook, YouTube, and Twitter in order to suppress and censor information unfavorable to federal government aims.  The recent creation of a bureaucratic governing board to manage removal of disfavored speech only advances these unconstitutional practices, the state plaintiffs say.

Plaintiffs seek declaratory relief declaring the administration’s actions violate the First Amendment as well as injunctive relief forbidding further unconstitutional activity.

The First Amendment serves as the cornerstone of the free exchange of ideas of information, without which competent self governance is impossible, the states say.  The federal government is constrained by the First Amendment from interfering with the guaranteed freedoms embodied in the First Amendment, including speech freedoms.  The government cannot escape its obligation to refrain from inhibiting speech by engaging private entities to censor speech.

Although the First Amendment does not ordinarily reach private actors, acts undertaken at the behest of or in collusion with the government may violate the First Amendment.  This is particularly so, the plaintiffs state, where the federal government has coerced private entities to cooperate with the government by means of threats of antitrust proceedings or revocation of immunities enjoyed under Section 230 of the Communications Decency Act of 1996.

Truncating the flow of information to suit federal officials’ aims impairs states in protecting the interests of state citizens, particularly where state constitutions may secure more expansive speech protections that the United States Constitution, plaintiffs claim.

The Complaint filed on May 5 in the United States District Court for the Western District of Louisiana details instances in which, either directly or in collusion with technology platforms, federal officials have acted to suppress speech, serving their own political ends to the injury and detriment of the public, frequently cloaking their actions as attempts to guard against undefined and opaque “disinformation.”

Threats of antitrust actions or threats of loss of immunities have ensured technology companies’ compliance with federal officials’ dictates.   The adoption of facially private governing documents and policies that in fact are employed to serve the government, and which may operate in collusion with the government, cannot be interposed to shield either private or public actors from liability for suppressing and chilling speech.

An atmosphere of intimidation pervades social media sites, plaintiffs observe. Undertaken in fear of or in collusion with federal officials, the private companies’ practices of banning, shadow banning, limiting publication, and outright removal of social media account holders create unconstitutional prior restraints, chilling participation lest a similar fate ensue.

The state plaintiffs’ Complaint provides a chronicle of activity asserted to constitute First Amendment violations. If true, the plaintiffs’ allegations paint a picture of a government intent on serving its ends and not those of the public they were elected or appointed to serve.  Digital media fail to behave as an ‘electronic public square’ where those media represent an unparalleled “concentrated control” of speech.  Complaint, para. 53, citing Knight First Amendment Institute, 141 S. Ct. 1220, 1221 (2021).

Federal officials have conferred with private digital platforms to advise the platforms about content that ought to be flagged for removal, plaintiffs state.

Online platforms accomplish speech monitoring by means such as mechanical algorithms or outright speech suppression by permanent banishment of disfavored speakers, the plaintiffs offer, thereby denying the exiled any ability to communicate publicly.  Such measures not infrequently censor core political speech, to the detriment of political opponents and to the benefit of those directing the private companies’ actions.

Examples of digital platforms’ interference with First Amendment speech guarantees, undertaken to please or to appease federal officials have included suppression of information about location of the President’s son’s laptop, said to contain damaging information, on the eve of the Presidential election.

Plaintiffs aver that open discussion of the origins of the Covid-19 virus was precluded where, by agreement with a social media platform, a federal official who had been engaged in funding gain of function research abroad provided messaging favoring a government narrative which insulated the government and the official from review.

Relevant evidence that would permit public evaluation of the efficacy of face masks and government edicts demanding home confinement was also suppressed, plaintiffs submit.

The promotion of narratives favoring voting by mail, a methodology traditionally dismissed as inviting voter fraud, has also been alleged to involve social media.

Both the Executive and the Legislative branches have threatened technology companies directly and publicly, at times demanding removal of political opponents’ statements.

The recent creation of a board to govern “disinformation” is an Orwellian measure intended to withhold content from the public and to insulate the federal government from criticism, plaintiffs insist.   This has been done notwithstanding that there exists a constitutional guarantee of free speech, such guarantee not to be interfered with by curating and removing from public discourse that which disfavors the government.

Similarly dystopian, plaintiffs observe, is the view that speech is not speech but infrastructure, and thus susceptible of government regulation and oversight.  To this has been added the opinion that the public reacts emotionally and thoughtlessly to speech, and that speech is linked to violence, requiring online policing to protect the public.  One legislator has suggested that the public lacks the capacity to discern fact from fiction, a circumstance not to be addressed by providing more information, but instead, in the view of current federal officials, less information or none at all.

These activities, whether singularly or in combination, violate the First Amendment and severely damage public discourse, the plaintiffs say, causing sufficient danger to open discourse as to merit an injunction against further constitutional violations.

Last Rights:  Supreme Court Concludes Death Row Inmate May Succeed in Asserting Undue Burden of His Religious Exercise Because State Denied Request for Minister’s Presence, Audible Prayer, and Touch During Execution 

Ramirez v. Collier, Executive Director, Texas Department of Criminal Justice, No. 21-5592, 595 U.S. ____ (March 24, 2022).  Opinion awarding petitioner Ramirez injunctive relief, reversing the decision of the Fifth Circuit affirming denial of a stay of execution, and remanding the case for further proceedings.


In 2004, John Ramirez stabbed Corpus Christi convenience store worker Pablo Castro twenty-nine times, an act that killed Castro and yielded $1.25 for Ramirez and his accomplice.

 

Ramirez fled the United States, but was apprehended near the Mexican border several years later, then was convicted of murder in the course of roberty, a capital offense.

 

Ramirez has assiduously yet unsuccessfully sought relief from his conviction.

 

Ramirez has sought to stay his execution because the State of Texas has denied him the presence of his spiritual advisor during his execution to provide audible prayer and to touch Ramirez during administration of lethal injections.  

 

Texas has promulgated several policies concerning the presence of religious advisors during executions. Although at times Texas has precluded all spiritual advisors from being present in the execution chamber, Texas has revised its protocols to permit the presence of spiritual advisors in the execution chamber.  

 

Ramirez grieved the state’s denial of his request that his spiritual advisor be permitted to pray aloud and to lay hands on Ramirez during Ramirez’s execution.  

 

Ramirez asked the United States Supreme Court to preliminarily enjoin the state from executing him prior to resolution of his claim under the Religious Land Use and Institutional Persons Act (RLUIPA).

 

RLUIPA provides religious free exercise protections that, because of the act’s procedural structure, may be more adventitious to claimants than First Amendment claims.  RLUIPA requires the state to demonstrate that a substantial burden on the exercise of a sincere religious belief must meet “strict scrutiny” standards even if the law in question is one of general applicability.  

 

The Supreme Court in Ramirez’s case perceives that Ramirez’s request that his pastor be present, pray audibly, and lay hands on him as he is executed reflects a sincerely held religious belief.

 

The Court has concluded that Texas cannot substantiate its revocation of the time honored practice of vocal prayer because, as Texas asserts, there exists a compelling government interest in being able to minotaur sound within the execution chamber, which, the state posits could be hampered by audible prayer.  

 

The Court agreed that the interest exists but the state had not shown that a categorical ban on all audible prayer in the execution chamber is the least restrictive means of advancing that interest. 

 

Similarly, the Court acknowledged that Texas has a compelling interest in avoiding disruption in the execution chamber.  However, the Court found that because there exists in this case no indication that disruption might occur, a hypothesized fear could not meet the state’s burden. 

 

By tailor making the execution to suit the prisoner’s needs and to permit monitoring, to limit touch to areas that would not interfere with the procedure,  and to avoid disruption, the minister could be permitted to address the inmate only, subject to immediate removal upon any failure to comply with the rules.  These measures are less restrictive means through which Texas might advance the state’s interest.

 

Having concluded that Ramirez is likely to succeed on the merits of his case, the Court next concluded that if the Court failed to provide injunctive relief that Ramire would suffer irreparable harm, as he would be barred from exercising his faith in the last moments of his life. 

 

The public interest will not be harmed by granting relief in this case, as Ramirez does not seek an indefinite stay, and there is a strong public interest – as evidenced by the enactment of RLUIPA – in ensuring that prisoners subject to execution are not concomitantly subjected to undue burdens on their religious exercise. 

 

The Court dismissed Texas’s argument that Ramirez’s inequitable conduct should bar injunctive relief.  In the Court’s assessment, Ramirez has diligently asserted and pursued his claim and has not made a late claim on long known facts to manipulate or to cause delay rather than to seek redress. 

 

As RLUIPA claims are case specific, the Court has urged the states to adopt policies to address claims through a reasonable request process as well as to provide procedural training for spiritual advisors. 

 

As Ramirez succeeded in persuading the court that he is worthy of injunctive relief, the decision of the Fifth Circuit has been reversed, and the case has been remanded for further proceedings consistent with the Court’s opinion.

 

Matters Would Go Better if All Played Their Parts Better.  Justice Sotomayor, having joined in the opinion, has written separately to emphasize that both inmate and prisons administration must comply with not only RLUIPA, but also, with particular emphasis on the prison’s obligations, with the Prison Litigation Reform Act (PLRA).  All concerned, but especially Institutions administering process and procedures, must ensure that redress is available and accessible and that delay not be permitted to frustrate proceedings unduly.  

 

Accommodate, Don’t Litigate.  Justice Kavanaguh concurred separately, noting the emergence of religious exercise and religious equality claims in death penalty case, and commenting upon the difficulties the Court faces in defining not only conpelling interest but also refining the relative restrictivess of measure os addressing compelling interests.

 

Justice Kavanaugh urged the states to realize that much could be accomplished and a good deal of harm could be avoided if the states were to accommodate inmenat’s requests where it is possible to do so without sacrificing the states’ “compelling interests in safety, security, and solemnity,” as so doing would avoid litigation and aid in bringing closure to victims’ families. 

 

Doubting (Justice) Thomas. Justice Thomas dissented from the Court’s opinion, citing not only the violent nature of Ramirez’s crime, but also his evasion of responsibility, and what Justice Thoams perceived to be a strategic change in position to achieve delay.

 

Justice Thomas noted that Ramirez’s engagement in delay and manipulation has frustrated the state’s and the public’s interests in how justice ought to be served.  Moreover, Ramirez has caused repeated injury to victims, as each time a date of execution has been set, Ramirez has evaded it. 

 

Although Ramirez did not engage in a last minute flurry of filing claims, he did engage in piecemeal and persistent pursuit of claims, changing tactics as needed to seek his goal:  delay. 

 

Neither strategy is more or less inequitable than the other, in Justice Thomas’s view.

 

Justice Thomas found no merit in the view that Ramirez’s advancing a claim relating to a ‘traditional’ religions ritual supports the conclusion that is claim is sincere, particularly as the orthodoxy of a practice has no bearing on First Amendment protection.

 

Justice Thomas found Ramirez’s failure to comply with the Prison Litigation REform Act (PLRA) is fatal to his bid for relief before the Supreme Court.  Ramirez was obliged to, but did not, engage in informal resolution of his audible prayer claim nor did he mention the audible prayer claim in his grievance, precluding the state’s adjudication of his claim.  

 

21-5592 Ramirez v. Collier (03_24_2022)

 

Ramirez v Collier 10 F4th 561Mem 5th Cir 2021

 

The Times they are not a-changin’: awkward closing of Palin libel suit fails to provide path forward for standards governing publication of false statements about public figures

 

Palin v. The New York Times, No. 17-04853. 

Judgment for defendant entered February 15, 2022. 

Teleconference scheduled for February 23 at 4:00 p.m.  Public access at 888-363-4735 Access Code 1086415


In issue:  In 2017, Congressman Steve Scalise was shot while practicing with colleagues for an annual Congressional baseball game, causing news media to  echo concerns about gun violence that arose in 2011 when Arizona Senator Gabrielle Giffords sustained a gunshot wound to the head in a supermarket parking lot.

The New York Times opined that a perceived escalation of gun violence was traceable, in the Giffords case, of  incitement induced by a campaign document produced by Governor Palin which featured drawings of gun sight cross hairs on a map to indicate campaign targets.

The New York Times corrected itself but this did not, in Palin’s view, suffice to relieve the publication of liability for defamation.

While jurors were deliberating whether The New York Times ought to respond in damages to former Alaska Governor Sarah Palin for its publication of  an admittedly inaccurate, promptly removed,  statement in an opinion piece, the court granted judgment in favor of The New York Times.

Although jurors had been cautioned against accessing media while deliberating, jurors reported that they learned of the entry of judgment through telephone notifications received prior to the jurors’ verdict for the New York Times.

The court was of the mind that entry of judgment for The New York Times could provide efficiencies after appeal:  If the jurors found in favor of plaintiff Palin, and the Second Circuit reversed the trial court, judgment for Palin in accordance with the juror’s findings could be entered, obviating the need for another trial.

It seemed like a good idea at the time.  

Civil procedure thumbnail.  Judges may dismiss cases before trial, after trial, and after jury determinations in the court’s discretion if the court is of the view that a litigant cannot and, if after trial, has not, as a matter of law, established a case.  Rule 50, Fed.R.Civ.P.  Entry of judgment as a matter of law in accordance with Rule 50  modernizes the common law judgment non obstante verdicto (judgment notwithstanding the verdict), permitting courts the flexibility of entering judgment at almost any time.

The court has augmented the record to include statements to the jurors about avoiding media as well as cases relied on by the parties concerning the motion for judgment by the court, and has invited the parties to discuss any issues presented by the court’s and the jurors’ conclusions by telephone conference.

By entering judgment for the New York Times, the court indicated that the former governor had not produced evidence meeting the heightened standard for defamation of public figures announced more than a half-century ago in New York Times v. Sullivan, 376 U.S. 254 (1964).

Law thumbnail. To prevail in a  defamation claim, a public figure must prove that the publication of a defamatory statement was done with “actual malice”, defined as knowledge of its falsity or reckless disregard of whether the statement was false or not.  “Actual malice” does not mean subjective ill will but refers to publishing, as stated, with knowledge that a statement is false or with reckless disregard — more than negligence — with respect to truth or falsity.

This rarely met standard has provided insulation for publishers which some, including two justices of the U.S. Supreme Court, now sense merits revisiting.  Berisha v. Lawson, No. 20-1063, 594 U.S.  ____ (2021) (Justices Thomas and Gorsuch, writing separately, dissent from denial of certiorari).

At this writing there is no opinion concerning the final judgment on the docket for the U.S. District Court for the Southern District of New York, and it is not known whether the court will issue one.

Recent case materials:

Order February 16, 2022

Order to Supplement Record February 16, 2022

Final Judgment February 15, 2022

Earlier case materials:

Palin v. New York Times (2nd Cir.) August 6, 2019

Palin v. New York Times, Opinion S.D.N.Y. August 29, 2017

Supreme Court Opinions:

Berisha v. Lawson, No. 20-1063, 594 U.S.___ (2021)

New York Times Company v Sullivan 376 US 254 11 L Ed 2d 686 84 S Ct 710 95 ALR2d 1412 1964

The New York Times, March 10, 1964

 

 

 

 

Disfavored, de-prioritized, and dismissed:  physicians’ association cannot sue congressman for working with media platforms on ‘misinformation’


Association of American Physicians and Surgeons and Kathleen Verelli, individually and on behalf of others similarly situated v. Adam Schiff, individually and as a member of Congress, No. 21-5080 (D.C. Cir.) (January 25, 2022).


 

The United States Court of Appeals for the District of Columbia Circuit has affirmed dismissal of an action brought by a physicians’ association that provides information about vaccination online.  In its complaint, the association asserted that online platforms caused their site to lose preference in search results, as well as a beneficial comercial association, and that this was the result of agreement between the technology platforms and Representative Adam Schiff. 

In addition to allegedly disfavoring the physicians’ association, the association stated that government statements came to be incorporated in information offered online about vaccines.  Dispositive motions and the appeal did not establish whether the companies and the government worked together to present responses to the government’s inquiries or to fashion information presented on government websites.

The appellate court concluded that the physicians’ association lacked standing, a form of capacity, to bring suit, as the association cannot demonstrate a concrete injury traceable to the actions of the defendant which is redressable by a court.

The appellate court was dismissive of the physicians’ position that because its action is grounded in First Amendment concerns, the ordinarily stringent requirements of standing are not apt, as First Amendment injuries are presumptively damaging.  Deferential review of First Amendment claims applies to overbreadth challenges to statutes, not the willful acts of a government official to limit speech, as is alleged here.

The court observed that inquiries presented by the Congressman to the technology companies and their responses disclosing their policies does not provide any traceable source of harm to the petitioners.  Moreover, the technology companies stated that their policies and actions predated the government’s inquiries about their practices, further attenuating any inference that the two worked together to cause the physicians’ website to become disfavored.

Because the appellate court affirmed dismissal on jurisdictional grounds, the court found it unnecessary to consider either the legislative immunity enjoyed by members of congress or the statutory immunity enjoyed by technology providers under Section 230 of the Communications Decency Act of 1996.  

JustLawful note:  At the heart of the physicians’ associations’ case is the specter of the government outsourcing speech suppression, which is forbidden to the government by the First Amendment. Significant issues in maintaining open channels for speech could emerge were the government to encourage speech regulation by private entities not bound by the First Amendment as agents or proxies for the government, an undesirable situation made worse as the technology companies enjoy statutory immunity for as long as they are not providing content.  

Not long ago such an idea would be seen as the stuff of dystopian fiction.  However, cause for concern has become deeper and is now more frequently perceived to be grounded in reality.  Technology companies grow ever more active in removing materials from their sites, or in banning  participation on their sites, and enjoy immunity for doing so for so long as they are able to maintain that they are administering terms of service agreements rather than providing content.  

Providing content, which is not immune from suit, and providing site access, which is immune from suit, is a legacy of early days in internet development when courts were inclined to encourage the widespread adoption of online platforms. As a corollary, courts were inclined to discourage corporations from refusing to expand services for fear of defamation actions.  It was thought that Section 230 would take care of that, and by and large it has done so, but Section 230 immunity seems, to some, to grow ever more expansive as opportunities to be present online seem to grow ever less reachable or maintainable. 

The potential for government involvement in matters that impact opportunities to speak, whether directly with the entities, or indirectly through political financing, merits review and will likely invite additional challenges.  

 

Association of Physicians and Surgeons v. Schiff, No. 21-5080 (D.C. Cir) January 25, 2022

Rendering Unto Caesar, According to Caesar: Supreme Court Declines Review of City’s Revocation of Church’s Tax Exemption

Trustees of New Life in Christ Church v. City of Fredericksburg, No. 21-164 (S. Ct.) 525 U.S. _____. Order denying certiorari dated January 18, 2022.

Justice Gorsuch dissents from the court’s denial of certiorari of a dispute between local tax authorities and a church claiming tax exemption for a minister’s residence used not only as housing, but also as a gathering place for religious study and management of outreach works.

While acknowledging that state law permits tax exemption of a minister’s residence, the City of Fredericksburg denied the church this exemption. The city reviewed church governing documents and concluded that the church did not understand its own qualifications for “ministry”, and that, therefore, exemption must be denied.

The church rejected the city’s interpretation of the church’s views who might serve as a minister, relying on the church’s views of its governing structures.

A state court in Virginia agreed with the city. After the Virginia Supreme Court denied review, review in the U.S. Supreme Court was sought.

Justice Gorsuch is of the view that the First Amendment precludes the sort of deep dive into church governance that the City of Fredericksburg conducted in this case, finding the City’s claim that it may ‘verify’ church rules antithetical to established law rendering ecclesial considerations, which include church governance, outside the purview of civil authorities, including the courts.

History is clear that the United States was formed with escape from government oppression of religion firmly in mind, Justice Gorsuch opines. Thus, in the absence of fraud of deceit, civil authorities and the courts may not serve as interpreters of church law, but rater, church positions on ‘purely ecclesial’ matters are to be accepted as conclusive.

To the extent that this dispute appears to stand established law on its head, summary reversal would have been preferred, Justice Gorsuch concluded. Even if such an “obvious” error in what may be seen as a small case may be promptly corrected, Justice Gorsuch is of the view that permitting the error to stand is not the best way to proceed because “[b]ureaucratic efforts to “subject” religious beliefs to “verification” have no place in a free country.” Dissent, Slip. op. at 4.

Trustees of New Life in Christ Church v. Fredericksburg, Order dated January 18, 2020