Alaska Supreme Court Reverses Dismissal of Muslim Inmate's RLUIPA Claims

In Din v. State of Alaska, Department of Corrections, (AK Sup. Ct., Feb. 22, 2023) the Alaska Supreme Court vacated a trial court's dismissal of a suit brought under RLUIPA and the Alaska constitution by a Muslim inmate and remanded the case for further factual development.  At issue was the inmate's requests to pray five time per day using scented prayer oils and to eat halal meat as part of his diet. Prison rules only allowed use of scented oils for weekly outdoor congregate religious activities and only provided vegetarian or vegan meals for those requesting a halal diet. The court concluded that both restrictions imposed a substantial burden on the inmate's religious exercise. It went on:

Prison security is a compelling government interest. But DOC’s position that possessing prayer oils is prohibitively dangerous is difficult to reconcile with the fact that it allows inmates to possess “skin cream/oil.” Inmate and staff health are also important government interests, and DOC asserts that “even a seemingly mild scent may cause an adverse respiratory reaction.” But DOC’s position is difficult to reconcile with its policies allowing prisoners to possess other fragranced items, like deodorant, hair spray, and air fresheners....

DOC also asserts that the estimated additional cost of providing “halal/kosher meals . . . to accommodate all Alaska inmates who claim to need a special halal/kosher diet . . . would exceed $1,000,000 annually.” Din contends that this is not a compelling reason because providing him pre-packaged halal food would cost DOC approximately $7,700 more than the cost of regular meals, a small sum compared to its massive budget. 

Cost management obviously is an important government interest. But Congress contemplated that RLUIPA may “require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise”....

The court also concluded that there are genuine issues of material fact as to whether present policies are the least restrictive means to achieve the state's interests. 

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.

SEC Imposes $5M In Fines On Mormon Church and Its Adviser For Concealing Ownership of Billions In Securities

In In re Ensign Peak Advisor, Inc., (SEC, Feb. 21, 2023), the Securities and Exchange Commission instituted cease and desist proceedings against the Church of Jesus Christ of Latter Day Saints and the entity which manages the Church's assets for making misleading filings designed to conceal the fact that the Church had $32 billion of publicly traded securities in reserve funds in 2018 and $37.8 billion by 2020. The SEC accepted the Offers of Settlement put forward by the respondents.  SEC Release 2023-35 summarizes the SEC's findings and the sanctions imposed:

The Securities and Exchange Commission today announced charges against Ensign Peak Advisers Inc., a non-profit entity operated by The Church of Jesus Christ of Latter-day Saints to manage the Church’s investments, for failing to file forms that would have disclosed the Church’s equity investments, and for instead filing forms for shell companies that obscured the Church’s portfolio and misstated Ensign Peak’s control over the Church’s investment decisions. The SEC also announced charges against the Church for causing these violations. To settle the charges, Ensign Peak agreed to pay a $4 million penalty and the Church agreed to pay a $1 million penalty.

The SEC’s order finds that, from 1997 through 2019, Ensign Peak failed to file Forms 13F, the forms on which investment managers are required to disclose the value of certain securities they manage. According to the order, the Church was concerned that disclosure of its portfolio, which by 2018 grew to approximately $32 billion, would lead to negative consequences....

Market Watch reports on the SEC's action.

Parties Cannot Be Forced to Arbitration Over Issues Surrounding Jewish Religious Divorce

In Bierig-Kiejdan v. Kiejdan, (NJ App., Feb. 16, 2023), a New Jersey state appeals court held that a family court judge could not order parties to a divorce to return to arbitration over issues surrounding which religious tribunal should oversee the issuance of a get-- Jewish divorce document-- when the parties' original agreement to arbitrate terms of the divorce had expired and they had not entered a new arbitration agreement covering issues that would arise later. JD Supra reports on the decision.

Another Challenge to Texas' Heartbeat Abortion Ban Fails on Standing Grounds

In Davis v. Sharp, (WD TX, Feb. 15, 2023), another attempt to challenge Texas' SB 8, the heartbeat abortion ban enforceable only by private lawsuits, failed on standing grounds.  The suit was brought by Stigma Relief Fund and three of its supporters against defendants who threatened to enforce the law against abortion funds and their associates for aiding illegal abortions. However, because defendants filed statements disclaiming any intention to sue the particular fund and supporters who are plaintiffs in this case, plaintiffs failed to show any injury sufficient to give them standing to sue. Law & Crime reports on the decision.

5th Circuit Rejects Pastor's Jurisdictional Theory of Religion Clauses

 In Spell v. Edwards, (5th Cir., Feb. 17, 2023), the U.S. Court of Appeals for the 5th Circuit affirmed the dismissal of a suit brought by a pastor and his church claiming that their First Amendment rights were violated by enforcement against them of COVID orders in the early months of the pandemic that barred their holding church services. The court said in part:

Pastor Spell explicitly waived the argument that defendants’ actions violated his constitutional rights under current free exercise jurisprudence....  Pastor Spell instead advanced an absolute, categorical theory of the Religion Clauses, arguing that church assembly is “beyond the jurisdiction of the government.”... He maintained that, under Everson v. Board of Education of Ewing Township, there is a “jurisdictional limit on intrusion by the state into the church.”  In so doing, he expressly waived other arguments.

Pastor Spell is the master of his case, and he cannot prevail on the theory he advances. Controlling precedent directly contradicts Pastor Spell’s jurisdictional theory of the Religion Clauses.

Unfiltered With Kiran reports on the decision.

Nurse Denied Religious Exemption From Vaccine Mandate Loses Title VII and Free Exercise Challenges

In Riley v. New York City Health and Hospitals Corp., (SD NY, Feb. 17, 2023), a New York federal district court dismissed without prejudice a suit by a Christian nurse in a hospital's surgical unit who claimed that denying her a religious exemption from the hospital's COVID vaccine mandate violated her rights under Title VII and the Free Exercise Clause. The court said in part:

Title VII cannot be used to require employers to break the law..... When the defendant implemented its vaccine mandate, [New York State Department of Health Rule] Section 2.61, a binding state regulation, required the defendant to “continuously require personnel” like the plaintiff “to be fully vaccinated against COVID-19, absent receipt of” a medical exemption. 10 N.Y.C.C.R. § 2.61(c)....

The plaintiff does not argue that the defendant’s vaccine mandate was not generally applicable. She argues only that the mandate “was not neutral and was and is hostile to the religious beliefs of the plaintiff, as it presupposed the illegitimacy of her religious beliefs and practices.”... An enactment violates the neutrality principle if it “explicitly singles out a religious practice” or “targets religious conduct for distinctive treatment.”... The plaintiff pleads no facts suggesting that the defendant’s mandate is guilty of either. To the extent the plaintiff alleges that the mandate’s lack of a religious exception alone makes it non-neutral, We The Patriots forecloses that argument. See 17 F.4th at 282....

White House Celebrates 2nd Anniversary of Its Office of Faith-Based Partnerships

Last Friday, the White House issued a Fact Sheet titled Biden-⁠Harris Administration Celebrates the Second Anniversary of the Reestablishment of the White House Office of Faith-Based and Neighborhood Partnerships (full text). Among other things, the Fact Sheet discusses ten initiatives undertaken with the goal of "Safeguarding the right to practice faith without fear and other aspects of religious freedom."

Recent Articles of Interest

From SSRN:

• Gentian Zyberi & Eduardo Sánchez Madrigal, The Practice of Judicial and Quasi-Judicial Human Rights Bodies on Conscientious Objection to Military Service, (Michael Wiener and David Fernández Puyana (eds.), A Missing Piece for Peace: Bringing Together the Right to Peace and Freedom of Conscientious Objection to Military Service (UPEACE Press, 2022), pp. 121-139).
• Josh Blackman, Howard Slugh & Tal Fortgang, Abortion and Religious Liberty, (Texas Review of Law & Politics, Vol. 27, 2023).
• Amanda Harmon Cooley, Quiet Encroachments on School Prayer Jurisprudence, (January 31, 2023).
• Dallan Flake, When "Close Enough" is Not Enough: Accommodating the Religiously Devout, (February 14, 2023).
• Roberta Lea Brilmayer, Abortion, Full Faith and Credit, and the 'Judicial Power' Under Article III: Does Article IV of the U.S. Constitution Require Sister-state Enforcement of Anti-abortion Damages Awards?,(January 10, 2023).
• Peter Kirsanow, Gail L. Heriot & Dan Morenoff, Brief of the American Civil Rights Project as Amicus Curiae in Support of Appellee and Affirmance in Tennessee v. Department of Education, (January 31, 2023).

From SmartCILP:

• Symposium: Berle XII: Corporate Capitalism and the City of God, Seattle University Law Review, Vol. 45, issue 1 (2021).
• Asma T. Uddin, Religious Liberty Interest Convergence, 64 William & Mary Law Review 83-168 (2022).

Military Will Provide Travel Allowances for Service Members Who Need to Travel to Obtain Abortions

In a press release issued on Feb. 16, the Department of Defense announced that it has issued policy memoranda (full texts1, 2, 3) that assure access to reproductive health care for service members.  Among other things, the policies will now allow service members to receive travel and transportation allowances if abortion or assisted reproduction services are not available in the local area. The health care services however are at the service member's own expense. Different policies apply to covered abortions, those where the life of the mother would be endangered if the fetus were carried to term or the pregnancy was the result of rape or incest.

Kentucky Supreme Court Finds Procedural Problems with Abortion Providers' Attempt to Enjoin Abortion Bans

In Cameron v. EMW Women's Surgical Center, P.S.C., (KY Sup. Ct., Feb. 16, 2023), the Kentucky Supreme Court considered challenges by abortion providers to two Kentucky statutes banning abortions. The "trigger ban" prohibits all abortions, except when necessary to preserve the life of the mother or prevent permanent impairment of a life-sustaining organ. The "heartbeat ban" bars abortions after there is a detectable human heartbeat, with a similar exception for preserving the life of the mother or preventing irreversible impairment of a major bodily function. The trial court issued a preliminary injunction preventing enforcement of both laws. The state Court of Appeals granted emergency relief and dissolved the injunction, and then transferred the case to the state Supreme Court. In this opinion, the state Supreme Court affirmed the Court of Appeals dissolution of the injunction, holding that abortion providers lack third-party standing to challenge the laws on behalf of their patients. However, they held that abortion providers do have standing to challenge the "trigger ban" on their own behalf, and remanded the case to the trial court on that issue. Justice Lambert, joined by Justice Conley, said in part:

[T]he abortion providers’ arguments that the trigger ban improperly delegates legislative authority and that becomes effective on the authority of an entity other than the General Assembly remain live issues. If the abortion providers were to receive a favorable ruling on those issues, the statute would be invalidated if the offending enactment provision could not be severed. This in turn would provide the abortion providers with the relief they seek, satisfying the redressability prong of constitutional standing. 

However, although the abortion providers have constitutional standing to challenge the trigger ban on the foregoing two grounds, they made no arguments concerning their own rights in relation to the heartbeat ban. Their only assertion against the heartbeat ban was that it violated their patients’ constitutional rights to privacy and self-determination....

[T]he personal harm asserted by the abortion providers, the harm to their business, is not considered an irreparable injury for the purposes issuing a temporary injunction.

The circuit court also erred when balancing the equities involved....

To be clear, this opinion does not in any way determine whether the Kentucky Constitution protects or does not protect the right to receive an abortion, as no appropriate party to raise that issue is before us. Nothing in this opinion shall be construed to prevent an appropriate party from filing suit at a later date....

This matter is accordingly remanded to the circuit court for the determination of the first-party constitutional claims of the abortion providers as to the trigger ban. Specifically, whether the trigger ban was an unlawful delegation of legislative authority in violation of Sections 27, 28, and 29 of the Kentucky Constitution and if the trigger ban became effective upon the authority of an entity other than the General Assembly in violation of Section 60 of the Kentucky Constitution.

Chief Justice VanMeter concurred only in the result.

Four other Justices each filed separate opinions, concurring in part and dissenting in part.

Justice Bisig, joined by Justice Keller, said in part:

Thus, while I concur with the majority’s conclusion that Plaintiffs have first-party standing to challenge the Trigger Ban and with their recognition of third-party standing for purposes of Kentucky law, I respectfully dissent from the remainder of their Opinion. I would reverse the Court of Appeals, affirm the trial court, and direct reinstatement of the temporary injunction....

Because the statutes infringe upon a pregnant patient’s fundamental rights to pursue safety and to self-determination and are likely not sufficiently narrowly tailored to a compelling government interest, I would hold that EMG presented a substantial question on the merits of the case below.

Justice Keller, joined by Justics Bisig, concurred in part, saying in part:

I concur with the Majority’s holding that the physicians have first-party standing to assert their claims in the case at bar. However, I dissent from the remainder of the Majority’s Opinion. Further, I join Justice Bisig’s separate opinion, as I also believe that the physicians have third-party standing to assert the claims of their patients and that the trial court did not abuse its discretion in granting the temporary injunction.

Nickell, J. concurred in part and dissented in part, saying in part:

I concur with the view that the trial court abused its discretion by enjoining the enforcement of the abortion bans. However, I respectfully dissent from any conclusion that Appellees have first-party standing or third-party standing to assert this pre-enforcement constitutional challenge. There should not be one set of procedural rules for abortion providers and another for everyone else.

Thompson, J. concurred in part, saying in part:

I concur in the majority opinion that first party standing was established for the abortion providers and dissent from its conclusion that they lacked third party standing. I believe we should err on the side of finding standing when at all possible, so that parties can gain needed review. 

Accordingly, I urge the trial court to fully exercise its authority on remand by freely allowing intervention by all interested parties so that first party standing may be established for all issues....

Liberty Counsel issued a press release announcing the decision. CNN reports on the decision.

Bankruptcy Reorganization Plan for Harrisburg Diocese Approved By Court

On Feb. 15, the U.S. Bankruptcy Court for the Middle District of Pennsylvania gave final approval to the Plan of Reorganization for the Catholic Diocese of Harrisburg. (Full text of Reorganization Plan.) (Announcement by Diocese.) A Questions and Answers document explaining the Plan says in part:

The Plan outlines how the RCDH and related entities will (a) establish a Survivor Compensation Trust, (b) provide funding to the Trust in an amount equal to $7,500,000 to provide financial restitution for survivors of clergy sexual abuse, and (c) adopt enhanced child protection protocols. In addition to the financial restitution from the RCDH and related entities, current and historical insurance providers will also contribute $10,750,000 to the Trust....

Prior to filing for reorganization, the RCDH authorized an independent Survivor Compensation Program be established, in order to provide financial restitution to abuse survivors. Through this program, $12,784,450 was provided to assist 111 survivors.... 

More than 60 proofs of claim were submitted during the reorganization process and may be eligible for financial distributions from the Survivor Compensation Trust....

The majority of the claims involve accusations against Diocesan priests. As part of the confirmation process, the Diocese issued a list of persons involved in the claims. That list is available www.hbgdiocese.org/reorganization-information. All claims of abuse received during the bankruptcy process were reported to law enforcement.

Links to all the major legal documents filed in the reorganization are available on the Diocese's website. WHP CBS21 reports on the Plan's approval. The Survivor's Network SNAP issued a press release reacting to the Plan approval.

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.]

Suit Says Sheriff's Office Pressures Employees to Join Favored Church

Suit was filed this week in a Washington federal district court by an ex-deputy sheriff who alleges that Chelan County (WA) Sheriff's Office employees pressured him to join the "'alt-right' militant" Grace City Church and to attend its 12-week marriage counseling program. The complaint (full text) in Shepard v. Chelan County, (ED WA, filed 2/14/2023), alleges in part:

Defendant Chelan County Sheriff's Department targeted law enforcement officers who are not Grace City Church members by disciplining, terminating, and denying advancement to them for alleged internal Chelan County Sheriff's Office policy violations by arbitrarily enforcing certain policies against those employees and officers for the same conduct they allow, promote, or engage in themselves.

The suit alleges violation of Title VII, the Washington Law Against Discrimination and the Establishment Clause. NCWLIFE reports on the lawsuit.

DOJ Enters Consent Decree with Lansing, MI In Suit Over Firing of 7th Day Adventist Employee

The U.S. Department of Justice announced yesterday that it has entered into a consent decree with the city of Lansing, Michigan to settle a Title VII religious accommodation and retaliation lawsuit that alleged the city fired a Seventh Day Adventist police officer rather than accommodating her Sabbath observance. Under the terms of the consent decree, which must still be approved by the court, Lansing will develop religious accommodation and retaliation policies, and trainings on them. It will also pay the former employee $50,000 in back pay and compensatory damages. UPI reports on the settlement.

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....

Ministerial Exception Bars Disability Discrimination Suit Against Zen Center

In Behrend v. San Francisco Zen Center, Inc., (ND CA, Feb. 14, 2023), a California federal district court dismissed on ministerial exception grounds a disability discrimination suit brought against a Zen Center by plaintiff who was participating in the Center's Zen Buddhism practice program. The program included both a "formal practice" (meditations, services, educational programs) and a "work practice" (cooking, dishwashing, bathroom and guest room cleaning, ringing bells) component. Finding that the ministerial exception applied, the court said in part:

[B]oth the formal practice and the work practice, “lie[s] at the very core of the mission of” SF Zen Center. Guadalupe, 140 S. Ct. at 2064. And so, drawing all reasonable inferences in Mr. Behrend’s favor, every reasonable trier of fact would be compelled to find his position implicates the fundamental purpose of the ministerial exception. The Work Practice Apprentice position was undisputedly a residential religious training program, and work practice was undisputedly a part of that religious training. Work as part of learning to practice the faith and work as part of training to lead the faith implicate the same fundamental purpose of the exception.

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.]