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Yeshiva University v. The LGBT Club, Victory for the 1A
The Supreme Court is poised to grant a victory to religious conservatives via the First Amendment in blocking recognition of an LGBT club at Yeshiva University. Yeshiva is a Jewish law school which objects to the club on religious grounds. This is important news for other religious schools across America facing similar legal challenges.
Though the Court as an intermittent step referred the case back to the lower courts as Yeshiva University v. YU Pride Alliance, Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett made no bones in their dissent that they would stand with the 1A when the full case comes before the Supreme Court, as it is expected the lower courts will demand Yeshiva recognize and fund the club. The Court refused to hear the case on an expedited basis, ordering instead that it first exhaust options in other, lower courts. Alito, et al, objected to that 5-4 procedural decision and telegraphed their ultimate response via dissent once they get the full case.
The issue is simple: Yeshiva University wants to deny recognition of an LGBT club (YU Pride Alliance), claiming their foundational values as written in the Torah do not support that. The club claims it is being discriminated against, as other non-religious groups can form clubs. At issue is the 1A versus Title IX and other “human rights” laws.
Alito argues the courts have no right to use the power of the state to compel Yeshiva to host the club. “Does the First Amendment permit a State to force a Jewish school to instruct its students in accordance with an interpretation of the Torah that the school has concluded is incorrect? Surely ‘no.’” He rejects the idea religion is being used to support bigotry, and sticks with a conservative view of the 1A saying government should not impose itself on religion in this case. The court’s duty, wrote Alito, “is to stand up for the Constitution even when doing so is controversial.” Alito went further, stating “At least four of us are likely to vote to grant” review if the university loses on its First Amendment arguments on appeal, and Yeshiva will likely win if its case came before us. A State’s imposition of its own mandatory interpretation of scripture is a shocking development that calls out for review. The Free Exercise Clause protects the ability of religious schools to educate in accordance with their faith.” One progressive outlet called what many conservatives would consider a promise of future justice an “implicit threat.”
The balance between the 1A and Title IX (i.e., human rights, in this case New York law) has always been tricky. To protect religious freedom, the federal Department of Education has granted exemptions to 120 religious colleges and universities to practice their religious tenets, even when they conflict with protected LGBT and other “human rights.” The New York courts have held for schools like Yeshiva (a law school, not purely a religious training school or seminary) the 1A should cover only those parts of the school’s business which directly constitute religious acts, and allow secular law to cover the secular part of the school. Specifically, New York said Yeshiva violated New York City’s human rights law. That law prohibits “public accommodations” – places that are open to the public – from discriminating based on sexual orientation and gender identity. Despite its Jewish orientation, Yeshiva admits students of any religion, the “public” part. Yeshiva came to the Supreme Court, calling the ruling an “unprecedented intrusion into church autonomy.”
In siding with Yeshiva, Alito is also going after bigger fish, looking to weaken or overturn Employment Division v. Smith. In that case the Supreme Court held that religious objectors typically must follow all “neutral laws of general applicability” (though racial discrimination is still prohibited.) Alito claims that New York’s human rights law is not neutral or generally applicable because it does not apply to “benevolent orders,” i.e., “any club which proves that it is in its nature distinctly private.”
Carveouts from civil rights laws for private clubs are common. The federal law banning businesses that offer their services to the public from engaging in many forms of discrimination (bakers who refuse to make cakes for gay couples, for example) exempts “a private club or other establishment not in fact open to the public.” It is likely the First Amendment, which grants rights of free association to membership organizations that do not apply to public businesses, forbids states from enacting anti-discrimination laws that require genuinely private clubs to accept members they do not want to accept.
Alito, in other words, is saying in his dissent if a state enacts an anti-discrimination law that exempts private clubs, then it must also exempt religious objectors from that law. In practice, that means Alito would give all religious objectors fairly sweeping exemptions from huge swaths of anti-discrimination law, including those at Yeshiva University who object to an LGBT club on campus. Weakening Employment Division v. Smith would open the door wider for private religious schools to decide which organizations they wished to recognize without having to apply to the federal Department of Education for an exemption. It would be a victory for the First Amendment, and a victory for religious rights over “human rights.”
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Viewpoint Discrimination May Bring 1A to Social Media
Later this year it is possible — not likely, but just possible — the Supreme Court might vote to take away social media platforms like Twitter and Facebook’s right to censor content. This would have the effect of granting some level of First Amendment protection, now unavailable, to conservative users of those platforms.
The potential for change hinges on a law struck down by lower courts, Netchoice v. Paxton, which challenges Texas law HB 20. That law addresses social media companies with more than 50 million active users in the U.S., like Twitter, YouTube, and Facebook. It prohibits these companies from engaging in content moderation by declaring that they may not censor posts on the basis of viewpoint. If a platform does remove any content, it must notify the user and let them appeal the decision. These users can sue the company for imposing “viewpoint discrimination.” HB 20 also bars platforms from placing warning labels on users’ posts to inform viewers that they contain objectionable content. It imposes disclosure requirements, including a biannual transparency report.
The law was shut down by lower courts, reinstated, then handed off to the Supreme Court as a shadow docket case (an informal term for the use of summary decisions by the Supreme Court without full oral argument) to decide. The Court refused to reinstate the law at this time, but with significant dissent. The case will likely be heard in full by the Court in the fall. The conservatives will get another try.
Twitter, et al, acting collectively through trade associations, chose an interesting defense, claiming not simply that the 1A applies only to government censors (the standard defense to prevent 1A rights from applying to social media) but claiming their content moderation constitutes First Amendment–protected speech in and of itself. In other words, censoring stuff that passes through their platforms constitutes a 1A protected act by Twitter, and thus HB 20 violates Twitter’s 1A rights. The platforms argued laws like HB 20 constitute the government blocking Twitter’s free speech right to prevent its users from exercising their free speech rights, as censorship is an act of free speech.
Twitter and its allies went on to argue to the Supreme Court “Social media platforms are internet websites that exercise editorial discretion over what content they disseminate and how such content is displayed to users.” That seems to rub right against Section 230 of the Communications Decency Act which protected social media platforms from the 1A by claiming they aren’t really “publishers” after all, just something akin to a conduit through which stuff (your tweets) flows.
As such, the Communications Decency Act argues, they are closer to common carriers, like the phone company, who could care less what you talk about in your call to Aunt Josie. But with the common carrier argument coming closer and closer to implying social media has no right to censor (in other words, they can’t have it both ways. They can’t not be responsible for defamatory material on their sites and they can’t claim immunity from the First Amendment stopping them more censoring certain viewpoints. Imagine the phone company saying they are not responsible for you calling Aunt Josie a hag but they also want to censor your conversation for using the “hate speech” term “hag.” In other other words, Twitter is either a publisher and like the New York Times and can exercise editorial discretion/censor but is responsible for what it publishes or it is not and like the phone company it cannot censor but it is not responsible for its own content.
In his dissent to the Court’s decision to stay HB 20, Justice Alito (joined by Justices Thomas and Gorsuch; Justice Kagan also dissented but did not join Alito’s opinion or write her own), notes the indecision by Twitter, et al, on whether they are publishers, but says their desire to censor (i.e., to have 1A rights of their own) means they must be publishers. But if they want to insist they are not publishers, they are common carriers and do not have a right to censor. Pick one.
Alito is well aware of the recent history of social media censorship, which has egregiously sought to block and cancel nearly-exclusively right-of-center persons. Facebook and others like it have become the censors the Founding Fathers especially feared, as one political party benefits disproportionately. Donald Trump was driven off social media as a sitting president. What should have been one of the biggest stories of the 2020 election, the Hunter Biden laptop tale, was disappeared to favor Democratic candidate Joe Biden. Social commentators like Alex Jones and Scott Horton were banned. Marjorie Taylor Greene was suspended. Of all the Members of the House banned from social media, every single one is a Republican. Size matters; banning the head of the Republican party, Donald Trump, and banning a local Democratic councilman in Iowa are not 1:1. What is being censored is not content per se (a photo, a news story) but whole points of view, in this case conservative thought itself.
Viewpoint discrimination is particularly disfavored by the courts. When a censor engages in content discrimination, he is restricting speech on a given subject matter. When he engages in viewpoint discrimination, he is singling out a particular opinion or perspective on that subject matter for treatment unlike that given to other viewpoints. For example, if the government banned all speech on abortion, it would be a content-based regulation. But if the the government banned only speech that criticized abortion, it would be a viewpoint-based. Because the government is essentially taking sides in a debate when it engages in viewpoint discrimination and shutting down the marketplace of ideas which is the whole dang point of free speech, the Supreme Court has held viewpoint-based restrictions to be especially offensive to the First Amendment. Such restrictions are treated as presumptively unconstitutional.
So when HB 20 comes before the Court as a full case with oral arguments in the fall, the lines are drawn. Twitter, must et al, appear ready to admit they are “publishers” (and likely shed the protections of Section 230) to retain a publisher’s right under the First Amendment to decide what to publish (and conversely what to censor.) Alito seems to be suggesting if that is the argument, then yes, let the First Amendment apply but it must apply to Twitter, et al, in its entirety. Social media cannot claim a constitutional right to censor as a publisher and then abuse that right by engaging in viewpoint discrimination. Social media may have boxed themselves into a corner where they are constitutionally required to present both sides of an issue to preserve their right to censor one side more than the other.
So what are you, Twitter? You can no longer operate behind the illusion of democracy. Careful what you choose… are you a dumb pipe down which information flows and therefore cannot censor? Or are you a publisher with 1A rights which you use to stomp out one particular viewpoint?
If the latter, Texas HB 20 may be the needed relief to protect the modern town square and the Supreme Court may approve its constitutionality this autumn.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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