The Unacknowledged Clash Between the Supreme Court’s Interpretation of the Religion Clauses and the Free Speech Clause of the First Amendment

VIKRAM DAVID AMAR, ALAN E. BROWNSTEIN

Illinois law dean Vikram David Amar and UC Davis law professor emeritus Alan Brownstein comment on a largely unacknowledged clash between religious accommodations and exemptions on the one hand, and core free speech principles which the U.S. Supreme Court has repeatedly recognized, on the other. Amar and Brownstein describe this apparent conflict and suggest that the Court begin to resolve the conflict when it decides two cases later this term presenting the question of the scope of the “ministerial exception.”

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Woodhull Freedom Foundation v. United States

Docket: 18-5298

Opinion Date: January 24, 2020

Judge: Judith Ann Wilson Rogers

Areas of Law: Civil Rights, Constitutional Law, Internet Law

The DC Circuit reversed the district court's order dismissing, based on lack of subject matter jurisdiction, a pre-enforcement challenge to the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), brought by plaintiffs, alleging harm to their online activities. This action stemmed from Congress's continual goal of protecting minors online while promoting a free and open internet. The court held that at least two of the plaintiffs have established Article III standing to bring the pre-enforcement challenge to FOSTA. In this case, Plaintiff Andrews, an advocate for sex worker rights and a co-founder of several groups that advocate for the health, safety, and human rights of sex workers, has alleged intended conduct that is arguably proscribed by FOSTA and the threat of future enforcement is substantial. Furthermore, Plaintiff Koszyk, a licensed massage therapist and the owner of Soothing Spirit Massage, has demonstrated that a favorable decision would create a significant increase in likelihood that he would obtain relief. Accordingly, the court remanded for further proceedings.