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Abortion rights demonstrators walk down Constitution Avenue during the Bans Off Our Bodies march on May 14, 2022, in Washington, D.C. (Anna Moneymaker / Getty Images)

If (when) federal constitutional protections for abortions fall, each individual state will have the power to craft its own restrictions on the procedure. Still, the First Amendment might be able to offer a bit of cover to those who seek an abortion as a life choice. Justice Alitos leaked opinion inDobbs v. Jackson Womens Health Organizationeven offers a blueprint.

Alito vociferously argues that the choice to terminate a pregnancy is not protected by any constitutional right of privacy. In fact, he correctly points out that the Constitution provides no explicit right to privacy at all. That right has been interpreted into the constitutional space by the courts and has long been controversial. Instead, the justice asserts over and over again that the decision regarding an individuals right to choose to continue or to terminate a pregnancy is inherently political. He insists that it is a legislative question to be answered by that branch of each state government responsible for crafting laws.

We know any discussions about legislation and its implications and effects are, by definition, political. Political speech enjoys the highest level of protection the First Amendment can provide.

Political speech is not merely communication transmitted during campaigns or among politicians, legislators, lobbyists and activists. Any person expressing an opinion or engaging in conversation on a matter of public concernwhether that be matters of policy, morality, economics or the likeis engaging in political speech. The courts have extended expansive constitutional defenses, including providing cover to those whoburn a cross when it serves as an expression of political ideology, to those who use threatening language in the heat of an argument, and to those whopicket funerals of our soldiers disparaging both the soldiers and the United States government. The ideas expressed by the speakers serve as a commentary on matters affecting the public. Although such speech might be immoral, disturbing or offensive and therefore not worthy of the superpower of the First Amendment, since the First Amendment does not measure morality, such speech enjoys the benefits anyway.

If sidewalk counseling regarding options to continue a pregnancy is protected political speech, so too should be counseling options regarding the choice to legally terminate a pregnancy.

The First Amendment always takes center stage in disputes between advocates and opponents of the right to choose. Two landmark post-Roe decisions addressed the ability ofprotestersandsidewalk counselorsto approach individuals who visit clinics that provide abortion services. In each of those cases, the individual conversations between a prospective clinic patient and an abortion opponent were recognized as political speech. The Court warned that attemptsby state governments through their legislatures to create barriers to discourse between abortion opponents and pregnant people were not constitutional if the burdens imposed effectively silenced the speakers. Certainly, if sidewalk counseling regarding options to continue a pregnancy is protected political speech, so too should be counseling options regarding the choice to legally terminate a pregnancy.

If the federal support for abortion is eliminated (as is anticipated once the Supreme Court announces its decision inDobbs), within weeks, multiple states will enact legislation that severely limits abortion access. By last count, ifRoe v. Wadeis overturned, abortion will become criminal in at least 13 states. Some have argued that if abortion is a criminal act, so too will be speech that assists individuals and their providers in accessing the procedure.

If speech regarding abortion choices is essentially political, attempts to criminalize it are censorship. Censorship is kryptonite to democracy and for that reason is subject to the strongest legal assault. Of course,it might be wise to script such discussions to include keywords that implicate the political nature of the discussion, such as, Lets discuss your options regarding the exercise of your right to choose to terminate a pregnancy in a jurisdiction that protects that right.

Individuals, advocacy groups, newspapers and online platforms that provide information to an individual regarding out-of-state choices available to them should all be shielded by the First Amendment.

Currently,Texas and Oklahoma have provided a civil (as opposed to criminal) avenue for vigilantes to collect $10,000 by suing those who aid and abet a person who seeks an abortion. In those states, even someone who has no relationship to the pregnant person or the abortion provider can sue. However,individuals, advocacy groups, newspapers and online platforms that provide information to an individual regarding out-of-state choices available to them should all be shielded by the First Amendment.

Indeed, in a case initially prosecuted beforeRoe v. Wade,the Supreme Court upheld the rightof a newspaper editor to include advertisements informing Virginia residents of the availability of legal abortions in New York, even if they were illegal in Virginia.So, accessing information about legal out-of-state abortions is certainly safeguarded by the First Amendment.

Similarly, monetarycontributions and expenditureshave long been recognized as an element of political speech, so that any attempt to punish those who offer financial support to groups who aid individuals in their efforts to obtain legal abortions should be on safe ground. Again, tagging any such monetary assistance as funding for political purposes might be wise.

I am of course not arguing that the First Amendment will supplant the protections inRoe, which also relied on the Fourth, Fifth, Ninth and 14th Amendments to provide individuals with autonomy and power. Those of us who insist it is the personal and private decision of a person to choose how their body should be used and whether or when they will become a parent are now tasked with rebuilding that right. We will have to fight state-by-state. It is nice to know that all federal protections have not abandoned us and that the First Amendment will provide wind at our backs.

Sign and share Ms.s relaunched We Have Had Abortions petitionwhether you yourself have had an abortion, or simply stand in solidarity with those who haveto let the Supreme Court, Congress and the White House know: We will not give up the right to safe, legal, accessible abortion.

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Abortion Rights Advocates Can Still Count on the First Amendment - Ms. Magazine

A Jewish synagogue in Florida filed a lawsuit last week claiming the state's law banning abortion after 15 weeks, HB 5, violates the right to free exercise of religion. It argues that it threatens the Jewish people by imposing the laws of other religions upon Jews.

The Act establishes as the law of the State of Florida, a particular religious view about abortion and when life begins, which is contrary to the views of Plaintiff, its members, congregants, and supporters as well as many other Floridians, the plaintiff, Congregation LDor Va-Dor of Boynton Beach, Florida, said in the case.

In Jewish law, abortion is required if necessary to protect the health, mental or physical well-being of the woman, or for many other reasons not permitted under the Act.

Congregation LDor Va-Dor represents a unique brand of all-inclusive, universal, and rational Judaism that honors tradition, respects science, and celebrates spirituality, according to its website.

The synagogues rabbi, Barry Silver, characterizes himself online as a social activist Rabbi-rouser who practices cosmic Judaism. He was previously an attorney and Democratic state legislator, NPR noted.

The American Civil Liberties Union also filed a case against the Florida law based on the state constitutions individual privacy protections. But the synagogue isnt the first to object to abortion restrictions on religious liberty grounds.

Rabbis for Repro, a group formed by the National Council of Jewish Women, makes abortion activism a religious issue, lobbying for bills such as the Womens Health Protection Act, meeting with Congress, and organizing in local communities.

Daniel Eisenberg, an expert on traditional Jewish medical ethics, writes that the Jewish view does not fit neatly into the pro-choice or pro-life camps, though it is universally agreed that the fetus will become a full-fledged human being and there must be a very compelling reason to allow for abortion.

When the Dobbs v. Jackson Women's Health Organization decision leaked, the leadership of the Orthodox Union said they were unable to either mourn or celebrate.

Abortion has also been taken up as a religious issue by the Satanic Temple, which has filed multiple lawsuits in states with restrictions. The group regards abortion as a ritual and argues that it should be protected under the Religious Freedom Restoration Act.

States that outlaw abortion and do not grant exceptions present more significant challenges, but TST has a number of plans that we will be undertaking quite soon, TST wrote in a statement following the Dobbs leak. Actions include suing the FDA to permit TST access to Mifepristone and Misoprostol for use under medical supervision as part of our religious ritual and possibly creating religious abortion facilities.

Increasingly, abortion advocates point out that religions hold different stances on abortion, arguing abortion bans trample these other religious perspectives and default to Christianity. It allows two favorite issues of social conservatives, religious liberty and pro-life laws, to be framed as in conflict with each other. But seeking religious liberty protections is not the silver bullet some activists seem to think it is. When it comes to stopping the advance of abortion bans and other pro-life legislation, its just not a viable strategy.

Erin Hawley, a senior counsel at the Alliance Defending Freedom, told the Washington Examiner that federal courts have, with good reason, declined to accept the idea that the free exercise clause protects the right to an abortion for 30 years.

To be protected by the First Amendment, a belief must be sincere and religious in nature a hurdle that will be almost impossible for women seeking abortions to show, Hawley said. Nor is the idea of a religious veto a viable one. Any exception would apply only to a woman seeking an abortion who sincerely believed her faith required one a reviewing court would not strike down a pro-life law.

Hawley said the courts might also find that the government can prevent the termination of innocent human life.

Further, because abortion takes the life of an innocent third party, the courts would likely find that the government may prevent the purposeful termination of a human life, she said. The Constitution, including the free exercise clause, simply does not protect any so-called right to abortion. It is dishonest to argue otherwise.

Protecting innocent life certainly presents a compelling state interest, a standard established in Sherbert v. Verner for overriding free exercise claims.

While abortion arguments do involve religious considerations and Christians in the pro-life movement often have foundational theological reasons for their advocacy, the position that life begins at conception is a scientific fact affirmed by nearly every biology book. Nonreligious groups, such as Secular Pro-Life, join the cause for this reason.

The 14th Amendment says that no state may deprive any person of life without due process. The government has an obligation to recognize the personhood of preborn babies and protect innocent life.

Katelynn Richardson is a summer 2022 Washington Examiner fellow.

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Abortion is not a religious ritual protected by the First Amendment - Washington Examiner

So the Arizona Supreme Court held today (Morgan v. Dickerson), in an opinion by Vice Chief Justice Ann A. Scott Timmer:

The superior court in Cochise County uses "innominate juries" for all criminal jury trials. Under that procedure, prospective and impaneled jurors are referred to by numbers rather than by names throughout open-court proceedings, although the court and the parties know their identities. Consequently, although voir dire examinations and trials are open for public viewing, observers are not provided jurors' names absent order of the court.

[W]e are asked to decide whether the First Amendment provides the public a qualified right of access to jurors' names during voir dire, thereby creating presumptive access to those names that can be overcome only on a case-by-case basis by showing both a compelling state interest and that denying access is a remedy narrowly tailored to serve that interest. We hold the First Amendment does not prohibit the court's practice.

Arizona law provides that "[t]he list of juror names or other juror information shall not be released unless specifically required by law or ordered by the court."

[T]he [Supreme] Court has held that the First Amendment guarantee of qualified public access attaches to criminal trials, voir dire examinations, and trial-like preliminary hearings [But] the right to attend voir dire [and] a right to access juror names are far from the same thing. Here, the public was not barred from attending any part of the criminal trials, including voir dire, so the most essential press and public right is not implicated. [T]he Supreme Court has not addressed whether the First Amendment guarantee of qualified public access to voir dire examinations extends to learning jurors' names.

The court then applied the Supreme Court's "experience and logic" inquiry into whether a particular facet of the judicial process should be open; it agreed that, as to experience, "jurors' names were traditionally revealed during jury selection proceedings," but concludes that "logic" cuts in favor of upholding departures from that tradition:

By asking whether access to jurors' names "plays a significant positive role in the functioning of the particular process in question," the logic inquiry sets an exacting standard. A minimally positive role falls short.

[The] reasoning [in the Supreme Court's Press Enterprise I decision] for holding that open voir dire examinations play a significant positive role in that process guides our answer to the logic inquiry. The Court observed that the public right to attend voir dire promotes fairness and the appearance of fairness, critical to public confidence in the criminal justice system. Specifically, "[t]he value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known." Open proceedings also have a "community therapeutic value" by providing an outlet for public reaction to criminal acts.

"[P]ublic proceedings vindicate the concerns of the victims and the community in knowing that offenders are being brought to account for their criminal conduct by jurors fairly and openly selected." In short, open proceedings play a significant positive role in voir dire by checking the courts to ensure established standards are being used to select jurors and by simultaneously assuring the public that fairly selected jurors are holding offenders to account for their crimes.

Morgan has failed to show that public access to jurors' names likewise plays a significant positive role in voir dire. With or without such access, the press and the public can attend voir dire proceedings and were able to do so in these cases. Anyone can sit in the courtroom during a criminal trial and observe the juror screening process, including voir dire examinations. They can also observe for-cause challenges and peremptory strikes, hear the judge's rulings, and mark any deviation from standards put in place by the legislature or this Court to select a fair jury. The public is also generally entitled to access public records reflecting how jury pools are formed in the superior court. Accessing jurors' names would not significantly add to the public's ability to assure itself that voir dire is fairly conducted or to check the courts in disregarding established standards for jury selection.

Other courts have reached the opposite conclusion, reasoning that public knowledge of jurors' names would deter prospective jurors from misrepresenting their answers during voir dire, permit public investigation of the accuracy of those answers, and assure the public that prospective jurors are drawn from a fair cross-section of the community. We disagree.

First, the public's role in voir dire is as an observer, not as a participant charged with selecting a fair jury. The judge and the parties are charged with that responsibility. See They are provided prospective jurors' names and are highly motivated to safeguard the integrity of the process, ensure the jury pool is drawn from a fair cross-section of the community, and unearth any information demonstrating juror bias.

Second, we are unconvinced that providing open access to jurors' names would cause prospective jurors to be more forthcoming during voir dire. It is just as likely that such access would motivate them to be less than forthcoming to avoid public embarrassment about very sensitive matters, like disabilities, medications, and past experiences as crime victims. And in this internet age, where jurors' names can trigger lightning-fast access to a wealth of biographical information, including addresses, any slightly positive role in divulging jurors' names to the public is outweighed by the risk to jury integrity.

In sum, public access to jurors' names promotes neither fairness in voir dire proceedings nor the perception of fairness. As such, it does not play a significant positive role in the functioning of voir dire, and we answer the logic inquiry in the negative. Consequently, the First Amendment does not provide the press or public with a qualified right to access jurors' names, and 21-312(A) is facially valid. The Cochise County Superior Court herefore did not err by presumptively using innominate juries.

Justice Clint Bolick concurred, but added:

I write only to add that the statute protecting juror names survives even the most demanding First Amendment compelling-interest standard. Unlike most states, Arizona's constitution contains an express privacy protection, providing in relevant part that "[n]o person shall be disturbed in his private affairs without authority of law." Whatever the scope of that right, the State plainly has a compelling interest in enforcing it to protect juror privacy.

Query whether similar reasoning could be used by courts to justify pseudonymity of litigants, notwithstanding some courts' statements that the First Amendment right of access presumptively precludes such pseudonymity (see my The Law of Pseudonymous Litigation), and not just of jurors.

Congratulations to counsel Marjorie S. Becklund and Michael A. Powell, who delivered the oral arguments in favor of this result.

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No First Amendment Problem with Routine Anonymous Criminal Juries - Reason

Congress shall make no law abridging the freedom of speech, or of the press. First Amendment to the U.S. Constitution

When James Madison authored the language that would become the First Amendment, he and his colleagues feared that the new federal government might enact legislation that would interfere with personal liberty. That fear was shared by many in the 13 states that had just ratified the Constitution. Indeed, five of the states conditioned their ratification on the addition of a Bill of Rights.

Madison who had been the scrivener of the Constitution in 1787, was, by 1791, a member of the House of Representatives and the Houses resident expert on the Constitution was designated by his colleagues as the drafter of the Bill of Rights.

Madisons language in the First Amendments is clear; it only restrains Congress. Yet, recognizing the natural origins of the freedom of speech and aware of the universal governmental animosity to free speech, and taking account of the 14th Amendments imposition of due process upon the states, the courts expanded the scope of the First Amendment so as to impose its restraints upon all government including the president, the judiciary, the states and their subdivisions.

During the Civil War and World War I, Presidents Abraham Lincoln and Woodrow Wilson incarcerated folks for their speech and argued that the First Amendment only restrained Congress, not the president. Today, such an argument would be dismissed out of hand in any court.

Today, the First Amendment protects the freedom of speech from all government.

But the First Amendment only restrains the government. It does not restrain private persons, whom lawyers call nongovernmental actors.

The old counterpoint that the First Amendment does not permit shouting fire in a crowded theater is inaccurate. If the theater is owned by nongovernmental actors, the First Amendment plays no role whatsoever in regulating or permitting the shouting; the property owner does. There are sound reasons why shouting fire in a crowded theater is actionable under the law, but the First Amendment is not among them unless the government owns the theater.

I offer this brief background as a prelude to addressing the latest turn of events concerning social media platforms that suppress speech of which they dont approve. Because the social media companies are nongovernmental actors, they are free to infringe upon the speech of their clients and customers for any reason they choose that does not violate public policy, such as infringement based on race, gender, religion, sexual orientation or place of origin.

Yet, a nongovernmental actor that enters into a symbiotic relationship with the government may lose its freedom to suppress speech and be subjected to the same restraints as the government.

Thus, Twitter, for example, is free to suppress any speech and any speaker because of the content of the speech, unless it is doing the governments bidding. If it is, if Twitter is doing for the government what the government cannot do on its own suppress speech because of its content and if sufficient evidence of this is properly before a court, the court may very well invoke the state action doctrine, which will impose the restraints of the First Amendment upon Twitter.

I use Twitter as an example because last week two U.S. senators obtained and revealed emails between officials of the Department of Homeland Security and Twitter executives contemplating how Twitter can suppress speech that the DHS believes constitutes mis- or dis- or mal-information. This is dangerous for personal liberty and, frankly, dangerous for Twitter.

The courts have ruled that when a governmental actor here the DHS and a nongovernmental actor here Twitter are so intertwined for their mutual benefit, and someone here those whose speech Twitter has suppressed because of its content is harmed thereby, the courts will impose First Amendment restraints upon the nongovernmental actor.

Lets say you are in Yankee Stadium at a Yankees/Boston Red Sox game and you go to buy a hot dog from a vendor in the stadium and he refuses to sell to you because you are wearing a Red Sox baseball cap. (In New York, this happens!) Who has punished you for your speech, the private vendor, which is not restrained by the First Amendment, or New York City, which owns the stadium and hired the vendor and which clearly is restrained by the First Amendment?

Since the city provides customers for the vendor and the vendor provides products for the customers and your presence at the game benefits both, and because you dont know whose rule no Red Sox caps allowed is being enforced, there is obviously a symbiotic relationship between the vendor and the city, and thus the First Amendment will restrain the vendor from punishing your speech as if it were the city.

The same may very well be the case for Twitter. The emails released last week revealed the contemplation of a symbiotic DHS/Twitter relationship that, if proven, will harm Twitter severely and expose the government for its attacks on the freedom of speech.

The whole purpose of the First Amendment is to keep the government entirely out of the business of interfering with speech directly or indirectly. Moreover, if Twitter does the governments bidding, and the First Amendment is applied to Twitter, it will lose its private property-generated ability to suppress speech.

The interesting question is not what does the government gain; governments always want to suppress the speech they hate and fear. The real question is why a social media entity would do the governments dirty work for it. The probable answer is to retain its statutory immunity from liability for what its clients post.

This is what happens when you get in bed with the feds. You wake up with a constitutional headache as well as fleas.

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Twitter and the freedom of speech | News, Sports, Jobs - Minot Daily News

The British home secretary has formally approved the extradition of WikiLeaks publisher Julian Assange to the United States, in the latest development in a dangerous and misguided criminal prosecution that has the potential to criminalize national security journalism in the United States.

Previously, a major coalition of civil liberties organizations, including Freedom of the Press Foundation, implored U.S. Attorney General Merrick Garland to drop the case against Assange in the name of protecting the rights of journalists everywhere. So, too, have the editors of major news outlets such as The New York Times and Washington Post.

By continuing to extradite Assange, the Biden DOJ is ignoring the dire warnings of virtually every major civil liberties and human rights organization in the country that the case will do irreparable damage to basic press freedom rights of U.S. reporters.

The prosecution, which includes 17 charges under the Espionage Act and one under the Computer Fraud and Abuse Act, covers events that took place more than a decade ago, but was brought only under the Trump administration after the Obama Department of Justice reportedly considered charges but dismissed them for their dangerous First Amendment implications.

Reports suggest Assange may have at least one more avenue of appeal, so he may not be on a flight to the United States just yet. But this is one more troubling development in a case that could upend journalists rights in the 21st century.

You dont have to like Assange or his political opinions at all to grasp the dangerous nature of this case for journalists everywhere, either. Even if you dont consider him a journalist, much of the activity described in the charges against him is common newsgathering practices. A successful conviction would potentially make receiving classified information, asking for sources for more information, and publishing certain types of classified information a crime. Journalists, of course, engage in all these activities regularly.

There is some historical irony in the fact that this extradition announcement falls during the anniversary of the Pentagon Papers trial, which began with the Times publication of stories based on the legendary leak on June 13, 1971, and continued through the seminal Supreme Court opinion rejecting prior restraint on June 30, 1971.

In the months and years following that debacle, whistleblower (and FPF co-founder) Daniel Ellsberg became the first journalistic source to be charged under the Espionage Act. What many do not know is that the Nixon administration attempted to prosecute Times reporter Neil Sheehan for receiving the Pentagon Papers as well under a very similar legal theory the Justice Department is using against Assange.

Thankfully, that prosecution failed. And until this one does too, we continue to urge the Biden administration to drop this prosecution. Every day it continues to further undermine the First Amendment.

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The extradition of Julian Assange must be condemned by all who believe in press freedom - Freedom of the Press Foundation