First Amendment Report Card – Summer 2018


The composite grade point average for the five freedoms of the First Amendment slightly increased from 2.29 to 2.51, elevating the overall grade from a C+ to a “barely there” B-. This fifth installment of the Freedom Forum Institute’s First Amendment Report Card, released on August 17, 2018, reflects events that have taken place over the prior six months. The improvement in the First Amendment’s overall grade can be attributed to a series of Supreme Court decisions panelists viewed as favorable to the freedoms of religion and speech, and the absence of national controversies surrounding the freedoms of assembly and petition. The grade for freedom of the press remained constant and is once again, the most precarious of the First Amendment freedoms.

The Freedom Forum Institute’s First Amendment Center launched the report card in April 2017 to evaluate the state of each of the five freedoms of the First Amendment in the age of Donald Trump. The Summer 2018 report card is based on the opinions of  a panel of 13 First Amendment experts — academics, lawyers, journalists and activists from across the political spectrum — who contributed their insights to the Spring 2017,  Summer 2017,  Fall 2017 and Winter 2017/18 report cards. The report card is transitioning to a semester schedule, where each report card will reflect the six-month period that came before it.

We asked our panelists to start with their grades from the previous report card and alter or confirm them based on changes in legislation, executive orders, judicial decisions and indicators of public opinion that have occurred since the last report card. Please note that this includes issues, such as speech on college campuses, or state legislation, that the Trump administration does not directly control.

Panelists were instructed to assign each freedom a letter grade, without using pluses or minuses. In determining the overall grade of a First Amendment freedom for our report card, we used the average of the grades assigned by our panelists.

Freedom Spring 2017 Summer 2017 Fall 2017 Winter 2017/18 Summer 2018
Religion C+ (2.20) C+ (2.40) C+ (2.36) C+ (2.36) B- (2.77)
Speech C+ (2.40) C+ (2.27) C (2.00) C+ (2.20) C+ (2.23)
Press C (2.00) C (1.93) C (2.07) C (1.93) C (1.92)
Assembly B- (2.53) B- (2.67) C (1.87) C+ (2.28) B- (2.62)
Petition B- (2.80) B- (2.80) B (2.93) B- (2.79) B (3.0)
First Amendment Composite C+ (2.39) C+ (2.41) C+ (2.25) C+ (2.29) B- (2.51)

Religion

B-

Freedom of religion’s grade rose to a B- this term; the most commonly awarded grade was a “B.”

The Supreme Court’s 2018 docket featured two religious freedom decisions — Masterpiece Cakeshop v. Colorado Civil Rights Commission and Trump v. Hawaii — that many of our panelists have been anticipating since this report card launched last year.

The Commission revolved around whether a baker could refuse to make a cake for a gay wedding on account of his religious beliefs, even though such refusal violated the Colorado Anti-Discrimination Act. While many expected the Supreme Court to issue a controversial decision that would reshape the landscape of gay rights and religious freedom, the Court subverted expectations with a ruling that had the effect of permitting the baker to refuse to make a cake for a gay wedding, but only because the Colorado Civil Rights Commission seemed hostile towards religion. As a result, some panelists did not perceive this case as having all that much of an impact on religious freedom. Ken Paulson, dean of the College of Media and Entertainment at Middle Tennessee State University and former editor of USA TODAY, noted that the decision “…appears to be based on the Colorado Civil Rights Commission’s specific conduct and may not have precedential value.” Meanwhile, Ilya Shapiro, senior fellow in Constitutional Studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review, noted that the decision delivered a “…strong statement about the need for government officials to respect the rights of religious believers,” which he and several other panelists noted as a positive development for religious freedom.

Panelists were far less ambivalent about the Court’s decision in Trump v. Hawaii, where it found that the Trump administration could implement an immigration ban despite evidence that the ban was originally constructed with an intent to discriminate against Muslims. As Stephen Solomon, professor of journalism at New York University and founder of First Amendment Watch, noted, “President Trump’s frequently expressed hostility toward Muslims was not considered legally significant by the Supreme Court, which upheld the administration’s ban against travelers from predominately Muslim countries.”

Court decisions aside, panelists also noted that the federal government recently held two events acknowledging the importance of religious freedom — the State Department Ministerial to Advance Religious Freedom and the DOJ Religious Liberty Summit. Mark Trahant, editor of Indian Country Daily and professor of journalism at the University of North Dakota, was, “encouraged that the…summit included non-Christian voices.” The same sentiment was expressed by Asma Uddin, senior scholar at the Religious Freedom Center at the Freedom Forum Institute and fellow at the UCLA Initiative on Security and Religious Freedom, although she noted that, “there was some concern that the programming tilted heavily toward Christian concerns.”

“[T]he travel ban ruling failed to account for the role of anti-Muslim animus in Trump’s travel ban. More troubling than the law per se was the message the rulings conveyed—–that Muslims will be treated differently than Americans of other faiths.”

– Asma Uddin , Senior Scholar at the Religious Freedom Center at the Freedom Forum Institute and fellow at the UCLA Initiative on Security and Religious Freedom

“Freedom of religion prevailed in the Masterpiece Cakeshop case, but on narrow procedural grounds, rather than on the basis of either Free Exercise or Free Speech.”

– Brett Scharffs, Professor of Law and Director of the International Center for Law and Religion Studies at Brigham Young University


Speech

C+

Freedom of speech retained the C+ average it had in the Winter 2017/18 report card — but the grade point average belies how polarizing this freedom was for our panel. Speech received both two As and two Fs from our panel — an impressive spread considering all panelists base their grades on the same events.

The Supreme Court issued several free speech-related decisions:

  • National Institute of Family Life Advocates v. Becerrawhere the Court ruled that a California lawviolated the First Amendment by requiring “pro-life” pregnancy centers to provide notices about the availability of abortion services;
  • Janus v. AFSCME, where the Court found that mandatory union fees for public sector employees violate the First Amendment, even if just for collective bargaining services;
  • Minnesota Voters Alliance v. Mansky, where the Court struck down a law prohibiting individuals from wearing political apparel at or near polling places; and
  • Lozman v. City of Riviera Beach, Florida, where the Court recognized that arrests can have a chilling effect on speech and found that an arrest can be an act of unlawful retaliation by the government, even if it had “probable cause” at the moment for making the arrest.

Ilya Shapiro used these decisions as the basis for bumping up his grade for free speech, commenting, “I was set to maintain this at C for the foreseeable future, but the Supreme Court’s rulings this term really give me a sense of optimism. NIFLA, Janus, Mansky and Lozman all strongly stood for speech protections.”

Stephen Solomon expressed similar optimism over another judicial decision: “A federal court treated President Trump’s Twitter account as a public forum in which he cannot block critics — an important precedent in a time when countless public officials and government agencies run social media accounts to reach the public with information and opinion.”

But for many panelists, court decisions were overshadowed by the actions of the legislative and executive branches. One panelist expressed dismay over Congress’s passage of the Fight Online Sex Trafficking Act, calling it, “the most restrictive regulation of online speech in two decades…By adopting broad and undefined new speech prohibitions and stripping some well-established immunities provided by Section 230 of the Communications Decency Act, the new law has already chilled vast amounts of online speech on sites such as Craigslist (eliminating its entire personals section, including “strictly platonic”). And it has done nothing to advance its stated objective of reducing sex trafficking.”

Asma Uddin expressed concern over statements issued by the White House: “There continues to be tension and confusion between Trump’s various positions on free speech. He bemoans political correctness and the inability of religious people to say ‘Merry Christmas,’ but also suggests that people who burn the American flag should be stripped of their citizenship and is unforgiving when it comes to NFL players not standing for the national anthem.”

Other panelists were discouraged by public attitudes towards free speech, citing, as Ken Paulson described, “a disturbing level of intolerance for others’ views, whether on college campuses, in news site comment sections, or on the streets of our communities.”

“[T]he longer the vitriol, personal attacks, attacks on one another based on the differences in our preferences, and refusal to act in a united way to respond to Russian’s commitment to exacerbate these conflicts, we are worse off over time. No Supreme Court decision or nomination, act or speech of Congress, nor any presidential proclamation or moment of accountability for public officials has broken through to re-establish our commitment to freedom of speech, and we are the poorer for it.”

– Richard Blum, Policy Director of Reporters Committee for Freedom of the Press

“The lack of respect for speech that people disagree with might be at a low. The president and some of his supporters are eager to shout down those who disagree. And on the left, there is a similar anger against anyone trying to articulate a conservative point.”

– Mark Trahant, editor of Indian Country Daily and Charles R. Johnson Endowed Professor of Journalism at the University of North Dakota


Press

C

Freedom of the press maintained roughly the same grade point average, once again earning a “C” grade and the ignoble honor of being the lowest performing First Amendment freedom.

Several panelists noted that press freedom has maintained an uncomfortable status quo, given the consistency in which the Trump administration derides journalists. As Bob Corn-Revere, partner at Davis Wright Tremaine LLP, put it, “The White House has given up even the pretense that it does not retaliate against news organizations and individuals who criticize or otherwise displease the president. Barring access by pool reporters to open events, threatening critics with revocation of security clearances, selectively blocking social media accounts, and manipulating the regulatory process for political ends are just a few of the unsavory activities that have come to light thus far.”

The role of social media in the dissemination of the news also raised concerns for some panelists. Mark Trahant expressed some reservations about Facebook deleting fake accounts, stating, “I’d like to know more about how they come to that conclusion and who is judging the judges.”

Bradley Smith, law professor at Capital University and founder of the Institute for Free Speech, commented that, “The biggest danger here is that a near hysteria over Russian influence in our political campaigns will lead to the passage of the misnamed ‘Honest Ads Act,’ and either a government or self-imposed censoring on social media.”

“The President continues to bash the press as ‘“enemies of the people’” which unfortunately resonates with far too many people who fail to understand or appreciate the role of a free and independent press. It also does not help that access to the administration has become more limited and press briefings less frequent…The recent mass layoffs at such newspapers as the New York Daily News will have great impact not only upon the unemployed journalists but upon the source and quality of information available to the public in this nation’s largest city. And the five killed in a ‘targeted attack’ at the Capital Gazette newspaper in Annapolis by a ‘“man with a long-standing grudge against the paper’” has led many to worry about the safety of being a journalist. When viewed individually any of these instances are concerning enough but when taken together have a real, profound and chilling effect on freedom of the press in this country.”

– Mickey Osterreicher, General Counsel for the National Press Photographers Association


 

Assembly

B-

The freedom of assembly experienced a grade boost, perhaps because the past few months have been free of the sort of national controversy involving assembly that played out in Charlottesville last year. Ilya Shapiro noted, “I’m upgrading this from last term because we’ve seen plenty of demonstrations of various kinds without hints at governments’ [actions toward] pulling permits and the like.” Bob Corn-Revere was encouraged by the “…dismissal of charges against the remaining defendants who were charged with felonies for participating in anti-Trump demonstrations on Inauguration Day…After a jury acquitted the first group of defendants and charges dropped against others, prosecutors finally came to their senses end ended this ill-considered effort to suppress dissent.”

Other panelists pointed out that the right to assemble still faces opposition in ways that might fly “under the radar,” such as state legislation and college campus regulations.

“Many states continued pursuing a repressive stance against protestors, with nearly 60 bills introduced on demonstrations and some of them enacted into law.”

– Stephen D. Solomon, Marjorie Deane Professor at the Arthur L. Carter Journalism Institute, New York University, and founder of First Amendment Watch

“College campus associations remain unfree from ideological supervision by administrators, as lately exemplified by Harvard’s crusade against single sex social organizations.”

– David Forte, Professor of Law, Cleveland State University, and former Counselor for Legal Affairs, United States Mission to the United Nations


 

Petition

B

Petition received the highest grade point average among the five First Amendment freedoms — a 3.0.

The right to petition has received relatively robust grades since the inception of this report card, and for good reason. The right to petition has not been curtailed by any legislation or court decision, nor attacked by the current administration. It is also in constant use, although not always by ordinary citizens. As Ken Paulson noted, it’s often the domain of professionals: “For better and worse, lobbying remains a pivotal part of the lawmaking process.”

“I am going to cite the NFL players here. They used petition (and their union) to affirm their right to protest the anthem despite the owners preferences. This was a solid win for dissent.”

– Mark Trahant, editor of Indian Country Daily and Charles R. Johnson Endowed Professor of Journalism at the University of North Dakota

“Generally little change, although there is somewhat of a hopeful sign. The resignation of the EPA Aadministrator Scott Pruitt may suggest that the era of impunity saddeningly on display in this period may also have some limits.”

– Richard Blum, Policy Director of Reporters Committee for Freedom of the Press

 

Methodology

The grading was performed by 13 expert panelists from across the political spectrum. These panelists have committed to providing quarterly updates of their grades for at least one year.

Each panelist was sent a survey asking them to assign a grade and add their commentary on each of the five freedoms: religion, speech, press, assembly and petition.

We recommended that panelists start with national and federal level considerations, but encouraged them to take note of state actions as indicators or precedents. For this report card, we asked our panelists to start with their grades from the previous report card and alter or confirm them based on changes in legislation, executive orders, judicial decisions, and indicators of public opinion that have occurred since. Please note that this includes issues, such as speech on college campuses, or state legislation, that the Trump administration does not directly control.

Panelists were asked to use their own criteria when assigning a letter grade, but were advised to consider the following four elements in making their evaluations:

  1. Legislation (passed or proposed)
  2. Executive orders
  3. Judicial decisions
  4. Public opinion

All panelists were encouraged to make comments to explain their grades.

Panelists were instructed to assign each freedom a letter grade, without using pluses or minuses. In selecting the overall grade of a First Amendment freedom for our report card, we used the average of the grades assigned by our panelists.


Panelists

Panelists’ affiliations are noted for identification purposes only.

  • Richard Blum, Policy Director of Reporters Committee for Freedom of the Press
  • Robert Corn-Revere, partner at Davis Wright Tremaine LLP
  • Richard Foltin, Senior Scholar and Faculty, Religious Freedom Center at the Freedom Forum Institute
  • David F. Forte, Professor of Law, Cleveland State University, and former Counselor for Legal Affairs, United States Mission to the United Nations
  • Lata Nott, Executive Director of the First Amendment Center of the Freedom Forum Institute
  • Mickey Osterreicher, General Counsel for the National Press Photographers Association
  • Ken Paulson, dean of the College of Media and Entertainment at Middle Tennessee State University, and former Editor of USA TODAY
  • Brett Scharffs, Francis R. Kirkham Professor of Law and Director of the International Center for Law and Religion Studies at Brigham Young University
  • Ilya Shapiro, Senior Fellow in Constitutional Studies at the Cato Institute and Editor-in-Chief of the Cato Supreme Court Review
  • Bradley Smith, Professor of Law, Capital University, founder of the Institute for Free speech, and former Chairman of the Federal Election Commission
  • Stephen D. Solomon, Marjorie Deane Professor at the Arthur L. Carter Journalism Institute, New York University, and founder of First Amendment Watch
  • Mark Trahant, editor of Indian Country Daily and Charles R. Johnson Endowed Professor of Journalism at the University of North Dakota
  • Asma Uddin, Senior Scholar and Faculty, Religious Freedom Center at the Freedom Forum Institute and Fellow at the UCLA Initiative on Security and Religious Freedom

The First Amendment Report Card was assembled by Lata Nott, executive director of the First Amendment Center of the Freedom Forum Institute, and Gene Policinski, president and chief operating officer of the Freedom Forum Institute.