Tag: 1st amendment

‘Indefensible’: Courts finally scrutinize COVID vaccine mandates as religious infringement

Three years after COVID-19 vaccines became widely available to adults – at which point the CDC already knew they couldn’t stop transmission – courts are finally starting to put their foot down on the most basic legal question: Are mandates at least applied fairly, if not scientifically?

The 10th U.S. Circuit Court of Appeals not only knocked down the University of Colorado medical school’s original and revised 2021 mandates for discriminating against employees seeking religious exemptions, but knocked the trial judge for “abuse of discretion” by reversing the burden of proof to moot the case.

The Anschutz campus, whose dental school recently created a diversity, equity and inclusion award, made an early pivotal decision on COVID vaccine mandates by scrutinizing the content as well as sincerity of beliefs among employees and students seeking exemptions.

“The Administration’s September 1 Policy is not neutral on its face; the September 24 Policy is not neutral in practice; and both substantially burden” the religious exercise of the anonymous 11 female and six male plaintiffs, according to the majority opinion by Judge Allison Eid, who replaced Neil Gorsuch when President Trump appointed him to the Supreme Court.

“It is manifestly unreasonable to think” the Sept. 24 policy “would reach precisely the same results … by accident,” Eid wrote. “The Administration had spent weeks or months drafting and implementing a policy hostile toward and discriminatory against certain religions, only to adopt a new, purportedly neutral policy that reached precisely the same results.”

University of California San Francisco epidemiologist Vinay Prasad celebrated the ruling for recognizing CU Anschutz administrators “set an indefensible policy,” while the plaintiffs’ lawyers at the Thomas More Society thanked the court for recognizing the university’s “value judgments … reeked of religious bigotry” and violated constitutional rights and “basic decency.”

The ruling is reminiscent of the Supreme Court’s narrow finding against the Colorado Civil Rights Commission for “official expressions of hostility to religion” when it punished Masterpiece Cakeshop owner Jack Phillips for declining to make custom wedding cakes for gay couples based on his Christian view of marriage.

In the private sector, a high-profile vaccine mandate lawsuit by an actor fired from the Fox show “911” is heading to trial over whether Disney-owned 20th Television trampled Rockmond Dunbar’s views as a follower of the Church of Universal Wisdom, which The New York Times profiled in 2003 for its utility in circumventing childhood vaccination mandates.

“It appears that Disney vetted exemption applications on a case-by-case basis, investigating whether the religions constituted true religious institutions and whether applicants actually followed the beliefs,” according to The Hollywood Reporter.

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Julian Assange Granted Right to Appeal Extradition to U.S. Over First Amendment Questions

Julian Assange can file an appeal by Friday to fight his extradition to the United States, according to a new ruling from a British court on Monday. The decision, first reported by the New York Times, comes as Assange sits in a London prison over computer hacking and espionage charges first brought by the U.S. Department of Justice under President Donald Trump.

Assange’s right to fight his extradition comes down to fundamental questions about how the 52-year-old WikiLeaks co-founder would be treated in prison if he was actually extradited to the U.S. to face federal charges. One early British court ruling in 2021 noted that the U.S. prison system allows the use of solitary confinement, largely considered torture by other wealthy countries. It was on that basis the court initially denied the extradition to the U.S., though that was reversed by a higher court a year later.

The British court also noted U.S. law allows the death penalty for espionage, another practice seen as barbaric by many people in the rest of the world. Even so, Assange’s efforts to appeal his extradition had been denied until Monday’s ruling. Another issue central to the extradition fight is whether Assange can claim protections under the First Amendment since he’s an Australian citizen.

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University of Colorado Vaccine Mandate “Motivated by Religious Animus” and “Unconstitutional”

The United States Court of Appeals for the Tenth Circuit issued a ruling that the University of Colorado Anschutz School Medicine’s refusal to allow religious exemptions to its COVID-19 vaccine mandate was “motivated by religious animus” and unconstitutional under the First Amendment’s Religious Clauses.

The Court ruled that the University’s vaccine mandates granted “exemptions for some religions, but not others, because of differences in their religious doctrines” and granted “secular exemptions on more favorable terms than religious exemptions.” Both of these things were illegal.

The Court reaffirmed the First Amendment principle that government cannot test the sincerity of employees’ religious beliefs.

The University’s mandates violated “clearly established” constitutional rights, the court held.

The 55-page ruling, issued on 7 May, was a reversal of a previous lower-court decision.

The appeal was filed in March 2022 by the Thomas More Society on behalf of 17 faculty and students who claimed that the university refused to respect their religious objections to taking the vaccine.

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The Israel lobby is First Amendment’s “principal enemy,” former senior diplomat warns

Amid pro-Palestinian demonstrations condemning Israel’s genocidal acts in Gaza, the Antisemitism Awareness Act was passed in Congress. For former Ambassador of the United States to Saudi Arabia Chas W. Freeman Jr., the Israel lobby that pushed for the legislation is the “principal enemy” of the First Amendment.

The act passed in Congress by a vote of 320 in favor and 91 against. The bill would mandate that the Department of Education adopt the broad definition of antisemitism used by the International Holocaust Remembrance Alliance (IHRA), an intergovernmental group, to enforce anti-discrimination laws.

This would also strengthen the crackdown efforts on nationwide university protests. The proposal first defines antisemitism and then gives the Education Department the ability to suspend funding if it determines a school does not act against students who violate that definition. Once passed and rolled out, it will give the department new tools to threaten or punish schools that don’t take the department’s definition of antisemitism seriously.

The bill is seen by Freeman as another attempt to suppress denouncement of Israel’s genocidal attacks in Gaza.

“The principal enemies of the First Amendment in recent years have been… the Israel lobby,” he said in a May 4 “Dialogue Works” interview. “Basically, they have tried to prohibit any speech opposed to the state of Israel.”

He also pointed out that the redefinition of “antisemitism” conflates opposition to the mass killing and starvation of civilians with an irrational hatred of Jews. “Anti-Semitism is not the same as anti-Zionism and people who object to genocide or the conduct of that by a foreign government cannot be called antisemitic,” he said.

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Banning TikTok isn’t the flex proponents think it is

TikTok and its parent company ByteDance this week sued to block a new law banning the social media app, claiming it is unconstitutional because it infringes upon Americans’ right to free speech and prevents access to lawful information.

The law, passed in April, would ban TikTok in the U.S. if ByteDance does not liquidate its American assets within nine to 12 months — citing national security concerns about the app. National security has been at the forefront of U.S. bans on Chinese tech, such as the ban on selling telecom equipment and services from Huawei, ZTE, and other Chinese providers.

Another concern about TikTok — data privacy and security — is not entirely unfounded, as about 150 million Americans use it. However, China does not need apps like TikTok to collect that data. U.S. consumer data can be bought on the open market from data brokers, including precise location and financial transaction data. Even the U.S. National Security Agency has leveraged data brokers to collect Americans’ data. Anonymized data is also not the fail-safe measure that it is touted to be, as it can be de-anonymized using data that is not considered personally identifiable, like sex, ZIP code, and birthdate. In some ways, TikTok even collects less private information than Meta. In short, TikTok is no more a unique threat to data privacy and security than are data brokers and other American social media sites.

Banning TikTok or any other Chinese business in the U.S. won’t protect U.S. citizens’ data from exploitation. The sheer profitability of U.S. citizens’ data for businesses — both buyers and sellers – is undergirded by the lack of protections for collecting data or compensating individuals for their data. Solving this problem eventually would require federal-level, comprehensive data privacy and protection regulations. Without such regulation, there is little incentive for social media companies — Chinese or not — to responsibly buy, sell, collect, or otherwise exploit user data. If the U.S. government’s goal is to protect private American citizens’ data to enhance national security, then it must legislate acceptable limits on the exploitation of Americans’ data, perhaps even following a framework like the European Union’s General Data Protection Regulation.

Some believe that banning TikTok and other Chinese apps in the United States could force China to provide more equitable access to the Chinese market and put pressure on China to change unfair business practices towards foreign firms, like intellectual property theft, opaque subsidization and preferential treatment, raids, and fines. These inequities have long been a major concern and subject of high-level conversations between U.S. and Chinese officials. However, the U.S. bans on Chinese businesses so far appear to have neither compelled Chinese businesses nor the Chinese government to change their behaviors, instead spurring them to reduce reliance on the U.S. market and focus on exploring alternative markets.

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Michigander Who Allegedly Told Cops He Wanted To ‘Blow Up’ Satanic Temple Indicted On Explosives Charges

A Michigan man who allegedly revealed he had explosive devices because he wanted to blow up The Satanic Temple (TST) in Massachusetts last year faced explosives-related charges Wednesday, according to federal prosecutors.

Luke Isaac Terpstra, 30, of Grant, Michigan, “has been charged with transporting an explosive with the intent to kill, injure, or intimidate individuals or to unlawfully damage or destroy a building,” according to a statement from the U.S. Attorney’s Office, Western District of Michigan. Terpstra was also separately charged with illegally possessing a destructive device, according to the statement.

Terpstra built several improvised explosive devices (IEDs) and transported them together with some firearms and ammunition from Michigan to the TST location in Salem, Massachusetts in Sept. 2023 with a self-professed intention to “blow up” the temple, prosecutors alleged in the statement.

Michigan’s Grant Police Department arrested Terpstra Jan. 2 following an investigation and charged him with Explosives — Possession of Bombs with Unlawful Intent, according to a mid-January joint statement by Salem Mayor Dominick Pangallo and Salem Police Chief Lucas Miller. He appeared to have visited Salem to plan the attack but did not seem to have contacts in Salem, the joint statement observed.

The arresting officers found Terpstra with IED-making materials such as “a plastic container with coins attached to it and a piece of cannon fuse coming out of the lid; numerous metal carbon dioxide (CO2) cartridges; PVC pipe; ammonium nitrate; and hobby fuses,” according to the prosecutors’ statement.

Terpstra’s mother and stepfather aided the investigation, according to WZZM 13.

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Even If You Support Police, Don’t Ban People From Recording Them


Police, questioned over tactics and culturally besieged not too long ago, find themselves with renewed cachet amidst concerns over crime and campus chaos. That means leverage to win themselves leeway in how they go about their jobs—pushing, for instance, laws that restrict the public’s right to record cops making arrests, with Florida the latest jurisdiction to enact such a bill. That pleases fans of law enforcement, but it reduces accountability for an armed and often abusive arm of government.

Florida Proudly Supports Police Unaccountability

“I was proud to sign legislation today to ensure law enforcement officers can serve our communities without worrying about harassment from anti-police activists,” Florida Gov. Ron DeSantis announced April 12. “We will continue to take action to ensure Florida remains the friendliest state in the nation for law enforcement officers.”

The two bills DeSantis signed that day certainly go a long way towards making the state very friendly to cops. H.B. 601 guarantees that police departments will control oversight boards that investigate their conduct. S.B. 184, in line with “buffer” legislation in other states intended to impede recording of law-enforcement activity, lets police order members of the public to remain at least 25 feet distant under threat of arrest.

“We appreciate the importance of protecting first responders but are concerned that the bill prevents citizens from going near or filming first responders within 25 feet if told not to approach,” noted the state’s First Amendment Foundation, which urged DeSantis to veto the legislation. “This bill would undermine citizen journalists and could allow for undocumented police misconduct.”

Lawmakers and DeSantis made much of the threat posed by citizens who “harass” and “threaten” police, and indeed we’ve seen some of that at anti-Israel protests around the country. But agitators already blocking bridges or occupying buildings are unlikely to be deterred by yet one more law. The real targets will be people upsetting cops by recording them at inconvenient moments.

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This Student Was Allegedly Suspended for Saying ‘Illegal Aliens.’ Did That Violate the First Amendment?

A 16-year-old boy has kicked off a free speech debate—one that’s already attracting spectators beyond his North Carolina county—after he was suspended for allegedly “making a racially insensitive remark that caused a class disturbance.”

The racially insensitive remark: referring to undocumented immigrants as “illegal aliens.” Invoking that term would produce the beginning of a legal odyssey, still in its nascent stages, in the form of a federal lawsuit arguing that Central Davidson High School Assistant Principal Eric Anderson violated Christian McGhee’s free speech rights for temporarily barring him from class over a dispute about offensive language.

What constitutes offensive speech, of course, depends on who is evaluating. During an April English lesson, McGhee says he sought clarification on a vocabulary word: aliens. “Like space aliens,” he asked, “or illegal aliens without green cards?” In response, a Hispanic student—another minor whom the lawsuit references under the pseudonym “R.”—reportedly joked that he would “kick [McGhee’s] ass.” 

The exchange prompted a meeting with Anderson, the assistant principal. “Mr. Anderson would later recall telling [McGhee] that it would have been more ‘respectful’ for [McGhee] to phrase his question by referring to ‘those people’ who ‘need a green card,'” McGhee’s complaint notes. “[McGhee] and R. have a good relationship. R. confided in [McGhee] that he was not ‘crying’ in his meeting with Anderson”—the principal allegedly claimed R. was indeed in tears over the exchange—”nor was he ‘upset’ or ‘offended’ by [McGhee’s] question. R. said, ‘If anyone is racist, it is [Mr. Anderson] since he asked me why my Spanish grade is so low’—an apparent reference to R.’s ethnicity.”

McGhee’s peer received a short in-school suspension, while McGhee was barred from campus for three days. He was not permitted an appeal, per the school district’s policy, which forecloses that avenue if a suspension is less than 10 days. And while a three-day suspension probably doesn’t sound like it would induce the sky to fall, McGhee’s suit notes that he hopes to secure an athletic scholarship for college, which may now be in jeopardy.

So the question of the hour: If the facts are as McGhee construed them, did Anderson violate the 16-year-old’s First Amendment rights? In terms of case law, the answer is a little more nebulous than you might expect. But it still seems that vindication is a likely outcome (and, at least in my opinion, rightfully so). 

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Backpage: A Blueprint for Squelching Speech

U.S. District Judge Diane Humetewa acquitted three former Backpage executives of myriad counts against them last week—more evidence of how empty so much of the federal case against them is. Humetewa ruled that there was insufficient evidence to uphold 50 of the counts* against journalist and Backpage co-founder Michael Lacey, 10 of the counts against former Executive Vice President Scott Spear, and 18 of the counts against former Chief Financial Officer Jed Brunst.

From the beginning, this prosecution has been premised on a bogus rationale (authorities yammer on about sex trafficking though none of the defendants are charged with sex trafficking), overreaching in its scope (attempting to hold a web platform accountable for user-generated speech, in contradiction to Section 230), offensive to the First Amendment, and relentless in its attempts to handicap the defense. So it’s a treat to see a judge slap prosecutors down a notch, even if it comes very late in the game (after two trials and after one defendant taking his own life) and even though it may not make much of a practical difference for Lacey, Brunst, and Spear (who face imprisonment for the rest of their lives even with the acquittals).

But to read Humetewa’s recent order is to get infuriated about the underlying case all over again. Presenting the evidence in the light most favorable to the government’s position, Humetewa manages (inadvertently?) to highlight how insane and unfair this position is.

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US House Passes Controversial Bill That Expands Definition of Anti-Semitism

The United States House of Representatives has overwhelmingly passed a bill that would expand the federal definition of anti-Semitism, despite opposition from civil liberties groups.

The bill passed the House on Wednesday by a margin of 320 to 91, and it is largely seen as a reaction to the ongoing antiwar protests unfolding on US university campuses. It now goes to the Senate for consideration.

If the bill were to become law, it would codify a definition of anti-Semitism created by the International Holocaust Remembrance Alliance (IHRA) in Title VI of the Civil Rights Act of 1964.

That is a federal anti-discrimination law that bars discrimination based on shared ancestry, ethnic characteristics or national origin. Adding IHRA’s definition to the law would allow the federal Department of Education to restrict funding and other resources to campuses perceived as tolerating anti-Semitism.

But critics warn IHRA’s definition could be used to stifle campus protests against Israel’s war in Gaza, which has claimed the lives of 34,568 Palestinians so far.

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