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First Amendment News 315: Do religious speech and association cert. petitions filed by Clement, Waggoner, and others portend new trend in First Amendment law?

Paul Clement & Kristen Waggoner

Religious speech cases are hardly new in the world of First Amendment law; cases such as West Virginia State Board of Education v. Barnette (1943) and Wooley v. Maynard (1977) exemplify that. Even so, there seems to be something of a new trend of religious speech and association claims being pitted against state anti-discrimination laws, reproductive freedom policies, and various forms of public prayer in government settings. Against the backdrop of cases such as National Institute of Family and Life Advocates v. Becerra (2018) (amicus brief by Kristen Waggoner), Masterpiece Cakeshop v. Colorado Civil Rights Commission (2017) (argued by Waggoner), and Burwell v. Hobby Lobby Stores (2014) (argued by Paul Clement), comes a group of new cert. petitions filed by Mr. Clement, Ms. Waggoner, and Jeffrey M. Harris.

1: Public prayer and government speech 

First, there is the petition filed by Mr. Clement in Kennedy v. Bremerton School District. The two issues raised in the case are:

  1. Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection.
  2. Whether, assuming that such religious expression is private and protected by the free speech and free exercise clauses, the establishment clause nevertheless compels public schools to prohibit it.
Paul Clement
Paul Clement (Kirkland & Ellis LLP)

Facts (as presented in cert. petition):

Petitioner Joseph Kennedy lost his job as a football coach at a public high school because he knelt and said a quiet prayer by himself at midfield after the game ended. After considering an interlocutory petition in which Kennedy sought review of the lower courts’ refusal to grant him a preliminary injunction, four members of this Court observed that “the Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future,” but concluded that this Court should stay its hand until the lower courts definitively determined the reason for Kennedy’s termination. The statement also noted that Kennedy had a then- unaddressed claim under the Free Exercise Clause.

On remand, the lower courts found—and the school district ultimately agreed—that Kennedy lost his job solely because of his religious expression. Yet the Ninth Circuit nevertheless ruled against him again. The court not only doubled down on its “troubling” free-speech reasoning, which transforms virtually all speech by public-school employees into government speech lacking any First Amendment protection, but reached the remarkable conclusion that, even if Kennedy’s prayer was private expression protected by the Free Speech and Free Exercise Clauses (which it undoubtedly was), the Establishment Clause nevertheless required its suppression. The court denied en banc review over the objection of 11 judges.

2: Designing wedding websites & floral arrangements 

Next, are two petitions filed by Ms. Waggoner in Creative LLC v. Elenis and Arlene’s Flowers Inc. v. Washington (petition for rehearing). The issues raised in Creative LLC are:

  1. Whether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artist’s sincerely held religious beliefs, violates the free speech or free exercise clauses of the First Amendment.
  2. Whether a public-accommodation law that authorizes secular but not religious exemptions is generally applicable under Employment Division v. Smith, and if so, whether the Supreme Court should overrule Smith.
Kristen Waggoner (Alliance Defending Freedom)

Creative LLC Facts (as presented in cert. petition):

[The case involves] a website designer who creates original, online content consistent with her faith. She plans to (1) design wedding websites promoting her understanding of marriage, and (2) post a statement explaining that she can only speak messages consistent with her faith. But the Colorado Anti-Discrimination Act (CADA) requires her to create custom websites celebrating same-sex marriage and prohibits her statement—even though Colorado stipulates that she “work[s] with all people regardless of . . . sexual orientation."

The Tenth Circuit applied strict scrutiny and astonishingly concluded that the government may, based on content and viewpoint, force Lorie to convey messages that violate her religious beliefs and restrict her from explaining her faith. The court also upheld CADA under Employment Division v. Smith, 494 U.S. 872 (1990), even though CADA creates a “gerry-mander” where secular artists can decline to speak but religious artists cannot, meaning the government can compel its approved messages.

The other case is Arlene’s Flowers Inc. v. Washington, which is again before the Court, this time by way of a petition for rehearing. The issues raised in it are:

  1. Whether a state violates a floral designer’s First Amendment rights to free exercise and free speech by forcing her to take part in and create custom floral art celebrating same-sex weddings or by acting based on hostility toward her religious beliefs.
  2. Whether the free exercise clause’s prohibition on religious hostility applies to the executive branch.

Facts (as presented in the petition for rehearing):

[Petitioner] is a Christian artist who imagines, designs, and creates floral art. She serves everyone and sells pre-arranged flowers for use in any event. But she cannot take part in or create custom art that celebrates sacred ceremonies that violate her faith.

After serving Robert Ingersoll, a gay client, for nearly ten years, Barronelle politely referred him to three other florists when he asked her to create floral art celebrating his same-sex wedding. That resulted in Washington’s unprecedented attack on Barronelle in both her personal and professional capacities and a ruling that she discriminated against Robert because of his sexual orientation. The ruling threatens to bankrupt her.

After this Court vacated and remanded in light of Masterpiece Cakeshop, the Washington Supreme Court doubled-down, reissuing most of its prior decision word for word and cabining Masterpiece to prohibit religious hostility only by adjudicators—not executive-branch officials like the State’s Attorney General. In so doing, the court decided the following important federal questions in conflict with decisions of this Court and multiple Courts of Appeal[.]

3: Religiously affiliated hospital & compelled medical procedures 

Finally, there is Dignity Health v. Minton (Jeffrey M. Harris, counsel of record) in which the issues raised are:

  1. Does the Free Exercise Clause of the First Amendment bar a state-law claim that seeks to compel a religiously affiliated hospital to allow medical procedures that violate its longstanding, deeply held religious beliefs?
  2. Do the First Amendment’s free expression and free association guarantees bar a state-law claim that seeks to compel a religiously affiliated hospital to allow—and thereby endorse and be associated with— medical procedures that violate its longstanding, deeply held religious beliefs?

Facts (as presented in cert. petition):

Petitioner Dignity Health d/b/a Mercy San Juan Medical Center (“Mercy”) is a Catholic hospital that seeks to further the healing ministry of Jesus by caring for the sick in accordance with Catholic teachings. Mercy provides compassionate care to all patients without discrimination but is prohibited from allowing certain procedures that violate Catholic teachings.

Respondent brought suit against Mercy under California’s Unruh Civil Rights Act after Mercy declined to allow an elective sterilization procedure that was prohibited by the Ethical and Religious Directives that govern Catholic health care institutions. The California Court of Appeal rejected Mercy’s First Amendment defenses, relying on earlier precedent purporting to apply this Court’s decision in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).


Yes there's precedent for a law professor debating a sitting Justice

Last week we posted a commentary titled "Should Justice Alito debate the Court’s shadow docket critics?" As unlikely as that prospect seems, there is indeed precedent for a sitting Justice to debate a law professor, even one who was the president of the ACLU.

Case in point: On Oct. 15, 2006, the ACLU hosted a C-SPAN televised event in which Justice Antonin Scalia engaged ACLU president and New York Law School Professor Nadine Strossen in a discussion about civil liberties and the original meaning of the U.S. Constitution. Topics included the flag-burning case, police use of infrared detection, homosexuality, pornography, the due process clause, voting rights, Brown v. Board of Education, and the right to privacy. After their discussion, they responded to audience members' questions. The discussion was moderated by Pete Williams.

Watch the video on C-SPAN.

Netflix, Dave Chappelle, & LGBTQ controversy  

Dave Chappelle (Featureflash Photo Agency / Shutterstock)
Dave Chappelle (Featureflash Photo Agency / Shutterstock)

This from an article by Julian Mark over at The Washington Post:

In response to criticism that Dave Chappelle’s new special is transphobic, Netflix’s co-chief executive in an internal memo defended the comedian and said the streaming platform will not remove “The Closer.”

The executive, Ted Sarandos, cited “creative freedom” as one reason the company intends to keep the show online. Pressure to remove the special from Netflix has mounted both from inside and outside of the company over Chappelle’s jokes about the transgender community.

Sarandos wrote that, although some people may find stand-up comedy to be “mean-spirited,” “our members enjoy it, and it’s an important part of our content offering.”

“Chappelle is one of the most popular stand-up comedians today, and we have a long-standing deal with him,” Sarandos added in the memo obtained by news outlets. “His last special ‘Sticks & Stones,’ also controversial, is our most-watched, stickiest, and most award winning stand-up special to date.”


On comedy & comedians 

Forthcoming book on race, democracy, & academic freedom

How far does the idea of academic freedom extend to professors in an era of racial reckoning?

The protests of summer 2020, which were ignited by the murder of George Floyd, led to long-overdue reassessments of the legacy of racism and white supremacy in both American academe and cultural life more generally. But while universities have been willing to rename some buildings and schools or grapple with their role in the slave trade, no one has yet asked the most uncomfortable question: Does academic freedom extend to racist professors?

It's Not Free Speech considers the ideal of academic freedom in the wake of the activism inspired by outrageous police brutality, white supremacy, and the #MeToo movement. Arguing that academic freedom must be rigorously distinguished from freedom of speech, Michael Bérubé and Jennifer Ruth take aim at explicit defenses of colonialism and theories of white supremacy―theories that have no intellectual legitimacy whatsoever. Approaching this question from two angles―one, the question of when a professor's intramural or extramural speech calls into question his or her fitness to serve, and two, the question of how to manage the simmering tension between the academic freedom of faculty and the antidiscrimination initiatives of campus offices of diversity, equity, and inclusion―they argue that the democracy-destroying potential of social media makes it very difficult to uphold the traditional liberal view that the best remedy for hate speech is more speech.

In recent years, those with traditional liberal ideals have had very limited effectiveness in responding to the resurgence of white supremacism in American life. It is time, Bérubé and Ruth write, to ask whether that resurgence requires us to rethink the parameters and practices of academic freedom. Touching as well on contingent faculty, whose speech is often inadequately protected, It's Not Free Speech insists that we reimagine shared governance to augment both academic freedom and antidiscrimination initiatives on campuses. Faculty across the nation can develop protocols that account for both the new realities―from the rise of social media to the decline of tenure―and the old realities of long-standing inequities and abuses that the classic liberal conception of academic freedom did nothing to address.

This book will resonate for anyone who has followed debates over #MeToo, Black Lives Matter, Critical Race Theory, and "cancel culture"; more specifically, it should have a major impact on many facets of academic life, from the classroom to faculty senates to the office of the general counsel.

Forthcoming book on hate speech

The United States has a hate problem. In recent years, hate speech has led not only to deep division in our politics but also to violence, murder, and even insurrection. And yet established constitutional jurisprudence holds that all speech is protected as “content neutral” and that the proper democratic response to hateful expression is not regulation but “more speech.” So how can ordinary citizens stand up to hate groups when the state will not?

In Combating Hate, Billie Murray proposes an answer to this question. As a participant in anti-racist and anti-fascist protests as well as demonstrations against the Ku Klux Klan, neo-Nazis, and the Westboro Baptist Church, Murray witnessed firsthand the limitations of the “more speech” approach as well as the combative tactics of anti-fascist activists. She argues that this latter group, commonly known as antifa, embodies a radically different strategy for combating hate, one that explodes the myth of content neutrality and reveals hate speech to be a tactic of fascist organizing with very real, highly anti-democratic consequences. Drawing on communication theory and this on-the-ground experience, Murray presents a new strategy, which she calls “allied tactics,” grounded in the commitment to affirm, support, and even protect those who are the victims of hate speech.

Engaging and sophisticated, Combating Hate contends that there are concrete ways to fight hate speech from the front lines. Murray’s urgent argument that we reconsider how to confront and fight this blight on American life is essential reading for the current era.

Forthcoming book on performance metrics & journalism

From the New York Times to Gawker, a behind-the-scenes look at how performance analytics are transforming journalism today―and how they might remake other professions tomorrow

Journalists today are inundated with data about which stories attract the most clicks, likes, comments, and shares. These metrics influence what stories are written, how news is promoted, and even which journalists get hired and fired. Do metrics make journalists more accountable to the public? Or are these data tools the contemporary equivalent of a stopwatch wielded by a factory boss, worsening newsroom working conditions and journalism quality?

In All the News That's Fit to Click, Caitlin Petre takes readers behind the scenes at the New York Times, Gawker, and the prominent news analytics company Chartbeat to explore how performance metrics are transforming the work of journalism.

Petre describes how digital metrics are a powerful but insidious new form of managerial surveillance and discipline. Real-time analytics tools are designed to win the trust and loyalty of wary journalists by mimicking key features of addictive games, including immersive displays, instant feedback, and constantly updated “scores” and rankings. Many journalists get hooked on metrics―and pressure themselves to work ever harder to boost their numbers.

Yet this is not a simple story of managerial domination. Contrary to the typical perception of metrics as inevitably disempowering, Petre shows how some journalists leverage metrics to their advantage, using them to advocate for their professional worth and autonomy.

An eye-opening account of data-driven journalism, All the News That's Fit to Click is also an important preview of how the metrics revolution may transform other professions.

New Volokh essay on libel law & legal proceedings



Prof. Eugene Volokh
Prof. Eugene Volokh (UCLA School of Law)

Say that I accurately write that you have been convicted of a crime, but I knowingly fail to mention that the conviction has been reversed. To make the matter particularly stark, say the conviction has been reversed on grounds that show you were innocent (rather than just for procedural reasons). Or say that I accurately write that you were charged with a crime, but knowingly fail to mention that you were acquitted.

Is that libelous? This question arose in the course of my writing a separate article in this issue, which deals with whether a later reversal triggers an obligation to remove or modify the account of the original conviction. But the question is important even apart from that separate question, so the editors kindly allowed me to answer it in this separate short article.

Read Volokh's full piece for his analysis of:

[I.] Libel by Omission

[II.] Libel by Omission of Critical Legal Context

[III.] Not a "Full and Fair" Report

[IV.] No Liability for Not Reporting Settlements or Expungements

New scholarly article on regulating internet expression

Prof. Brian Leiter (University of Chicago Law School)

The Internet is the epistemological crisis of the 21st-century: it has fundamentally altered the social epistemology of societies with relative freedom to access it. Most of what we think we know about the world is due to reliance on epistemic authorities, individuals or institutions that tell us what we ought to believe about Newtonian mechanics, evolution by natural selection, climate change, resurrection from the dead, or the Holocaust.

The most practically fruitful epistemic norm of modernity, empiricism, demands that knowledge be grounded in sensory experience, but almost no one who believes in evolution by natural selection or the reality of the Holocaust has any sensory evidence in support of those beliefs. Instead, we rely on epistemic authorities—biologists and historians, for example. Epistemic authority cannot be sustained by empiricist criteria, for obvious reasons: salient anecdotal evidence, the favorite tool of propagandists, appeals to ordinary faith in the senses, but is easily exploited given that most people understand neither the perils of induction nor the finer points of sampling and Bayesian inference. Sustaining epistemic authority depends, crucially, on social institutions that inculcate reliable second-order norms about whom to believe about what.

The traditional media were crucial, in the age of mass democracy, with promulgating and sustaining such norms. The Internet has obliterated the intermediaries who made that possible (and, in the process, undermined the epistemic standing of experts), while even the traditional media in the U.S., thanks to the demise of the “Fairness Doctrine,” has contributed to the same phenomenon. I argue that this crisis cries out for changes in the regulation of speech in cyberspace—including liability for certain kinds of false speech, incitement, and hate speech--but also a restoration of a version of the Fairness Doctrine for the traditional media.

Forthcoming scholarly article by Judge David R. Stras 

In this lecture, which has been adapted for publication, Judge David R. Stras discusses how his grandparents came to this country to escape religious persecution and censorship after experiencing some of the most inhumane treatment possible during the Holocaust. Judge Stras explores their lives and explains what we can learn from them, including how important the First Amendment is in our lives.

YouTube: Madonna & the mayor 

Former Brooklyn Museum Director Arnold Lehman recounts his battle with former New York City Mayor Rudy Giuliani over a painting called The Holy Virgin Mary. He talks to David Westin about his new book, first amendment rights and the culture wars.

More in the news

2021-2022 SCOTUS term: Free expression & related cases

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Pending petitions

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Last FAN

FAN 314: "Should Justice Alito debate the Court’s shadow docket critics?

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