Fire Fighter Can Move Ahead with Free Speech and Free Exercise Claims

In Misjuns v. Lynchburg Fire Department, (WD VA, April 20, 2023), a Virginia federal district court held that a fire department captain who was denied training necessary for promotion, and who was ultimately investigated and terminated from his position, had adequately alleged free speech and free exercise violations. One of plaintiff's contentions was that adverse action was taken against him because of a religious anti-transgender posting on one of his Facebook pages. According to the court:

Plaintiff posted a meme ,,, which stated: “In the beginning, God created Adam & Eve. Adam could never be a Madam. Eve could never become Steve. Anyone who tells you otherwise defies the one true God.”...

Plaintiff has sufficiently alleged ... that Defendants’ retaliatory actions against him were due to religious beliefs, not just political beliefs.

Lynchburg News & Advance reports on the court's decision.

Colorado Bars Abortion Pill Reversal; Suit Challenges New Law

Yesterday, Colorado Governor Jared Polis signed into law SB23-190 (full text). The new law makes it a deceptive trade practice to advertise that a clinic offers abortions, referrals for abortions or emergency contraceptives when it does not offer these services.  It also provides that it is unprofessional conduct for a healthcare provider to prescribe or administer medication abortion reversal, unless by Oct. 1 the state medical, pharmacy and nursing boards all have in effect rules finding that it is a generally accepted standard of practice to engage in medication abortion reversal.

On the same day the bill was signed, an anti-abortion Catholic healthcare clinic filed suit in a Colorado federal district court challenging the new law's provisions on medication abortion reversal as violating its 1st and 14th Amendment rights. The complaint (full text) in Bella Health and Wellness v. Weiser, (D CO, filed 4/14/2023), alleges that the law violates its Free Exercise rights because it is neither neutral nor generally applicable, saying in part:

[A]bortion pill reversal is nothing more than supplemental progesterone. And there are a multitude of off-label uses of progesterone, which has been widely prescribed to women—including pregnant women—for more than 50 years.

... Yet SB 23-190 makes no attempt to regulate—much less outright prohibit— the off-label use of progesterone in any other circumstance. That omission renders SB 23-190 not generally applicable.

The complaint also alleges that the law violates their free speech rights and patients' right to medical treatment.  According to Becket Law, the district court quickly granted Bella Health temporary emergency relief and set a hearing on a preliminary injunction while litigation proceeds for April 24. CPR News reports on the lawsuit.

Catholic Media Group Can Move Ahead with Free Speech and Assembly Claims

In St. Michael's Media, Inc. v. Mayor and City Council of Baltimore, (D MD, March 31, 2023), a Maryland federal district court in an 80-page opinion allowed a conservative media organization that often criticizes the current leadership of the Catholic Church to move ahead with free speech and freedom of assembly claims against the city of Baltimore and the management of a city-owned concert venue.  The claims grew out of the cancellation of a contract for plaintiff to hold a conference and prayer rally to coincide with the Fall General Assembly of the U.S. Conference of Catholic Bishops. The court said in part:

St. Michael’s sufficiently alleges viewpoint-based discrimination.... St. Michael’s alleges that defendants cancelled the rally “specifically because they disapproved of the content and viewpoint of the speech that was expected to occur at the rally.”... St. Michael’s asserts that, when Voris spoke with Shea regarding the cancellation, “Shea told Mr. Voris that his office had received reports that St. Michael’s had ‘ties to the January 6 [2021] riot’ at the Capitol building in Washington, D.C.”.... As I acknowledged in granting the preliminary injunction ..., “invocation of the events of January 6, 2021, as horrifying as they were, cannot, without more, serve as a license for the City to dispense with its obligations under the First Amendment.”

The court however dismissed plaintiff's free exercise claim, saying in part:

[T]he Second Amended Complaint “does not raise any plausible suspicion”—even a slight suspicion—that plaintiff’s religious exercise was the “object” of the City’s decision to cancel the rally.

It also dismissed plaintiff's Establishment Clause claim, saying in part:

The only allegation in the SAC asserting City support for the USCCB is that “Shea unilaterally canceled St. Michael’s [sic] contract with SMG because the USCCB told him to.”...  [T]his still does not exhibit a religious preference. St. Michael’s bases this assertion on its belief that “Shea was told by USCCB members that the content of speech during St. Michael’s [sic] rally would be uncomfortable or offensive for the attendants of its Fall General Assembly to hear.”... Yet, the only religious element of the rally identified by St. Michael’s is praying the Rosary. There are no facts alleged to support the claim that defendants chose one religious group over another.

Maker of Religious-Themed Military Dog Tags Can Move Ahead with 1st Amendment Claims Against DoD

In Shields of Strength v. U.S. Department of Defense, (ED TX, March 31, 2023), a Texas federal district court allowed a company that manufactures military personnel "dog tags" to move ahead with certain of its 1st Amendment claims against the military that sought to prevent the company from producing dog tags with Biblical or other religious references near symbols or phrases that the military had registered for trademark protection. DoD regulations provide:

DoD marks may not be licensed for any purpose intended to promote ideological movements, sociopolitical change, religious beliefs (including non-belief), specific interpretations of morality, or legislative/statutory change.

 The court said in part:

If the military does not have meaningful conditions and controls on the licensing of its trademarks, the military may be deemed to have opened a limited public forum for private expression using those marks.... If a public forum were opened, disallowing views that promote religious beliefs would seem a prima facie case of unconstitutional viewpoint discrimination. So defendants’ motion to dismiss the viewpoint-discrimination claims ... is denied....

For purposes of the religious-exercise claims ... the court assumes that any marks not licensed for use on Shields’ dog tags are valid trademarks, used in a way likely to confuse consumers, without a defense to liability (other than religious-exercise rights). The question under Counts 2 and 8 is whether the military’s failure to license that usage violates the Free Exercise Clause or RFRA. 

The answer turns on the same categorization called for by the free-speech challenge.... If the military’s grants of trademark licenses are government speech, then any burden from the military’s licensing choice is justified by the compelling governmental interest that animates trademark law generally and, specifically, a trademark owner’s liberty to decide and control its own vision of a mark’s reputation....

On the other hand, if the military’s program here is so unrestrictive that the military has surrendered any licensing voice—making its licensing program a limited public forum for private speech using the marks—that deficiency also negates the compelling public interest for denying Shields’ ability to use the marks.... 

However, the court refused to issue a preliminary injunction because it found no substantial likelihood of success on the claims.

Church Preschool Challenges California's Anti-Discrimination Rules for Food Program Participants

Suit was filed earlier this month in a California federal district court by a Christian church and its preschool challenging the state's agreement form that was required for participants in the state's Child and Adult Food Care Program. The complaint (full text) in Church of Compassion v. Bonta, (SD CA, filed 3/10/2023), alleges in part:

The new 2022 CDSS PSA required the Church and Dayspring to certify that their management of the CACFP Food Program will be “operated in compliance with all applicable civil rights laws and will implement all applicable non-discrimination regulations....

Because of the Church’s orthodox religious beliefs regarding human sexuality, it was unable to comply with the PSA when it submitted its application for the 2022-2023 year. Specifically, Dayspring signed the PSA statement, but deleted the words “sexual orientation” and “gender identity.”

The complaint alleges that the requirement violates plaintiffs' Free Exercise, Free Speech and Establishment Clause rights. National Center for Law & Policy issued a press release announcing the filing of the lawsuit.

Christain School Sues Over "Poison Pill" Provisions That Exclude It from Maine's Tuition Payment Program

Suit was filed this week in a Maine federal district court by a Christian school challenging 2021 amendments to Maine's Human Rights Act that operate to exclude the school from participating in Maine's tuition payment program for students from districts without public high schools.  The motion for a preliminary injunction (full text) which was filed along with the complaint in Crosspoint Church v. Makin, (D ME, filed 3/27/2023), focuses on provisions in 5 MRSA §4602 that now require schools that participate in the tuition reimbursement program to comply with the sexual orientation and gender identity non-discrimination provisions. Religious schools that do not receive public funding are exempt from that provision. The law also now provides that "to the extent that an educational institution permits religious expression, it cannot discriminate between religions in so doing." Plaintiff characterizes these provisions as "poison pills" that prevent it from participating in the tuition payment program without violating its religious beliefs after the U.S. Supreme Court in Carson v. Makin upheld the right of sectarian schools to participate. Plaintiff seeks a preliminary injunction based on violations of the Free Exercise, Free Speech and Establishment Clauses. Washington Times reports on the lawsuit.

Certiorari Denied in Challenge by Preacher to University's Speaker Permit Rule

The U.S. Supreme Court today denied review in Keister v. Bell, (Docket No. 22-388, certiorarari dened, 3/20/2023). (Order List.) In the case, the U.S. 11th Circuit Court of Appeals rejected a challenge to the University of Alabama's policy that requires a permit in order for a speaker to participate in expressive conduct on University grounds, with an exception for “casual recreational or social activities.” The challenge was brought by a traveling evangelical preacher who, with a friend, set up a banner, passed out religious literature and preached through a megaphone on a campus sidewalk. (See prior posting.) Links to filings with the Supreme Court in the case are available here.  Reuters reports on the Court's action. [Thanks to Thomas Rutledge for the lead.]

Suit Challenges Connecticut's Elimination of Religious Exemption from School Vaccination Requirement

Suit was filed last week in a Connecticut federal district court by a Christian preschool and the church that sponsors it challenging Connecticut's removal of religious exemptions from its statute requiring various vaccinations for preschool children. The complaint (full text) in Milford Christian Church v. Russell-Tucker, (D CT, filed 3/6/2023) alleges that the requirement violates plaintiffs' free exercise, free speech, freedom of association, equal protection, and child rearing rights. It alleges in part:

63. Conn. Gen. Stat. § 10-204a denies a generally available benefit – education– to children if their parents do not abandon their religious beliefs while affording the same benefit to parents and children who assert a medical exemption.

64. Adding insult to injury, Conn. Gen. Stat. § 10-204a prevents parents from seeking alternative education options for their children by applying the same mandate to private schools, daycares, and pre-schools, including those operated by churches and religious organizations.

65. In other words, Conn. Gen. Stat. § 10-204a forces parents to either renounce their religious beliefs and vaccinate their children or homeschool their children– something that many parents cannot do – thus depriving them any educational opportunities.

Christian Post reports on the lawsuit.

Good News Clubs Sue to Get Access for After School Programs

Suit was filed last week in a Rhode Island federal district court by the Good News Clubs contending that their 1st and 14th Amendment rights were violated when Providence, RI school officials blocked approval of their use of school facilities for after-school programs. The complaint (full text) in Child Evangelism Fellowship of Rhode Island, Inc. v. Providence Public School District, (D RI, filed 3/10/2023) alleges in part:

CEF Rhode Island and its proposed Good News Clubs are similarly situated to the other organizations the District allows to host their afterschool programs in District elementary schools because all the organizations provide teaching and activities to develop things like confidence, character, leadership, and life skills in their participants. CEF Rhode Island, however, offers its programming from a Christian religious viewpoint, while the other organizations offer their similar programming from a nonreligious viewpoint....

The increasingly burdensome requirements the District has imposed on CEF Rhode Island as conditions to access for its Good News Clubs are discriminatory and pretextual disguises for the District’s hostility towards CEF Rhode Island’s Christian identity, message, and viewpoint.

Liberty Counsel issued a press release announcing the filing of the lawsuit.

COVID Order Violated Priest's Free Exercise Rights

 In Urso v. Mohammad, (D CT, March 10, 2023), a Catholic priest sued a town's health director over COVID orders that cancelled religious gatherings and congregational prayers. The court concluded that the health Directive violated plaintiff's free exercise rights, but left for trial the question of whether plaintiff suffered an injury, saying in part:

[N]ot all secular businesses in the Town of Orange were closed, and the Directive itself is unquestionably stricter than the Governor’s Executive Orders, which imposed capacity limits on religious institutions in line with those imposed on other secular businesses, and never cancelled all religious services completely.... In Agudath Israel, the Second Circuit applied strict scrutiny when businesses such as retail stores, news media, financial services, and construction were not as restricted as houses of religious worship.... Thus, the Second Circuit has already made the determination there is no meaningful difference between a retail store and a house of worship in terms of COVID-19 risk.... Regardless of how well intentioned it might have been and the difficult circumstances under which it was issued, the Directive “expressly singles out religion for less favored treatment” by subjecting religious services to complete cancellation while not imposing such strict measures on other businesses regardless of their size or the length of time people were gathering there ... and is thus subject to strict scrutiny....

The Court determines therefore as a matter of law both that the Directive is subject to strict scrutiny, and that it fails that scrutiny, thus violating the First Amendment....

The court concluded that plaintiff's equal protection claim is tied to the free exercise claim.  The court found that claims for injunctive and declaratory relief were now moot. It rejected plaintiff's Establishment Clause claim saying that the health directive did not "establish religion or espouse a religious message." It rejected plaintiff's free speech and freedom of assembly claims, relying on the Supreme Court's 1905 decision in Jacobson v. Massachusetts.

Christian University Sues Over Termination of Student Teaching Arraangements

Suit was filed yesterday in an Arizona federal district court by a Christian university alleging that a public school district violated free exercise, free speech and other federal constitutional provisions as well as Arizona law when it terminated the student teacher agreement between the university and the school district.  The complaint (full text) in Arizona Christian University v. Washington Elementary School District No. 6, (D AZ, riled 3/9/2023) alleges in part:

For the last eleven years, Arizona Christian and Washington Elementary School District, the largest elementary school district in Arizona, had a mutually beneficial partnership where students in Arizona Christian’s Elementary Education degree programs would student teach and shadow teachers in the School District....

Despite there being zero complaints about an Arizona Christian student teacher or alumnus, the School District decided to terminate its relationship with Arizona Christian and its students solely because of their religious status and beliefs on biblical marriage and sexuality.

ADF issued a press release announcing the filing of the lawsuit.

UPDATE: A settlement agreement (full text) was reached on May 3, 2023, under which the parties will enter a revised student teacher agreement. World News Group reports on the settlement.

Objectors To Religious Motto on License Plates May Cover the Motto

In Griggs v. Graham, (SD MS, March 2, 2023), plaintiffs objected to the design of the default Mississippi license plates that included the state seal, a part of which was the motto "In God We Trust."  Specialty plates that carry alternative designs are more expensive, and are not available at all for trailers, RVs and motorcycles. The court, relying on the U.S. Supreme Court's 1977 decision in Wooley v. Maynard, refused to require the state to issue separate non-religious license plates, saying in part:

[A]s in Wooley, the Plaintiffs have articulated a violation of their First Amendment free speech rights. They cannot be compelled to display “In God We Trust” on their license plate. 

In Wooley, however, the Supreme Court did not require New Hampshire to create a blank license plate for persons who objected to “Live Free or Die.” No, the remedy in that case was an injunction blocking New Hampshire “from arresting and prosecuting [the Wooleys] at any time in the future for covering over [the objectionable] portion of their license plates... [T]he Supreme Court put the burden of compliance on the objectors—they were allowed to cover up the message—and then enjoined the state criminal law that penalized that action....

In Count II of their Amended Complaint, the Plaintiffs allege that the State has breached its duty of neutrality by elevating persons who believe in God while simultaneously “demonstrat[ing] . . . hostility toward the Plaintiffs and other Mississippi car owners who lack religious beliefs.”...

The Plaintiffs no doubt believe that more recent free exercise cases promise them greater rights to neutrality than this single 1977 case....  [I]f their desire is to overturn Wooley, they will have to seek that relief from a higher court.

10th Circuit: Abortion Clinic Sidewalk Demonstrators Lose Challenge to Disturbing-the-Peace Ordinance

In Harmon v. City of Norman, Oklahoma, (10th Cir., March 1, 2023), the U.S. 10th Circuit Court of Appeals affirmed a trial court's dismissal of challenges to the city's disturbing-the-peace ordinance brought by abortion clinic sidewalk demonstrators who preach to clinic visitors in an attempt to persuade them against abortion. The court said in part:

The demonstrators filed a three-count complaint, seeking relief from the City and Officer Jeff Robertson under 42 U.S.C. § 1983. The complaint asserted as-applied and facial challenges to the ordinance under the Free Speech Clause, Free Exercise Clause, and the Due Process Clause of the U.S. Constitution, and further alleged that Norman failed to train its police officers. The complaint also requested preliminary and permanent injunctions to stop the City from enforcing the ordinance....

We hold that § 15-503(3) is constitutional under the Free Speech Clause as applied to the demonstrators. The demonstrators have not shown that the subsection was content-based, insufficiently tailored, or fatal to their sidewalk ministry....

The district court determined that rational-basis deference applied [to the Free Exercise claim] because the demonstrators presented no evidence that § 15-503(3) was religiously motivated. We agree....

The court went on to conclude that plaintiffs lacked standing to bring facial challenges to several portions of the Ordinance. It also concluded that the Ordinance's ban on "loud or unusual sounds" is not unconstitutionally vague or overbroad.

Christian Teacher Did Not Show That Her Removal Was Retaliation for Protected Speech or Beliefs

In Barr v. Tucker (SD GA, Feb. 21, 2023), a Georgia federal district court denied a preliminary injunction to plaintiff whose position as a substitute elementary school teacher was terminated after she complained to her own children's teachers and to the principal about the school librarian's reading aloud to classes a book that contains illustrations of same-sex couples with school-age children. The court explained:

Plaintiff told Defendant Tucker [the school principal] that she believed the book was '"inappropriate for young children, conflicted with her Christian faith, and appeared to bean effort to indoctrinate young children into a progressive ideological agenda[]" and asked that her children be excused from the read-aloud program.

Plaintiff contended that the school had retaliated against her for her exercising her free speech and free exercise rights. The court disagreed, saying in part:

... Plaintiff's inquiries principally addressed her personal concerns about exempting her children from the read-aloud program, and the context of her speech suggests she spoke on a matter of private or personal interest.

Accordingly ... Plaintiff has failed to establish a substantial likelihood of success in showing she spoke on a matter of public concern .... As a result. Plaintiff has also failed to establish a substantial likelihood of success on the merits of her First Amendment [free speech] retaliation claim....

The Court accepts, as Plaintiff alleges, that her sincerely held religious beliefs include ''that God created marriage to be between one man and one woman, and that family formation should occur within the confines of heterosexual marriage."... However, at this stage. Plaintiff has not established that she is substantially likely to succeed on showing that Defendants substantially burdened her religious beliefs by terminating her.

It is not clear that Defendants called for Plaintiff's removal due to her religious beliefs....

Defendants maintain they removed Plaintiff due to her inappropriately timed interactions with her children's teachers and concern about how she would support students or parents that identify as gay, not because of her beliefs about marriage and family formation.

DOE Proposes to Rescind Trump Administration Rules Shielding Student Religious Groups at Public Colleges

The Department of Education yesterday released a Notice of Proposed Rulemaking (full text) proposing to rescind two related rules adopted by the Trump Administration in September 2020. Those rules require that public colleges and universities which receive DOE grants (either direct grants or grants under state-administered formula grant programs) must not deny to religious student groups any of the rights, benefits, or privileges that other student groups enjoy because of the religious student organization’s beliefs, practices, policies, speech, membership standards, or leadership standards, which are informed by sincerely-held religious beliefs.

According to yesterday's Notice of Proposed Rulemaking:

Some faith-based and civil rights organizations ... worried that [these rules] could be interpreted to require IHEs [institutions of higher education] to go beyond what the First Amendment mandates and allow religious student groups to discriminate against vulnerable and marginalized students....

There is nothing in the regulatory text that clarifies or guarantees that an institution may insist that such religious organizations comply with the same neutral and generally-applicable practices, policies, and membership and leadership standards that apply equally to nonreligious student organizations, including but not limited to nondiscrimination requirements.

The disparity between the language of the regulatory text and the Department’s stated intent has engendered confusion and uncertainty about what institutions must do to avoid risking ineligibility for covered Department grants....

If IHEs do discriminate against religious student organizations on the basis of the organizations’ beliefs or character, such organizations can and do seek relief in Federal and State courts, which have longstanding expertise in and responsibility for protecting rights under the Free Speech and Free Exercise Clauses, including in cases where there are complex, fact-dependent disputes about whether a policy is neutral and generally-applicable.

Daily Citizen critiques the proposal.

The Department of Education yesterday also published a Request for Information on the effect of current free speech protections required of DOE grantees.

Catholic Bookstore Sues Challenging Florida City's Public Accommodation Law

Suit was filed yesterday in a Florida federal district court challenging the constitutionality of applying Jacksonville's public accommodation law to Queen of Angels, a Catholic bookstore. The complaint (full text) in The Catholic Store, Inc. v. City of Jacksonville, (MD FL, filed 2/22/2023) alleges Free Speech, Free Exercise and vagueness claims, saying in part:

Following a disturbing nationwide trend, the City has expanded its public-accommodation law to cover gender-identity discrimination and thereby require businesses to address customers using their preferred pronouns and titles regardless of a customer's biological sex. The law even prevents businesses from publishing "any communication" a customer or government official might subjectively interpret as making someone feel "unwelcome, objectionable, or unacceptable," such as statements opposing gender-identity ideology.

All this in turn puts Jacksonville's law on a collision course with the First Amendment and ... "Queen of Angels"...,.The bookstore also publishes a website (with blog) any YouTube channel to promote its Catholic faith and products.

As a Catholic bookstore, Queen of Angels follows Catholic teachings-- including the belief that God created everyone in His image, male or female, worthy of dignity and respect. The store serves and sells everything to everyone regardless of gender identity. The bookstore just cannot speak contrary to its beliefs-- to affirm, for example, the view that sex can be changed. So the store cannot use customers' pronouns or titles contrary to their biological sex. Queen of Angels must instead profess an ideological view it opposes....  In effect, the law requires this Catholic bookstore to stop being fully Catholic....

ADF issued a press release announcing the filing of the lawsuit.

Cert. Denied in Challenge to Arkansas' Ban on Companies Boycotting Israel

The U.S. Supreme Court yesterday denied review in Arkansas Times LP v. Waldrip, (Docket No. 22-379, certiorari denied 2/21/2023). (Order List.)  In the case, the U.S. 8th Circuit Court of Appeals sitting en banc, in a 9-1 opinion, upheld against a free speech challenge Arkansas' law requiring public contracts to include a certification from the contractor that it will not boycott Israel.  The 8th Circuit held that the law only bans non-expressive commercial decisions. (See prior posting.) JNS reports on the denial of certiorari. Here is the SCOTUSblog case page with links to briefs filed in the case.

Consent Decree on Preliminary Injunction Signed in Pro-Lifers Suit Against National Archives [CORRECTED]

As previously reported, a suit was filed in D.C. federal district court last week against the National Archives after its security officers required three anti-abortion proponents who were visiting the museum to cover their pro-life t-shirts and remove pro-life buttons and hats.   In a press release yesterday, the American Center for Law and Justice announced that the court has signed a consent decree (full text) in the case.  The decree preliminarily enjoins the National Archives from prohibiting visitors from wearing t-shirts, hats, buttons or other attire that displays religious or political speech. In addition, National Archives will provide personal tours and personal apologies to two of the plaintiffs in the case. The National Archives has already issued a press release apologizing for the incident. The case has been referred to the D.C. Circuit's Mediation Program for 90 days to explore a final settlement. Politico reports on the parties' agreement. [Note: An earlier version of this post incorrectly stated that the case had been finally settled.]

Church Can Move Ahead Against County in Suit on Covid Restrictions

 In Abiding Place Ministries v. Newsom, (SD CA, Feb. 14, 2023), a California federal district court allowed a church to move ahead with certain of its claims against San Diego County for enforcing Covid restrictions against public gatherings. The court held that the county's public health officer had qualified immunity against the damage claims because "there was no clear precedent in March or April 2020 that would have put every reasonable official on notice that promulgating orders restricting in person religious gatherings to slow the spread of the COVID-19 virus was clearly and definitively unconstitutional."

The court however allowed plaintiff to move ahead with Free Exercise, Freedom of Assembly, Establishment Clause, Free Speech and Equal Protection claims against the County. The court said in part:

The County threatened enforcement, penalties, and fines if Plaintiff did not comply with the County Order.... Plaintiff alleges this action by the County “forced the Church’s members to remain away from church against their will, under threat of punishment,,,,”  [T]he allegations of the FAC regarding the County’s alleged unconstitutional policy is sufficient overcome the County Defendants’ argument that it cannot be liable under Monell. Accordingly, the County Defendants’ motion to dismiss is DENIED on this ground.....

[The FAC] alleges the County’s Orders and Defendants’ enforcement “had the primary effect of inhibiting religious activity” and caused “excessive government entanglement with religion.” ... Plaintiff contends its religious services exempted from gatherings were treated differently than other public gatherings.... At this stage of the pleadings, the County Defendants’ motion to dismiss the second cause of action is DENIED....

Whatever level of scrutiny is applied, Plaintiff has alleged they were prohibited from engaging in protected speech and assembling in person for the purpose of worship while other gatherings promoting non-religious speech were permissible.... Taking those allegations as true, Plaintiff has plausibly alleged claims for violations of the First Amendment’s freedom of speech and freedom of assembly clauses....

Plaintiff contends Defendants “intentionally and arbitrarily categorized individuals and conduct as either ‘essential’ or ‘non-essential.’”... At the pleading stage, Plaintiff has alleged sufficient facts to state a claim for violation of the Equal Protection clause....

New York's Hateful Conduct Law Violates 1st Amendment

 In Volokh v. James, (SD NY, Feb. 14, 2023), a New York federal district court issued a preliminary injunction barring enforcement of New York's Hateful Conduct Law against social media platforms that are plaintiffs in the case. The court found that plaintiffs were likely to succeed in both their facial and their "as applied" free speech challenges. The law defines hateful conduct as:

the use of a social media network to vilify, humiliate, or incite violence against a group or a class of persons on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.

It goes on to provide:

 A social media network that conducts business in the state, shall provide and maintain a clear and easily accessible mechanism for individual users to report incidents of hateful conduct. Such mechanism shall be clearly accessible to users of such network and easily accessed from both a social media networks' application and website, and shall allow the social media network to provide a direct response to any individual reporting hateful conduct informing them of how the matter is being handled.

Each social media network shall have a clear and concise policy readily available and accessible on their website and application which includes how such social media network will respond and address the reports of incidents of hateful conduct on their platform.

The court concluded in part:

The Hateful Conduct Law both compels social media networks to speak about the contours of hate speech and chills the constitutionally protected speech of social media users, without articulating a compelling governmental interest or ensuring that the law is narrowly tailored to that goal....

[T]he law requires that social media networks devise and implement a written policy—i.e., speech....

Similarly, the Hateful Conduct Law requires a social media network to endorse the state’s message about “hateful conduct”.... To be in compliance ..., a social media network must make a “concise policy readily available and accessible on their website and application” detailing how the network will “respond and address the reports of incidents of hateful conduct on their platform.”... Implicit in this language is that each social media network’s definition of “hateful conduct” must be at least as inclusive as the definition set forth in the law itself....

[Thanks to Volokh Conspiracy for the lead.]