Anti-SLAPP Motion Denied In Suit Against Archdiocese Over Priest's Molestation of Children

In Ratcliff v. Roman Catholic Archbishop of Los Angeles, (CA App., May 19, 2022), a California state appellate court affirmed the denial of an anti-SLAPP motion sought by the Los Angeles Archdiocese.  The court explained:

Seven adults allege they were molested by a priest when they were children. They brought suit against The Roman Catholic Archbishop of Los Angeles and related entities ..., alleging defendants were vicariously liable for ratifying the molestation and directly liable for their own negligence in failing to supervise the priest, and related acts and omissions. The Archdiocese moved to strike the operative complaint under the anti-SLAPP law (Code Civ. Proc., § 425.16), arguing that some of the acts by which it purportedly ratified the molestation or acted negligently constituted speech or litigation conduct protected by the anti-SLAPP statute....

The court concluded however that:

The Archdiocese, both in its anti-SLAPP motion before the trial court, and in its briefing on appeal, goes to great lengths to overlook the actual allegations of ratification, namely the acts of failing to investigate and supervise (and, instead, transferring to different parishes)... 

The four purported negligence claims identified by the Archdiocese have one key factor in common: they are all based on a decision not to speak, not speech itself.... We conclude the failure to speak alleged as a basis for liability here is not conduct in furtherance of the right of free speech.

Tribe Is Required Party In Challenge To Directive On Repatriation of Native American Remains

 In Weiss v. Perez, (ND CA, May 10, 2022), a California federal district court dismissed a suit brought by a San Jose State University anthropology professor who objects to the University president's directive that denied her access to Native American remains housed at the University. The directive was issued to prepare the remains for repatriation to the Muwekma Ohlone Tribe. Plaintiff, Prof. Elizabeth Weiss is an opponent of repatriation. The court held in part:

The Court finds that the Muwekma Ohlone Tribe is a required party under Rule 19 to adjudication of Professor Weiss’s claims about the Directive. Because the Tribe has sovereign immunity from suit and thus cannot be joined, Professor Weiss’s claims regarding the Directive must be dismissed with prejudice. The Court will, however, give Professor Weiss leave to amend her complaint as to her allegations about retaliation in the form of restricting access to and use of non-Native American remains and retaliation for her protected speech as it may pertain to her teaching and curational responsibilities.

Unanimous Supreme Court Says Boston Violated Free Speech Clause In Barring Christian Flag Outside City Hall

In Shurtleff v. City of Boston, (Sup.Ct., May 2, 2022), the U.S. Supreme Court held unanimously that Boston violated the free speech rights of Camp Constitution when it refused to allow it to briefly fly a Christian flag on a third flagpole outside city hall which private groups have used to fly flags of their choice for ceremonies. In the past, the city had approved some 50 different flags and had never before refused a request. Boston contended that the flag was government speech and cited Establishment Clause concerns in barring the Christian flag. The Court rejected that contention, saying in part:

We conclude that, on balance, Boston did not make the raising and flying of private groups’ flags a form of government speech. That means, in turn, that Boston’s refusal to let Shurtleff and Camp Constitution raise their flag based on its religious viewpoint “abridg[ed]” their “freedom of speech.”

Justice Breyer wrote the majority opinion which was joined by Chief Justice Roberts and Justices Sotomayor, Kagan, Kavanaugh and Barrett. Justice Kavanaugh also filed a concurring opinion. Justice Alito, joined by Justices Thomas and Gorsuch filed an opinion concurring only in the judgment, saying in part:

...I cannot go along with the Court’s decision to analyze this case in terms of the triad of factors—history, the public’s perception of who is speaking, and the extent to which the government has exercised control over speech.... [T]reating those factors as a test obscures the real question in government-speech cases: whether the government is speaking instead of regulating private expression.

Justice Gorsuch, joined by Justice Thomas, filed a concurring opinion saying in part:

Not a single Member of the Court seeks to defend Boston’s view that a municipal policy allowing all groups to fly their flags, secular and religious alike, would offend the Establishment Clause.

How did the city get it so wrong? To be fair, at least some of the blame belongs here and traces back to Lemon v. Kurtzman, 403 U. S. 602 (1971)....

To justify a policy that discriminated against religion, Boston sought to drag Lemon once more from its grave. It was a strategy as risky as it was unsound. Lemon ignored the original meaning of the Establishment Clause, it disregarded mountains of precedent, and it substituted a serious constitutional inquiry with a guessing game. This Court long ago interred Lemon, and it is past time for local officials and lower courts to let it lie.

More Context Needed In Student's Suit Over Right To Wear Shirt With Anti-Gay Bible Verse

In B.A.P. v. Overton County Board of Education, (MD TN, April 27, 2022), a Tennessee federal district court refused to dismiss a suit challenging on free exercise and free speech grounds a school's disciplining of a student who refused to take off a shirt that read: "homosexuality is a sin - 1 Corinthians 6:9-10." The court said in part:

 "[T]o justify prohibition of a particular expression of opinion" under Tinker, a school must show that it acted out of '"more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint,' but rather, 'that the school authorities had reason to anticipate that the [student’s expression] would substantially interfere with the work of the school or would impinge upon the rights of other students.'"...

Here, an adequate analysis of B.A.P.’s First Amendment claims ... requires a more developed record than is available on a motion to dismiss. ....

Plaintiffs allege that Henson removed B.A.P. from class due to the message on her shirt, Melton did not allow her to return to class because of this message, and both Melton and Henson told B.A.P. she could not wear the shirt to school going forward. The Amended Complaint does not, however, supply specific facts and context about Livingston Academy and the surrounding community at the time Melton and Henson took these actions. Without this context, the Court cannot determine whether Melton and Henson reasonably forecasted that the message on B.A.P.’s shirt would cause substantial disruption or interference with the rights of other students. Accordingly, B.A.P.’s First Amendment claims against Melton and Henson will not be dismissed for failure to state a claim.

CLS Members Sue University Of Idaho Over No-Contact Orders

Three members of the Christian Legal Society at the University of Idaho filed suit against University administrators on Monday contending that the University's Title IX Policy and Conduct and Discipline Policies, facially and as applied to them violate their free speech, free exercise and due process rights.  The complaint (full text) in Perlot v. Green, (D ID, filed 4/25/2022) alleges that the University's Office of Civil Rights and Investigations issued "no contact" orders against the three students barring the from having contact with another student with whom they had had a discussion about Christian views on sexuality and marriage. ADF issued a press release announcing the filing of the lawsuit.

Prayer At The 50-Yard Line: SCOTUS Hears Football Coach's Case This Morning

This morning, the U.S. Supreme Court will hear oral arguments in Kennedy v. Bremerton School District. In the case, the U.S. 9th Circuit Court of Appeals upheld a high school's actions against a football coach who insisted on praying at the 50-yard line immediately after football games. The coach was placed on paid administrative leave and given negative performance reviews. He did not reapply to coach the following year. A divided 9th Circuit denied en banc review. (See prior posting.) Amy Howe at SCOTUSblog previews the case, saying in part:

... Kennedy and the school district disagree not only about the legal issues and their implications, but also about many of the facts, including exactly why Kennedy lost his job. Kennedy says he was fired for briefly and privately praying at midfield; Laser and the school district counter that he was suspended for “refusing to stop holding public prayers at the 50-yard line,” which created both pressure for students to join him and “genuine safety concerns for students on the fields because of the spectacle that ensued from his media outreach on praying.”

The SCOTUSblog case page has links to the filings in the case, including the dozens of amicus briefs that have been submitted. Live audio of the oral arguments, which begin at 10:00 AM, will be available at this link. When the transcript and recording of the oral arguments become available later today, I will update this post with links to them.

UPDATE Here are links to the transcript and audio of the oral arguments.

$400,000 Settlement In Favor Of Prof Who Refused To Recognize Student's Gender Transition

After the U.S. 6th Circuit Court of Appeals in 2021 held that Shawnee State University violated the free speech and free exercise rights of a philosophy professor when the school insisted that Professor Nick Meriwether address a transgender student by her preferred gender pronoun, a settlement has been reached in the case. According to a press release from ADF, the university agreed to pay $400,000 in damages plus attorneys' fees. Also, according to the press release:

As part of the settlement, the university has agreed that Meriwether has the right to choose when to use, or avoid using, titles or pronouns when referring to or addressing students. Significantly, the university agreed Meriwether will never be mandated to use pronouns, including if a student requests pronouns that conflict with his or her biological sex.

A stipulation of voluntary dismissal was filed yesterday in Meriwether v. Trustees of Shawnee State University, (SD OH filed 4/14/2022).

Plaintiff's Ban From Space Center Upheld

In Duvall v. United States Space and Rocket Center, (ND AL, April 11, 2022) an Alabama federal district court dismissed claims that plaintiff's free exercise, free speech and freedom of assembly rights were violated when he was banned from the Space Center's property. The ban was imposed after plaintiff was trying at the Center "to bust open Seal No. 7 of the Holy Bible.”

Ban On Prayer Over PA System At High School Playoffs Did Not Violate 1st Amendment

In Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc., (MD FL, March 31, 2022), in a case on remand from the 11th Circuit, a Florida federal district court held that the Florida High School Athletic Association did not violate the 1st Amendment rights of a Christian school when it refused to allow it to broadcast a pre-game prayer over the PA system at a state championship playoff against another Christian school. The court said in part:

This case is not about whether two Christian schools may pray together at a football game....  [P]layers and coaches from both teams, along with some officials, met at the 50-yard line of the Citrus Bowl to pray together before the game and again on the sidelines after the game.... But they were not permitted to deliver their prayer over the PA system during the pregame....

Addressing plaintiff's free speech claims, the court said in part:

[P]regame speech over the PA system at the championship finals football game hosted by the FHSAA at a state-owned venue is government speech....

Even if some of the speech conducted over the PA system at the 2015 2A State Championship Final football game could be classified as private speech, the FHSAA’s viewpoint neutral regulation of the speech in the nonpublic forum was not unconstitutional....

Here, no one else was permitted to speak over the PA system during the pregame except the announcer, and pursuant to a predetermined script, which did not include speech and viewpoints of other groups, organizations, or religions....

Also, rejecting free exercise claims, the court said in part: 

On the facts of this case, the Court concludes that communal pregame prayer over the PA system is a preference of CCS’s, not a deeply rooted tradition that rises to the level of a sincerely held belief.

Ban On Proselytizing At City Farmers Market Violates Free Speech Rights

In Denton v. City of El Paso, (WD TX, March 29, 2022), a Texas federal magistrate judge concluded that plaintiff's free speech rights were violated by a policy of the city whose Museums and Cultural Affairs Department refused to allow Plaintiff to proselytize at the Downtown Art and Farmers Market.  The city's policy barred First Amendment expression and religious proselytizing within and during the Market. The magistrate judge recommended granting of nominal damages and injunctive relief.

Certiorari Denied In Synagogue Picketing Case

Last week, the U.S. Supreme Court denied review in Brysk v. Herskovitz, (Docket No. 21-1024, certiorari denied 3/21/2022). (Order List). In the case, the U.S. 6th Circuit Court of Appeals dismissed a suit by synagogue members against anti-Israel pickets who have picketed services at the Beth Israel Synagogue in Ann Arbor, Michigan every week since 2003.  A majority held that the picketers were protected by the First Amendment. (See prior posting).

11th Circuit Rejects Preacher's Challenge To Campus Permit Requirement

In Keister v. Bell, (11th Cir., March 25, 2022), 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. The court concluded that the sidewalk was a limited public forum, even if it was technically owned by the city rather than the University. Thus the University could impose reasonable, viewpoint neutral restrictions. It also concluded that the exception for "casual ... activities" was not unconstitutionally vague and that the University's advance notice requirement was constitutional.

Anti-Abortion Protesters Can Move Ahead With Challenge To COVID Order

 In Global Impact Ministries, Inc. v. City of Greenspboro, (MD NC, March 16, 2022), a North Carolina federal district court allowed plaintiffs who were anti-abortion protesters, to move ahead with their free speech, freedom of association, equal protection, due process and 4th Amendment claims.  Plaintiffs allege that the city's COVID stat-at-home order was enforced to bar them from walking, praying, and counseling outside of an abortion clinic while others who were not praying or engaging in religious speech were allowed to walk in the area. The court did dismiss plaintiffs' free exercise claim, finding that the COVID order was neutral and generally applicable.

Christian Student Sues His High School For Bullying and Harassment

 Suit was filed last week in a Florida federal district court by a Christian high school student against his public charter school alleging bullying and harassment by students, reinforced by the school, because he regularly brought a Bible to school and read it during his free time.  The complaint (full text) in Ortiz v. Mater Academy, Inc., (SD FL, filed 2/28/2022) summarizes the allegations as follows:

Nicholas Ortiz, a 14-year-old freshman, was discriminated and retaliated against by his high school, Mater Academy, because he is a Christian. Nicholas repeatedly made the school aware of a pattern of pervasive bullying by his fellow students, bullying that was reinforced by the words and actions of the school. Yet the school did not just sweep Nicholas's bullying claims under the rug-- failing to report them as required under the law-- they retaliated against Nicholas for reporting the harassment.... The school validated the despicable false rumors about Nicholas being broadcast on social media, [and] denied Nicholas due process....

The 57-page complaint sets out in detail the instances of bullying and harassment, including fellow-students ripping pages from his Bible. Numerous social media postings are reproduced in the complaint. The complaint alleges 1st and 14th Amendment violations as well as various state law claims. Christian Headlines reports on the lawsuit.

Pro-Life Demonstrators Have Free Exercise Claim After Arrest For Violating COVID Order

In Global Impact Ministries v. Mecklenburg County, (WD NC, March 1, 2022), a North Carolina federal district court allowed pro-life demonstrators who were arrested for violating a county-city COVID stay-at-home order to move ahead with their free exercise, but not their free speech, claim for nominal damages. Discussing the free exercise claim, the court said in part:

Until fairly recently, the Supreme Court’s Free Exercise jurisprudence was highly deferential to COVID-19 regulations that burdened religion.... That deference changed dramatically with the Supreme Court’s decisions in Roman Catholic Diocese v. Cuomo ... and Tandon v. Newsom....

Plaintiffs allege that the Proclamation precluded them from engaging in pro-life activities, which Plaintiffs believe are a form of religious ministry.... They allege that shoppers at Home Depot were exempted from gathering limits, while their religiously motivated gatherings were prohibited.... Those activities are comparable for purposes of the Free Exercise analysis.... Because shopping indoors is likely to present greater risk for spreading COVID-19 than socially distanced sidewalk advocacy, strict scrutiny must apply here....

Moving to the free speech claim, the court said in part:

Defendant Mecklenburg County argues that the Proclamation was a valid content-neutral time, place, and manner restriction.... The Court agrees....

There is admittedly an obvious logical incongruity in finding that the Proclamation was not content-neutral for purposes of the free exercise claim, but content-neutral for purposes of the free speech claim. But neither the Supreme Court nor the Fourth Circuit has applied Tandon’s modified approach to content neutrality outside of the context of free exercise claims.

Suit Challenges Latest Application Of Vermont Town Tuition Program

Suit was filed last week in a Vermont federal district court challenging the manner in which the state administers its Town Tuition Program that provides tuition reimbursement for students from towns that do not have their own public high schools. Reimbursement is available for attendance at private or out-of-district public high schools.  The complaint (full text) in Plaintiff E. W. v. French, (D VT, filed 2/24/2022), alleges that the state's current policy:

requires school districts to collect information on private religious schools' religious activity and to reduce or deny tuition benefits to account for religious schools' "religious worship" or "religious education."

The suit contends that this violates plaintiffs free exercise, free speech, Establishment Clause and due process rights, saying in part:

Defendants have no legitimate interest in enacting a greater separation of Church and State than is provided by the Establishment Clause of the First Amendment to the United States Constitution.

The Town Tuition Program has been the subject of extensive prior litigation. (See prior posting.) ADF issued a press release announcing the filing of the lawsuit.

Christian Doctors Challenge California Assisted Suicide Provisions

An organization of Christian healthcare professionals and one of its members filed suit yesterday in a California federal district court challenging the current version of California's End of Life Options Act (EOLA) on free exercise, free speech, due process and equal protection grounds. The complaint (full text) in Christian Medical & Dental Associations v. Bonta, (CDCA, filed 2/22/2022), alleges that changes made to EOLA last year by SB 380 remove previous protections and now require doctors to participate in assisted suicide in violation of their religious beliefs. It contends that SB 380 requires objecting physicians to:

a. Document the date of a patient’s initial assisted-suicide request, which counts as the first of two required oral requests;
b. Transfer the records ... to a subsequent physician who may complete the assisted suicide;
c. Diagnose whether a patient has a terminal disease, inform the patient of the medical prognosis, and determine whether a patient has the capacity to make decisions, all of which are statutorily required steps toward assisted suicide;
d. Provide information to a patient about the End of Life Options Act;
e. Provide a requesting patient with a referral to another provider who may complete the assisted suicide.

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

Supreme Court Grants Review In Case Of Website Designer Who Refuses Same-Sex Wedding Customers

The U.S. Supreme Court today granted review in 303 Creative LLC v. Elenis, (certiorari granted, 2/22/2022) (order List). The grant of certiorari was limited to the question of "Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment."  In the case, the U.S. 10th Circuit Court of Appeals upheld the application of Colorado's Anti-Discrimination Act to a wedding website design company whose owner for religious reasons refuses to create websites that celebrate same-sex marriages. It said that the 1st Amendment allows the state to ban speech that promotes unlawful conduct, including unlawful discrimination. (See prior posting.) Here is the SCOTUSblog case page with links to briefs in the case.

Georgia Legislature Passes Revised Anti-Boycott of Israel Bill

On January 27, the Georgia legislature gave final passage to House Bill 383 (full text). The bill enacts a revised version of the state's law on participation in boycotts of Israel in reaction to a federal district court's decision last year holding the prior version unconstitutional on free speech grounds. (See prior posting). Like the original version, the new bill requires companies contracting with the state to certify that they are not currently engaged in a boycott of Israel and will not do so during the contract.  The new bill, however, applies only to companies and not to individuals, and applies only to state contracts of $100,000 or more. In a Jan. 31 press release, CAIR said that if the bill is signed by the governor, it will again challenge it in court.

Cert. Filed In Synagogue Picketing Case While Plaintiffs Are Ordered To Pay $158K Attorneys' Fees Of Picketers

A petition for certiorari (full text) was filed recently in Brysk v. Herskovitz, (Sup. Ct., filed Jan. 19, 2022). In the case, the U.S. 6th Circuit Court of Appeals dismissed a suit by synagogue members against anti-Israel pickets who have picketed services at the Beth Israel Synagogue in Ann Arbor, Michigan every week since 2003.  A majority held that the picketers were protected by the First Amendment. (See prior posting.)

Meanwhile, a Michigan federal district court ordered plaintiffs in the case to pay defendants' attorneys' fees of $158,721.75. Gerber v. Herskovitz, (ED MI, Jan. 25, 2022). The court said in part:

The Court is aware that awarding attorney fees to defendants under §1988 may have a chilling effect on the willingness to bring legitimate civil rights claims, and it acknowledges that “awarding attorney fees against a nonprevailing plaintiff in a civil rights action is ‘an extreme sanction, and must be limited to truly egregious cases of misconduct.’” ... However, this is that rare case where such an award is appropriate and warranted. Plaintiffs failed to allege a basic element for each of their claims; their claims were groundless from the outset. As Judge Clay observed, it is “clear that [Plaintiffs brought] this suit to ‘silence a speaker with whom [they] disagree,’” which the First Amendment does not permit....

MLive and JTA report on the decision.