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Exploring the reaches of the First Amendment

Should the First Amendment really permit neo-Nazis to come to Williamsport and yell through a bullhorn “F*** your n***** mayor?” When I heard the words replayed on a Facebook post, I was more livid than if I read it in a magazine or newspaper. I had difficulty sleeping that night to appreciate that psychopaths abusing the First Amendment can be tolerated. Is such conduct speech at all? The devout purpose of the neo-Nazis who came to Williamsport on July 18 was to evoke violence, while carrying their AK-47s, so as to create another Charlottesville situation. We knew they would be armed because it is contained in their e-mails to City Hall revealed as a result of a Right-to-Know request.

Is there any limit to the First Amendment? The neo-Nazis who came to Williamsport were denied a permit and theoretically could have been arrested on the spot. The mayor correctly thought that protection from COVID-19 was more important at this juncture than the right of crazy people to scream unacceptable vulgar epithets at other people.

The neo-Nazis not only created a clear and present danger but violated Pennsylvania’s laws on gathering as a militia, something outlawed when the National Guard was created.

All of the legal developments that we are now witnessing presage the question as to how far the First Amendment can go to protect religious and speech rights and whether there are any discernable limits.

The First Amendment has been turned into a sword as well as a shield in modern times. Three recent court opinions, albeit very different in certain respects, demonstrate the vitality that still defines the scope of First Amendment protections. The First Amendment, as most people fully appreciate, generally addresses religion and speech.

Our Lady of Guadalupe School vs. Morrissey-Berru, (July 8, 2020) written by Justice Alito required the court to determine whether the First Amendment permits courts to intervene in employment disputes involving teachers at religious schools who are entrusted with the responsibility of instructing their students in the faith of the school where they work.

The religious education and formation of students is the reason for the existence of most private religious schools. Some private religious schools are just a form of prep school. However, most religious schools select and supervise teachers who are consistent with the religious mission of the institution. Judicial review of the way in which religious schools discharge those responsibilities, wrote the court, “would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.”

The same day as Our Lady of Guadalupe School, Justice Thomas wrote the opinion in Little Sisters of the Poor vs. Pennsylvania, (July 8, 2020). The question in Little Sisters was whether the government created lawful exceptions from a regulatory requirement implementing the Patient Protection and Affordable Care Act of 2020 (ACA), 124 Stat. 119. Certain employers are required to provide contraceptive coverage for their employees through group health plans. Although contraceptive coverage is not required or addressed in the Affordable Care Act provision reviewed by the U.S. Supreme Court, the government mandated such coverage by promulgating interim final rules shortly after the ACA’s passage. This is known as the contraceptive mandate.

The U.S. 3rd Circuit Court of Appeals concluded that the Department lacked statutory authority to promulgate these exceptions. The U.S. Supreme Court held this was erroneous. The departments had the authority to provide exceptions from the regulatory contraceptive requirements from employers with religious and conscientious objections. The 3rd Circuit was therefore reversed.

Another important First Amendment religious freedom case is Espinoza vs. Montana Department of Revenue, (June 30, 2020), written by Chief Justice Roberts. The Montana Legislature established a program to provide tuition assistance to parents who send their children to private schools. The program grants a tax credit to anyone who donates to certain organizations that in turn award scholarships to selected students attending such schools. When petitioners sought to use the scholarships at a religious school, the Montana Supreme Court struck down the program. The court relied on the “no-aid” provision of the state constitution, which prohibits any aid to a school controlled by a “church, sect, or denomination.” The question was whether the Free Exercise Clause of the U.S. Constitution barred the application of the no-aid provision.

The provision, said the U.S. Supreme, was said to burden not only religious schools but also families whose children attend or hope to attend them. The court noted that it had previously recognized the rights of parents to direct “the religious upbringing” of their children.

The decision in B.L. vs. Mahanoy Area School District, (June 30, 2020), is a bit more difficult to appreciate. The decision by the U.S. 3rd Circuit Court of Appeals concerned a woman who did not make her high school varsity cheerleading team. In a weekend away from school, the student posted a picture of herself with the caption “F*** Cheer” to Snapchat. She was suspended from the junior varsity team for a year and sued her school in federal court. The District Court granted summary judgment in B.L.’s favor, ruling that the school had violated her First Amendment rights. The 3rd Circuit Court agrees and affirmed that the suspension represented a violation of the student’s First Amendment rights.

The 3rd Circuit Court easily found that the snap fell outside the school context. This is not a case in which the relevant speech took place in a “school-sponsored” forum, Fraser, 478 U.S. at 677. Nor is this a case in which the school owns or operates an online platform. Instead, B.L. created the snap away from campus, over the weekend, and without school resources, and she shared it on a social media platform unaffiliated with the school. While the snap mentioned the school and reached 16 MAHS students and officials, J.S. and Layshock claim that those few points of contact are not enough. B.L.’s snap, therefore, took place “off campus.”

Most citizens would find it difficult to understand how a student could post vulgarities on social media and not pay any consequence for it.

Cliff Rieders is a board-certified trial advocate in Williamsport.

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