The 1st Amendment in an Increasingly Authoritarian 21st Century Society

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Legislation targeting transgender persons and ideologies are on the rise. These proposals are advancing rapidly through States across the Nation and seek to quell the prominence of gender ideology in our cultural, educational, and judicial institutions. It is apparent to me that this movement of over 450 pieces of legislation did not coalesce into a seemingly organized resistance without some provocation.

The manifestation of this quasi-religion consists of ad-campaigns pushed by your favorite domestic breweries, up to official endorsements and adherence to the ideology in the highest levels in government, and it strives to supplant the founding principles that unify this Nation’s populace.

The Constitution is a guiding force behind the application of justice, although it predominantly provides us with principles to abide by laid out in the form of “inalienable rights.” It has been amended to explicitly protect every person’s right to freedom of speech.

I seek to evaluate the constitutionality of the recently proposed “Transgender Bill of Rights”, as well as one of the more restrictive bills that are in opposition to it under the context of the 1st Amendment. We need to ensure that despite the mutual sense of urgency invoked by the widespread adoption of “Gender Affirming Care” and gender ideology, we do not set aside those principles which hold together the delicate fabric of our society, simply to satisfy our own ideological and spiritual leanings.

Not only does this bill codify what I view as 1st Amendment violations, but it also codifies abortion in alignment with the original Roe v. Wade, 410 U.S. 113 (1973) decision, sex change surgeries and hormone therapies for minors. What is being touted as the “Trans Bill of Rights” is exactly what you think it is, plus more! This bill seeks to clarify and re-assert the rights that are enjoyed by all under the Civil Rights Act of 1964. One means by which this bill does so is by codifying precedent set by SCOTUS rulings on cases regarding sex based discrimination, such as the decision in the Bostock-v.-Clayton-County,-Georgia,-140-S.-Ct. -1731-(2020) case which determined that,

“Protections against workplace discrimination on the basis of sex apply to discrimination against LGBT individuals. In the opinion, Justice Neil Gorsuch wrote that a business that discriminates against homosexual or transgender individuals is discriminating “for traits or actions it would not have questioned in members of a different sex.” Thus, discrimination against homosexual and transgender employees is a form of sex discrimination, which is forbidden under Title VII.”

To be able to understand how the bill would stand up to scrutiny under the 1st Amendment, we must first look at the proposed rights under the “Transgender Bill of Rights.” They consist of, but are not limited to:

  • Access to “Gender Affirming Care” such as sex change surgeries and hormone treatments for minors.
  • Access to abortion by codification of the Roe v Wade SCOTUS decision, which was recently overturned in the Dobbs-v.-Jackson-Women’s-Health-Organization, and access to Contraceptives and assisted reproductive services.
  • Participation in sports on teams and in programs, using school facilities that best align with their gender identity, having their “authentic identity” respected in the classroom, and access to curriculum and books that accurately portray the substantive history and identity of LGBTQI+ people and Black, Indigenous, and people of color.
  • Elimination of Federal gender identification requirements on government documents that are unnecessary to determine identity or are otherwise irrelevant, removing barriers to updating sex and names on Federal Government identification and records, and requiring that an ‘‘X’’ marker be available on Federal Government identification and records that still require gender.
  • “Exploring” policies and practices that would improve the safety of transgender and nonbinary individuals incarcerated in jails, prisons, and immigration detention facilities, and ensure that those populations of transgender and non- binary individuals have access to gender- affirming care, appropriate services, and commissary items.

Now, we must assess if there are conflicts within this proposal. One of the critical 1st Amendment conflicts is Section 1.A.4.3, which intends to amend Federal education laws to ensure that those laws protect students from discrimination based on sex, including gender identity and sex characteristics, and guarantee the rights of students to having their “authentic identity” respected in the classroom.

My interpretation of this is that the bill seeks to compel speech in accordance with the individual’s ideology. Additionally, it specifies against any religious exemption, clearly defined in Section 1.A.3:

“explicitly clarifying that it is illegal to discriminate on the basis of sex, including gender identity or sex characteristics, in public accommodations and services on religious grounds;”

Firstly, this conflicts with the Separationist view of the Establishment Clause. The separationist view is embodied by Thomas Jefferson’s statement that the First Amendment created a wall of separation between church and State. Thus, in Everson v. Board of Education in 1947, the Supreme Court said that this wall must be kept high and impregnable. It went on:

“The establishment of religion clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.”

More importantly, the Supreme Court has recognized that there is a fundamental issue with the state excluding citizens for their “faith or lack there of.” Not only do they make this assertion, it was clearly stated that, “Accordingly, in some decisions, the Court has cautioned that the government may not establish a ‘religion of secularism’ in the sense of affirmatively opposing or showing hostility to religion, thus ‘preferring those who believe in no religion over those who do believe.’”

Furthermore, the court also recognized that the state CAN act in favor or support of an established religion, but only on the grounds that it “relieved a burden on religious practices.” Which I argue is highly relevant to the “Trans Bill of Rights,” and would invalidate this portion of the bill.

Let’s look at some of the provisions in opposition legislation. I will cite one bill that’s shares a commonality between many of the 450+ bills.

The bill I chose is SB-1320, which has a couple sections that could be subject to scrutiny under 1st Amendment clauses. It is in essence an inversion of the “Transgender Bill of Rights,” as it restricts teachers and contractors from using a preferred pronoun or personal title that is doesn’t correspond with a students “immutable” sex traits:

“Sex means the classification of a human person as being either male or female based on the organization of the body of such person for a specific reproductive role, as indicated by the person’s sex chromosomes, naturally occurring sex hormones, and internal and external genitalia present at birth.”

This is not the only bill that is attempting to limit the use of “pronouns” in classrooms, as exhibited by SB-1001 in Arizona, SF-496 in Iowa, and many others which can be found in this legislation tracking website.

There are a number of potentially relevant clauses that could be cited if these bills get brought before the courts. First, we have three specific clauses that will set the stage going forward.

  • Content-Based
  • Content-Neutral
  • Content-Discrimination

The concepts behind Content-Based and Content-Neutral are defined, but how a court determines this is based on the text or intent of a specific bill, whether it is discriminatory in nature, the justification or purpose, and the operation or execution of the bill. This has caused discrepancies in rulings over time. Regardless, the Reed v. Town of Gilbert is a good place to start.

“The Court’s 2015 decision in Reed v. Town of Gilbert heralded a more text-focused approach, clarifying that content-based distinctions on the face of a law warrant heightened scrutiny even if the government advances a content-neutral justification for that law.

Under Reed, a law can be content based on its face or due to a discriminatory purpose or justification.

A facially content-based law draws distinctions based on the message a speaker conveys.

Such a law might define regulated speech by particular subject matter or by its function or purpose.

The law might even regulate speech on the basis of the particular views expressed.”

The ruling laid out in this case establishes the fundamentals for distinguishing between Content-Based and Content-Neutral, although it’s still considered to be a difficult task. I decided to dig a little deeper and see the real world application of these concepts:

“The Court has held that government may impose reasonable restrictions on the time, place, or manner of engaging in protected speech provided that they are adequately justified ‘without reference to the content of the regulated speech.’”

“Thus, a prohibition against the use of sound trucks emitting ‘loud and raucous noise’ in residential neighborhoods is permissible if it applies equally to music, political speech, and advertising.”

“The city contends that its regulation of news-racks qualifies as such a restriction because the interests in safety and esthetics that it serves are entirely unrelated to the content of respondents’ publications. Thus, the argument goes, the justification for the regulation is content neutral.”

The courts seemed to have disagreed with this justification of their restrictions as Content-Neutral.

“The argument is unpersuasive because the very basis for the regulation is the difference in content between ordinary newspapers and commercial speech. True, there is no evidence that the city has acted with animus toward the ideas contained within respondents’ publications, but just last Term we expressly rejected the argument that ‘discriminatory . . . treatment is suspect under the First Amendment only when the legislature intends to suppress certain ideas.’”

They continue…

“Regardless of the mens rea of the city, it has enacted a sweeping ban on the use of news-racks that distribute ‘commercial handbills,’ but not ‘newspapers.’ Under the city’s news-rack policy, whether any particular news-rack falls within the ban is determined by the content of the publication resting inside that news-rack. Thus, by any commonsense understanding of the term, the ban in this case is “‘content based.’”

“We agree with the city that its desire to limit the total number of news-racks is ‘justified’ by its interests in safety and esthetics. The city has not, however, limited the number of news-racks; it has limited (to zero) the number of news-racks distributing commercial publications. As we have explained, there is no justification for that particular regulation other than the city’s naked assertion that commercial speech has ‘low value.’ It is the absence of a neutral justification for its selective ban on news-racks that prevents the city from defending its news-rack policy as content neutral.”

To summarize the key take-aways, it’s important to note that Content-Based refers to the content of the speech as the justification for restricting it, generally based in the party disfavoring that speech. Content-Discrimination is when Content-Based restrictions exist in practical effect, and/or express intent to diminish the effect of the Content-Based Speech.

Content-Neutral is essentially the inverse, where the content of the speech is not directly cited in text, nor clearly defined for the operational purposes.

As we wrap up the evaluation of these clauses, it’s important to note that schools, prisons, and nonpublic forums are considered exceptions by the court where laws, if determined to be a Content-Neutral, in addition to imposing only an “incidental” burden on speech, or if it furthers substantial government interest that’s not rooted in the suppression of free speech, it will likely be sustained.

There are three additionally important clauses I want to discuss. The first being Viewpoint-Based laws, and Viewpoint-Neutral, and Viewpoint-Discrimination. They are somewhat comparable to the definitions of the original three, respectively. What makes them stand out is that rather than a restriction solely targeting the content of the speech with Content-Based Discrimination, viewpoint based laws typically target a particular viewpoint which can be held by groups and individuals.

This is where we start to see how this could easily be the basis for an unconstitutional ruling against the restrictions on pronouns, as it could be classified as a view point, and subject to scrutiny on a discriminatory basis.

View point discrimination can take a few forms. Here are three specific examples that can help define the criteria:

  • First, a law that singles out particular speakers may be aimed at restricting certain content or certain viewpoints.
  • Second—and related to speaker-based distinctions—a law that contains numerous exemptions may have the impermissible effect of restricting the speech of individuals or entities with a certain point of view.
  • Third, a law that restricts only a particular form of expression may be aimed at suppressing a particular viewpoint.

For a restriction on pronouns to be upheld in court, not only would the bill need to be viewpoint-neutral in text, there also has to a be a substantial disruption or material interference with school activities. If school staff places restrictions on speech internally without any legislative action, similarly to the Tinker vs. Des Moines case, the courts have ruled that it’s unconstitutional to do so.

“Although schools have some leeway to restrict student expression that might reasonably lead to substantial disruption of or material interference with school activities, there was no indication that such disturbances would take place under the circumstances. Instead, the Court observed, the school adopted the policy in anticipation of this particular opinion and prohibited this particular symbol but no other political symbols. A public school cannot restrict student speech, the Court explained, based on a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”

This is where things get really interesting.

In a school setting, the courts have established there there must be a balance between a students 1st Amendment rights and the goals and needs of the educators and the community. This is vastly different and less protective in comparison to most 1st Amendment protections.

Schools have been granted the right to restrict the speech of their students if it can easily be proven to obstruct the educational process in a substantive manner. This does not come without its own limitations, as such restriction must be justified by something more than a distaste for the speech being restricted. This includes distasteful, unpleasant, and vulgar speech.

That being said, the court still maintains the stance that despite their lower levels of scrutiny in regard to restrictive laws, every student is still afforded their protections in accordance with, and not to be applied with less force than those typically enjoyed outside an educational institution. This is a seemingly contradictory position, but given the complexity of speech laws and the “reasonable” restrictions on speech, it’s still relatively adherent to the same principles as those that support Content and Viewpoint discrimination determinations.

You must be justified and indiscriminate when applying and enforcing restrictions. You must have specific goals that do not marginalize a specific point of view, regardless of the majorities perspective. Political speech is almost always protected from any restrictions no matter the circumstances.

In todays era, there seems to be a growing trend of anti-free speech authoritarianism that has infected both sides of the political spectrum. Whether it’s republicans banning pronouns in classrooms and dictating how and when something can be taught, or democrats trying to compel students to use pronouns and criminalize offensive speech, it’s an undeniable fact that we are facing a serious constitutional crisis in our country. There are a plethora of factors that could be contributing to this problem, but I believe it’s rooted in a lack of ethical and moral responsibility and leadership. If we do not instill our younger generations with these ideals that were set forth within the Constitution, it will become indiscernible to them and their descendants.

It starts with individual responsibility. Bring yourself up to a higher standard of education, determination, and principle. If you exhibit these traits, the young and impressionable who are simply traversing an unsure and unforgiving world will see the good that comes from them. This is how we can be the change we want to see in the world.

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