Notable First Amendment News

The MSM has for too long gotten what amounts to a free pass to attack conservatives without consequences--or regard for the truth. Will those days be coming to an end. Two ongoing cases may be too early to say whether the law will change, simply because the press misbehavior may have been so egregious that even under past kid gloves treatment it went too far. Still, the prospect of both the NYT and the WaPo being deposed and subjected to wide ranging discovery is delicious to contemplate.

Zerohedge provides a roundup from a variety of sources.

Jonathan Turley On 'The License Of The Censor'

Our national degradation proceeds apace. Jonathan Turley weighs in on the suspension by Twitter of Alex Berenson but the non-suspension of the NYT and the WaPo. It makes for a good read, and here's a fair excerpt:

Also A Big Victory For The First Amendment

Overlooked a bit in the excitement--we are excited here, aren't we--over the AZ election law victory, CJ Roberts wrote the opinion in a major case that pretty unceremoniously slapped down the Left's totalitarian efforts to defund conservatives through rank intimidation. 

Some Roberts quotes:

California’s disclosure requirement is facially invalid because it burdens donors’ First Amendment rights and is not narrowly tailored to an important government interest.

We are left to conclude that the [CA] Attorney General’s disclosure requirement imposes a widespread burden on donors’ associational rights. And this burden cannot be justified on the ground that the regime is narrowly tailored to investigating charitable wrongdoing, or that the State’s interest in administrative convenience is sufficiently important.

The gravity of the privacy concerns in this context is further underscored by the filing of hundreds of organizations as amici curiae in support of the petitioners. Far from representing uniquely sensitive causes, these organizations span the ideological spectrum, and indeed the full range of human endeavors.

The deterrent effect feared by these organizations is real and pervasive.

In other words, the justices do follow the news. They've taken note of the Left's totalitarian trend, the efforts to suppress all dissent.

The Federalist has an article on the case:

MAJOR UPDATE: Law Day #1: SCOTUS Goes 9-0 Again, And Lib Heads Will Explode

The significance of the latest 9-0 decision handed down by the SCOTUS--this one has to do with local governments trying to exclude foster care agencies on religious grounds--is that the SCOTUS is sending a strong signal that they will continue to defend the First Amendment free exercise rights of all Americans, not matter the current fashion in wokeness. That shouldn't be news, but in today's America it's a message to normals that an important institution may have their back after all. It's also a strong message to the Left, given the 9-0 breakout.

There's very little commentary out yet, but here's the link to the Fox article:

Supreme Court sides with Catholic foster agency that excludes same-sex couples in 9-0 ruling

Chief Justice John Roberts wrote the majority opinion

Excerpts:

The Supreme Court sided unanimously with a Catholic foster agency in a dispute against the city of Philadelphia over whether it should be banned from participating in the city's foster program because it excludes same-sex couples. 

The group, Catholic Social Services (CSS), claimed that "Philadelphia’s attempts to exclude the Catholic Church from foster care" violated the First Amendment. Lawyers for the city, meanwhile, said that CSS "lacks a constitutional right to demand that DHS offer it a contract that omits the same nondiscrimination requirement every other FFCA must follow when performing services for the City." 

In a 9-0 ruling, the justices sided with Catholic Social Services. 

"CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else," Chief Justice John Roberts wrote in a majority opinion. "The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment."

Roberts was joined on his opinion by Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh and Amy Coney Barrett. 

Barrett herself wrote a concurring opinion, which was joined fully by Kavanaugh and partially by Breyer. 

"As the Court’s opinion today explains, the government contract at issue provides for individualized exemptions from its nondiscrimination rule, thus triggering strict scrutiny," Barrett wrote. "And all nine Justices agree that the City cannot satisfy strict scrutiny." 

Justice Samuel Alito wrote a concurring opinion that was joined by Justices Neil Gorsuch and Clarence Thomas. Gorsuch wrote a concurrence that Thomas and Alito joined. 

Briefly Noted: Babylon Bee Wins Big Over NYT

You may recall that satire site Babylon Bee has been threatening legal action against the NYT, which has been using various subterfuges to tag Babylon Bee as "right wing misinformation". Apparently realizing it was holding a losing hand, the NYT threw it in. Here's a short version from The Federalist:

New York Times Forced To Back Down After Smearing Babylon Bee

JUNE 14, 2021 By Jordan Davidson

The New York Times was forced to back down from targeting popular satire website the Babylon Bee after months of smearing it as “far-right misinformation.”

In a reply to the Babylon Bee’s demands to retract “defamatory statements” about the satire site from one of the New York Times’ March articles, the Times said it has “removed the reference to the Babylon Bee from the article and appended a correction.”

Follow the link for more details. You can also read about it at Red State, which may include some extra tweets: The Babylon Bee Scores a Huge Victory Against the New York Times.

This is a big victory for freedom of the press, in that it demonstrates that there are some standards of accountability for Big Media. Nevertheless, it remains the case that asserting the right to a public life free of defamation from Big Media remains tenuous at best. Hopefully these issues of accountability will be reviewed by the SCOTUS in the relatively near future, specifically with regard to NYT v. Sullivan. I append several paragraphs from Wikipedia's article that demonstrates that at least some on the SCOTUS are aware of the threat that the outdated and politically motivated case poses to free public discourse:

In February 2019, the Supreme Court denied a petition brought by Katherine McKee, one of the women that accused Bill Cosby of sexual assault, which claimed that Cosby had leaked a letter that permanently damaged her reputation, and had sought civil action against Cosby on this matter. Lower courts rejected her case based on New York Times Co., stating that she "thrust herself to the forefront of a public controversy", making her a limited public figure and requiring the higher standard of malice to be demonstrated. The denial by the Supreme Court did not include a vote count, but Justice Clarence Thomas wrote the solitary opinion on the case, agreeing that denial was appropriate per New York Times Co., but stating that he believed that decision of New York Times Co. was made wrongly. Thomas wrote "If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we".^[25] The views of Thomas, a conservative, mirrored that of President Donald Trump, who had repeatedly called for the review of libel laws in the United States to give those defamed by others a "meaningful recourse in our courts".^[25]

In March 2021, federal judge Laurence Silberman called on the Supreme Court to overturn New York Times v. Sullivan, stating that the New York Times and The Washington Post are "virtually Democratic Party broadsheets". Silberman's dissent also accused big tech companies of censoring conservatives and warned that "Democratic Party ideological control" of mainstream media may be a prelude to an "authoritarian or dictatorial regime" that constitutes "a threat to a viable democracy".^[26][27]

Judge Silberman's dissent produced significant public discussion of Sullivan and potential reforms. Many conservative-leaning outlets endorsed Silberman's criticisms of Sullivan.^[28] Most liberal-leaning outlets and several moderate conservatives condemned Silberman's decision for its tone and the substantive idea of loosening defamation standards.^[29] However, some liberal scholars and a Harvard Law student writing in the Wall Street Journal embraced significant reforms to Sullivan.^[30]

Briefly Noted: Jonathan Turley On The Libs' China Model For the First Amendment

Jonathan Turley has a nice article on the Prog war on the First Amendment--it's totally out in the open, and quite unabashed. The general thrust of this attitude is supported by recent polling that shows that conservatives are most concerned about various issues facing the nation, but Dems are most concerned about ... Trump supporters. People, not policy.

Turley, of course, focuses on recent targeting by Congresscritters of the Left who are trying to pressure networks like ATT into canceling FoxNews (Turley nows does commentary there, apparently). As usual, Turley ranges widely. What I'd like to draw attention to is simply his lead in, which touches nicely on some historical context. It isn't rocket science, it's just common sense, but it's context that we all need reminding of:

The New SCOTUS

I still haven't read the Powell complaint. The reason is because I've been trying to get a handle on the SCOTUS issuance of injunctive relief against Cuomo's draconian and targeted restrictions on the Free Exercise of Religion in New York. This is a big story.

Part of the story is that the Court was evenly divided on the First Amendment issues after Ginsburg's death--with Roberts siding with the liberals against the First Amendment (I say that with a purpose). That had resulted in decisions that left anti religious freedom decisions in place in California, because of the 4-4 split. There's no split any longer with Justice Amy on the Court, and the result appears to be a solid 5-4 conservative majority that is showing a measure of solidarity in opposition to the CJ--who again sided with the liberals.

The opinion itself is somewhat complicated, in that the ruling is PER CURIAM, with no single justice listed as having written it. What everyone is talking about, however, is the way that Gorsuch, in his concurrence, appeared to go out of his way to deride Roberts specifically and the liberals generally for their cavalier attitude toward our First Amendment freedoms.

First Amendment In The Crosshairs

For the past week we've been periodically referring to Justice Samuel Alito's recent address to the Federalist Society. Today Jonathan Tobin reminds us of the warning that Alito presented--The pandemic brought an assault on our basic rights:

The usual mainstream-media suspects wasted no time in blasting as inappropriate Samuel Alito’s address last week to the Federalist ­Society. Which is another way of saying they didn’t like what he had to say. The Supreme Court justice warned that “religious liberty is fast becoming a disfavored right,” that freedom of speech is also ­“becoming a second-tier constitutional right.”

He was exactly right — and his wake-up call was urgently timely: Democrats threaten to “reform” the high court by packing it with liberals, while the pandemic has imposed what Alito called a “stress test” on the Constitution, creating a new ranking order of fundamental rights.

Simply put: Basic respect for some rights is dying.

I think it's no longer arguable that Covid has been used as an excuse to target religion and worship. Now, as if on cue, to confirm everything Alito said, we learn that those fears are definitely NOT overblown. The putative Biden presidency will be appointing anti-First Amendment zealots to influential positions. Jonathan Turley is here to sound the alarm--Biden Taps Anti-Free Speech Figure For Transition Lead On Media Agency:

Little Sisters For The Win! And More

Decisions in two related religious freedom cases (both involving Catholic institutions, but with far wider implications) were issued by the SCOTUS this morning, and they're big victories for Trump--both cases were decided 7-2, with Breyer and Kagan joining the majority. The 7-2 majority is resounding.

The highest profile case, of course, was Little Sisters of the Poor v. Commonwealth of Pennsylvania. The Little Sisters of the Poor have been a target of intense persecution by the Left and the legal "resistance". This excerpt from the Becket Fund web site gives you the picture:

CASE SNAPSHOT 

Despite a 2016 victory at the U.S. Supreme Court, an Executive Order, and a new rule that protects the Little Sisters of the Poor and other non-profit religious groups from the unconstitutional HHS mandate, the Little Sisters are still in court. In November 2017, after the federal government issued their new rule protecting religious groups from the mandate, the Commonwealth of Pennsylvania and several other states sued in federal court to take away the nuns’ hard-won religious exemption. Becket intervened on behalf of the Little Sisters, arguing that the states have no right to challenge the new rule. Oral argument was held on March 23, 2018 to decide whether the Sisters will be allowed to intervene in the case, and on April 24, 2018, the Little Sisters’ motion for intervention was granted. 

STATUS 

On July 12, 2019, the Third Circuit ruled against the Little Sisters. On October 1, 2019, the Little Sisters of the Poor asked the Supreme Court to protect them from the HHS contraceptive mandate again and end their legal battle once and for all. The Supreme Court heard oral argument in Little Sisters of the Poor v. Commonwealth of Pennsylvania on May 6, 2020. On June 8, 2020 the Court ruled 7-2 in favor of the Little Sisters of the Poor. 

I will note that the Little Sisters case (the other case being Our Lady Of Guadalupe School v.  Morrissey-Berru) was decided on the basis of the RFRA (Right to Religious Freedom Act) and the ACA (Obamacare), rather than First Amendment issues. Footnote #10 in the Little Sisters case states:

The dissent claims that “all agree” that the exemption is not supported by the Free Exercise Clause. ... A constitutional claim is not presented in these cases, and we express no view on the merits of that question. 

Clarence Thomas wrote the majority opinion in the Little Sisters case, Alito in the Our Lady of Guadalupe case. Thomas wrote: