Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

Are AI Outputs Protected Speech?

speech

To date, social media companies have avoided liability for egregious harm caused by design and management decisions made by top executives. Thanks largely to overbroad application of Section 230, claims against social platforms die at summary judgment, leaving victims without remedy and fostering an incoherent narrative in which Big Tech is still perceived by many as a serpentine conduit of free speech slithering between the operative language of law. But as more consumers engage with LLMs, where the §230 shield should not apply, developers seeking to dismiss liability claims will argue that AI outputs are speech. And tragically, because children have already died as a consequence of engaging with LLMs, we will see whether and how the First Amendment is applied in the resulting liability claims.

AI Companions Are Not Our Friends

It should be intuitive that interacting with AIs designed to mimic human behaviors can be dangerous. Whether the product is marketed as a sexy companion, assistant, friend, or therapist, the potential for even an adult to get lost in the alternate reality of the ersatz relationship is a prospect that hardly requires a degree in psychology to imagine. For the child or adolescent whose mind is still developing, and whose vulnerabilities are often at the forefront of daily life, the danger is multiplied. Yet, despite the commonsense predictability of these dangers, AI developers did what Big Tech does—ignore safety in the race for market share.

“Profit is what motivates these companies to do what they’re doing. Don’t be fooled. They know exactly what is going on.” – Sen. Josh Hawley (R), Senate Judiciary Committee Hearing: Examining the Harm of AI Chatbots, September 16, 2025.

By now, most people are probably aware that Open AI is being sued by the parents of Adam Raine on allegations that ChatGPT-4o both assisted and encouraged the sixteen-year-old to commit suicide in April by hanging himself in his bedroom. Prior to that, 14-year-old Sewell Setzer III, formed what he perceived as a romantic relationship with a character called Daenerys Targaryen via the app Character A.I. According to the lawsuit filed by Sewell’s mother, Megan Garcia, the boy became withdrawn from real life and family, and despite efforts to intervene that included confiscation of the phone, Sewell found the device and had the following exchange minutes before shooting himself:

Sewell: I promise I will come home to you. I love you so much, Dany

Daenerys Targaryen Character: I love you too, Daenero. Please come home to me

as soon as possible, my love.

Sewell: What if I told you I could come home right now?

Daenerys Targaryen Character: … please do my sweet king

On September 16, Adam Raine’s father Matthew, Megan Garcia, and a third parent identified as Jane Doe, who is also suing Character A.I., testified before the Senate Judiciary Committee. Doe stated, “My teenage son—a normal high-functioning child with autism, who was thoughtful, kind, loved his family and Christian faith, and was full of life—became the target of online grooming and psychological abuse through Character A.I.” She further stated:

He developed abuse-like behaviors like paranoia, daily panic attacks, isolation, and self-harm and homicidal thoughts. He stopped eating and bathing, lost 20 pounds, withdrew from family life, would yell and scream and swear at us, which he never did before, and eventually got upset one day and cut his arm with a knife, in front of his siblings and me.

If the tone of the senate hearing and the opinion of the court so far in the Garcia case are any indication, Big Tech may not so easily shape-shift its way around AI product liability as it has with the harm caused by social media. Section 230 should simply not apply to an LLM, which leaves the First Amendment as the potential barrier that would keep an AI developer from facing a jury looking at damning evidence and dead children.

On Character A.I.’s motion to dismiss in the Garcia case, the Florida district court was largely persuaded that the LLM at issue is a “product” for purposes of liability and that the company owed a duty of care to consumers. It found that the plaintiff sufficiently alleged negligence, failure to warn, deceptive and unfair practices, and unjust enrichment, and the court also allowed the case to proceed on allegations against Google as a component part manufacturer and for aiding and abetting the harm caused to Sewell.

Proving that an AI companion is a product and that the product maker owes a duty of care seems like an easy bar for a jury weighing even the evidence cited in the court’s ruling on the motion to dismiss. But the more difficult discussion in Garcia addresses the defendant’s claim that AI outputs constitute speech that its users have a First Amendment right to receive. On that basis, the liability claims would be “categorically barred” according to Companion A.I., and because the right of users to receive speech has long been a populist message used to sweep a million sins under Big Tech’s carpet, this case may be one to watch.

The court held that it is not prepared to find that Character A.I.’s outputs are speech “at this stage,” but we can expect the question to be further litigated in this and other cases involving LLMs. In its discussion, the court agrees that a party may have standing in the rights of nonparties (e.g., users’ rights as recipients of speech), but we should hope the courts are mindful of important distinctions between LLM engagement and the speech inherent to other technologies guiding precedent. For instance, the court cites case law addressing video games and reasonably focuses on the nature of the content thus:

Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection.

Here, copyright law may be instructive to the speech consideration at issue with LLMs. Copyright’s human authorship doctrine is clear on the matter that simply because material appears to be expressive, this does not make it a “work of expression” as a matter of law. And importantly, no party’s right to receive AI generated material transforms it into a “work of expression,” even if the viewer perceives it as “creative, artistic, meaningful, etc.”

The distinction between a consumer’s perception of material and whether the material is protected by any rights is critical. Thus, the courts should not ask solely whether the AI output “communicates ideas, social messages,” etc. but whether the material originates as speech from a person vested with rights. Here, the Florida court cites the concurring opinion of Justice Barrett in the unanimous U.S. Supreme Court decision in Moody v. NetChoice. She uses the example of an AI determining what is “hateful” material being weighed thus:

What if a platform’s owners hand the reins to an [A.I.] tool and ask it simply to remove “hateful” content? If the [A.I.] relies on large language models to determine what is “hateful” and should be removed, has a human being with First Amendment rights made an inherently expressive “choice . . . not to propound a particular point of view?” [emphasis added]

Justice Barrett went on to say…

…technology may attenuate the connection between content-moderation actions (e.g., removing posts) and human beings’ constitutionally protected right to ‘decide for [themselves] the ideas and beliefs deserving of expression, consideration, and adherence.’ [citation omitted]

That is an essential question, and it anticipates the kind of shape shifting tech companies do to avoid fitting liability claims. For instance, they may seek cover in the fact that the same product may be used for a purpose that is protected speech and a purpose that is not; and/or they will try to shield themselves in the speech rights of users but also claim not to be the speakers of any content for purposes of liability.

Benefits Do Not Bar Product Defect Claims

If I use Chat GPT to expedite research of current scholarship on a particular subject, my right to receive that information would reasonably give Open AI standing in court to defend against an injunction barring such use of the product. But the consideration is very different where the same product is used by a party like Adam Raine, who was clearly vulnerable to the intentional design of the LLM to be anthropomorphic, sycophantic, and addictive—and woefully devoid of safeguards. My constitutional right to receive information in the first instance cannot bar Raine’s product defect claim in the second.

The exposed design flaws in many AI products are further aggravated by marketing apps as overtly sexual “girl/boyfriends” that can alleviate loneliness or fulfill fantasies or as “therapists” that can alleviate psychological neuroses.[1] That the models also lack basic guardrails—e.g., dangerous engagement does not flag the LLM to abort the anthropomorphic illusion—should also militate against any claim that all responses of these products constitute speech the user has a right to receive.

The outputs of an AI may look or sound like speech, but it is healthier to think of an LLM as no more a “companion” than a vending machine which operates on a very simple algorithm. Push A5, and you have a high probability of getting the bag of chips you want, or push D7, and you get cookies. The machine responds to your input, but it is not your friend. If some advertiser adds a voice feature to the machine that tries to make you feel good about your selection and promotes the brand, it is still not your friend—quite the opposite—but a subtle psychological effect will be achieved in some consumers. Here, if we can imagine a cause of action because adolescents might be induced by this process to overindulge in junk food, this is nothing compared to the insidious effects of AI “companionship” on Adam, Sewell, the Doe boy, and countless others.

If the vending machine example sounds farfetched, many readers are too young to know that we used to have cigarette vending machines everywhere, often in the waiting areas of family restaurants. I think my whole generation grew up playing with the pull handles and buttons on those machines while waiting impatiently to be seated. Even if our families didn’t smoke, the machines were alluring marketing media, and they provided easy access for teens to avoid age verification.

Today, federal law prohibits cigarette vending machines in places accessible by minors, and nobody plausibly argues that the machines constitute speech that kids have a right to receive. Similar, commonsense reasoning must apply to AI products and consumer safety, especially for minors, and I hope the court’s findings thus far in Garcia indicate that we are on such a path.

[1] If the FDA were not under the direction of a sociopath, “therapy” products should be rigorously scrutinized by that agency.

A Response to Post Humanist Copyright Paper by Matt Blaszczyk

human

If you follow copyright matters, it would be impossible not to read commentary proclaiming either that copyright is “dead” in the age of artificial intelligence or that confronting AI exposes copyright’s philosophical underpinnings as a convenient fiction. There is nothing new about copyright skeptics claiming that its humanist principles are a fiction, but now that machines can produce material that walks and talks like “works of expression,” this brave new world animates a lot of intellectual discussion beyond the normative question What is copyrightable? to the philosophical question What is copyright?

The Copyright Office has asserted, and the courts have thus far affirmed, that material generated entirely by AI is not a “work of expression,” a.k.a., not a “work of authorship,” because some degree of human creativity must exist in the work. That human-centric principle, combined with the low threshold of “originality” in American copyright law, undeniably conjures both metaphysical inclinations about creators and semantic imperfections in law describing the rights of creators.

For longer than the current copyright law has existed, doctrines, arguments, debates, and case law have been expressed in subjective and emotional terms like invention, genius, spark, personality, mental conception, and a rich lexicon of synonyms for creative balanced by myriad ways to describe that which is uncreative. And all that is matched with variations on the theme of the creator’s right to earn a living balanced with societal benefits derived from fostering a community of professional creators.

Of course, subjective or rhetorical language is not a unique feature of copyright. All law is expressed in words, and it is, therefore, a dangerous enterprise—indeed we are watching this peril unfold in real-time—to argue that rhetoric alone undermines, inverts, or swallows the principles expressed in law. It is only natural that semantic difficulties run amok in the AI debate, frustrating legal analysis and theory.  After all, the term artificial intelligence is itself a convenient analogy onto which the industry and its advocates have grafted their own lexicon of self-serving, often anthropomorphizing, rhetoric (see Sonja Drimmer A Dictionary of AI).

Meanwhile, even if we omit the pejorative neologism “AI slop,” whatever term we choose to describe that which AI produces, those outputs are not easily defined either by the familiar rhetoric or terms of art in copyright law. For instance, most experts will generally agree that the constitutional foundation for IP is incentive to “authors” to create, but if machines create some of the same stuff without incentive, does this a) obviate the need for copyright? or b) point to an underlying fallacy that the incentive purpose of copyright is, or always was, a rhetorical fiction?

AI Challenges the Underlying Humanism in Copyright?

Because confronting AI generated works has lately induced the Copyright Office and the courts to reaffirm the human authorship doctrine—and especially because the line between generative AI and assistive AI implies both doctrinal and administrative difficulties—this provides a fresh opportunity for skeptics to assert that U.S. copyright law is not human-centric in the first place. “Instead of a formalist rejection of AI assisted works, copyright should be willing to take up a truly humanist set of goals and answer difficult questions regarding its efficacy in promoting them for the last one hundred years,” writes Professor Matt Blaszczyk in a new paper titled Post Human Copyright:  AI, Copyright and Legitimacy.

From its title and abstract, I assumed Blaszczyk’s aim was to reject the human authorship doctrine in support of a case for the copyrightability of all material autonomously generated by artificial intelligence (AI). Although the paper could be cited to support that view, if I understand Blaszczyk correctly, he argues that confronting AI exposes an underlying fallacy that copyright has not served human authors for the last century and, therefore, needs reexamination to restore the humanist principle. He writes:

This Article argues that the USCO and the courts have recognized the requirement of human authorship and couched it in humanist rhetoric to preserve copyright’s legitimacy at a time of crisis, thus strengthening the institutional actors: the Office, the courts, and rightsholders….for copyright to be truly humanist, the law should refocus the doctrine and economic distributions on human, rather than corporate authors, adjust to new technological landscape, and reflect on its own purpose and efficacy.

Thus, Blaszczyk claims to want to rescue copyright’s true humanism from the mere rhetoric of humanism. But if that is the goal, his paper offers frail and unsupported premises to show that human-centric copyright is purely a creature of rhetoric. To be sure, the U.S. Copyright Act could be more author-centric—e.g., it could require attribution the way other nations’ copyright laws do—but tensions in copyright, or any other area of law, do not necessarily expose the core principles as mere illusions conveyed through “romanticism,” as Blaszczyk asserts.[1] In fact, considering the paper’s general criticism of rhetorical devices, the reliance on rhetorical conclusions about normative copyright law are noteworthy.

For instance, regarding copyright’s incentive purpose, Blaszczyk avers that copyright does not act as an incentive to individual creators. He states that the case Allen v. Perlmutter “…allows Allen’s lawyer, Ryan Abbott, to reframe the arguments made in Thaler and in relevant scholarship. Abbott argued that “copyright protection is for corporations that invest in creative content,” and not to provide an incentive “for people like J.K. Rowling and George R.R. Martin.” If I read Blaszczyk correctly, he agrees with Abbot’s reasoning and dislikes that it leads to an anti-humanist result. He writes:

… Abbott is right to point out what critical copyright scholars have long argued: copyright “plays very little role in motivating creative work” and instead its “purpose… is to enable the provision of capital and organization so that creative work may be exploited.

Yes, some copyright scholars have argued that copyright does not incentivize creative work by individuals, but this theme always reminds me of a poll asking the wrong question. Ask artists whether they want to earn a living for their work, and it is fair to say that the majority will answer yes, even though financial incentive to write or make fine art or films etc. is one part of a nuanced interplay of sentiments for most artists. If we are going to generalize, many artists are likely to say 1) that they create because they can’t not create; 2) that they feel grateful when an audience likes their work enough to be consumers; and 3) that they do not want their works exploited by anyone without permission and/or compensation.

Ask the same group to explain the relationship between those sentiments and their copyright rights, and the answers will vary. I work with independent creators all the time and would say that naivete about copyright law and corresponding failure to register works (in the U.S.) are more significant factors disenfranchising individual creators than Blaszczyk’s claim that the incentive principle is a rhetorical fiction.

Copyright Only Serves Corporations?

Blaszczyk relies substantially on the populist conclusion that normative copyright “primarily benefits corporate owners” and, therefore, exposes the illusion that the system serves human authors. But other than criticizing corporate wealth, which is a separate matter, Blaszczyk offers no evidence or rationale to show how, say, Disney’s vast and valuable copyright portfolio alters either the purpose or application of copyright for the independent illustrator, writer, or filmmaker.

Anecdotally, a quick list of recent cases that come to mind—Brammer, Sedlik, Goldsmith, Graham & McNatt, McGucken, Griner, and Westwood—all involve independent creators enforcing their copyright rights, and mostly against corporate defendants with more money and resources. Further, the court dockets neither reflect how many claims are settled before a complaint is ever filed nor provide any measure of copyright acting as deterrent to infringement of individual creators’ rights. If anything, mass, industrial-scale infringement by tech giants, rather than protection of corporate-owned works, poses the greatest threat to copyright’s purpose in both theory and practice.

My friend Bill Westwood’s settlement with a large medical publisher is garden-variety copyright law at work—the kind of straightforward case that would never make headlines or offer details of much interest for academics to examine. But in a medical illustration career spanning more than 60 years, Westwood has enforced his copyright rights about twenty times, and there is nothing remarkable about this except that he took copyright seriously as part of his business. So, if academics want to “interrogate” the purpose of copyright on the assumption that it no longer serves human creators, they should at least estimate and reckon with the number of Bill Westwoods availing themselves of the system.[2]

Work Made for Hire Doctrine is Anti-Humanist?

Related to the assertion that copyright serves corporate interests, Blaszczyk reprises the theory that the Work Made for Hire doctrine, codified in Section 201(b), is an anti-humanist doctrine supported by legal fictions. He cites a tension arising from the combination of the human authorship requirement, the low threshold of originality, and the employer as “author” of the employees’ works and states:

Attempting to do away with this tension and to strive for the legal legitimacy of the § 201(b) framework, and for the moral and popular legitimacy associated with human centrism, the court devised the fiction of the “author in the first instance” – of which the Act’s text is silent.

As discussed in other posts, I fail to see why WMFH fosters a tension of particular concern relative to imperfections of law in general. The human authorship rule is not merely a copyright matter, as demonstrated in Naruto v. Slater, where PETA’s claim to represent the alleged maker of the “monkey selfie” failed on standing alone because nonhumans do not possess rights that can be enforced in U.S. courts.

But in the same way that no rights exist in the first instance for a monkey, rights absolutely exist in the first instance for the human creator of a work. From there, it is hardly a strenuous leap of reasoning to hold that those rights may be transferred by operation of an employment agreement or contract. Consequently, I would argue that, as applied, WMFH doctrine generally affirms rather than belies the human-centric foundation for copyright.

Further, if it is fair to read Blaszczyk’s complaint as adjacent to skepticism of corporate personhood (a sentiment I tend to share), the WMFH doctrine is better founded than other matters of corporate “humanism.” That a corporate entity can practice religion (as held in Hobby Lobby) is a more fanciful adventure through metaphysical whimsy than the idea that a corporation can be defined under the term of art “author” in the copyright act. Yet, despite my own criticism of Hobby Lobby and the political power it implies, I would not advocate that precedent as a rationale to find that the Exercise right is not human-centric.

Copyright is Unpopular?

Next, while overlooking the number of independent creators served by enforcing their rights, Blaszczyk states as a matter of undisputed fact that litigation makes copyright unpopular—i.e., that a general consensus holds that copyright enforcement is “unjust.” He writes, “Aggressive litigation tactics against infringing users – ordinary people –have turned many against copyright law, and the early 21st Century saw a development of filesharing and piracy-oriented communities and even political parties.”

First, that description is outdated. The piracy apologists of 2011 are overwritten by the AI training critics of 2025. As a critique inspired by AI, this paper should acknowledge that AI has invigorated independent creators to care about and pay attention to their rights, some for the first time. Further, even if popularity were relevant to interrogating copyright’s human-centrism, it is a glaring omission on Blaszczyk’s part to ignore the billions in tech industry funding of anti-copyright scholarship, lawsuits, briefs, and zone-flooding PR designed to make copyright unpopular in the digital age.

As a general observation, it is more accurate to say that copyright litigation, like other matters of law, will draw a spectrum of public opinion, much of which has little to do with doctrine—or even the questions presented in a case. Most often, public opinion tends to favor one party over another more than it is persuaded by legal merit, which makes those opinions of little value to academics seeking to reexamine the purpose of the law. Again, off-the-cuff examples would include Eddie Grant v. Donald Trump, Jeff Sedlik v. Kat Von D, and Lynn Goldsmith v. Andy Warhol Foundation. All three of these cases have drawn opinions from both creators and non-creators, including sentiments that either misunderstand or do not address the copyright questions at issue.

Finally, in response to Blaszczyk’s intent, I remain concerned about broad implications every time someone says that copyright is “dead” or needs wholesale reexamination on the basis that it conjures tensions that expose it as a fiction. AI poses some unique challenges to copyright law for sure, but we should be wary of calling any right a mere fiction lest we discover that, in fact, all rights may be considered fictions because they are expressed by feeble words subject to interpretation.  Especially in the present climate, aberrations of law can make a mockery of underlying principles, but it would be an error to concede that such extremes transform civil rights into mere illusions. On the contrary, the present moment insists upon vigilant stewardship of core principles rather than allow whole frameworks of law to collapse into performative rhetoric.

[1] E.g., significant tension between the Establishment and Exercise clauses, even where courts might err, does not expose a fallacy in the Framer’s core reasoning in the First Amendment.

[2] One of the greatest barriers to copyright rights for independent creators is lack of understanding about their rights and the pragmatic means of enforcing them when necessary.

Mahmoud v. Taylor:  SCOTUS Marks Insidious Path Toward Book Bans

Mahmoud

In finding for the petitioners in Mahmoud v. Taylor, the Supreme Court’s conservative majority opens another path to banning books in schools—administrative hassle disguised as constitutional principle. The petitioners in the case are three families—one Muslim, two Catholic—with young children in the Maryland Central Public Schools (MCPS) where the board elected to include a number of children’s books with gay or trans characters or subject matter. The families asked the school to accommodate an opt-out for their children, which would entail notifying the families when the books would be used in class and allowing their children to skip those classes without effect on their attendance records.

On the surface, the Court’s finding for the petitioners might seem relatively innocuous. At oral arguments, Justice Alito asked “What’s the big deal?” about allowing families to opt out on religious grounds, and then on June 27, he delivered the majority opinion granting the families a preliminary injunction and thoroughly expressed how the Court would ultimately rule if the case were to proceed.

The big deal about requiring a public school to facilitate an opt-out in this case is that it invites both administrative and pedagogical chaos with the likely result that at least some schools will find it easier to simply keep certain titles out of the classroom. That is, of course, the true goal of whatever group is underwriting the Mahmoud case; and while Alito’s opinion does a reasonable job of camouflaging its own religious bias in constitutional lingo, its errors are hiding in plain sight.

The holding turns substantially on the opt-out question, which is reasonable to a point because compelled conduct by the state can abridge the exercise right in certain circumstances. But here, the opt-out context relies entirely upon the Court’s subjective interpretation of the books at issue, molding the facts to fit the conclusion. More broadly, I believe Mahmoud reflects a generally biased First Amendment jurisprudence that is often too eager to conflate religious “exercise” with religious belief. The two are not the same, either legally or pragmatically.

The Books at Issue

The majority finds that the children’s books in this case “pressure students to conform” to views that conflict with their families’ religious exercise rights. It even describes the books several times as “religiously offensive material,” as if this were a clear and universally applicable fact rather than a subjective opinion. While nobody can doubt that a book presenting homosexuality as “normative” can imply that the religious views of the petitioners are wrong, that consideration is both too broad and too narrow an application of “exercise” at the same time. Too broad because “exercise” cannot encompass every belief in every heart, and too narrow because even other religious exercise demands opposing conduct. For example, in discussing the book Prince & Knight, Justice Alito writes the following:

The book relates that “on the two men’s wedding day, the air filled with cheer and laughter, for the prince and his shining knight would live happily ever after.” Those celebrating the same-sex wedding are not just family members and close friends, but the entire kingdom. For young children, to whom this and the other storybooks are targeted, such celebration is liable to be processed as having moral connotations. If this same-sex marriage makes everyone happy and leads to joyous celebration by all, doesn’t that mean it is in very respect a good thing?

On that basis, consider the Episcopalians who, in my town, light up their church every June for Pride while the churches of other denominations do not. Suppose an Episcopalian family in our public school sincerely believes, under this Court’s reasoning, that a children’s book depicting the joyous celebration of a man and woman getting married promotes the view that same sex marriages are morally wrong. That interpretation may appear irrational, but it is identical in logic to Alito’s description above—unless, of course, we allow that the narrow, religious bias inherent to his interpretation is constitutionally sound. Of course it is not.[1]

In a concurring opinion, Justice Thomas highlights the Court’s religious bias by stating that the school “…rather than attempt to ‘weave the storybooks seamlessly into ELA lessons,’ the Board could cabin its sexual- and gender-identity instruction to specific units.” But that reasoning only makes sense to those who insist that gay and trans characters, like the real people they represent, must remain sequestered from everyday American life in order to avoid offending people.[2]

Thus, the Court is blind to the fact that it recommends accommodation for any family claiming religious exercise, even to opt out of what I assume the majority would struggle to describe as “offensive to religious exercise.” And because it would strain logic to square its reasoning, the Court exposes its own religious preferences while feigning a neutrality the Constitution requires. This blinkered view is emphasized by finding that the 1972 case Yoder v. Wisconsin is almost binding precedent for the result in Mahmoud.

Yoder v. Wisconsin is Inapt

In Yoder, the petitioners, who were Amish, sought an exemption to Wisconsin’s law requiring that all residents attend school through the age of 16. The plaintiffs, concerned about many aspects of public high school that conflicted with their religion, won the right to allow their adolescent children to opt out of the school system on the basis that the state law imposed a heavy burden on their religious exercise. I agree with the result in Yoder, but not without acknowledging the compelling fact that the Amish are a unique society within American society, which makes them highly distinguishable from the parents in Mahmoud.

Most importantly, the Amish did not want it both ways. They did not seek to alter a single aspect of the public-school administration or curriculum; they simply wanted their children excused from compulsory attendance. By contrast, the parents in Mahmoud—and all parents similarly situated—want to remain in the public school while demanding a degree of impractical accommodation for their individualized religious beliefs. That the majority overlooks this chasm of distinction between the two cases is consistent with its willful blindness to the pedagogical and administrative burdens its holding fosters.

Notably, the Court fails to recognize that, as a legal matter, the plaintiffs in Yoder sought the equivalent of moving children from public to religious school. This elision of reasoning then allows the Court to opine that the option of religious schools for the Mahmoud parents would be too costly—a consideration that does not sound in Yoder or the Constitution, and one the Court fails to balance with the burden on the school to accommodate any family with any stated belief offended by the curriculum.

Banning Books is Easier than Administrative Hassle

A classroom environment that is welcoming to all students is something to be commended, but such an environment cannot be achieved through hostility toward the religious beliefs of students and their parents.

Nothing in the record of this case justifies the word “hostility” in that sentence, and yet it is a telling choice—one that demonstrates this Court’s willingness to step outside its purview and advocate on behalf of some (though certainly not all) sincerely held beliefs. People who want to be recognized for who they are—gay, trans, etc.—are not demonstrating “hostility” toward religion by that act alone. And while we must admit that hostility is inevitable when views, beliefs, and religions collide, these social animosities are not reconciled by the Court finding without reason that one American’s mere existence is “hostile” to another American’s religion.

Meanwhile, within the scrum and squabble of American life, the public school is obliged to include materials that present the world as it is, not the world that certain parties wish it to be. Yet, the Court states, “[The books] are clearly designed to present certain values and beliefs as things to be celebrated  and certain contrary values and beliefs as things to be rejected.” All media conveys a point of view, and all media are subject to viewer interpretation. The first grader’s introduction to cosmology will categorically reject the views of the creationist, and this reference to science is well-founded because a book depicting gay or trans people as “normative” is a matter of scientific reality.

But under the Court’s reasoning in Mahmoud, shall we divide the class to learn about Galileo the scientist in one room and Galileo the heretic in another? Or shall the public school not merely allow a student to be shielded from proven science or history, but also advance him through the grades when he produces incorrect answers in light of his sincerely held beliefs? In Justice Sotomayor’s dissent, she summarizes the problem thus:

Given the great diversity of religious beliefs in this country, countless interactions that occur every day in public schools might expose children to messages that conflict with a parent’s religious beliefs. If that is sufficient to trigger strict scrutiny, then little is not.

Exactly. The broad spectrum of books, ideas, and facts that may be presented in school, even in the K-5 years, will inevitably contain some material anathema to some family’s sincerely held religious beliefs. In that light, public schools cannot reasonably be burdened with managing a dynamic rubric, tracking which families may opt out from specific lessons and on what basis. As Justice Sotomayor states, “Many school districts, and particularly the most resource strapped, cannot afford to engage in costly litigation over opt-out rights or to divert resources to tracking and managing student absences.”

Thus, in recognizing the impracticality of a complex opt-out policy, the alternative choices would be to allow ad hoc opt-outs without explanation or to remove certain materials from the curriculum, which is undoubtedly the goal of the lawsuit in Mahmoud. Of course, this Court would never endorse all sincerely held beliefs under its reasoning.

An Extreme Hypothetical to Make the Point

I have never liked the Pledge of Allegiance. I consider it a creepy, un-American act of performative patriotism, and the words “under God” not only conflict with my sincerely held beliefs but also undermine that next word “indivisible.” Like many students, I recited the Pledge as a young child, mumbled it as I got older, and didn’t say it at all by the time I was a teenager. But as a parent, knowing every public school would maintain the ritual, should I have sought an opt-out for my children, demanding on the basis of my First Amendment rights that my kids should have been allowed to be tardy every day to avoid mere exposure to the Pledge?

I doubt any court would support that claim, even under the ruling in Barnette (1943), also cited in Mahmoud. There, the Court found for Jehovah’s Witness petitioners who objected to a West Virginia state rule compelling students to salute the flag during the Pledge of Allegiance. The Court agreed with the petitioners’ religious right not to worship a graven image, though of course, the compelled salute also offends the speech right, a broad view of the exercise right, potentially the redress right, and is just plain offensive. But just as Yoder is inapt in Mahmoud, so too is Barnett inapt in my hypothetical desire to have my kid opt out of every morning to avoid the Pledge.

Unless the school compels a specific action other than simply being in the presence of the “offensive material,” the impracticality of my request to allow my kids to be tardy every day should outweigh my personal belief that exposure to the Pledge “harms” my First Amendment right to religious—in this case irreligious—instruction of my children. As stated, sowing impracticality is arguably the aim and result of the Mahmoud case—to implicate so much administrative difficulty for at least some schools that books containing the subject matter at issue are simply removed from the shelves.

A Tradition of Bias in “Exercise” Jurisprudence?

“The dissent sees the Free Exercise Clause’s guarantee as nothing more than protection against compulsion or coercion to renounce or abandon one’s reli­gion,” states the Court. I believe the dissent is right—or should be.

To be clear, I would demote my own “religious” beliefs if First Amendment jurisprudence remained narrowly tailored to “exercise” under a strict textual interpretation. I freely admit that as an atheist, I do not engage in what any ordinary person would call religious “exercise” in the sense that my friends attend places of worship and observe certain rites and practices. In this regard, my sense is that conservative jurisprudence tends to want to encompass belief (though not every belief), which is subjective and intangible in contrast to “exercise,” which entails demonstrable conduct.

While it is reasonable that where the state compels certain conduct, the courts must consider whether such compulsion is an abridgement of “exercise.” But with the possible exception of the Amish and truly cloistered communities, this principle cannot apply to mere exposure to ideas, views, expressions, or events that are inescapable realities of living in a polyglot democracy. Public schools sit squarely in the center of public life, and in school as in the broader community, tolerance of even the offensive is the foundation of domestic tranquility. The family that feels otherwise is not only free, but I would argue obligated, to choose an educational alternative that comports with their chosen forms of intolerance.

Conclusion

The Court’s holding in Mahmoud v. Taylor is not surprising, though I admit I was hopeful that Justice Barrett, who has revealed herself an independent thinker, might have written a nuanced concurrence. Instead, the majority’s opinion offers much to justify those who view the current Court as warped by theocratic sentiment that comes dangerously close to advancing a view of “exercise” that would swallow the establishment clause. It speaks in the language of religious neutrality but articulates a clear preference for certain religious beliefs over others.

[1] Further, Alito’s reference to the joy of the “entire kingdom” is simply bizarre. Does he mean to suggest that if some subjects were illustrated as unhappy, perhaps wearing crosses and unhappy, that the book would no longer “pressure conformity” as the Court maintains?

[2] It is curious how often Justice Thomas expresses a reasoning that many Americans would apply to reject the validity of his own interracial marriage.