From yesterday's decision by Judge Joseph Goodwin (S.D. W. Va.) in W. Va. Rivers Coalition, Inc. v. McCuskey:

The Attorney General of West Virginia has used the State's power to compel two citizen organizations to open ten years of their files: their drafts and internal arguments, the groups they have funded, the people who serve on their boards, the coalitions they have joined, and what they have told the agencies they petition. Neither organization markets goods nor services relevant to the subpoenas. The Attorney General identifies no consumer who was cheated, no sale, and no purchase made in reliance on anything either group said.

What these organizations do is argue in public about what coal, oil, and gas do to West Virginia's waters and climate. The State's chief legal officer, who has publicly condemned that advocacy, now demands to know how they reached their views and who stood with them.

The First Amendment forbids a State from using its investigative power that way, and I will not allow it while this case is pending.

The country was founded on the premise that a citizen owes the government no account of his opinions or of the people he holds them with. The Attorney General has demanded that two citizen organizations hand the State their working lives.

The State wants a decade of what they published, down to a note sent to a single person outside the organization, along with the unreleased drafts and the internal arguments over what to say. He demanded the names of the organizations that fund them and what each gave, and he has now withdrawn that demand. He still wants the groups they paid, the board members they share, the coalitions they joined, and the comments they filed with the agencies they were petitioning. Because the demand period runs to the date of compliance, the subpoenas reach new communications written while they remain outstanding. No demand identifies a consumer, a sale, or a statement anyone relied on. The subpoenas go into how these citizens arrived at their positions on public questions and who helped them get there.

The Plaintiffs in this case, West Virginia Rivers Coalition, Inc. ("WVRC") and 350.org, promote clean waters, reduced carbon emissions, and healthier lives for the people of West Virginia and beyond. They do not sell any service. They do not advertise a certain product of their own. Instead, they promote ideas. Some of that advocacy and some of those ideas are based, in part, on one model. For that, they have been subpoenaed and asked to turn over ten years' worth of information far beyond any use of that one model.

AG McCuskey's actions violate the protections afforded by the United States Constitution. The Plaintiffs, on this record, have only engaged in protected advocacy speech, not commercial speech. The subpoenas issued on the Plaintiffs trespass on their freedom of association, chill their exercise of the First Amendment, and deter others from engaging in similar conduct.

Because Plaintiffs are likely to succeed on the merits of their claim that the subpoenas violate their First Amendment freedom of association, and because the remaining injunction factors also favor Plaintiffs, their Motion for a Temporary Restraining Order, is GRANTED.

Attorney General McCuskey is enjoined from enforcing these investigative subpoenas for the next fourteen days as set out in the Conclusion of this Memorandum Opinion and Order….

A bit more on the plaintiffs:

Plaintiff WVRC is a river advocacy nonprofit corporation organized under the laws of West Virginia, and its "mission is to promote clean and healthy West Virginia waters for all." The nonprofit is committed to "clean water and healthy rivers through research, public education, policy advocacy, citizen water-quality monitoring, and engagement with state and federal agencies." It has a modest staff of 15 and an annual budget of approximately $2 million primarily funded by foundations and other organizations. WVRC regularly submits comments on proposed legislation, permits, and rules concerning water quality. And as this court is familiar, WVRC is a party litigant in multiple cases across the Fourth Circuit that challenge permits and approvals for infrastructure projects, pipeline projects, injection wells, and toxic discharges. Because of its litigation efforts, WVRC coordinates "with other organizations through shared counsel" about litigation strategy.

WVRC also engages in public education and information campaigns, including "statements about the effects of climate change in West Virginia's waters and communities, and about the environmental effects of fossil-fuel extraction, transport, and combustion." It is a member of multiple different coalitions committed to similar goals. To fund ts work, WVRC "solicits charitable contributions from the public through its website, mailings, emails, and events," but it does not publish the identities of its funders.

Plaintiff 350.org is a nonprofit corporation, and its "mission is to build a grassroots movement to end the use of fossil fuels and to accelerate the transition to renewable energy." The organization publishes information about climate change, organizes public demonstrations, and coordinates with other organizations with similar goals. 350.org also "solicits charitable contributions from the public through grant applications and through its website, mailings, emails, and events." Those grants and contributions are subject to opt-in confidentiality in some cases and agreed upon confidentiality in other cases.

And an excerpt from the court's First Amendment analysis (for more on RCP8.5, see this N.Y. Times article):

[T]he Court applies "exacting scrutiny" to compelled disclosures of protected First Amendment speech and association. To be a permissible intrusion on the First Amendment, "there must be 'a substantial relation between the disclosure requirement and a sufficiently important governmental interest.'" …

The subpoenas … "… concern[ ] an investigation into alleged unfair or deceptive acts or practices and other possible violations of the West Virginia Consumer Credit and Protection Act ('WVCCPA')." State code authorizes the Attorney General, if he "has probable cause," to "subpoena witnesses, compel their attendance, adduce evidence, and require the production of any matter which is relevant to the investigation."

Under West Virginia law, "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are … unlawful." Trade or commerce "means the advertising, offering for sale, sale or distribution of any goods or services and shall include any trade or commerce, directly or indirectly, affecting the people of this state." "Unfair methods of competition and unfair or deceptive acts or practices" includes 16 different definitions including "[e]ngaging in any other conduct which similarly creates a likelihood of confusion or of misunderstanding."

Deploying these broad definitions, AG McCuskey's theory is that the Plaintiffs, environmental advocacy groups, published information, made comments, and advocated based on a study, the RCP8.5, that has been determined "implausible." According to AG McCuskey, this reliance, and subsequent advocacy, is a deceptive act or practice that affects the energy marketplace of West Virginia.

Begin with common sense—in what way could WVRC and 350.org violate the WVCCPA? They are not financial institutions, lenders, or creditors. They are not businesses seeking to make a profit by engaging with consumers. In fact, both are 501(c)(3) nonprofit organizations. They do not sell services of any kind. As explained, Plaintiffs are advocacy organizations committed to climate issues. Their missions are public education, dissemination of information, advocacy in support of their ideals, and public support of those who align with their beliefs. What little items they sell are merchandise bearing their names and logos. Surely these minimal sales from advocacy organizations are not the transactions the West Virginia legislature sought to protect consumers from….

Plaintiffs do not engage in commercial speech. By virtue of their missions as nonprofit environmental advocacy groups, their interests are not economic. Their interests include public education, funding environmental projects, modeling and projecting the effects of climate change, and contributing to a society that values clean air, clean water, and healthier lives. The fact that their advocacy touches on the economy is insufficient to be commercial speech. Therefore, Plaintiffs' protected speech and advocacy alleged in this case cannot be regulated under the WVCCPA.

Accordingly, I find that the WVCCPA cannot supply a "sufficiently important governmental interest" under the "exacting scrutiny" applied to freedom of association claims. I next turn to the severity of the "disclosure requirement" under the "exacting scrutiny" analysis….

As discussed, the subpoenas broadly assert that a violation of the WVCCPA might have occurred. And in his response, AG McCuskey admits that there may not be any WVCCPA violation. He does, however, have authority to issue subpoenas to investigate "whether a violation … has, in fact, occurred."

That violation, AG McCuskey argues, arises from only a few instances of Plaintiffs using a certain climate projection model, RCP8.5. Any publication born from that model, he asserts, is potentially unfair or deceptive. So to assess the breadth of the subpoenas and the compelled disclosure Plaintiffs are subjected to, the court turns to the subpoenas' demands. It is reasonable to assume that the demands would roughly track the RCP8.5-related violations and the allegations of unfair or deceptive trade practices.

Not so. The subpoenas ask for much more. The 16 categories of demands include every statement Plaintiffs have ever published about a West Virginia energy business with a "Climate Claim." But that demand is not limited to climate-related statements supported by the RCP8.5 model. It includes every climate-related statement that names a West Virginia energy business which is published and supported or informed, at least in part, by any model, study, project, plan, projection, or paper. Demand No. 4 is similarly broad: the subpoena demands every published projection concerning West Virginia and all documents related to those projections, without narrowing it down to those supported by the RCP8.5.

The rest of the demands do not even try to mask their broad and sweeping intentions. Donation requests, payments to third parties, and licensing and funding documents of all projects concerning West Virginia are demanded. Every document projecting costs and damages is demanded, as well as every report, study, model, or paper that the Plaintiffs directly or indirectly supported. Documents pertaining to internal considerations are demanded wholesale. So, too, are all documents pertaining to third-party communication and coordination in any fashion. And even with AG McCuskey's last-minute withdrawal of certain demands for donor information, Plaintiffs will still be obligated to disclose "board affiliation, coalition partners, grantees, agency submissions, internal deliberations and drafts, solicitation totals and targeting."

Plaintiffs call this a fishing expedition. In part, I agree. The subpoenas demand a large share of documents in Plaintiffs' control for the last ten years. But even on a fishing expedition, hoping to just get one bite in the vast and quiet water, a person brings a fishing pole. And in other cases, perhaps, a net. Here, AG McCuskey has abandoned both the fishing pole and the net. Instead, he has brought dynamite to the lake. Tossing a couple in, he hopes to catch something.

As stated, compelled disclosure that invades First Amendment protections can only stand if there is a substantial relation between what must be disclosed and a "sufficiently important governmental interest." Here, I find neither a sufficiently important government interest nor do I find a substantial relationship between the compelled disclosure and the government interest….

And the court also briefly notes plaintiffs' retaliation claim, without resolving it:

Plaintiffs have alleged substantial evidence to support their [retaliation] claim. AG McCuskey has publicly disparaged pro-environmental groups and has called for the DOJ to investigate similar groups. He has joined contentious litigation against environmental advocacy organizations. And the chasm between the subpoenas' demands and the purported basis for investigation suggests a retaliatory motive.

This phenomenon of state and federal investigation into the affairs of advocacy non-profits has begun to permeate our culture. The courts have enjoined civil investigative demands on comparable records. [Citations omitted. -EV]

However, because retaliation concerns the Attorney General's motive, I will reserve judgment on Count One until he can present evidence at a hearing for a preliminary injunction. Having already determined that an injunction is warranted on the basis of Count Two (freedom of association), the court declines to address the remaining counts….

Derek Teaney and Amanda Demmerle (Appalachian Mountain Advocates, Inc.) represent plaintiffs.

The post Court Blocks W. Va. AG's Subpoena to Environmentalist Nonprofits appeared first on Reason Magazine.

Matt Kezhaya (Kezhaya Law PLC) wrote an amicus brief on my behalf in this case (U.S. v. Cherwitz & Daedone) a few weeks ago—many thanks to him for all his work on it!—and I thought I'd pass it along:

Summary of Argument

Under the Government's theory of spiritual coercion, people who at one point believed that volunteering for a religious organization is the path to enlightenment or salvation, but who later become disillusioned with their former beliefs, can be found to have been retroactively "coerced" into providing that labor. The same logic could apply to nuns who had felt religious pressure to do the educational or nursing work that their order was known for, or to monks who had felt religious pressure to do agricultural work that supports the monastery. Any religious organization that runs a monastery, convent, or any other institution where adherents are expected to work as part of their religious vocation could likewise face felony prosecutions.

Such a theory of criminal liability violates the Free Exercise Clause because it is not "neutral." Governments depart from neutrality not just when legislators pass laws designed to suppress religion, but also when courts enforce otherwise-neutral laws in ways that suppress religion precisely because of spiritual or religious qualities. Liability in this case turned precisely on the religious nature of the allegedly coercive conduct, and was imposed in the absence of any secular coercion such as violence or the threat of violence.

The sexual subject matter and conduct inherent within OneTaste's beliefs and practices is beside the point. The forced labor statute is not limited to sexual labor. 18 U.S.C. § 1589. Rather, it generally prohibits any "labor" obtained through "threats of serious harm." 18 U.S.C. § 1589(a)(3). Indeed, the "labor" subject of this charge was ordinary, non-sexual administrative work entailed in running a religious organization that features events and communal living.

To be sure, laws that restrict sexual labor will usually be neutral and generally applicable, precisely because they do not turn on any claims of religious or spiritual coercion. If any business, religious or not, offers its employees' sexual services in exchange for money, that might well violate generally applicable bans on prostitution or pandering. Likewise, if any business, religious or not, conditions employment on the employee's performing sexual services, that will usually constitute civilly actionable quid pro quo sexual harassment. And enforcing such laws would not jeopardize ordinary religious labor, precisely because they are focused on a narrow range of secularly-defined behavior that is seen as harmful (the exchange of sex for money or employment) rather than on a theory of spiritual coercion that can apply to a wide range of labor.

But such laws were not used in this case. The essence of this charge was punishing a particular religious group. The Court should vacate the convictions, or at least reverse and remand for a new trial with proper limiting instructions.

Argument

[I.] A theory of "spiritual coercion" violates the Free Exercise Clause.

The Free Exercise Clause of the First Amendment prohibits governments from targeting specific religious beliefs or practices as such. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). That prohibition bars more than just legislative enactments expressly targeting religion; it extends to criminal prosecutions that apply facially neutral laws in ways that target disfavored religious beliefs. Fowler v. State of R.I., 345 U.S. 67 (1953).

Of course, as Part III will discuss, "neutral" and "generally applicable" criminal statutes may be applied to religious behavior precisely the same way they are applied to secular behavior; otherwise, each of us would "become a law unto himself." Emp. Div., Dep't of Hum. Res. of Oregon v. Smith, 494 U.S. 872, 885 (1990); see also Reynolds v. United States, 98 U.S. 145, 167 (1878). But this power cannot be used to target religious actions because of their religious or spiritual character.

The threshold inquiry is whether the ideas are, within OneTaste's scheme of things, "religious." See Patrick v. LeFevre, 745 F.2d 153, 158-59 (2d Cir. 1984). Indisputably, Defendants, OneTaste, and adherents of OneTaste (including the so-called victims) all considered the doctrines subject of this criminal trial to be "religious." See A-977 ("We believed that … your path to God was through your orgasm") (emphasis added); see also A-1053 (adherents of OneTaste seek "something more" beyond ordinary existence believe "Our most potent biological drive, Orgasm, is the key to unlocking this power.").

OneTaste's doctrines addressed distinctions between the physical and spiritual realms in a dichotomy between the "third dimension" and the "fourth dimension." See A-694. They addressed issues of worldly suffering and promised both enlightenment and transcendence through ceremonial rites. A-1114 (orgasm "was more about energy," borrowing from "Buddhist principles like the concept of qi"); see also A-1446 ("OneTaste teachings integrate the principles of mindfulness with the practice of orgasm"); A-1089 (OneTaste teachings included sex "as a ritual practice" and "Magic School … where we had sort of like priests and priestesses of orgasm"); see also A-1426-1427 (PowerPoint presentation outlining "Alchemize shadow into power through orgasm" and "Orgasm Magic: Bringing out the elements of magic [and] Put the principles of OM into practice in creating what you want … [including] Rituals and ceremonies"). Specific ceremonies described in the record include a marriage ceremony at A-891, a foot soaking ritual at A-1085, and a shower ritual at A-1152. The central ritual tenet of OneTaste was ritualistic sexual activity is, OMing, or "Orgasmic Meditation," which adherents of OneTaste regard as a mindfulness practice, a "meditation on sensation without a goal," A-577, A-785.

The Government made much of the sexual nature of those beliefs and practices. E.g., A-1229. But it is no business of the government, including the courts, to "prescribe what shall be orthodox in … religion." W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). Because OneTaste and its adherents considered these beliefs and practices to be "religious" within their scheme of things, the Free Exercise Clause protects their beliefs and practices from governmental targeting.

And the Government did not seriously contest OneTaste's religiosity; instead, it acknowledged, and even stressed, the spiritual and religious nature of OneTaste's activities. According to the Government's closing arguments, the essence of the charge was that "the defendants indoctrinated the victims to believe that Nicole Daedone was a guru and that her teachings were the path to enlightenment and spiritual growth." A-1222. Prosecutors took issue that "Nicole Daedone taught that orgasm was God." A-1232. And "[n]early all of them [victims] lived in OneTaste housing and were subjected to these teachings incessantly." A-1234. The complained-of "indoctrination" and "teachings" is the very essence of religion: leading adherents to accept doctrines as spiritual truths. That these supposed victims ordered their lives in accordance with OneTaste's beliefs and practices is evidence of spiritual and religious belief, not of criminally punishable coercion.

Had there been evidence these "victims" were physically coerced into accepting OneTaste's religious doctrines, such physical coercion would certainly have been illegal. But that was not the Government's theory. Each of these so-called victims freely admitted that they voluntarily joined the organization. A-267-268; A-872-873; A-939; A-1152-1153. And they freely admitted that they voluntarily left it. A-882; A-939; A-1107. The "indoctrination" and "teachings" for which Defendants stood trial only describes proselytization, the very essence of religion, which cannot be criminally punished.

Likewise, the prosecution argued that Defendants "disrupted victims' personal relationships and isolated them from their friends and family." A-1222; see also A-1235 (victims "felt like OneTaste was all they had"). More particularly, Defendants did so by encouraging some of their adherents, including these "victims," to live in a commune with other like-minded believers. A-262, 359-60, 775, 893-894, 1004-06. But this disruption likewise stemmed not from physical coercion or threats of violence, of deportation, or of other secular harm. Rather, it stemmed from the adherents' sense of the spiritual value of participating in a particular religious and spiritual community. A-872; A-1008-1009 (Ms. Kandell, particularly, described her time at the commune as "one of the greatest experiences of my life," partly because of "the sense of community" and "the focus of the communal living"); A-1138-1139.

This is a commonplace practice among many religious orders. By definition, any follower of any monastic tradition could be described as having their personal relationships "disrupted" or becoming "isolated" from their less committed friends and family. Volokh, Addiction, 75 Emory L. J. at 1190. Nor does it say anything that a religion discourages association with non-adherents, as many religious groups do. E.g., Paul v. Watchtower Bible & Tract Soc'y of N.Y., Inc., 819 F.2d 875, 883 (9th Cir. 1987) ("The harms suffered by Paul as a result of her shunning by the Jehovah's Witnesses are clearly not of the type that would justify the imposition of tort liability for religious conduct. No physical assault or battery occurred.").

The Government also invited the jury to convict because Defendants "financially harmed victims by driving them into debt and not paying them for their labor." A-1222. More specifically, the Government stressed that Defendants accepted, and even encouraged, these "victims" to volunteer their services to their chosen religious organization. A‑908‑910; A‑1028‑1030; A‑1095-1103. But these "victims" were not coerced or defrauded into performing these volunteer services; they knew full well that their services would be unpaid, and they still chose to volunteer their efforts. A-947-48; A-1152-53; A872-76. This too is commonplace among religions: Under our constitutional tradition, it is a defining feature of religion that it relies on charitable contributions of money, goods, and services from its adherents. See generally James Madison et al., Remonstrance Against Religious Assessments (reproduced in full at Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1, 63–72 (1947)). Indeed, many religions call for participants to tithe 10% of all their secular income. See Volokh, Addiction, 75 Emory L. J. at 1180 n. 5. But for First Amendment protections, a hostile jury could punish that practice as extortion because of religious pressure constituting "the threat of social ostracism or eternal damnation, or from the promise of community or of eternal." Id., at 1180.

The crux of the Government's charge was that the Defendants "forced" the purported victims to perform voluntary services through religious indoctrination and, more generally, made them feel reliant on OneTaste. See A-1236 (victims "felt like their whole world was OneTaste. It was their community, their friends, where they worked, and where they lived. And the defendants did all of this by design"). But such feelings of deliberately induced reliance on a religious community are entirely unremarkable in the religious context. See Volokh, Addiction, 75 Emory L. J. at 1183 (observing that a common technique among many religions is to "slowly lur[e] people into a community and a belief system that they may eventually find emotionally hard to leave, even if they feel some desire to leave").

Many Christians preach eternal damnation without Christ. Buddhists preach eternal suffering without dharma. Latter-day Saints encourage extensive participation in church callings, missionary service, and a tightly integrated congregational life. Countless religious traditions promise spiritual fulfillment, enlightenment, or eternal happiness through faithful adherence to their beliefs and practices. See Volokh, Addiction, 75 Emory L. J. at 1180, 1190. Many religions cause each of us to act and believe in ways non-adherents of our chosen path would find to be irrational or even "rank heresy." See United States v. Ballard, 322 U.S. 78, 86 (1944).

It is no answer for the Government to charge that these so-called victims felt "compelled" to perform the subject services because that compulsion was the product of religious conviction. If each of us are to be entrusted with the right to enter and exit our chosen religions at will, then each of us must also accept the risk that our chosen religions may cause us to donate time, money, or goods. The Court should find that the Free Exercise Clause prohibits this conviction.

[II.] The trial itself was not religiously "neutral."

Government's enforcement action, even under a facially religion-neutral generally applicable statute, violates the Free Exercise Clause when the enforcement of the statute is itself not "neutral," See Masterpiece Cakeshop v. Colorado C.R. Comm'n, 584 U.S. 617, 634 (2018). In Masterpiece Cakeshop, the government sought to enforce Colorado's public accommodations statute in part because of the religious motivations of a baker. Commissioners departed from neutrality by describing the baker's religious beliefs as "despicable" and characterized them as merely rhetorical. Id., at 635. Even "subtle departures from neutrality" on matters of religion are prohibited, not just when a legislative branch enacts a law but also when the executive branch enforces it. See id., at 638.

Just as in Masterpiece Cakeshop, the record in this case is replete with denigration of this particular religion. Ms. Gupta invited the jury to scrutinize OneTaste's vocabulary and the specific doctrines as evidence of wrongdoing. A-1232. She emphasized the specialized use of words or phrases "TurnON" (which seemed [synonymous] with the yoga phrase "state of flow"), "muggles" (meaning non-adherents of OneTaste), "matrix" (referring to "my fake reality of problems"), and "tumescence" (in the specialized spiritual sense of "bad energy that you were holding onto"), and the dichotomy between the "third dimension" (the "concrete world") and the "fourth dimension" ("the higher plane"), and asserted these words or phrases were being used to "indoctrinate the victims." A-1232, A-1235. This argument directly invited the jury to judge unfamiliar or strange religious concepts as proof of religious illegitimacy, which neither prosecutors nor jurors may do. See Masterpiece Cakeshop, 584 U.S. at 639; Fowler, 345 U.S. at 70.

Religions routinely use specialized phrasing like "saved," "possessed," "called," or "enlightened," which may appear unacceptable or incomprehensible to outsiders. That strangeness does not deprive OneTaste of First Amendment protections and certainly cannot underlie a felony criminal conviction, especially when the phrasing refers to spiritual or transcendental concepts. See Thomas v. Rev. Bd. of Indiana Emp. Sec. Div., 450 U.S. 707, 714 (1981). Quite the opposite: Our natural aversion to other religions is why we have tolerance protections enshrined in the First Amendment to begin with. See Ballard, 322 U.S. at 87; see also Marsh v. Chambers, 468 U.S. 783, 792 (1983).

The prosecutor also described OneTaste as a "sex cult." A-1223, A-1264. That label was inherently pejorative. See United States v. Helbrans, No. S219CR497NSR0102, 2021 WL 4778525, *17 (S.D.N.Y. Oct. 12, 2021) (prohibiting the Government from referring to defendants as being part of a "cult," prohibiting insinuations that "leaders brainwash or force members of the community to behave in or observe their religion in a certain way," and prohibiting "incendiary and irrelevant references" to the religious organization). The prosecutor was using this label as a rhetorical device to persuade jurors that OneTaste's teaching should be regarded with suspicion because they were unconventional. Just like in Masterpiece Cakeshop, this label was employed with the impermissible goal of suggesting the illegitimacy of a particular set of religious beliefs and practices. See 584 U.S. at 635.

The prosecutor argued, "that's not because OMing  was actually spiritual. They connected OMing to spirituality for legal protection, and so people would follow Nicole Daedone's teachings." A-1233; see also A-1381 ("They [Defendants] whittled them [victims] down by … indoctrinating them with so-called spiritual teachings and practices."). But what forms of meditation are "actually" spiritual and what are just "so-called" spiritual is not for secular courts to decide. It is no business of our secular government to "prescribe what shall be orthodox in … religion." Barnette, 319 U.S. at 642. The Government simply cannot put the legitimacy of religious or spiritual ideas on trial. Ballard, 322 U.S. at 86-88. Yet the Government did exactly that by arguing:

It is not okay to teach your employees that their spiritual purpose is to fuck the war out of men and that if they stray from the [path] set by OneTaste and by Nicole Daedone, they will be spiritually ruined.

A-1284.

And while there is a narrow zone in which a properly instructed jury can determine whether people's religious beliefs are sincerely held, United States v. Seeger, 380 U.S. 163, 165 (1965), no such instruction was given to the jury in this case. Quite the contrary, the District Court declined to provide jury instructions that any "alleged threats were covered by the First Amendment." A-1211. The District Court even warned defense counsel against referencing Defendants' First Amendment rights: "I'm not going to let you instruct the jury or even come close to instructing the jury on the First Amendment." A-1212. And the District Court refused to order a mistrial despite that the Government "ask[ed] the jury to hold their spiritual beliefs against them." A-1315-1316 (argument); A-1318 (denial).

The Government's rhetorical devices are a far cry from the neutrality required by Masterpiece Cakeshop. The Government was overtly hostile to Defendants' religion in itself and openly invited the jury to judge the legitimacy of OneTaste's religious doctrines and practices. It is no answer that the jury accepted the Government's invitation because the highest law of the land removes that power from legislator, judge, juror, and prosecutor alike. "If one could be sent to jail because a jury in a hostile environment found those teachings to be false, little indeed would be left of religious freedom." Ballard, 322 U.S. at 87.

[III.] Defendants were not charged with commercial sexual practices.

To be sure, nothing in this argument precludes the application of genuinely neutral laws to regulate commercial sexual behavior. For instance, an organization that sells members' or employees' sexual services for money can still be subject, under Employment Division v. Smith, to neutral and generally applicable bans on prostitution. Such laws can be applied without resorting to arguments about spiritual coercion, or claims that the defendant supposedly "indoctrinat[ed people] to believe that [she] was a guru and that her teachings were the path to enlightenment and spiritual growth." A-1222. It would not matter whether the  defendant "taught that orgasm was God." A-977. Commercial sale of certain services that lead to orgasm would be the crime, with no need to address the spiritual significance of the orgasm itself.

Likewise, if an employee claims that an employer required sexual services as a condition of employment, the employee could sue for quid pro quo sexual harassment, again a matter that is entirely religion-neutral. Indeed, the government could even criminalize such quid pro quo sexual harassment. See Tex. Penal Code Ann. § 39.03 (criminalizing sexual harassment under color of public office).

Unlike with the Government's expansive reading of the coerced labor statute, none of this would threaten religions that have a tradition of monasticism, or of religious labor as a calling. None of this would treat religious or spiritual teachings as "coercion." And none of this would treat such teachings as crimes when they lead people to feel moved, or even spiritually or religiously obligated, to perform certain tasks that are given to them by a spiritual or religious community.

Of course, in this case the Government chose not to prosecute under statutes banning commercial sale of sexual services—perhaps because there was no evidence that money was being exchanged in return for sexual activity. But these laws exist, and deal with genuine commercialization of sex. Likewise, laws banning rape and sexual assault exist, and deal with genuine physical coercion of sexual acts. There is no reason for a concern about possible commercialization of sex to be used to justify an overbroad reading of coerced labor statutes, which would apply far more broadly than just to sex.

Conclusion

Because the Government's theory of coercion rested in part on "indoctrination" into religious and spiritual beliefs and threats of excommunication from a religious and spiritual community, these criminal convictions cannot withstand Free Exercise Clause scrutiny….

 

The post Amicus Brief in OneTaste Criminal Prosecution appeared first on Reason Magazine.

The factual allegations, from a Sept. 2025 decision in the case by Judge Susan Illston (N.D. Cal.) (the case is Radice v. Jerusalem Boxing Club, LLC consolidated with the federal government's U.S. v. Harara):

The Jerusalem Coffee House [which Harara owns] is a business establishment open to the general public. The coffee house is located on the premises of the East Bay Community Space, "which regularly hosts events that are open to the general public for exhibition or entertainment …."

According to the complaint, on June 10, 2024, Michael Radice—who is Jewish—went to the East Bay Community Space "for the purpose of viewing the establishment for a fundraising event for his organization." Radice was wearing a dark blue baseball cap with a light blue Star of David and white Hebrew lettering. As he approached the community space from the side where the coffee house is located, a man sitting at a table in front of the coffee house asked, "Are you a Jew?" Radice answered in the affirmative. The man then asked, "Are you a Zionist?" Radice declined to respond.

The complaint alleges that "[t]he man then began shouting numerous accusations at Mr. Radice, including that he was complicit in Israel's military actions in the Gaza Strip following the October 7, 2023 Hamas attacks and guilty of 'killing children.'" As Radice began to walk away, the man stood up and asked, "Where are you going?" The complaint alleges, "Mr. Radice saw another man, whom he later learned was Harara, walk out of the coffee house and speak to the man, and the two went inside." …

On August 3, 2024, Radice returned to the East Bay Community Space to attend the fundraiser for his organization. Before doing so, "he entered the coffee shop to purchase a cookie, which he hoped would be seen as a sign of goodwill." He was not wearing the baseball cap he had worn previously. Behind the counter were Harara, the man Radice had previously encountered, and a third employee. Before Radice could place his order, the man from the prior encounter stated, "You're the guy with the hat. You're the Jew. You're the Zionist. We don't want you in our coffee shop. Get out."

And now from Judge Thomas Hixson's Report and Recommendation yesterday:

There is no dispute that Defendant Abdulrahim Harara violated at least six discovery orders. Motion at 4-7 ("Harara has flouted at least six discovery orders," and enumerating the violations); Opp. at 7 ("But the question on this motion is not whether any order was violated; it is whether the record as a whole shows the kind of deliberate, deceptive obstruction that makes a fair trial impossible and justifies ending the case without one.")….

The real issue is what remedy the Court should impose for the serial violations of its discovery orders. The impact of Harara's conduct basically falls into three buckets: documents were produced late that should have been produced earlier; some document productions are incomplete; and there has been a wholesale failure to produce email. But having reviewed the voluminous evidence submitted in support of Radice's motion for sanctions, the Court thinks truth is available to the parties, and they should go ahead and have a trial on the existing record.

Harara's biggest failure in discovery is the nonproduction of email, and he does not have a good excuse. In many cases the total failure to produce email would justify terminating sanctions or at least adverse inference instructions.

But the Court is skeptical that this is such a case. The relevant events are alleged in-person refusals to serve Radice and another individual because they are Jewish. In other words, the relevant events did not occur by email. Before email existed, public accommodation discrimination claims like this were tried the old fashioned way: The participants in the alleged events testified, and the trier of fact decided who to believe. That option is still available here.

Email is still relevant, of course, because it could contain statements about what happened, or have evidence of the defendant's allegedly prejudicial intent. But here a lot of that type of evidence was produced in the form of Harara's text messages and social media feeds and other electronic records. These include a statement that seems to be by Harara that seems to say he throws pennies on the ground when Jews walk by; the coffee shop menu and outdoor signage with inverted red triangles, which Radice alleges is a symbol used by Hamas to mark Israeli targets in propaganda videos; the apparent introduction on the one year anniversary of the October 7 attack of a juice item named for a mastermind of the attack; a video of Harara telling a Jewish customer to leave because he had "a violent hat," referring to the Star of David on the hat; and a repost by Harara to his X account bearing the "Bay Area" screen name of a November 2, 2024 post calling that same Jewish customer "a genocidal, bottom dwelling Zionist scum" who "should be kicked out of every public establishment not just Palestinian owned ones!" There are also text messages that replicate the kind of thing a plaintiff would dream of finding in a defendant's emails—and certainly at trial Radice and the United States will argue these texts are strong evidence of liability.

Radice is certainly of the view that he has uncovered good evidence, even if it was produced later than it should have been, and even though it does not include email. See Motion at 15 ("The 6134 Bates-labeled pages and 2474 native files that Harara produced on or after August 7 include inflammatory documents that Harara willfully withheld until after discovery closed."); id. ("For example, a January 3, 2025 JCH Instagram post shows JCH advertising for sale a t-shirt featuring the Jerusalem Coffee House name ringed by flags with the emblem of Hamas, a designated terrorist organization dedicated to violence against Jews and Israelis."); id. ("His Instagram direct-messages contain both antisemitic tropes and antisemitic slurs.").

With all this evidence, can it really be said that Harara's failings in discovery have prejudiced Plaintiffs to such an extent that a meaningful and fair trial is no longer possible? That adverse inferences are needed because there is not enough evidence for the trier of fact to reliably draw conclusions about what happened?

No. These cases are about whether a coffee shop committed discrimination, and Harara has produced enough documents that Radice and the United States have what they need to go to trial. Even with the nonproduction of email, it is not true that discovery failed or that truth cannot be ascertained. The public policy in favor of deciding cases on the merits applies here.

Accordingly, the Court RECOMMENDS that the district judge DENY the request for terminating sanctions because there's just no need or basis for it. The Court DENIES the request for adverse inferences because it is essentially a request for a directed verdict. Each side should put on their case at trial, and truth should be determined in the normal way. There is no reason for the Court to stack the deck.

But that doesn't mean Harara escapes sanctions. He needs to pay for what he did. His serial violations of Court orders significantly drove up Radice's cost of litigating [the case]. Radice requests $166,500.50 against all Defendants. The entity Defendants have been in default during the period of time when Harara violated the Court orders, so are not the cause of Radice's increased legal expenses, and therefore will not be sanctioned.

Plaintiff's counsel's rates are reasonable. However, both the Benesch and ADL attorneys seek fees for work that preceded the violations of the Court orders, a problem that requires deducting about a third of the Benesch time and about a fifth of the ADL's time. That brings the total down to $118,000. In addition, even though Harara violated multiple discovery orders, it is also true that Plaintiff's counsel litigated [the case] with excessive ferocity. At times it seemed they were not just litigating a discrimination case but were out to destroy Harara. As a result their fees were excessive. The Court estimates that about half of the fees Radice incurred during the time when Harara was violating the discovery orders was due to the violations and the other half was for work that would have needed to be done anyway or that should not have been done at all because it was excessive. Accordingly, the Court SANCTIONS Harara in the amount of $59,000 and ORDERS him to pay that amount to Radice within 30 days.

In his opposition, Harara proposes some remedial measures. However, the Court will not adopt any of them. The proposal to remedy the lack of email production presupposes that Harara will have a lawyer to represent him. Opp. at 16 ("The full inbox Mr. Harara exported on September 3, 2026 will be reviewed by counsel, consistent with the Court's ruling that counsel rather than Mr. Harara conduct that review. That counsel will be either counsel Mr. Harara retains or volunteer limited-scope counsel appointed through the Court's Federal Pro Bono Project under General Order 25, to which Mr. Harara respectfully requests referral. Since his counsel withdrew, Mr. Harara has contacted lawyers and legal organizations and has not found a lawyer who will take his case."). However, Harara's inability to work cooperatively with two sets of counsel means this is an unrealistic proposal. And if no lawyer represents him, Harara's proposal contains no particular deadline by which emails would be produced. Opp. at 16 ("If counsel has not been retained or appointed within 30 days of the Court's order, Mr. Harara will file a status report every 14 days thereafter. In all events, the production under this paragraph will be complete within 90 days of the Court's order; if it is not, Mr. Harara will show cause why not, and the Court may then impose such further measures as it finds appropriate after notice and an opportunity to be heard.").

Harara's proposal to serve further interrogatory responses is highly unlikely to achieve anything. And there is no need for a further deposition of him; Plaintiffs' counsel can cross-examine him at trial….

The post Discovery Sanctions Recommended in "Are You a Jew? … Are You a Zionist?" Case appeared first on Reason Magazine.

I was delighted to sign on to this brief in State v. McMenamy (Mo. Ct. App.) just filed by the ACLU of Missouri Foundation and the Wash. U (St. Louis) First Amendment Clinic, on behalf the ACLU of Missouri and Profs. Jane Bambauer and Lyrissa Lidsky and me. The Introduction:

The First Amendment and article I, § 8 of the Missouri Constitution broadly protect the right to speak to the public about other people. This is true even when the speech "is intended to trouble or annoy, or to make another timid or fearful." United States v. Sryniawski, 48 F.4th 583, 587 (8th Cir. 2022). And it is true even when speech uses "social pressure and the 'threat' of social ostracism … to embarrass others or coerce them into action." NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910 (1982). While individuals who are the subjects of unwanted speech may be able to limit some speech directed to them, they cannot limit offensive speech about them directed to others. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971).

Contrary to this established law, Matthew McMenamy was convicted and sentenced to 10 years in prison for openly and vigorously criticizing a local police detective he believed had engaged in misconduct. Mr. McMenamy used his public social media accounts and publicly distributed flyers to attempt to draw the community's attention to the detective's actions. He expressed his hope that his revelations would result in the officer's removal.

While Mr. McMenamy's speech was certainly concerning to the detective, the circuit court did not make any finding that either the flyers or any one of the dozens of social media posts submitted as evidence fell within any category of unprotected speech, such as true threats. Nor could the circuit court have done so, as none of Mr. McMenamy's speech was outside the bounds of the First Amendment's protection. His convictions for harassment and stalking violate the First Amendment and should be reversed.

The opening paragraph of the section on the facts (for the full discussion of the facts, read the brief):

In August 2023, Matthew McMenamy began posting on social media about what he viewed as misconduct and racism by a local police detective, who years before had been involved in Mr. McMenamy's involuntary commitment. See State's Exs. 60A–M. Mr. McMenamy sought to publicize one of the detective's public Facebook posts, where the detective wrote: "If black lives matter then why are they shooting and killing each other at an alarming rate." State's Ex. 60B ("Let's make this racist post go viral … #BLM #RacistCop ….); State's Ex. 60A ("The people want answers. Is [detective] a racist? Does he feel that people of color do not matter because of an idea that they murder each other at an alarming rate?"). Many of Mr. McMenamy's posts were aimed at sharing with the public his concerns about the detective's fitness for his position. For example, Mr. McMenamy posted he was "in talks with a billboard company to put [detective's] racist quotes up next to a picture of him in uniform" because "[s]omeone like that shouldn't be a detective, an election [sic] official, or let alone anything near public service." Tr. 736:10–21, State's Ex. 60K. Mr. McMenamy's posts also described his feelings about his prior involuntary commitment and thoughts about hurting his parents before getting help. See State's Ex. 60E (Mr. McMenamy's post that he "had a bad day last Sunday … I still need time to heal but … I am going to counseling and I will be looking for support groups").

And the opening material in the legal argument (again, read the brief for much more):

All of Mr. McMenamy's social media posts and his distribution of flyers were protected by the First Amendment. Harassment and stalking laws may, in some circumstances, be constitutionally applied to protect unwilling listeners from unwanted, one-to-one speech directed to that listener. The government's power to protect an unwilling listener from speech about them directed to the public, on the other hand, is sharply limited, even when that speech is annoying, offensive, or alarming. Unless such speech falls within one of the narrow, historically recognized categories of speech that the U.S. Supreme Court has held may be regulated without violating the First Amendment, such as "true threats," it is presumptively protected.

Here, Mr. McMenamy spoke to the public, and his speech did not fall within any unprotected category. This Court should reverse Mr. McMenamy's convictions. Even if this Court does not find that all Mr. McMenamy's speech is protected from criminal prosecution by the First Amendment, he is at least entitled to a new trial. The circuit court allowed the State to present evidence of more than four months' worth of social media posts to the jury and then instructed the jury it could find Mr. McMenamy guilty based on unidentified "alarming content" in these posts. This means a juror could have convicted Mr. McMenamy based on speech protected by the First Amendment.

[I.] The State's prosecution of Mr. McMenamy for harassment and stalking based on unwanted speech about individuals directed to the public violates the First Amendment.

Speech directed to the public at large is presumptively protected unless it falls into one of the narrow, historic exceptions to the First Amendment. This is because even if some listeners are likely to be offended, others may be willing listeners who find the speech valuable. For this reason, while harassment and stalking statutes may, in some instances, be constitutionally applied to repeated unwanted communications to an individual, they cannot be constitutionally applied to communications to the public about an individual.

[A.] Stalking and harassment statutes were originally intended to limit unwanted communications directed to a specific person.

For decades, laws have "restricted certain kinds of unwanted speech said to a particular person." For example, state and federal criminal harassment statutes were enacted to prohibit unwanted telephone calls to a particular person. Similarly, the federal government and some states have banned certain unwanted mailings into the home. These laws reflect an intention to protect individuals from repeated, unwanted communications to them, particularly in the home.

More recently, states enacted stalking laws to proscribe behaviors such as physically following, surveilling, or engaging in repeated unwanted personal contacts with a particular person. Courts have relied on stalking laws or restraining order laws to ban repeated or annoying letters, phone calls, or personal contact from a particular person. While some of these laws have been struck down in some states, "they have generally been upheld by lower courts; and the U.S. Supreme Court has upheld the federal ban on repeated unwanted mailings."

These laws share something in common: In the vast majority of their applications, they restrict unwanted speech to a person, not unwanted speech about a person. It is in this context—where the laws are being applied to "one-to-one speech"—that they "have generally been upheld against First Amendment challenge." Id.

As the internet has made it easier for communications to reach the public, maintaining this distinction between constitutionally permissible punishment of certain one-to-one speech and constitutionally impermissible punishment of one-to-many speech is critical. Social media is "the modern public square." However, the increased exposure for "upsetting" or "frightening" online speech can bring with it an increased risk of overcriminalization. Online communication "lack[s] many normal contextual clues," including tone of voice and expression. "The ubiquity of this speech raises the possibility of highly discretionary enforcement." Thus, in the context of online speech, courts must exercise particular caution to ensure the state's application of harassment and stalking laws does not exceed the laws' original intention or permissible constitutional boundaries.

[B.] The First Amendment grants broad protection to speech directed to the public at large, even when the subjects of that speech may be alarmed or offended.

The U.S. Supreme Court has consistently recognized a distinction between speech directed to the public at large and interpersonal speech for First Amendment purposes. Even when the content of the speech is subjectively offensive or alarming, the U.S. Supreme Court has typically protected public statements about a person—absent a showing of a narrow and well-established First Amendment exception, such as true threats, fighting words, or defamation.

As now-Justice Alito stated: "There is no categorical 'harassment exception' to the First Amendment's free speech clause." Saxe v. State Coll. Area Sch. Dist. (3d Cir. 2001); [citing other cases]. Many courts have endorsed this very point, quoting Saxe, in the context of criminal harassment laws and the closely related harassment restraining order laws. [Citing still more cases].

Unlike prohibitions on speech said to a particular unwilling listener, restrictions on speech to the public deprive a speaker of the opportunity to communicate with willing listeners. Denying access to potentially interested audiences undermines the use of speech to influence opinion and conduct and, as a result, hinders the robustness of public debate—particularly when the restricted speech concerns a matter of political, social, or other concern to the community. One's interest in being free from public criticism is insufficient to overcome protection for speech….

Accordingly, public statements about a person that coerce, annoy, alarm, offend, or embarrass are generally protected by the First Amendment. {The State may have some power to restrict narrowly defined categories of speech that reveals private information about a person that is "almost never relevant to any discussion on either public or private topics" (e.g., nude photos, Social Security numbers). No such speech is at issue here.} In Organization for a Better Austin v. Keefe (1971), a local civil rights organization believed a local real estate broker's practices were improper. After the broker refused to sign an agreement not to solicit property in the organization's community, the organization distributed leaflets critical of the broker's supposedly racist real estate practices at a local shopping center, on the doors of his neighbors, and to people going to and from his church. Some leaflets accused him of being a "panic peddler" that employed tactics to scare white homeowners into selling their properties; others encouraged recipients to call his home phone number to express their disapproval. The U.S. Supreme Court concluded that the organization's "inten[t] to exercise a coercive impact … does not remove [speech] from the reach of the First Amendment. Petitioners plainly intended to influence respondent's conduct by their activities; this is not fundamentally different from the function of a newspaper." The U.S. Supreme Court explained, "so long as the means are peaceful, the communication need not meet standards of acceptability," particularly where the target of the speech "is not attempting to stop the flow of information into his own household, but to the public."

While speech that is intended to solicit violence against particular people may be punishable, speech to the public that harshly criticizes its target or that attempts to persuade through social pressure does not lose its protection even if some listeners may react with threats or violence. In NAACP v. Claiborne Hardware Co. (1982), organizers of a boycott of stores owned by white merchants read aloud and published the names of Black residents who weren't following the boycott to place pressure on them. As in Keefe, the U.S. Supreme Court held the disclosures constitutionally protected, noting the First Amendment extended beyond abstract discussions to protect "offensive" and "coercive" speech intended to influence action. This was true even though some of the people who chose not to comply with the boycott were beaten, had their property damaged, or had shots fired into their homes. The U.S. Supreme Court explained that speech designed to persuade "through social pressure and the 'threat' of social ostracism … does not lose its protected character … simply because it may embarrass others or coerce them into action." …

For a couple of articles of mine on the subject, see One-to-One Speech, One-to-Many Speech, Criminal Harassment Laws, and "Cyberstalking" and Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases.

The brief was signed by Kristin M. Mulvey, Jonathan D. Schmid, Gillian R. Wilcox, Jason A. Orr (ACLU Missouri) and Lisa S. Hoppenjans, Benjamin J. Wilson, and students Lindsey Bennett. Megan McConnell (Wash. U. First Amendment Clinic).

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