Suit Challenges Illinois Requirements for Insurance Policies to Cover Abortions

Suit was filed yesterday in an Illinois federal district court challenging on both constitutional and federal statutory grounds Illinois statutes that requires health-insurance policies to cover elective abortions on the same terms as other pregnancy-related benefits and to cover, without co-pays, abortion inducing drugs. The complaint (full text) in Students for Life of America v. Gillespie, (ND IL, filed 11/20/2024), alleges that these provisions violate free exercise rights, the right of expressive association, the federal Comstock Act, the Coates-Snow Amendment and the Weldon Amendment. Thomas More Society issued a press release announcing the filing of the lawsuit.

Parents Sue California High School Alleging Long History of Tolerating Antisemitism

Suit was filed last week in a California federal district court by parents of six high school students in the Sequoia Union High School District charging the high school with tolerating antisemitism expressed by students and teachers.  The complaint (full text) in Kasle v. Puttin, (ND CA, filed 11/15/2024), alleges in part:

SUHSD has a long history of tolerating casual antisemitism on its campuses.  Students and faculty have openly joked about Nazis and the Holocaust, while certain teachers have peddled antisemitic falsehoods about Middle East history without facing consequences.  District leadership has consistently turned a blind eye to such behavior.  SUHSD’s antisemitism problem worsened significantly after October 7, 2023, when Hamas—a U.S.-designated terrorist organization—invaded southern Israel and then mutilated, raped, and murdered more than 1,200 people.  Although quick to address other global injustices, SUHSD remained conspicuously silent about this historic massacre of Jews, contradicting the District’s professed commitment to equity....

The 64-page complaint alleges violation of Title VI, of the 1st and 14th Amendments as well as of parallel provisions of California law and asks for an injunction in part:

prohibiting Defendants’ discriminatory and harassing treatment of Plaintiffs in violation of Plaintiffs’ constitutional and statutory rights; 

prohibiting the District, its employees, agents, and representatives from engaging in any form of antisemitic behavior or conduct, including, but not limited to, verbal, written, or physical actions that demean, harass, or discriminate against individuals based on their Jewish identity or their identification with and commitment to Israel;

ordering the District to adopt and implement a clear and comprehensive policy specifically addressing antisemitism, as defined by the International Holocaust Remembrance Alliance’s Working Definition of Antisemitism....

It also asks the court to appoint a Special Master to monitor the district's implementation of policies against antisemitism. 

Ropes & Gray issued a press release announcing the filing of the lawsuit. 

7th Circuit Vacates Injunction Against Indiana's Ban on Gender Transition Treatment for Minors

In K.C. v. Individual Members of the Medical Licensing Board of Indiana, (7th Cir., Nov. 13, 2024), the U.S. 7th Circuit Court of Appeals in a 2-1 decision reversed a federal district court's preliminary injunction against Indiana's ban on non-surgical gender transition procedures for minors. Rejecting the district court's conclusion that the treatment ban violates the Equal Protection Clause, the 7th Circuit majority held that the law need only meet the rational basis test. The court said in part:

The only way SEA 480 implicates sex at all is that the medical treatment at issue is sex specific—it denies each sex access to the other’s hormones. A physician could, if not for SEA 480, prescribe two medical treatments: one exclusively to girls with gender dysphoria—testosterone; and one exclusively to boys with gender dysphoria—estrogen.....

When a state regulates a “medical procedure that only one sex can undergo,” the courts apply rational-basis review “unless the regulation is a ‘mere pretex[t] designed to effect an invidious discrimination against members of one sex or the other.’”...

Bostock does not apply to every use of the word “sex” in American statutory and constitutional law. The case decided an interpretive question about Title VII’s reach. Title VII does not apply here, so neither does Bostock.

The majority also rejected the claim that the Indiana law violates the Due Process right of parents to make medical decisions for their children because it does not carve out an exception for treatment when a parent consents. The majority said in part:

SEA 480 is supported by a rational basis.... [P]rotecting minor children from being subjected to a novel and uncertain medical treatment is a legitimate end. And if Indiana had included a parental-consent provision, the exception would swallow the rule...

Finally the majority rejected the claim that the statute's ban on aiding and abetting violates physicians' free speech rights, saying in part:

... [W]hen the physicians and the state do not see eye-to-eye on treatment—and when the state validly regulates that treatment—the state must be able to preclude its physicians from using their authority to help the state’s citizens access the treatment. Otherwise, the physicians would hold a veto over the state’s power to protect its citizens. SEA 480’s secondary liability provision covers unprotected speech, and it reasonably relates to its primary liability provision, which itself is a reasonable regulation.

Judge Jackson-Akiwumi filed a dissenting opinion focusing primarily on the ban on Indiana physicians assisting minors in obtaining treatment in other states, saying in part:

The majority opinion holds that, insofar as the aiding and abetting provision regulates speech, it reaches only unprotected speech—either speech integral to unlawful conduct or speech incidental to regulated conduct. Our law, however, defies both conclusions....

So, Indiana can realize its objectives by enacting a law and punishing those who violate it; it cannot accomplish its objectives by punishing speech that somehow relates to the purpose of a state law, yet amounts to no criminal or civil primary violation.

ADF issued a press release announcing the decision.

6th Circuit Grants En Banc Rehearing in Challenge to School's Ban on Misgendering Fellow Students

In Parents Defending Education v. Olentangy Local School District, (6th Cir., Nov. 1, 2024), the U.S. 6th Circuit Court of Appeals sitting en banc vacated a decision issued in July by a 3-judge panel (see prior posting) and granted a rehearing en banc in a free speech challenge to a school district's anti-bullying and anti-harassment policies. At issue are policies that prohibit students from using pronouns that are inconsistent with another student’s gender identity if the use amounts to harassment. In a 2-1 decision in July, the panel rejected the challenge saying in part that "[T]he District’s position that students may communicate their belief that sex is immutable through means other than the use of nonpreferred pronouns, indicate that the District is not attempting to prohibit any viewpoints."

George Mason Law Students Sue Claiming "No-Contact" Order Violates Their Free Speech and Free Exercise Rights

Suit was filed last week in a Virginia federal district court by two Christian female law students at George Mason University contending that a "no-contact" order issued against them by the University's DEI Office violates their free speech and free exercise rights. The complaint (full text) in Ceranksoky v. Washington, (ED VA, filed 11/1,2024), relates that plaintiffs were ordered to avoid contact, including through social media, with a classmate (identified in the complaint only as Mr. Doe) who is the Law School's representative on the Graduate and Professional Studies Assembly. Through an online chat platform, Mr. Doe proposed having hygiene products available in men's rest rooms as well as in women's in order to accommodate transgender men. According to the complaint:

5. [Plaintiff posted] ... her concern that if GMU adopted a policy “allow[ing] biological females into male restrooms to access period products as ‘trans men,’” then that would mean “female bathrooms will welcome male occupants.” She asked her classmate to “recognize the concerns of biological female students” and how they would feel “considerably uncomfortable if there are males using private women’s spaces on campus.” She noted that “[w]omen have a right to feel safe in spaces where they disrobe.” ...

7. Their classmate, who had claimed to be their representative to the student government and initially promised to “advocate for all” students and viewpoints, responded by mocking their concerns and labeling their views as bigoted for questioning others’ gender identity. 

8. Two weeks later ... [plaintiffs] received no-contact orders from GMU’s Office of Diversity, Equity, & Inclusion (“DEI Office”), prohibiting them from having any contact with their classmate....

152....  Defendants have singled out Plaintiffs’ expression and prevented them from engaging in religious expression with Mr. Doe.

153. Defendants’ no-contact orders have also chilled Plaintiffs from engaging in religious expression with other students at the Law School or the rest of GMU....

175.  Plaintiffs are motivated by their sincerely held religious beliefs to speak on-campus on many topics from a Christian worldview. Plaintiffs believe their on-campus speech is a way to share the Gospel of Jesus Christ with non-Christians and a way to disciple and equip other Christians on campus to grow and mature in their faith.

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

7th Circuit Hears Oral Arguments Challenging Schol's Derecognition of "Students For Life" Club

On Tuesday, the U.S. 7th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in E. D. v. Noblesville School District, (7th Cir., Docket No. 24-1698), In the case (E.D. v. Noblesville School District, SD IN, March 15, 2024), an Indiana federal district court dismissed various First Amendment and other claims against a school district and district officials who derecognized a high school Students For Life Club on the ground that it was not entirely run by students.  The derecognition followed lengthy discussions over the club's advertising flyers. ADF issued a press release announcing the oral arguments.

Volunteer Prison Minister's Challenge to Requirements for Addressing LGBTQ Inmates Is Rejected

In Kuenzi v. Reese, (D OR, Oct. 28, 2024), an Oregon federal district court rejected 1st Amendment challenges to an Oregon prison system rule requiring volunteers in prison facilities to sign an acknowledgement statement that calls for volunteers to use appropriate gender pronouns when addressing transgender, intersex and non-binary adults in custody.  Plaintiff, a former volunteer Christian minister in a women's correctional facility, contends that this requirement conflicts with her free exercise and free speech rights. She is no longer allowed to minister at the prison facility without signing the statement which conflicts with her religious belief that gender is an immutable characteristic determined by biology, and that homosexual conduct is sinful. The court concluded that the prison policy is neutral and generally applicable and that:

... the policy is rationally related to ODOC’s legitimate interest in “promot[ing] a respectful environment that reinforces prosocial norms for ODOC’s AICs.” 

It also concluded that:

Because Plaintiff was speaking as an employee and not as a private citizen, her speech falls outside the protections of the First Amendment.

Florida Enjoined from Threatening Legal Action Against Broadcasters Airing Pro-Abortion Rights Ads

 In Floridians Protecting Freedom, Inc. v. Ladapo, (ND FL, Oct. 17, 2024), a Florida federal district court issued a temporary restraining order barring the head of the Florida Department of Health from continuing to threaten legal proceedings against television stations broadcasting plaintiff's ads which favor Florida's abortion rights amendment that appears on the November ballot. The Department of Health's general counsel sent letters to Florida television stations contending that the ads constituted a sanitary nuisance under Florida Statutes Sec. 386.01. The statute defines a statutory nuisance as anything "by which the health or life of an individual ... may be threatened or impaired." The court said in part:

Plaintiff’s political advertisement is political speech—speech at the core of the First Amendment. And just this year, the United States Supreme Court reaffirmed the bedrock principle that the government cannot do indirectly what it cannot do directly by threatening third parties with legal sanctions to censor speech it disfavors. The government cannot excuse its indirect censorship of political speech simply by declaring the disfavored speech is “false.” “The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion.” ...

By threatening criminal proceedings for broadcasting a “political advertisement claiming that current Florida law does not allow physicians to perform abortions necessary to preserve the lives and health of pregnant women,” ... Defendant has engaged in viewpoint discrimination....

Whether it’s a woman’s right to choose, or the right to talk about it, Plaintiff’s position is the same—“don’t tread on me.” Under the facts of this case, the First Amendment prohibits the State of Florida from trampling on Plaintiff’s free speech.

Religious College Sues Georgia Seeking Inclusion in State Grant and Scholarship Programs

Yesterday suit was filed in a Georgia federal district court challenging the constitutionality of excluding Luther Rice College and Seminary from state scholarship and grant programs for students attending private colleges. Georgia law excludes schools or colleges of theology or divinity. The complaint (full text) in Luther Rice College and Seminary v. Riley, (ND GA, filed 10/15/2024), alleges in part:

9. Georgia allows other religious schools—including schools with religious missions that offer religious undergraduate degree programs like Luther Rice—to participate in Georgia student aid programs....

11. If Luther Rice did not have a religious mission, offer religious degree programs, and teach all courses from a Christian worldview, its undergraduate students could receive Georgia student aid.

12. So Luther Rice faces a choice between (a) maintaining its religious mission and degree programs and teaching all courses from a Christian worldview, or (b) giving up that religious character and exercise to participate equally with other schools in the State.

13. Putting the school to that choice is unconstitutional....

Plaintiffs allege that the exclusion violates the free exercise and Establishment Clauses, the equal protection clause and plaintiff's free expression rights. ADF issued a press release announcing the filing of the lawsuit.

U.S. Supreme Court Opens New Term with Cert. Denials; Red Mass Yesterday

The U.S. Supreme Court's new term began today. Yesterday in Washington the annual Red Mass marking the opening of the Supreme Court's new term-- hosted by the D.C. Archdiocese and the John Carroll Society-- was held at the Cathedral of St. Matthew the Apostle. (Video of full Red Mass). According to the Washington Post, Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett were in attendance.

Today, the Supreme Court issued its typical very lengthy first Order List of the Term, denying review in several hundred cases.  Among them were:

Becerra v. State of Texas, (Docket No. 23-1076, certiorari denied 10/7/2024). In the case, the U.S. 5th Circuit Court of Appeals affirmed an injunction issued by a Texas federal district court barring enforcement of a Guidance document on emergency abortion care issued by the Department of Health and Human Services. (See prior posting.) The HHS Guidance to hospitals (and accompanying Letter) stated that the federal Emergency Medical Treatment & Labor Act requires hospital emergency rooms to perform certain abortions, even when they violate Texas law, when an abortion is the stabilizing treatment necessary to resolve an emergency medical condition. AP reports on the denial of review.

Young Israel of Tampa v. Hillsborough Regional Transit, (Docket No. 23-1276, certiorari denied 10/7/2024). In the case, the U.S. 11th Circuit Court of Appeals held unconstitutional a public transit agency's policy on the sale of advertising space on its vehicles and property.  (See prior posting.) The agency prohibited ads that "primarily promote a religious faith or religious organization." Applying this policy, the transit agency rejected an ad from plaintiff promoting a "Chanukah on Ice" event.

Hile v. State of Michigan, (Docket No. 23-1084, certiorari denied 10/7/2024). In the case, the U.S. 6th Circuit Court of Appeals held that an amendment placed in the Michigan Constitution in 1970 that prohibits public funds from being used to aid private or religious schools does not violate the equal protection rights of parents who cannot use Michigan Educational Savings Program to send their children to religious schools. (See prior posting.) The Hill reports on the Supreme Court's action.

Pregnancy Centers Sue California AG To Stop Enforcement of Business Fraud Statutes Against Them

Suit was filed last week in a California federal district court by a California anti-abortion pregnancy center and a Christian organization of pregnancy centers challenging the California attorney general's attempts to apply the state Business Fraud statutes to plaintiffs' promotion of abortion pill reversal. The 86-page complaint (full text) in National Institute of Family and Life Advocates v. Bonta, (CD CA, filed 10/2/2024), alleges that the Attorney General's enforcement threats violate plaintiffs' free speech and free exercise rights, saying in part:

12. Plaintiffs here ... wish to truthfully inform the public that it may be possible to counteract the first abortion drug’s lethal effects if women change their minds and seek treatment within the first three days after taking it. 

13. Plaintiffs wish to say the same (and similar) things about APR that the other nonprofits have. But the Attorney General’s actions show that if they do, they may be subject to injunctions, civil penalties of up to $2,500 per “violation,” and potential jail time....

18. The Attorney General says he supports a woman’s right to choose whether to keep her pregnancy, yet he seeks to deprive a woman who changes her mind, or who was coerced or tricked into taking the first abortion drug, of truthful information about a safe and effective way to save her pregnancy. 

19. The Constitution protects Plaintiffs’ right to speak to the public and women about lawful medical treatments provided by licensed medical professionals.  

20. This action seeks to enjoin the Attorney General from targeting, chilling, and punishing Plaintiffs’ speech about APR and a declaration that his actions violate Plaintiffs’ First and Fourteenth Amendment rights to speak freely, to practice their religion, and to due process under the law.

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

10th Circuit: Jail Violated Free Speech Rights of Volunteer Minister

In Jarrard v. Sheriff of Polk County, (11th Cir., Sept. 16, 2024), the U.S. 11th Circuit Court of Appeals held that Georgia jail officials violated the free speech rights of a volunteer county jail minister. Irritating both jail officials and other volunteer jail ministers, Rev. Jarrard believed and taught that baptism by immersion is necessary to salvation and that, without it, a person will be condemned to Hell. Policies governing participation as a volunteer minister went through a number of revisions. Ultimately, they resulted in Jarred being excluded from the program and baptism of inmates being prohibited. The court said in part:

At least for summary-judgment purposes, therefore, we conclude that Moats and Sharp engaged in viewpoint discrimination based on their disagreement with Jarrard’s beliefs about baptism.  We further conclude that their disapproval of his volunteer ministry application can’t survive strict scrutiny.  ...Moats and Sharp assert that they denied Jarrard’s applications for fear that his participation in the volunteer ministry program would “(1) tend to undercut inmate well-being and (2) unreasonably create problems for jail administrators.”  Even if we were to indulge those assertions ...  and even assuming that they constitute compelling governmental interests, denying Jarrard’s application was not the least restrictive means of achieving those ends.  As just one example, the Jail could have posted notices stating that Jarrard would be addressing a potentially contentious topic and let the inmates decide whether they wanted to attend....  So too, they could have allowed other volunteer ministers to opt out of working with Jarrard so as to reduce the risk of contentious interactions.  And to the extent that they were worried about security issues related to the performance of baptisms, they could have instituted precautions to minimize them.  They could, for instance, have limited attendance at an inmate’s baptism or required an inmate being baptized to be shackled throughout the process to reduce risk of escape.  There is no indication that Moats and Sharp attempted to take any such (or other similar) steps.....

The court also found that two versions of the policy gave jail administrators unbridled discretion in passing on volunteer ministers' applications. 

 Judge Rosenbaum filed an opinion dissenting in part, contending that insofar as damages were sought from the sheriff and his chief deputy, they were protected by qualified immunity.

10th Circuit Upholds Colorado's Ban on Conversion Therapy

In Chiles v. Salazar, (10th Cir., Sept. 12, 2024), the U.S. 10th Circuit Court of Appeals in a 2-1 decision held that Colorado's Minor Conversion Therapy Law that bans mental health professionals from providing conversion therapy to minors does not violate the free speech or free exercise rights of mental health professionals. Rejecting petitioner's free speech argument, the majority said in part:

The statute is part of Colorado’s regulation of the healthcare profession and, as the district court correctly found, applies to mental health professionals providing a type of prohibited treatment to minor patients. On the record before us, we agree the MCTL regulates professional conduct that “incidentally involves speech.”....

Ms. Chiles may, in full compliance with the MCTL, share with her minor clients her own views on conversion therapy, sexual orientation, and gender identity. She may exercise her First Amendment right to criticize Colorado for restricting her ability to administer conversion therapy. She may refer her minor clients to service providers outside of the regulatory ambit who can legally engage in efforts to change a client’s sexual orientation or gender identity.....

Rejecting petitioner's free exercise claim, the majority said in part: 

Because, on the record before us, we find Ms. Chiles has failed to show the MCTL lacks neutrality and general applicability, the district court did not abuse its discretion in finding the MCTL is subject to rational basis review..... And ... the MCTL survives rational basis review...

Judge Hartz dissenting said in part:

The issue in this case is whether to recognize an exception to freedom of speech when the leaders of national professional organizations declare certain speech to be dangerous and demand deference to their views by all members of their professions, regardless of the relevance or strength of their purported supporting evidence. As I understand controlling Supreme Court precedent, the answer is clearly no.... 

In particular, a restriction on speech is not incidental to regulation of conduct when the restriction is imposed because of the expressive content of what is said. And that is the type of restriction imposed on Chiles....

The consensus view of organizations of mental-health professionals in this country is that only gender-affirming care (including the administration of drugs) should be provided to minors, and that attempts to change a minor’s intent to change gender identity are dangerous—significantly increasing suicidal tendencies and causing other psychological injuries. The organizations insist that this view reflects the results of peer-reviewed studies.

But outside this country there is substantial doubt about those studies. In the past few years there has been significant movement in Europe away from American orthodoxy.....

Advocate reports on the decision.

[Corrected: The majority opinion was written by Judge Rossman. Judge Hartz dissented. The prior version of this post incorrectly identified the Judge Rossman as the dissenter instead of being the author of the majority opinion.]

Buffer Zone Ordinance Violates Free Speech Rights of Protesters Because of Inadvertent Breadth of Ban

In Sisters for Life, Inc. v. Louisville-Jefferson County Metro Government, (WD KY, Sept. 13, 2024), anti-abortion sidewalk counselors challenged a city ordinance that created a ten-foot buffer zone from the street to the door of health care clinics.  Only clinic personnel, patients and those accompanying them, law enforcement and persons walking through to a different destination could enter the buffer zone. The ordinance was passed because of problems at one particular abortion clinic. The court found that the Ordinance would have been permissible if limited to clinics with problems but violated free speech rights because it applies to all healthcare facilities. The court said in part:

At the time of the ordinance’s passage, the city had established healthcare access problems at only one facility—EMW—and principally on Saturday mornings.... It is clear from the record that the Council intended for the ordinance to create buffer zones only at facilities which were having access or safety issues and chose to request a buffer zone, like abortion clinics, battered women’s shelters, and emergency rooms.... This is what the legislators expected in drafting and passing the ordinance.... And how EMW understood the ordinance to work....  And how LMPD enforced its terms.... 

... Metro Council gave careful consideration to each alternative and endeavored to choose the least burdensome option.  But for its inadvertent application to facilities with no established access issues, it is difficult to imagine how the ordinance could be more closely tailored to the city’s interest in preserving safe access to healthcare facilities. Regardless, the Court is bound by the Sixth Circuit’s holding: “The [Supreme] Court’s conclusion in McCullen applies here.  This buffer zone is not narrowly tailored.”...

The court also concluded that the ordinance did not violate plaintiffs' free exercise rights or the Kentucky Religious Freedom Restoration Act because the ordinance is neutral and generally applicable. 

Factual Issues Remain in Chaplain's Suit Over Ouster for Anti-Trans Blog Post

 In Fox v. City of Austin, (WD TX, Sept. 4, 2024), a Texas federal district court refused to grant summary judgment to either side on several claims in a suit brought by a volunteer chaplain for the Austin, Texas fire department.  Plaintiff was fired because of his blog posts saying that God created each person as male or female, that sex is immutable and that it is unfair to allow males to compete in women's sports. Applying the balancing test in the Supreme Court's Pickering decision, the court concluded that there is a genuine dispute of material fact as to the extent of the disruption that the blog posts caused within the Fire Department.  Thus, the court refused to grant summary judgment on plaintiff's free speech retaliation claim, his free exercise claim and his claim under the Texas Religious Freedom Restoration Act. The court did dismiss plaintiff's claim that his free speech rights were violated when the Department requested that plaintiff write an apology note and it found that the fire chief had qualified immunity in the claim against him for damages.

11th Circuit: Barring Use of PA System for Pre-Game Prayers Does Not Violate 1st Amendment

 In Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc., (11th Cir., Sept. 3, 2024), the U.S. 11th Circuit Court of Appeals rejected free speech and free exercise claims by a Christian school that was refused the use of a stadium's public address system for a pre-game prayer at the FHSAA state championship football game in which it was playing. The court held that pre-game PA announcements at state championship games are government speech. It also concluded that government control of its own expression does not violate the free exercise rights of private individuals.

Florida Phoenix reports on the decision.

PA Supreme Court: Yard Signs Responding to Neighbors' Antisemitism Protected by Pennsylvania Constitution

In a 4-2 decision in Oberholzer v. Galapo, (PA Sup. Ct., Aug. 20, 2024), the Pennsylvania Supreme Court, relying on the broad free speech protections in Art. I, Sec. 7 of the Pennsylvania Constitution, dissolved an injunction issued by a trial court in an unusual dispute between neighbors. As described by Justice Dougherty's majority opinion:

In November 2014, a brewing feud between the neighbors over landscaping issues reached a boiling point after Dr. Galapo confronted Mr. Oberholzer about a resurveyed property line and Mrs. Oberholzer responded by calling him a “fucking Jew.”  This prompted the Galapos in June 2015 to erect the first of many signs primarily displaying anti-hate and anti-racist messages “along the back tree-line directly abutting [the Oberholzers’] property line, pointed directly at [the Oberholzers’] house, and in direct sight of [other] neighbors’ houses.” ...  All told, the Galapos posted twenty-three signs over a years-long span, during which the neighbors continued to quarrel over other minor nuisances.

Among other things, the Oberholzers sued claiming the signs placed them in a false light. The majority concluded:

We hold the Galapos engaged in protected speech when they posted in their own yard stationary signs decrying hatred and racism.  We further hold the Oberholzers failed to prove that substantial privacy interests are being invaded in an essentially intolerable manner by the Galapos’ pure residential speech.  As such, Article I, Section 7 of the Pennsylvania Constitution and this Court’s precedents precluded the trial court from enjoining the signs, regardless of the nature of the torts alleged.  The injunction imposed an improper prior restraint on speech in violation of Article I, Section 7.

Justice Wecht filed a dissenting opinion, saying in part:

The Galapos argue that the present injunction violates the no-injunction rule, that it is an unconstitutional prior restraint on speech, and that it fails strict scrutiny.  These arguments are unpersuasive.  The no-injunction rule does not exist in Pennsylvania.  Moreover, even if it did exist, it would not apply here because the equity court did not purport to enjoin defamatory speech.... The argument that the injunction constitutes a prior restraint is also mistaken because the injunction does not restrict speech in advance of its publication.  Finally, the injunction withstands application of strict scrutiny because it is narrowly tailored to serve a compelling state interest.

Justice Brobson also filed a dissenting opinion, saying in part:

I would conclude that the trial courts of this Commonwealth have the authority to enjoin residential speech protected by Article I, Section 7 of the Pennsylvania Constitution that rises to the level of a private nuisance and disrupts the quiet enjoyment of a neighbor’s home.  I would further find that the Injunction is content neutral, furthers the Commonwealth’s significant interest in protecting the privacy and quiet enjoyment of the Oberholzers’ home, and burdens no more of the Galapos’ speech than necessary to protect the Oberholzers’ right to residential privacy.

AP reports on the decision.

Churches Challenge Constitutionality of Johnson Amendment

The Johnson Amendment which prohibits 501(c)(3) tax-exempt organizations from supporting or opposing political candidates was challenged this week as being unconstitutional as applied to churches. The complaint (full text) in National Religious Broadcasters v. Werfel, (ED TX, filed 8/28/2024) alleges in part:

Churches are placed in a unique and discriminatory status by the IRC. Under § 508(c)(1) of the IRC, churches need not apply to the Internal Revenue Service [“IRS”] to obtain recognition of their 501(c)(3) status. The IRC places them automatically within the ambit of 501(c)(3) and thereby silences their speech, while providing no realistic alternative for operating in any other fashion. Churches have no choice; they are automatically silenced vis-à-vis political candidates.

Hundreds of newspapers are organized under § 501(c)(3), and yet many openly endorse political candidates....

Many 501(c)(3) organizations engage in electoral activities that are open, obvious, and well known, yet the IRS allows some, but not all, such organizations to do so without penalty. Again, Plaintiffs believe that such churches have the constitutional right to engage in such participation; they simply want the same right for themselves. ...

The IRS operates in a manner that disfavors conservative organizations and conservative, religious organizations in its enforcement of § 501(c)(3). This is a denial of both religious freedom and equal protection....

Plaintiffs contend that the Johnson Amendment, as written and as applied by the IRS, violates the First Amendment’s Free Speech Clause, Free Exercise Clause, the Fifth Amendment’s Due Process Clause (Void for Vagueness), the Fifth Amendment’s Due Process Clause (Equal Protection), and the Religious Freedom Restoration Act.

Catholic News Agency reports on the lawsuit.

Pregnancy Resource Center Sues Massachusetts Officials Over Opposition Campaign

Suit was filed last week in a Massachusetts federal district court by Your Options Medical Center, an anti-abortion pregnancy resource center, against Massachusetts officials and an abortion rights foundation, alleging deprivation of free speech, free exercise and equal protection rights. The complaint (full text) in A Woman's Concern v. Healy, (D MA, filed 8/19/2024), alleges in part:

This case is necessitated by an overt viewpoint-based campaign of harassment, suppression, and threats against YOM and other PRCs. Directed by Governor Healey and the other Defendants, this campaign involves selective law enforcement prosecution, public threats, and even a state-sponsored advertising campaign with a singular goal – to deprive YOM, and groups like it, of their First Amendment rights to voice freely their religious and political viewpoints regarding the sanctity of human life in the context of the highly controversial issue of abortion. 

Defendants’ retaliation and selective-enforcement campaign accuses YOM and other PRCs of being a public health threat, of carrying out false and misleading advertising, and of other falsehoods, while actively urging citizens to report PRCs to State law enforcement....

It is well-settled that viewpoint discrimination applied through threats of legal sanctions and other means of coercion and intimidation violates the United States Constitution where, as here, such measures chill protected First Amendment activities. That very kind of selective censorship scheme is evidenced here. Moreover, the threats in this case were targeted explicitly against the religious speech of PRCs in violation of the Free Exercise Clause.

Catholic News Agency reports on the lawsuit.

Knights of Columbus May Move Ahead with Suit for Denial of Permit for Christmas Program

 In Knights of Columbus Council 2616 v. Town of Fairfield, (D CT, Aug. 22, 2024), a Connecticut federal district court allowed the Knights of Columbus to move ahead with free speech, free exercise and equal protection claims when the town denied its Special Event Permit Application to host a Christmas Vigil in a prominent public park rather than a less centrally located one. The court said in part:

... [P]laintiffs have shown that the defendants’ stated reason for denying their 2020 application, i.e. COVID-19 concerns, was pretextual....

Therefore, the motion to dismiss the plaintiffs’ claims to the extent they are based on the 2020 application, on the grounds that denial of the 2020 application was a valid discretionary action by the Town to mitigate a public health emergency, is being denied. ...

The Special Events Permitting Scheme does not satisfy the requirement that it contain adequate standards to guide the official’s decision. It contains no criteria, restraints, temporal limits, or guidelines to which the Commission must adhere when ruling on an application. Nor does it contain a method to appeal the Commission’s determination or require that the Commission furnish justifications for its decisions with respect to applications for Special Events Permits. Rather, the Special Events Permitting Scheme vests the Commission with unbridled discretion....

 Viewing the factual allegations in the light most favorable to the plaintiffs, the plaintiffs have plausibly alleged that the defendants’ actions were content-based. They have alleged facts showing that the Commission permitted other groups to use Sherman Green in a manner that was inconsistent with the reasons the Commission gave for denying the plaintiffs’ applications....

The Hartford Courant reports on the decision.