Category: Free Speech

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.

TikTok Boom? A Test Case for Platform Accountability

TikTok

This week, the Supreme Court must decide whether to delay the ban of TikTok in the United States, which is scheduled to take effect on January 19. Signed into law last March, the Protecting Americans from Foreign Adversary Controlled Applications Act was designed to compel owner ByteDance to sell TikTok to a U.S. or other entity with no ties to the Chinese government. But rather than seek a buyer over the last ten months, TikTok has fought the mandate, arguing principally that the “sell or be banned” law violates the First Amendment.

On January 10, the Supreme Court heard oral arguments, and based on comments by various legal observers, it’s a toss-up as to whether the Court will hold that the TikTok law violates the speech right. The Court could also postpone the January 19 deadline on the basis that it declines to issue an important constitutional decision on such a tight timeline. Personally, I am not persuaded that the law implicates the First Amendment because the forced sale targets TikTok as a product and foreign-based operation without regard to the content on the platform. In fact, blurring this distinction is why I believe we have thus far failed to hold social platforms accountable for the content they host, promote, monetize, and manipulate.

Briefs filed on behalf of TikTok include most of the parties with whom I typically disagree on speech and the internet, including the Electronic Frontier Foundation, American Civil Liberties Union, Public Knowledge, Fight for the Future, Cato Institute, and Copia Institute. One argument presented is that even forcing a change in ownership targets the content of the speech on the platform. A similar view was expressed by Dr. Mary Anne Franks during an interview on WPUR. I generally agree on most matters with Dr. Franks, but here, I disagree with the premise that compelling the sale of TikTok is tantamount to targeting the content of the platform or acting as a prior restraint on speech. Further, I worry that if either theory holds, this would only exacerbate the free-speech shell game played by every major social media site determined to avoid either government or self-regulation.

For context, foreign parties are historically prohibited from owning TV or radio networks on the basis that it is a threat to national security to place the tools of mass communication within the reach of foreign powers who might wish to meddle in U.S. policy. If that rationale applies to a mode of communication that merely broadcasts a limited volume of content in a limited manner, the same logic must apply with greater force to social media, which acquires information about its users and can micro-target those users with propaganda from any source in the world. As the brief filed by Professor Zephyr Teachout states:

While 30 years ago it was functionally impossible for foreign governments to engage in local races for Congress, or to track the vulnerabilities of local officials millions of miles away without considerable cost, social media now makes it nearly frictionless for a foreign adversary to engage in hyperlocal politics directly.

The prohibition on foreign parties owning, for instance, American radio stations was never held to be a prior restraint on the speech that would have been communicated by owners who do not have First Amendment rights under U.S. law. This same analysis cannot reasonably be amended on the basis that social platforms (unlike traditional radio or TV stations) reach audiences anywhere in the world, or the fact that TikTok is already used by 170 million Americans exercising their speech rights. So long as the Court finds that the target of the ban/sale law is the design, operation, and foreign influence over the site, it should not be persuaded that the question is a First Amendment issue at all.

As a very simple example, if a publisher distributed children’s books made from toxic materials, any government action to sanction the publisher could not reasonably be held to target the content of the books. And no rational consumer would think otherwise. Likewise, those aspects of TikTok that are toxic to American consumers and/or American interests are considerations separable from the speech rights of either the TikTok entity or its American users.

Finding for TikTok Would Exacerbate Our Social Media Problems

The speech rights of platform users have been cited ad nauseum by Silicon Valley as a rationale to reject government oversight of social media, and this despite the hypocrisy that a user’s speech can be willfully trampled by the platform itself. While Section 230 holds that social platforms are not publishers, they nevertheless act as super-publishers, who manipulate, stifle, amplify, charge fees for, and even ban the speech of users—often without any discernable rationale, and always without transparency or mechanism for appeal that would not astound Kafka himself. (Just last week, a colleague was sent to the Facebook penalty box, and near as we can tell, this was triggered by his posting comments critical of Facebook after the announcement that they would end fact-checking.)

Congress recognizes and yet fails to address the myriad intentional and unintentional hazards caused by social media’s unprecedented capacity to alter world events through data-driven targeting of false and hazardous material. They have yet to hold platforms, including TikTok, accountable for obvious harms like mass copyright infringement, drug-related scams or child suicides caused by algorithms. In this light, the argument that some new owner of TikTok might manipulate speech in a different manner than the current owner (as Musk did after buying Twitter) cannot be a basis for finding that the forced sale is a prior restraint on the speech that might have been expressed by maintaining the status quo. It is an untenable proposition.

The Trump Brief

As if to highlight how preposterous the world is thanks to social media, the TikTok matter is extra sticky at a moment when the American President-reelect demonstrates a hostility to American interests as if he were a foreign adversary. This existential challenge to the Republic is not germane to the First Amendment question before the Court, but the morass is difficult to confront when Trump himself has weaponized the same modes of propaganda that animate the rationale for the ban/sale law in the first place.

Trump is among the amici who filed a brief on behalf of neither party, but which nevertheless supports TikTok by arguing that the Court should postpone the January 19 deadline. The stated reason is classic Trump—namely that he, and he alone, can solve the problem through the art of the deal. Pregnant with self-aggrandized rhetoric, the brief states, “…President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns….”

So, on the basis that Trump is the master negotiator, he argues that the Supreme Court should decline to wade into the “‘unprecedented’ and ‘very significant constitutional questions’” presented by TikTok, at least until he has a chance to work his dealmaking mojo. Surely, the Court cannot fathom what Trump might really intend, let alone resolve the hypocrisy that a con man who owes everything to social media can “save” TikTok while protecting national security. But the Court can, and in my view should, find that the law forcing the TikTok sale does not violate the First Amendment.

Court Demolishes Texas Book “Rating” Law

In the 1980s, the Parents Music Resource Center (PMRC), led by Tipper Gore and several other wives of Washington insiders,[1] sought to compel record labels to place stickers on albums warning consumers that the songs within contained “explicit lyrics.” Songwriters, including Frank Zappa, John Denver, and Dee Snider testified in Senate hearings to oppose the label initiative on First Amendment grounds, but in the end, the RIAA agreed to voluntary use of the labels. Predictably, the result was a lot of ridicule of the now defunct PMRC, and the warning labels mostly served to make the albums more attractive to listeners.

Today’s self-appointed defenders of children against “dangerous” cultural material are more aggressive and mean-spirited than the PMRC and, it appears, more incompetent. Both the tenor and the incompetence were recently highlighted in a 59-page opinion handed down by the District Court for the Western District of Texas, eviscerating a law, unironically called READER,[2] that would have required book vendors to engage in a complexly incoherent rating scheme.

The complaint, filed by Book People, Blue Willow Book Shop, American Booksellers Association, Association of American Publishers, Authors Guild, and Comic Book Legal Defense Fund, alleged that, if enforced, the Texas law would violate the First and Fourteenth Amendments. Plaintiffs won a summary judgment on all questions of law, and the state is enjoined from enforcing READER as of the September 18 decision. In sum, Judge Allan D. Albright, a Trump appointee, stated, “READER’s requirements for vendors are so numerous and onerous as to call into question whether the legislature believed any third party could possibly comply.”

That is a sober and sobering assessment of the provisions, which appear to have been designed not to reasonably assess books for age appropriateness in school settings, but to ban the sale of certain books by erecting a thicket of compliance too dense and jagged to navigate. Either that, or the law was pure theater and never meant to be enforced because it is so unwieldy. Judge Albright’s opinion is rich with pull-quotes criticizing a law that would have burdened vendors with extraordinary expense (in the millions of dollars) to analyze their catalogs according to undefined terms and methodologies…

The lack of any blueprint for the Plaintiffs to follow creates a blunt reality that under this scheme it is guaranteed that different book distributors and sellers will arrive at different assessments with respect to hundreds if not thousands of books.

Plus, the inevitably broad range of interpretations and applications of READER would be further exacerbated by the authority of the Texas Education Agency (TEA) to overrule a vendor’s rating without any clear guidance or process for appeal…

There is precious little if any language in the statute to ensure that any decision made by the TEA with respect to the rating of any book will be any more ‘accurate’ (whatever that means) allowing for the enormous possibility if not probability that it will be entirely arbitrary and capricious (at best). In other words, vendors must decide between either accepting the state administrative agency substituted speech as their own or being effectively blacklisted.

Specifically, if READER were to be enforced, book vendors would have been required to rate both their current catalogs and “books in active use” according to new state standards for “sexually explicit” and “sexually relevant” material. Given the current climate flush with politicians who routinely conflate sexual identity with sexual conduct, it takes little imagination to guess at the Texas legislature’s intent with a vague category called “sexually relevant.”

For instance, how might a vendor be expected to rate my friend J. J. Austrian’s book about two earthworms getting married when there is no sex in the story at all? Although Worm Loves Worm may be read as allegorical support for same-sex marriage, does that subjective reading make the book “sexually relevant” in some administrator’s mind? J. J. said during our podcast interview that most kids don’t even pick up on a “gay marriage” metaphor—earthworms are hermaphrodites after all—which suggests that adults who have banned the book are likely poor readers of both the story and the intended audience. Now, imagine being a vendor and trying to rate hundreds or thousands of titles in context to the “community standards” of all the disparate communities across the State of Texas. “It is an open question whether this community standard is based on Austin, Texas, or Onalaska, Texas—or any of the more than 1,200 incorporated municipalities across Texas,” the opinion states.

There are too many moving parts in this judgment to discuss in one post, but I think the bottom line is that laws like READER aren’t about protecting children, or even about notifying parents about content, as the PMRC intended. While any state has a right and authority to erect a system for vetting materials purchased by its schools, sloppy, overbroad, Catch-22 laws like READER, especially in the current climate, are arguably about little more than hating gay and trans people.

I would challenge anyone to find young children’s literature that contains “sexually explicit” material, as defined by law[3] or common sense, let alone find the mythical Anais Nin picture book in a school library. On the other hand, if “sexually explicit” or “sexually relevant” are terms that Texas lawmakers intended to encompass stories in which a character has two dads, or stories about young people struggling with gender identity, those terms are as illiterate as they are constitutionally unworkable.

For as long as I’ve been politically conscious, “conservative” Americans have claimed to oppose the nanny state and to value individual effort. So, maybe parents who don’t want their children reading certain books can stop asking the state to do their parenting for them, read the damn books themselves, and make the individual decisions they deem necessary. Because there is a world of difference between a personal choice to restrict access to a book for one’s own child and demanding that a book disappear from the shelves for all children. Fortunately, the latter can rarely be achieved without violating the Constitution.

[1] Also Susan Baker, Pam Howar, and Sally Nevius.

[2] Restricting Explicit and Adult-Designated Educational Resources Act

[3] “The Miller test [for sexually explicit material] requires the following elements: ‘(a) whether the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.’”

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