With help from Derek Robertson

"Mixers" like Tornado Cash were crucial to various crypto hacks. | shapecharge/iStock

Over the past 24 hours, a video of a bearded man crooning lines of computer code with the aid of an auto-tuner has achieved minor virality online.

In addition to being amusing, the video gets to the crux of a momentous legal question hanging over the digital era: How does the First Amendment apply to computer code?

In the song, by musician Jonathan Mann, the lyrics are lines of code from Tornado Cash, a software tool called a mixer used to obscure the provenance of crypto tokens, which the Treasury Department sanctioned last week after it was used by North Korean hackers.

The refrain of Manns song This is illegal argues that the sanctions amount to a constitutionally dubious ban on discussing the Tornado Cash code itself.

Its not clear that the sanctions actually outlaw reciting code, melodically or otherwise. But they do include what appears to be the first-ever ban on interacting with blockchain addresses controlled by self-executing code (sanctions normally ban transactions with accounts controlled by specific people or entities). And as crypto advocates mull legal challenges to the sanctions, theyre homing in on First Amendment objections.

A showdown over the constitutionality of the sanctions would reopen decades-old questions about the legal status of code. In all likelihood, it would be just the first major skirmish in a broader fight over the First Amendments application to blockchain systems, one that crypto advocates have been anticipating for years.

In the early 90s, the Justice Department launched an investigation of a programmer who had released an encrypted messaging system, Pretty Good Privacy, under the logic that the software which had the potential to thwart U.S. spying capabilities counted as a munition, and was therefore subject to an export ban. The government eventually dropped the case, and in 1999, the 9th Circuit Court of Appeals ruled on First Amendment grounds in favor of another programmer, Daniel Bernstein, who challenged the application of export controls to cryptographic code.

This week, the Electronic Frontier Foundation, which represented Bernstein in the 90s, has expressed reservations about the Tornado Cash sanctions, arguing that the government doesnt have the power to ban the dissemination of computer code.

EFF did not immediately respond to a request to discuss its First Amendment reservations in more depth. But the crypto advocacy group Coin Center, which is considering a lawsuit over the sanctions, fleshed out its First Amendment objections in a lengthy analysis published Monday. The analysis argues that both the intent and the effect of the sanctions is to have a chilling effect on people exploring the very idea of cryptocurrency mixers.

While this affects only a niche class of blockchain applications, the question of how far First Amendment protections extend to transmissions of information within blockchain systems could have more profound implications. Bitcoin advocates have long made the case that both Bitcoins source code and Bitcoin transactions are protected by the First Amendment.

But what if theyre wrong, and the government can ban Bitcoin?

Many legal experts contend that speech protections for computer code are context-dependent, weakening or disappearing when someone executes the code with a computer.

People would argue that is more akin to action than it is to speech, First Amendment lawyer Bob Corn-Revere, a partner at Davis Wright Tremaine, told me.

But Corn-Revere, who served on Bernsteins legal team, said that since that case there has been a dearth of court decisions on the issue. As new software applications have raised new legal dilemmas, he said, new guidance about where and how computer code crosses from the realm of speech into the realm of action has yet to follow.

Thats the unanswered question, he said, in terms of where the courts go.

The Federal Reserve | AP Photo

Another unlikely crypto-world alliance is revealing just how unpredictable the fault lines around the new technology can be.

As POLITICOs Sam Sutton reported today for Pro subscribers, the crypto industry is flexing its burgeoning muscle on the Hill to convince lawmakers to stay out of the stablecoin business. The Federal Reserve has been exploring the concept of a digital dollar for some time now, and Rep. Jim Himes (D-Conn.), who released a Fed digital dollar proposal earlier this year, told Sam that not only do private stablecoin providers view a central bank digital currency, or CBDC, as a potential threat, banks dont like it either, viewing it as as a potential disrupter of their very profitable payment systems.

Its a notable alliance if only because, as you might have heard (frequently), the crypto and banking industries dont exactly agree with each other on much. Neither, presumably, did Sens. Kristen Gillibrand, a progressive standard-bearer, or Cynthia Lummis, from deep-red Wyoming, who sponsored this years biggest piece of crypto legislation. The next unlikely team-up around a crypto policy issue whether it ends up being around regulatory classification, international relations, or maybe even rural revitalization will officially make a trend, by old newsroom rules. Derek Robertson

Crypto may be down, but it looks like the meme coins are making a comeback.

The mostly-worthless joke crypto tokens most notably touted by Elon Musk in the case of Dogecoin, which hes boosted so consistently that its more or less ceased to be a joke have seen a sudden jump in their value as of late even amid the overall crypto slump, with Dogecoin spiking nearly 11 percent over the past week as of this writing, and Shiba Inu nearly 20 percent. (And yes, theyre nearly all still named after dogs, from Akita Inu to Zelda Inu.)

Of course, these are matters of degrees. The current value of Dogecoin hovers around eight-tenths of a cent. Shiba Inus is mere fractions of a penny that stretch to six digits. Trading these coins is, essentially, a game: Theres no promise of technological transformation, financial anonymity, or the creation of fortunes, just playing around with miniscule amounts of money on your phone.

Provided, as always, that one doesnt get too greedy, theyre probably one of the lower-stress, and certainly one of the lower-stakes, means of dipping ones toe into the crypto market but to be clear, as they say on the forums and subreddits that comprise the communities which are essentially these coins raison detre, this is not financial advice. Derek Robertson

Stay in touch with the whole team: Ben Schreckinger ([emailprotected]); Derek Robertson ([emailprotected]); Konstantin Kakaes ([emailprotected]); and Heidi Vogt ([emailprotected]). Follow us @DigitalFuture on Twitter.

Ben Schreckinger covers tech, finance and politics for POLITICO; he is an investor in cryptocurrency.

If youve had this newsletter forwarded to you, you can sign up and read our mission statement at the links provided.

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Crypto pleads the First- POLITICO - POLITICO

By Vivek Ramaswamy and Jed Rubenfeld

Alex Berenson is back on Twitter after being banned for nearly a year over Covid-19 misinformation. Last week the former New York Times reporter settled his lawsuit against the social-media company, which admitted error and restored his account. The First Amendment does not apply to private companies like Twitter, Mr. Berenson wrote last week on Substack. But because the Biden administration brought pressure to bear on Twitter, he believes he has a case that his constitutional rights were violated. Hes right.

In January 2021 we argued on these pages that tech companies should be treated as state actors under existing legal doctrines when they censor constitutionally protected speech in response to governmental threats and inducements. The Biden administration appears to have taken our warning calls as a how-to guide for effectuating political censorship through the private sector. And its worse than we feared.

More:

Twitter Becomes a Tool of Government Censorship - The Wall Street Journal

Couy Griffin (via CREW legal filing)

Leading First Amendment experts have weighed in on a lawsuit against a New Mexico man convicted in the Jan. 6 attack on the U.S. Capitol, saying that he cannot use the First Amendment as a defense to the constitutional prohibition against insurrectionists holding public office.

First Amendment expert Floyd Abrams (Pentagon Papers attorney and father of Law&Crime founder Dan Abrams), UC Berkeley School of Law Dean Erwin Chemerinsky, Harvard professor and former Harvard Law Dean Martha Minow, Harvard Law professor Laurence H. Tribe, and University of New Mexico Law School professor Maryam Ahranjani are among those who signed on to an amicus brief filed last week in the case brought by three New Mexico residents against Couy Griffin, an Otero County Commissioner.

Griffin was convicted of a misdemeanor trespassing charge in March following a bench trial before U.S. District Judge Trevor McFadden, a Donald Trump appointee, of entering a restricted area on Capitol grounds, a misdemeanor. Griffin was at the Capitol that day seen standing over a crowd of Trump supporters in an apparent effort to lead the group in prayer. He was also seen using a metal barricade as a ladder to reach Capitol grounds.

According to prosecutors, Griffin had pledged to return to the Capitol specifically plant our flag on the desks of House Speaker Nancy Pelosi (D-Calif.) and Senate Majority Leader Chuck Schumer (D-N.Y.). He also allegedly threatened that theres gonna be blood running out of that building.

The government watchdog group Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit in March against Griffin in on behalf of three New Mexico residents looking to remove Griffin from his County Commissioner position and blocking him from running for office again. In their lawsuit, plaintiffs Marco White, Mark Mitchell, and Leslie Lakind argue that the 14th Amendments Disqualification Clause prohibits Griffin from holding public office.

That clause says:

No person shall . . . hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

Last week, a group of First Amendment lawyers and scholars, along with representatives from religious advocacy groups, filed an amicus brief in the case, anticipating that Griffin will claim that his First Amendment rights protect him against the disqualification clause and saying that his defense is, essentially, legal hogwash.

In their brief, they get right to the point.

Griffin is mistaken, the brief says regarding the Capitol rioters anticipated First Amendment defense. [T]he people of the United States may, without infringing upon any First Amendment rights, amend the Constitution to ban oath-breaking insurrectionists from seeking or holding office; and a court may indeed, must enforce that constitutional mandate against those, like Griffin, who flout that ban.

The brief notes that Griffins case does not involve a mere statute or regulation, but rather a constitutional command that officials who swore to support the Constitution, yet engaged in insurrection or rebellion against the United States, do not get a second chance to violate their oath unless and until they are rehabilitated by an act of Congress [emphasis in original].

Griffins anticipated argument that the Disqualification Clause of the 14th Amendment is itself unconstitutional doesnt hold water, the brief says, arguing that its never envisioned it in conflict with the First Amendment, as Griffin would suggest.

Griffin ignores the fact that the drafters of the Clause possessed full knowledge of the First Amendment, yet provided no First Amendment defense to disqualification, the brief says. Moreover, his unconstitutional constitutional amendment theory has never succeeded in American courts and was specifically rejected by the Clauses drafters. That theory has gained a foothold in some foreign jurisdictions where the legislature possesses plenary power to undermine or even replace the national constitution through repeated amendment. But in the United States, the arduous Article V amendment process historically has provided sufficient protection against constitutional death-by-a-thousand-amendments.

Calling Griffins argument an inherently implausible theory, the amicus argue that the Disqualification Clause poses no threat to speech or expression protected by the First Amendment. Instead, it applies only to a unique category of persons who assumed their positions voluntarily namely, current and former officeholders who violated their oath and it directly affects only their limited and qualified right to hold office.

More important, any speech capable of triggering constitutional disqualification also is likely to fall within the long-established First Amendment exception for speech integral to illegal conduct more specifically, speech that encourages, induces, furthers a conspiracy to take, or credibly threatens to take, violent action, the brief continues. Such speech has never enjoyed First Amendment protection.

Griffin did, in fact, raise First Amendment issues in a request for an injunction he filed in May in federal court in New Mexico. That lawsuit sought to block White, Mitchell, and Lakind from pursuing their state claim against him.

As a County Commissioner, Griffin is subject to NMSA 1978, 44-3-1 et seq., and, in fact, Defendants have challenged his ability to hold that office under the statute, Griffins motion said. If successful, Griffin would be removed from office and barred from running for state or federal office in the future. That is quintessential First Amendment activity.

U.S. District Judge Kenneth John Gonzales, a Barack Obama appointee, found that the federal court didnt have jurisdiction over the case and denied Griffins injunction request in June.

Read the amicus brief, below.

[Images via CREW filing.]

Have a tip we should know? [emailprotected]

More:

First Amendment Scholars Say Jan. 6 Rioter Is Subject to Constitutional Command Disqualifying Insurrectionists from Holding Public Office - Law &...

from the that-doesn't-seem-right dept

Rep. Cathy McMorris Rodgers, who heads something called the House Republican Big Tech Task Force has teamed up with Seth Dillon, the CEO of the deeply unfunny conservative Onion wannabe, The Babylon Bee, to whine in the NY Post about how to end big tech censorship of free speech. The answer, apparently, is to remove the 1st Amendment. I only wish I were joking, but thats the crux of their very, very confused suggestion.

Lets start with the basics: Dillons site regularly posts culture-war promoting satire. Because Republican culture wars these days are about shitting on anyone they dislike, or who dares to suggest that merely respecting others is a virtue, many of those stories are not just deeply unfunny, but often pretty fucked up. None of this is surprising, of course. But, the thing about the modern GOP and its culture wars is that its entirely based around pretending to be the victim. Its about never, not once, being willing to take responsibility for your own actions.

So, when the Babylon Bee publishes something dumb that breaks a rule, and they get a minor slap on the wrist for it, they immediately flop down on the ground like a terrible soccer player and roll around about how their free speech has been all censored. It hasnt. Youre relying on someone elses private property. They get to make the rules. And if they decide that you broke their rules, they get to show you the door (or whatever other on-site punishment) they feel is appropriate. This is pretty basic stuff, and actually used to be conservative dogma: private property rights, the rights to freely associate or not with whoever you want under the 1st Amendment, and accepting personal responsibility when you fuck around, were things we were told were core to being a conservative.

No longer (its arguable, of course, if they were ever actually serious about any of that).

There is no free speech issue here. The Babylon Bee has 1st Amendment rights to publish whatever silly nonsense it wants on its own site. It has no right to demand that others host its speech for it. Just as the Babylon Bee does not need to post my hysterically funny satire about Seth Dillon plagiarizing his best jokes by running Onion articles three times through GPT3 AI with the phrase this, but for dumb rubes. Thats freedom of association, Seth. Thats how it works.

Perhaps its no surprise that the CEO of a what if satire were shitty site doesnt understand the 1st Amendment, but youd think that a sitting member of Congress, who actually swore to protect and uphold the Constitution, might have a better idea. Not so for Rep. McMorris Rodgers, who once actually was decent on tech, before apparently realizing that her constituents dont like elected officials from reality, and prefer them to be culture warriors as well.

Anyway, after whining about facing a tiny bit of personal responsibility including, I shit you not, having to be fact checked by Facebook (note to the two of you: fact checking is more speech, its not censorship, you hypocritical oafs) they trot out their solutions.

Big Tech must be held accountable. First, we propose narrowing Section 230 liability protections for Big Tech companies by removing ambiguity in the law which they exploit to suppress and penalize constitutionally protected speech. Our proposal ensures Big Tech is no longer protected if it censors individuals or media outlets or removes factually correct content simply because it doesnt fit its woke narrative.

I mean, holy fuck. There is no excuse in the year 2022 to still be so fucking ignorant of how Section 230 works. Especially if youre in Congress. Narrowing Section 230s liability protections wont lead to less moderation. It will lead to more. The liability protections are what allow websites to feel comfortable hosting 3rd party content. The case that caused Section 230 in the first place, involved Prodigy being held liable for comments in a forum. If you make sites more liable, they are less likely to host whatever nonsense content you want to share on their website.

Second, removing factually correct content whether or not it fits its woke narrative (and, um, no big tech company has a woke narrative) is protected by the 1st Amendment. Content moderation is protected by the 1st Amendment. Dillon doesnt have to publish my unfunny piece. Twitter doesnt need to publish his unfunny piece. Facebook can fact check all it wants even if it gets the facts wrong. Its all thanks to the 1st Amendment.

Taking away 230 protections doesnt change that it just makes websites even LESS likely to host is culture war nonsense.

But McMorris Rodgers and Dillon arent done yet.

Second, we propose requiring quarterly filings to the Federal Trade Commission to keep Big Tech transparent about content moderation. This will allow Congress, the FTC and Americans to know when and why these companies censor content to determine whether its justified. Wed also sunset Section 230 protections after five years, so Congress can reevaluate them if necessary and incentivize Big Tech to treat all content fairly or have their protections revoked.

Again, this is almost certainly unconstitutional. I know some people struggle with the idea of why transparency requirements are an affront to the 1st Amendment, but its pretty straightforward. If Congress ordered Seth Dillon to file his sites editorial policies, including details about what stories they reject and which they promote to determine whether its justified for the site to make those editorial decisions, pretty much everyone would recognize the 1st Amendment concerns.

Demanding anyone justify editorial decisions by filing reports with the government to determine whether [those editorial decisions are] justified is just a blatant attack on free speech and the 1st Amendment.

Sunsetting Section 230 just takes us back to the issue we noted above. Without liability protections, websites are MORE likely to remove content to avoid liability, not less.

This isnt like some big secret. Perhaps Dillon and McMorris Rodgers only get their news from sites like the Babylon Bee, and that helps them not understand how anything works. But, really, thats no excuse.

Third, our proposal requires Big Tech to improve appeals processes for users to challenge moderation decisions and enables people to petition their states attorney general to bring legal action against Big Tech, enhancing users power to challenge censorship. Twitter would be required to notify a user, like the Babylon Bee, through direct communication before taking any censorship action. Big Tech would also be required to give users the option to challenge any censorship decisions with a real person not a bot to disincentivize Big Tech from completely automating its censorship process.

Right, so again, all of that is an affront to the 1st Amendment. Should I be able to petition my states attorney general to bring legal action against the Babylon Bee for failing to publish my truly hilarious article about how Cathy McMorris Rodgers hates the internet so much, she pushed legislation banning communities from building their own broadband networks (really funny stuff, because its true).

Of course not. The 1st Amendment protects websites and their editorial decisions. There is no constitutional cause of action any attorney general could take against a website for their moderation decisions.

As for the appeals process most websites have one. But mandating one would, again, raise serious constitutional issues, as its the government interfering with the editorial process.

And, note, of course, that none of these complaints address the fact that the social media sites that people like Dillon like, including Parler, Gettr, and Truth Social, have far more arbitrary and aggressive content moderation policies (even as they pretend otherwise).

Itll be hilarious even Babylon Bee worthy, if I say so myself if this bill passes, and woke liberals use it to sue Truth Social for taking down truthful content about the January 6th hearings. Cmon, Seth, let me publish that as an article on your site! Or you hate freedom of speech!

Free speech must be cherished and preserved. Its time Big Tech companies uphold American values and become fair stewards of the speech they host.

But the Babylon Bee remains free to be as shitty as before? How is that fair?

Filed Under: 1st amendment, cathy mcmorris rodgers, content moderation, editorial discretion, free speech, section 230, seth dillonCompanies: babylon bee

Go here to see the original:

Rep. Cathy McMorris Rodgers And Deeply Unfunny 'Satirist' Seek To Remove Website 1st Amendment Rights To 'Protect Free Speech' - Techdirt

Less than a month after the Jan. 6, 2021, assault on the U.S. Capitol, Secretary of Defense Lloyd J. Austin took the extraordinary step of pausing all operations for 24 hours to address extremism in the ranks. Pentagon officials had been shaken by service members prominent role in the events of Jan. 6.

Of the 884 criminal defendants charged to date with taking part in the insurrection, more than 80 were veterans. Thats almost 10% of those charged.

More remarkable, at least five of the rioters were serving in the military at the time of the assault: an active-duty Marine officer and four reservists.

Service members involvement in the insurrection has made the spread of extremism particularly white nationalism a significant issue for the U.S. military.

A blue ribbon committee called the Countering Extremist Activity Working Group was quickly commissioned in April 2021 to evaluate the extent of the problem.

The group found about 100 substantiated cases of extremism in the U.S. armed forces in 2021.

The latest instance occurred in July 2022, when Francis Harker, a National Guard member with white supremacist connections, was sentenced to four years in prison for planning an anti-government attack on police. Harker, who carried a picture saying there is no God but Hitler, was planning to attack police officers in Virginia Beach, Virginia, with Molotov cocktails and semi-automatic rifles.

Worried, Austin has tightened the rules regarding political speech within the military. The new rules prohibit any statement that advocates for violence to achieve goals that are political or idealogical in nature. The ban applies to members of the military both on and off duty.

Also, for the first time, the new rules prohibit statements on social media that promote or otherwise endorse extremist activities.

While the intent behind the new rules is laudable, political speech even of an offensive or distasteful nature goes to the core of U.S. democracy. Americans in uniform are still Americans, protected by the First Amendment and afforded the constitutional right of free speech.

In light of the stricter policy, it is useful to consider how courts apply the First Amendment in the military context.

While soldiers and sailors are certainly not excluded from the protection of the First Amendment, it is fair to say they operate under a diluted version of it.

As one federal judge observed, the sweep of the protection is less comprehensive in the military context, given the different character of the military community and mission.

The right to speak out as a free American must be balanced against providing an effective fighting force for the defense of our Country, a federal judge noted in a separate case.

These and other federal judges point to the militarys need for good order and discipline in justifying this approach.

While never precisely defined, good order and discipline is generally considered being obedient to orders, having respect for ones chain of command and showing allegiance to the Constitution. Speech that prevents the orderly accomplishment of the mission or promotes disloyalty and dissatisfaction within the ranks harms good order and discipline, and can be restricted.

In 1974, for example, the Supreme Court ruled that the Army can punish an officer for encouraging subordinates to refuse to deploy.

The officers comments included: The United States is wrong in being involved in the Vietnam War. I would refuse to go back to Vietnam if ordered to do so.

In 1980, the Seventh Circuit Court of Appeals ruled that the Army could legally fire an ROTC cadet for making racist remarks during a newspaper interview.

Explaining his political philosophy, the cadet said: What I am saying is that Blacks are obviously further behind the whites on the evolutionary scale.

In 2012, a San Diego district court ruled that the Marine Corps can lawfully discharge a sergeant who mocked president Barack Obama while appearing on the Chris Matthews Show. At one point the sergeant told the host: As an active duty Marine, I say screw Obama and I will not follow his orders.

While each of these statements is protected by the First Amendment in civilian life, they crossed the line in military life because they were deemed harmful to morale and represented what one federal court described as more than political discussion at an enlisted or officers club.

In deciding these First Amendment cases, courts often hark back to why the military exists in the first place.

It is the primary business of armies and navies to fight the nations wars should the occasion arise, the Supreme Court said in 1955.

In a separate case, the Supreme Court declared: An army is not a deliberate body. It is the executive arm. Its law is that of obedience.

Quickly following orders can mark the difference between life and death in combat.

On a national level, the degree to which an army is disciplined can win or lose wars. A mindset of obedience does not come solely from classroom training but from repeated rehearsals under realistic conditions.

As a military judge observed in a 1972 decision, while service members are free to discuss political issues when off duty, the primary function of a military organization is to execute orders, not to debate the wisdom of decisions that the Constitution entrusts to Congress, the judiciary and the commander in chief.

The U.S. militarys revised approach to political speech prohibits retweeting or even liking messages that promote anti-government or white nationalist and other extremist groups.

Does a restriction this broad comply with legal precedent?

As a law professor who has served more than 20 years in the U.S military, I believe the broader rules will probably be upheld if challenged on First Amendment grounds.

The most comparable case is Blameuser v. Andrews, a 1980 case from the Seventh Circuit Court of Appeals where an ROTC cadet espoused white supremacist political views in a newspaper interview.

Amongst other extremist remarks, the cadet told the reporter: You see, I believe that in the final analysis, the Nazi Socialist Party will take over America and possibly the whole world.

Finding that the statements harmed good order and discipline, the Seventh Circuit ruled that the Army did not violate the First Amendment when it subsequently removed him from the officer training program.

The cadets views on race relations draw into question his ability to obey commands, especially in a situation in which he regards the military superior as socially inferior, the Blameuser decision said.

The military has wide latitude in deciding who is deserving of the special trust and confidence that comes with military employment. Military officials are free to consider political and social beliefs that are inimical to the vital mission of the agency in making hiring and firing decisions, the Blameuser decision said.

Social media posts expressing support for violent political activities will likely be treated in the same way.

As the Seventh Circuit said in Blameuser, by liking or retweeting an extremist message, a service members actions are demonstrably incompatible with the important public office they hold.

Read this article:

Faced with a rise of extremism within its ranks, the US military has clamped down on racist speech, including retweets and likes - The Conversation

The limits that Alito is referring to have begun to emerge as the court explicitly seeks to anchor its understanding of constitutional rights in early American historyor even earlier, under the English monarchy. Alito and his fellow conservatives evidently pine for a return to a more religiously homogenous, Christian society but to achieve it they are deliberately marginalizing one pillar of the First Amendment in favor of another. The dots connecting Alitos personal mission to inculcate religion in American life and what the conservative majority is doing to the Constitution are easy to see. They begin with Dobbs.

Dobbs is significant not just because it reversed 50 years of precedent under the due process clause of the Fourteenth Amendment (under which the Court has recognized certain rights, even if unenumerated in the Constitution, as so bound up with the concept of liberty that the government cannot arbitrarily interfere with them). In Dobbs, Alito subverted that notion and fashioned a brand-new, two-part test for assessing the viability of individual rights: (1) whether the right is expressed in the Constitutions text, and if not, (2) whether it existed as a matter of the Nations history and tradition. This second part of the test is the crucial one when it comes to religion and in particular, its installation in government.

Under Dobbs step two, Alito time-traveled back to the Fourteenth Amendments ratification in 1868, when women could not even vote and, in his words, three quarters of the States made abortion a crime at all stages of pregnancy. Alito then regressed even earlier, to 13th century England (before Americas birth), to shore up his dubious quest to excavate historical authority rejecting abortion rights. Alito gave no guidelines for identifying which chapter of history counts in this calculus. Nor did he grapple with ancient law that actually went the other way. All we know going forward is that, for this majority, text is paramount and, barring that, very old history is determinative.

Except if the text appears in the First Amendments establishment clause. In a pair of other decisions, the same conservative majority pooh-poohed explicit constitutional language mandating that Congress shall make no laws respecting an establishment of religion, holding that a competing part of the First Amendment which bars the federal government from prohibiting the free exercise of religion is the more important and controlling.

The government cannot establish an official religion or ban public worship. But which clause governs if a government employee openly endorses religious beliefs at work in a way that could be attributed to the government or feel coercive to subordinates? Do the employees free exercise rights supersede the governments obligation to maintain secularity?

Up until this term, the answer was that government employees can worship freely like the rest of us, just not necessarily in their official capacities. In Employment Division, Department of Human Resources v. Smith, Justice Antonin Scalia wrote for the Court in 1990 that so long as a generally applicable law is not written in a way that targets specific religious practices, it is constitutional under the free exercise clause even if it affects religious practices. And under Lemon v. Kurtzman, the Court held in 1971 that for establishment clause purposes, the government can touch upon religion only for secular reasons, such as busing children to parochial schools, and not to promote religion, inhibit religion or foster excessive entanglement with religion.

In June, a 6-3 majority in Carson v. Makin buried the establishment clause under the free exercise clause. It held that Maines requirement that only nonsectarian private schools can receive taxpayer-funded tuition assistance violates the First Amendment because it operates to identify and exclude otherwise eligible schools on the basis of their religious exercise. Maines requirement did not single out any religion, so it passed the Smith test for free exercise claims. As Justice Sonia Sotomayor pointed out in dissent, this Court has long recognized that the establishment clause requires that public education be secular and neutral as to religion. By assuming away an establishment clause violation, she argued, the majority decision forces Maine taxpayers to fund religious education in that case, schools that embrace an affirmatively Christian and anti-LGBTQ+ ideology. [T]he consequences of the Courts rapid transformation of the religion clauses must not be understated, she warned, because it risks swallowing the space between the religion clauses.

But theres more. In an opinion authored by Justice Neil Gorsuch, the same majority in Kennedy v. Bremerton School District championed a public high school football coachs insistence on publicly praying on the field after a game, effectively overruling Lemon as an ahistorical approach to the establishment clause. Here, Gorsuch wrote, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance . . . on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech. The problem again, as Sotomayor complained in another dissent, is the pesky establishment clause: This Court continues to dismantle the wall of separation between church and state that the framers fought to build.

Especially alarming, though, is Justice Clarence Thomass concurring opinion in Kennedy. Under the free speech clause, he noted, the Court has held that the first Amendment protects public employee speech only when it falls within the core of First Amendment protection speech on matters of public concern. Other types of on-the-job speech can be restrained. But Thomas added: It remains an open question . . . if a similar analysis can or should apply to free-exercise claims in light of the history and tradition of the free exercise clause. (Emphasis supplied.) In other words, although free speech in government employment is limited, U.S. history and tradition may signal a different outcome for religion in government.

After Dobbs, history and tradition at the time of the framing of the Constitution are now the linchpin of constitutional interpretation. And Thomas has explicitly connected the founding period and national identity with Christianity. In September 2021, he delivered a lecture about his Catholicism at the Notre Dame School of Law, linking Christianity and the founding as motivation for returning to his own faith: As I rediscovered the God-given principles of the Declaration [of Independence] and our founding, I eventually returned to the Church, which had been teaching the same truths for millennia. [T]he Declaration endures because it . . . reflects the noble understanding of the justice of the Creator to his creatures. In his recent speech, Alito recounted a personal experience in a Berlin museum when he encountered a well-dressed woman and a young boy looking at a rustic (presumably Christian) wooden cross. The boy asked, Who is that man? Alito perceived the childs question as a harbinger of whats in store for our culture hostility to religion or at least the traditional religious beliefs that are contrary to the new moral code that is ascendant in some sectors.

Although less publicly explicit than Alito and Thomas about his views on religion in government, Gorsuch privately spoke in 2018 to the Thomistic Institute, a group that exists to promote Catholic truth in our contemporary world by strengthening the intellectual formation of Christians . . . in the wider public square. Justice Amy Coney Barrett has written that [Catholic judges] are obliged . . . . to adhere to their churchs teaching on moral matters, and gave a commencement address to Notre Dame law graduates advising that a legal career is but a means to an end, and . . . . that end is building the kingdom of God.

These views represent a marked departure from traditional judicial conservatism on the Supreme Court. In Zuni Public School Dist. No. 89 v. Department of Education, Justice Scalia in 2007 heavily criticized the Courts 1892 declaration in Holy Trinity v. United States that the historical record of America demonstrated that the United States is a Christian nation. The Court has since wisely retreated from that view, he retorted.

Historical accounts at the time of the 1787 Constitutional Convention indicate that the Framers and political leaders largely believed that governmental endorsements of religion would result in tyranny and persecution. There was a concerted campaign from the Anti-Federalists to discredit the Constitution as irreligious, which for many of its opponents was its principal flaw, along with repeated attempts to add Christian verbiage to the Constitution. The ultimate rejection of religious language demonstrates that the Founders intended constitutional secularity. In his dissenting opinion in Carson, Justice Stephen Breyer quoted James Madison to underscore the point: [C]ompelled taxpayer sponsorship of religion is itself a signal of persecution, which will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced amongst its several sects.

As scholar Mokhtar Ben Barka explains, however, by the time the Court issued the opinion in Holy Trinity, nineteenth-century America was a mild form of Protestant theocracy. In this period, Protestantism was Americas de facto established religion and Protestants overwhelmingly held power in the government. Alas, there are plenty of historical cherries to pick if the Court as it did in Dobbs decides to tether non-secular government in history and tradition.

Keep in mind, too, that as Elizabeth Dias recently chronicled for the New York Times, the push for a Christian government is sweeping GOP politics, as well. At Cornerstone Christian Center, a church near Aspen, Rep. Lauren Boebert (R-Colo.) received a standing ovation after urging that [t]he church is supposed to direct the government. Republican nominee for Pennsylvania governor, Doug Mastriano, likewise called the separation of church and state a myth. In November we are going to take our state back, he said. My God will make it so.

Although polls show that declaring the United States a conservative Christian nation is a minority view, the same was said about the reversal of Roe. This Supreme Court clearly doesnt care.

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Opinion | The Supreme Court Wants to End the Separation of Church and State - POLITICO

OKLAHOMA CITY Two former top-ranking members of the Oklahoma Veterans Commission filed suit against Gov. Kevin Stitt on Friday, alleging that he violated their First Amendment right to support his political opponent.

Larry Wayne Van Schuyver, former Veterans Commission chairman and a retired Navy command master chief, and Paul D. Costilow, former vice chairman and a retired Army brigadier general who served in Vietnam, filed the suit in U.S. District Court for the Western District of Oklahoma.

They allege that Stitt removed them from the Oklahoma Veterans Commission for supporting Joel Kintsel in his bid to unseat the governor. They were notified of their removal two days after Stitt defeated Kintsel in the primary.

Kintsel is executive director of the Oklahoma Department of Veterans Affairs. The commission hires and fires the executive director.

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Stitt has replaced commission members who voted to give Kintsel a leave of absence to run for governor, Van Schuyver said.

Mark Hammons, an attorney for the plaintiffs, said Stitt violated the right of political affiliation.

Ironically, he has denied that right to the people who fought to make sure we would have that right in this country, Hammons said.

Retaliating against someone for exercising a First Amendment right is unlawful, he added.

The suit also says the plaintiffs did not support a plan by Stitt to privatize the states seven veterans centers.

Van Schuyver, who was wounded while deployed to Iraq, opposed the plan because he believes it would outsource management of veterans care, reduce the quality of service and increase the cost, according to the suit.

About half of the Oklahoma veterans in the homes would not qualify to continue living there under privatization, Van Schuyver claims, adding in an interview with the Tulsa World on Friday that he thinks Stitt probably wants to give operation of those homes to his cronies.

Hammons said another suit will be filed next week to challenge one of Stitts appointees.

Stitt appointed Robert W. Allen Jr. on Thursday to replace Van Schuyver and Scott B. Sweeney to replace Costilow.

Hammons claims that Stitt did not follow the law in appointing Allen. Hammons said the appointment had to come from among five names submitted by the Military Order of the Purple Heart, and Van Schuyver, who is commander of the organization, said he had never heard of Allen. The organization did not offer Allens name for consideration, Van Schuyver said.

He doesnt get to go out and pick a political buddy, Hammons said.

Van Schuyver said the end goal for him is to put the governor in his place and make it a fair process for appointing commissioners.

Despite the two new appointments, the nine-member Veterans Commission failed to reach a quorum to meet on Friday.

An agenda item for the slated meeting was a discussion about the roles of the commission and the secretary of military and veterans affairs.

Stitt recently appointed John Nash to that post, and Nash received Senate confirmation.

Kintsel said Nash is trying to exercise power over the agency, for which there is no legal authority.

We are starting to struggle mightily as to who is in what lane, Kintsel said. Under the law, the secretary plays no role operationally. And this seems to be difficult for this appointee to understand.

Stitts office did not respond to a request for comment.

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Veterans sue Stitt for alleged violation of First Amendment rights - Tulsa World

Margaret Sullivan, a former New York Times public editor who has written the Washington Post media column for the past six years, will be joining Duke University on January 1, 2023 as the 2023 Egan Visiting Professor. Ms. Sullivan has previously served as an adjunct instructor in Dukes DeWitt Wallace Center for Media & Democracy. As the Egan Visiting Professor, Ms. Sullivan will take part in a number of public seminars and events throughout the 2023 calendar year, and will also teach a course in the fall of 2023.

Im honored and grateful to receive the Egan appointment and thrilled to have the chance to work with Duke students, faculty and administration, said Ms. Sullivan. Its going to be fun, and, I hope, productive and fulfilling, too. My past Duke experience, teaching in the DeWitt Wallace Center, left me tremendously impressed with the entire Duke community. Deepening that connection is something Im really looking forward to.

The Egan Chair is jointly administered by Dukes DeWitt Wallace Center for Media & Democracy, and Dukes Program in American Grand Strategy.

One would be hard-pressed to find someone who has been writing more thoughtfully these days about the intersection of journalism and democracy than Margaret Sullivan, said Philip Napoli, Director of the DeWitt Wallace Center and the James R. Shepley Professor of Public Policy in Dukes Sanford School of Public Policy. We are thrilled to have Margaret join us next year and further enhance our incredible roster of faculty.

Our students will no doubt benefit tremendously from the opportunity to engage with Ms. Sullivan, said Peter Feaver, Director of the Program in American Grand Strategy and Professor of Political Science and Public Policy. She brings an incredible collection of experiences to the position.

Margaret Sullivan is a recognized expert on the decline of local journalism and the dire effects of that decline on citizenship and governance. Her book, Ghosting the News: Local Journalism and the Crisis of American Democracy, published by Columbia Global Reports,was a Washington Post and an NPR best of 2020 choice, and was named by the Porchlight Business Book Awards as the Public Affairs and Current Events Book of the Year.

Sullivan won the 2020 Bart Richards Award for Washington Post columns that "set a standard" for media criticism, according to the judges at Penn State University. She won the 2020 special-topic Mirror Award from Syracuse University for her commentary on coverage of President Trump's first impeachment and, in 2017, the Stephen Hamblett First Amendment Award from the New England First Amendment Coalition for her writing about press freedom, both at the Post and at the New York Times.

Her memoir, Newsroom Confidential: Lessons (and Worries) From an Ink-stained Life, will be published in October by St. Martin's Press, and will be excerpted in the Washington Post Magazine. The book draws upon Ms. Sullivans experience as the chief editor of the Buffalo News, herhometown paper where she started as a summer intern. She became the first woman editor of the Buffalo News in 1999, where she established the paper's first investigative team and significantly diversified the newsroom staff. The DeWitt Wallace Center will be hosting a launch event for the book on November 3rd.

A graduate of Georgetown University, Ms. Sullivan earned a master's degree from Northwestern University's Medill School. In addition to having previously taught at Duke, she has taught at the Columbia University Graduate School of Journalism, and at the Graduate School of Journalism at the City University of New York.

The Egan Visiting Professorship is awarded to a journalist, writer, or commentator of appropriate distinction in a field related to the media and contemporary issues. Margaret Sullivan is the fifth writer to hold the Egan Visiting Professorship. Previous holders includeNew York Timesopinion writer Peter Wehner,Bloombergcolumnist Megan McArdle,Washington Postcolumnist Michael Gerson, and, most recently, David French, senior editor of The Dispatch.

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Margaret Sullivan to Serve as the 2023 Egan Visiting Professor - Duke University

During an end-of-semester town hall in my political ethics class at the University of South Florida this past spring, one presentation took a turn worthy of pause. A student spoke up.

I know Im usually pretty quiet, she began, but I do have opinions about the things we discuss in class. She usually kept these views to herself, however, because she thought that her opinions wouldnt exactly jell with everyone elses. But since it was the last day, she said, she shakily decided to open up.

She went on to give a thoughtful analysis of the speech in question (U.S. Rep. Adam Schiffs closing arguments in Donald Trumps first impeachment trial). She took a nuanced stance in his defense, communicated her views persuasively, and I saw many students nodding along. Schiff had not convinced her because Schiff focused on what Trump would be willing to do and what Trump had done in the past, rather than what he did do.

I was surprised. Our professor, Stephanie Williams of the Judy Genshaft Honors College, had made a point of encouraging us to feel empowered by our First Amendment protections and to push back on others views. She understood that, in addition to protecting individuals from government censorship, the First Amendment is intended to promote not prevent peer pushback. Given that our professor actively sought to create an environment for robust disagreement, why had this student kept her views to herself for so long?

The simple answer, I think, has been offered before: Legal protection from the government for free speech on its own is not enough. Our professor made sure we knew our opinions werent going to be suppressed by USF. But young people in class hesitate to share well-articulated dissent from the perceived consensus of a campus or classroom majority.

In the words of the late Supreme Court Justice Felix Frankfurter: The ultimate reliance for the deepest needs of civilization must be found outside their vindication in courts of law. We need a culture that embraces free speech, not just legal vindication of the First Amendments protections. Student expression may be jealously guarded against government action, but thoughtful people should feel empowered to voice dissent even when they fear ostracization on social media or in the classroom.

During our current moment, it might be hard to be optimistic.

Conversations about politics feel more stressful than they used to for many Americans, and they also feel more omnipresent. Neighbors know each others party affiliations when such information didnt use to matter. Social media is rife with hateful partisan rhetoric, and like-minded users fall into group polarization if exposed only to congenial points of view. Cable news organizations like Fox, MSNBC and CNN are transparently partisan. Political tensions at home are also reflected in electoral politics, with examples of real compromise across party lines in Congress few and far between.

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Elected officials outside of Congress are signaling that they notice these problems with (often misguided) action. For their part, the Florida Legislature and Gov. Ron DeSantis have been quick to claim that they are defending freedom of speech but not for everyone. When HB 7 went into effect on July 1, educational instruction including at public colleges and universities became unlawful if it espouses, promotes, advances, inculcates, or compels belief in any of eight listed viewpoints. By passing expressive legislation that disfavors certain viewpoints, the Legislatures actions undermine the nonpartisan principle for which the First Amendment stands. When only certain viewpoints are admitted to classrooms, students are robbed of the opportunity to encounter and dismantle arguments with which they disagree.

Despite these challenges, I still hold out hope for a culture of free speech because I know from firsthand experience that its possible. At weekly meetings of First Amendment Forum (1AF), a student organization that I founded in 2019, students from all backgrounds and perspectives gather to discuss and disagree about contemporary issues.

During an abortion discussion last fall, for example, one student opened with the claim life begins at conception. He was one of a few pro-life participants in the discussion, and I feared that a breakdown in civility was sure to come.

But what happened during this discussion surprised me. Holding their breath, students began to disagree, but they qualified their arguments by acknowledging what little common ground they had. Though their opinions on the issue did not overlap, they did agree that abortion raises tough questions. They recognized that it is difficult to decide when life begins, and they conceded that viability is an ever-shifting line in practice. From there, they went on to explain their divergent views, and our conversation moved forward.

At the end of the evening, I suspect that few students opinions had changed or flipped. However, this meeting proved that, even though we may begin and end discussions on opposite sides of an issue, earnestly engaging with the other side can have positive effects. If your interlocutor makes their best attempt to persuade you, and you can still come up with good reasons to maintain your view, then you can leave the interaction more confident in your position. Moreover, in a culture where opinions are often traceable only to a profile picture, real-life discussions are a good reminder that opinions come from people, with faces, personalities, and complexities.

I have often wondered to myself: What is the trick at 1AF meetings? What force tames the passion of students with fundamentally different world views?

There are probably many forces working together. After the first couple of topics we discussed, I thought perhaps that 1AF had gotten lucky and found a group of students who had a unique appreciation for civility. Then, these students started bringing their friends, and civility persisted despite fluctuations in attendance.

Civil discussion, then, involves more than just a civil disposition. Students have often told me after 1AF meetings that the disagreement is precisely what makes the conversation interesting even when a debate touches beliefs we hold fundamentally dear. Civil discussions prove that disagreement can be invigorating and fun.

My final suspicion is that 1AF works because students feel respected and heard. Each student is equally respected as an intellectual, and each student has the chance to speak. Of course, however, it is not the case that each view offered is equally respected by the group. The arguments make that decision. But at 1AF, each student is viewed as an equal participant in pursuit of more knowledge, even if their view may not win out by the end of the meeting.

Beyond 1AFs discussion meetings, there are other places where a culture of free speech can still be found.

Ive witnessed some of the most open political disagreement in dorm common areas. It has interrupted late night study sessions at the library. Ive seen it in the workplace amongst fellow student leaders. And sometimes, a culture of free speech is most alive in dim apartments late at night. For after the party scenes end, many college students know that what follows is the conversation that continues until dawn.

What unites 1AFs discussions with these fleeting moments? I believe the answer is good faith. It is impossible to understate the essentiality of good faith for a culture of free speech, but it is also hard to define. Its a certain mood between people.

Good faith means recognizing, as did my peers at 1AF, that good people can fall on different sides of an issue. It is making a conscious effort to steel man instead of straw man, and take on the strongest version of others arguments, rather than the weakest version. It is hesitating to make character judgments on the basis of political ideology. It is remembering that the moral consensus of today might be antiquated tomorrow.

Though it may feel like good faith has left American politics, discussion groups like 1AF are powerful because they put real people in touch with each other and, in doing so, foster good faith. Where there is good faith, civil discourse is still possible.

When students like me across the country who promote civil discourse leave the university and enter the broader polity, it will be our job to transplant the culture of discourse weve cultivated on campus and bring it into our workplaces, families and communities. If we are to promote a culture of free speech off campus, we cant forget that humans are complex, and therefore so must be politics. Even if all ideas arent created equal, we can still remember that all people are equal, and therefore entitled to good faith. And finally, building a culture of free speech in an era of self-censorship will require lots of people to have the courage to be the first but probably not the last voice of dissent.

As I look ahead to fall, a couple of developments look promising.

There is some support for such probing dissent at the state and university level. Floridas Board of Governors, which regulates the State University System of Florida, recently recommended that universities review their speech-related policies and adopt proactive activities to encourage civil discourse on campus. Irrespective of the Board of Governors intentions, universities like USF have taken up these recommendations as an opportunity to advance a culture of discourse on campus.

Before this report was released, USF had already debuted its own program: a Free Speech on Campus presentation to incoming students. Students were shown three common free speech dilemmas an uninvited speaker, a disruptive student and a dispute over dorm posters. Then, 1AF leaders were invited as panelists to share our wisdom about freedom of speech in the academic setting. I am excited that this program will be shared with every incoming student at USF for years to come.

I hope that programs like USFs Free Speech on Campus presentation will empower incoming students to be the voice of dissent on campus. Not just on the last day of class, but from day one. They might just find new friends. The day that the student in my political ethics class shared her views at our town hall, for example, she was the most popular student as we left class. A lot of students commended her for sharing her views, even though it was hard. Some wanted to talk more. And one student (three guesses who) invited her to the next meeting of First Amendment Forum.

I have hope for a culture of free speech in America. This hope is not naive; I recognize that free speech is an eternally radical idea. Navet is ignorant of circumstances; hope is optimistic in spite of them. I have observed campus discourse up close, and I have hope.

Sam Rechek is president of First Amendment Forum, a student organization at the University of South Florida in Tampa, where he is a rising senior. He is also a former summer intern at the Foundation for Individual Rights and Expression (FIRE) and the Florida First Amendment Foundation.

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I'm a senior at USF, and I still have hope for a culture of free speech. Here's why. | Column - Tampa Bay Times

Legal complaints are stacking up against Floridas 15-week abortion ban, all of them arguing that the law imposes a narrowly sectarian definition of when life begins upon other elements of the faith community that hold markedly different ideas about the matter.

The trend began in early June, when Barry Silver, a South Florida lawyer and former lawmaker turned rabbi, filed a lawsuit in Leon County Circuit Court challenging the abortion law as violating the religious rights of his Congregation LDor Va-Dor in Palm Beach County.

In Jewish law, abortion is required if necessary to protect the health, mental or physical well-being of the woman, or for many other reasons not permitted under the act. As such, the act prohibits Jewish women from practicing their faith free of government intrusion and thus violates their privacy rights and religious freedom, Silvers complaint reads.

Then, on Aug. 2, came separate litigation, organized by the Jayam Law group, based in Chicago, raising similar claims in Miami-Dade County Circuit Court on behalf of three rabbis and clergy associated with United Church of Christ, Unitarian Universalist, Episcopal, and Buddhist congregations.

These claims, like Silvers, assert violations of freedom of speech and free exercise and enjoyment of religion under Article I Sections 3 and 4 of the Florida Constitution; the Florida Religious Freedom Restoration Act; and freedom of speech and free exercise of religion under the First and Fourteenth Amendments to the United States Constitution.

Since time immemorial, the questions of when a potential fetus or fetus becomes a life and how to value maternal life during a pregnancy have been answered according to religious beliefs and creeds, one of these lawsuits, filed on behalf of an Episcopal priest in that faith argues.

HB 5 codifies one of the possible religious viewpoints on the question, and in its operation imposes severe burdens on other believers including Episcopalians and their clergy like plaintiff.

The latest development is Silvers announcement during a telephone interview that he plans as early as Monday to file an amended complaint adding a Unitarian minister, a Buddhist, an atheist rape survivor whos undergone two abortions, and the Los Angeles-based Shalom Center.

In order to support this law, the state has to show that it has some type of compelling governmental interest, Silver, an active litigator who served in the Florida House between 1996 and 1998, told the Phoenix.

The only interest thats being served is the political ambitions of Gov. [Ron] DeSantis. He has to curry favor with his base, which believes that they have the right to inflict their Biblical misimpressions, misunderstandings, on everyone else, he continued.

They certainly dont have the right to inflict them on Jewish people we wrote the Bible, he said. And, unlike DeSantis and these fundamentalists and Catholics, we actually can read it in the original. We know what it says.

The law in question, HB 5, bans abortions after 15 weeks gestational age, or following the last menstrual cycle. The law contains exceptions only to protect the pregnant persons health or life or in cases of fatal fetal abnormalities but not rape or incest.

All of the religious plaintiffs seek a court order barring enforcement of the law.

Opponents of the abortion ban have already realized a preliminary legal victory. That came on July 5, four days after the law took effect, when Leon County Circuit Judge John Cooper declared that it violated the privacy clause in the Florida Constitution.

The Florida Supreme Court in 1989 had ruled the privacy clause covered the right to abortion. The Legislature passed the 15-week ban, and DeSantis signed it in April, in anticipation that the U.S. Supreme Court would overrule Roe v. Wade, which that court did on June 24.

Notwithstanding all that, Cooper concluded that he was bound by the 1989 Florida precedent, which stuck down a parental abortion notification law for minors.

However, the Florida First District Court of Appeal allowed the ban to take effect. The case remains before that court pending further proceedings on its merits. It presumably will eventually land before the Florida Supreme Court, which DeSantis appointments have rendered far more conservative than in 1989 and cant be relied upon to sustain its own precedent.

The Jayam litigants, like those in Silvers case, argue that clergy belonging to denominations that sanction abortion under some circumstances could face felony penalties of up to five years in prison if they counsel congregants to undergo the procedure.

Under HB 5 and Floridas criminal law, plaintiff is at risk of prosecution for counseling women, girls, and families to obtain an abortion beyond the narrow bounds of HB 5 as someone who aids and abets the crime. Under Floridas aiding and abetting law, he commits the crime itself by counseling in favor of it, a brief filed for a Unitarian minister reads.

HB 5 violates the sacred trust between a clergy member and their disciples, and tramples plaintiffs First Amendment and Florida constitutional rights to free speech and free exercise of religion, and the rights under the [Florida Religious Freedom Restoration Act]. It also violates the separation of church and state under the federal and state constitutions, reads a brief filed for a Buddhist lama.

Its a misconception that the Bible teaches that life begins at conception, Silver said.

Theyre confusing potential with actual. It makes as much sense as calling an acorn an oak tree or an egg a chicken. Its not a preborn baby, its a fetus. And its not fully developed, its not human, until birth, according to Jewish law. And we have the right as Jews to practice our law but we also are championing the rights of others. Thats why we expanded this lawsuit to cover other religions, he said.

Silver described what DeSantis and the Legislature are trying to do this way:

Theres a legal term for that, Silver said. Its called chutzpah.

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Religion-based claims are piling up against Florida's 15-week abortion ban - Florida Phoenix