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U.S. Supreme Court Justice Samuel Alito flew the inverted American flag and an “Appeal to Heaven” flag outside his homes. Because the flags symbolize former President Donald Trump’s supporters’ discontent with his 2020 reelection loss, some question Alito’s ability to preside fairly over cases related to the election and the Jan. 6, 2021, Capitol insurrection.

Key Players

Samuel Alito was appointed to the Supreme Court by the late President George W. Bush in 2005 and is known for his conservatism. He has been married to Martha-Ann Bomgardner since 1985.

Emily Baden, a San Francisco resident, previously lived in the Alitos’ northern Virginia neighborhood, emerging as a key witness to the household’s flag-flying activities.

Lauren Windsor, a self-described documentarian, politically aligns with the left. Windsor made recordings of Alito and Bomgardner during a Supreme Court dinner.

Further Details

On May 16, 2024, The New York Times published an article containing a photograph of an American flag hung upside down on the front lawn of the Alitos’ home in northern Virginia from Jan. 17, 2021, three days before President Biden’s inauguration. The article noted the inverted flag’s relationship to Trump supporters’ call to “Stop the Steal,” a reference to the embittered former president’s false claims that the 2020 election was “stolen” by Democrats.

The article sparked criticisms from Democratic officials and the public alike toward Alito, decrying the flag-flying and its apparent affirmation of Jan. 6, 2021, insurrectionists’ ill will toward the government.

“This stuff’s not normal,” Minnesota Gov. Tim Waltz (D) told CNN. “I’m just stunned that we would ever have had to have a Supreme Court justice explain why his wife was flying a flag upside down in response to an insurrection.”

Alito took a defensive stance the next day in an article published by Fox News, claiming his wife put up the flag in response to one flown by a neighbor reading “F— Trump” near a school bus stop. 

The Times then posted a second photograph of the “Appeal to Heaven” flag, which was carried by Capitol rioters on Jan. 6 to support Trump in Christian terms. It was flown outside the Alitos’ New Jersey vacation home on Long Beach Island, during the summers of 2022 and 2023. The revelation of this second politically charged flag linked to Alito heightened calls by Democrats for Alito to recuse himself from legal proceedings involving the 2020 election and the 2021 insurrection, since he was a “MAGA kindred spirit.”

With the Supreme Court set to decide key election cases, such as Trump’s claim of “absolute immunity” from election subversion charges and an insurrectionist’s challenge of an obstruction charge, calls for Congress to create a new ethics code for the court also reemerged.

Outcome 

Alito refuses to recuse himself, reasserts his wife’s right to Free Speech 

On May 29, in a letter distributed by the Supreme Court, Alito declined to take himself out of cases related to the 2020 election or the Jan. 6 insurrection 

“The two incidents you cite do not meet the conditions for recusal,” Alito wrote. “As I have stated publicly, I had nothing whatsoever to do with the flying of that flag. I was not even aware of the upside-down flag until it was called to my attention.”

He pointed out that his wife, whom he claims put the flag up, is a private citizen who “possesses the same First Amendment rights as every other American.” While he reaffirmed that Bomgardner flying the inverted American flag was a result of a conflict with their neighbors, he claimed not to know what the “Appeal to Heaven” banner represented at the time she put it up. 

Sen. Dick Durbin (D-Ill.) followed up with a statement confirming that the Senate Judiciary Committee, of which he is chair, has been looking into media coverage of Alito to uncover “ethical lapses by some justices on the Supreme Court.” Other Congressional Democrats rebuked Alito’s decision not to recuse himself.

“Any unbiased and reasonable person would find laughable Justice Alito’s ‘the dog ate my homework, and I didn’t even know I had homework’ defense,” Rep. Hank Johnson (D-Ga.) told CNN. 

Trump, on the other hand, commended Alito on Truth Social.

“Congratulations to United States Supreme Court Justice Samuel Alito for showing the INTELLIGENCE, COURAGE, and ‘GUTS’ to refuse stepping aside from making a decision on anything January 6th related,” Trump wrote.

Former neighbor contradicts Alito’s defense

On June 7, NPR published an article offering a different perspective on the incident, in which Baden came forward as the neighbor whom Bomgardner had confronted. 

Baden said her family moved into the Alitos’ Virginia neighborhood in 2020. After Jan. 6, Baden, a self-proclaimed leftist, put up signs that stated, “You are complicit” and “Trump Is A Fascist.” The next day, Baden claimed that Bomgardner drove up to the house, “stopped there for a period of time,” and “glare[d] at” the family.

Although Baden says that she did not see the inverted American flag go up outside the Alitos’ home a week later, she drove past it prior to Biden’s presidential inauguration in 2021, to be met with Bomgardner yelling and “‘spit[ting] at [the] car.’”

These conflicts culminated in a more intense confrontation on Feb. 15, 2021, when Baden and her now-husband were collecting their trashcans and encountered the Alitos on a walk. According to Baden, Bomgardner referred to the two as “fucking fascists.’”

“That was when I spoke back,” Baden told NPR. “I just said, like, ‘How dare you behave this way? You represent the highest court in the land. What are you doing? I’m a stranger to you. This is because of my sign? That’s insane.’”

Baden stated that this was the last encounter between her household and the Alitos before she moved to San Francisco. However, she maintained that Justice Alito’s defense of flying the flags was “‘ludicrous.’”

Secret recordings showcase Bomgardners’ discontent

On June 10, 2024, Windsor uploaded secret recordings of Justice Alito and his wife, among other officials, at a Supreme Court Historical Society dinner that took place during the first week of June. Posing as a conservative journalist, Windsor steered the conversation toward the flag controversy.

Rebuking criticism from the “radical left,” Bomgardner can be heard stating she wants to raise “a Sacred Heart of Jesus flag” because she would “have to look across the lagoon at the Pride flag for the next month,” apparently referring to the view from the couple’s vacation home in New Jersey during Pride month.

“He’s like, ‘Oh, please don’t put up a flag,’” she said, referring to the justice. “I said, ‘I won’t do it, because I’m deferring to you. But when you are free of this nonsense, I’m putting it up and I’m going to send them a message every day, maybe every week I’ll be changing the flags.’”

Some have disapproved of Windsor’s underhanded means of obtaining the recordings, with Supreme Court Historical Society executive director James Duff “condemn[ing] the surreptitious recording of Justices at the event” in a statement.

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Alleged national security concerns led the U.S. House of Representatives to pass a bill threatening a ban of TikTok unless its China-based owner sells it.  

Key Players

ByteDance, a Chinese internet technology firm, is the parent company of TikTok, a video-sharing social networking app that has become extremely popular. TikTok has more than 170 million American users alone. 

Rep. Mike Gallagher (R-Wis.) and Rep. Raja Krishnamoorthi (D-Ill.) introduced the “Protecting Americans from Foreign Adversary Controlled Applications Act,” which “prohibits distributing, maintaining, or providing internet hosting services for a foreign adversary controlled application (e.g., TikTok).”

Further Details

In recent years, government officials have expressed concern that ByteDance would share user information with the Communist Party-controlled Chinese government or use the app to spread propaganda. 

As of 2023, the FBI and Federal Communications Commission warned that ByteDance could divulge user information, including browsing history, location, and biometric information, to the Chinese government. A 2017 Chinese law requires companies to give the government any personal data that may be relevant to national security. 

While the U.S. government has provided no evidence that TikTok has given information to the Chinese government, individuals have expressed concern over how much information the app collects. TikTok insists that it has not shared American user data with the Chinese government and would not do so if asked, but it is widely disbelieved in the U.S. Congress. 

In late 2022, President Joe Biden signed into law a bill that required U.S. government employees of federal agencies to remove TikTok from all government-issued mobile phones. This bill contained limited exceptions for specific purposes: law enforcement, national security, and security research. But despite national security concerns, in February of 2024, Biden’s reelection campaign team launched an official TikTok account, independent and distinct from the White House.

In March 2023, the Committee on Foreign Investment in the United States, which is part of the Department of the Treasury, threatened to ban TikTok unless its Chinese owners sold their stake. Subsequently, China’s Foreign Ministry accused the U.S. government of spreading falsehoods regarding TikTok’s possible security threats. 

Notably, British officials also banned TikTok from government phones because of security concerns, following a similar ban by the European Union’s executive branch. In response, Theo Bertram, TikTok’s vice president of policy in Europe, tweeted that ByteDance was “not a Chinese company,” and that it is 60% owned by global investors, 20% employees, and 20% founders. 

In June 2023, Yintao Yu, the former head of engineering of ByteDance in the United States, alleged that members of the Chinese Communist Party (CCP) obtained data that was stored by the company to identify and find protesters in Hong Kong. He also stated that the Chinese government had access to American user data, which ByteDance subsequently denied. ByteDance called the accusations “baseless.” 

“We plan to vigorously oppose what we believe are baseless claims and allegations in this complaint,” ByteDance said. 

These concerns have not ceased. Lawmakers argue that ByteDance is under the control of the Chinese government, and that the Beijing government could demand access to American user data. TikTok has repeatedly denied that it may be used as a governmental tool and has pointed to the lack of concrete evidence. 

House passes bill

On March 13, 2024, the House passed the Protecting Americans from Foreign Adversary Controlled Applications Act, which gained bipartisan support and was approved by a vote of 352-65. Specifically, 197 Republicans voted for the bill and 15 against it, while 155 Democrats supported the bill and 50 were against it. 

The bill gives ByteDance two options, namely to sell TikTok or face a nationwide ban of the app in the United States. If ByteDance sells its stake, TikTok would operate in the United States if the president, “through an inter-agency process,” concludes that the app is “no longer being controlled by a foreign adversary.” If the company refuses to sell, TikTok would be banned from app stores and web-hosting services until the company complies. Furthermore, the bill requires ByteDance to relinquish control of TikTok’s algorithm, which feeds users content based on their preferences. 

Rep. Cathy McMorris Rodgers (R-Wash), said, “We have given TikTok a clear choice. Separate from your parent company ByteDance, which is beholden to the CCP (Chinese Communist Party), and remain operational in the United States, or side with the CCP and face the consequences. The choice is TikTok’s.”

Some Republican opponents believe that the decision whether to use the app should be up to consumers. Rep. Tom McClintock (R-Calif), said, “The answer to authoritarianism is not more authoritarianism. The answer to CCP-style propaganda is not CCP-style oppression. Let us slow down before we blunder down this very steep and slippery slope.” 

Similarly, Rep. Jim Himes (D-Conn.), the ranking Democratic member of the House Intelligence Committee, contended, “One of the key differences between us and those adversaries is the fact that they shut down newspapers, broadcast stations, and social media platforms. We do not. We trust our citizens to be worthy of their democracy. We do not trust our government to decide what information they may or may not see.”

In a video posted on TikTok on the day of the congressional vote, TikTok CEO Shou Zi Chew, a Singaporean, stated that the company is invested in keeping user data protected and making TikTok independent from outside influences. He contended that if this bill is signed into law, it will simply give other social media companies more power. 

Chew also said to TikTok users, “We will not stop fighting and advocating for you. We will continue to do all we can, including exercising our legal rights, to protect this amazing platform that we have built with you.”

Outcome

Bill angers TikTok users 

Approximately 30 TikTok influencers criticized the bill on Capitol Hill. They chanted and held signs reading “TikTok changed my life for the better” and “TikTok helped me grow my business.”

Dan Salinger, a TikTok creator from California, said he began creating content during the COVID-19 pandemic out of boredom and accumulated 2 million followers as a result. 

“I’m actually appalled for many reasons,” Salinger stated. “The speed with which they’re pushing this bill through does not give enough time for Americans to voice their concerns and opinions.”

Next steps 

The bill will now be considered by the Senate, where it remains unclear if it will pass. Sen. Majority Leader Chuck Schumer (D-N.Y.) stated that he planned to consult the relevant committee chairs to determine the path of the bill in the upper body. 

Some Senate Republicans and Democrats have expressed support for the bill. 

In a joint statement, Senate Intelligence Committee Chairman Mark Warner (D-Va.) and Sen. Marco Rubio (R-Fla.) said, “We are united in our concern about the national security threat posed by TikTok – a platform with enormous power to influence and divide Americans whose parent company ByteDance remains legally required to do the bidding of the Chinese Communist Party.” 

Biden to sign bill into law if Senate passes it 

On March 8, President Joe Biden said that if the Senate passed the bill, he would sign it.

The White House has provided technical support in the process of drafting the bill. The day before the House voted on it, national security officials held a closed-door briefing with lawmakers to discuss TikTok. 

As of March 28, 2024, there were no further developments.

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One hundred seventy-five artists signed an open letter in protest of widespread book bans on the basis of content involving marginalized communities. The letter called on members of the general public to petition against right-wing censorship.

Key Players

LeVar Burton is an actor, director, and host of “Reading Rainbow,” an educational television series that encouraged children to develop an interest and affinity for books. From its first episode in 1983 to its final episode in 2006, “Reading Rainbow” won the Peabody award and 26 Emmy awards, becoming one of the most well-known PBS shows of all time.

MoveOn, formed in 1998, is a progressive political action committee focused on promoting liberal ideology and endorsing left-leaning candidates for political office. It is one of the largest grassroots progressive campaign organizations in the United States, headquartered in Berkeley, California. Rahna Epting has been its executive director since 2019.

Further Details

In a joint letter published on Sept. 19, 2023, with MoveOn, Burton spearheaded a call to action against the book bans of “draconian politicians” in school districts. He reiterated a lifelong commitment to accessible literature and the hope to inspire diverse thinking through the exploration of potentially controversial topics.

“As the former host of Reading Rainbow, I spent over 20 years inspiring millions of people of all ages to discover their love of reading. Now I’m seeing the books we once celebrated being challenged, restricted, and banned,” Burton wrote in the description of his petition on MoveOn’s website.

Bearing the signatures of scores of celebrities — including high-profile figures such as Ariana Grande, Mark Ruffalo, and Sarah Paulson — the letter focuses on attempts to diminish marginalized histories through the censorship of books covering Black, Indigenous, and people of color (BIPOC) and LGBTQ+ issues. Strongly defying the “restrictive behavior” of book bans in schools, it describes government interference of content consumption choices as “antithetical to free speech and expression.”

PEN America, which advocates for writers, recorded more than 4,000 book challenges and bans in school districts since June 2021.

The joint letter demonstrated concern about the long-term implications of book censorship on the educational community, claiming that “it’s only a matter of time before regressive, suppressive ideologues” will “further their attacks and efforts to scapegoat marginalized communities, particularly BIPOC and LGBTQ+ folks.”

The letter also warned of the danger that censorship could spread to other forms of art, expression, and entertainment if left unaddressed, noting its “chilling effect on the broader creative field.” Prevention of such widespread censorship would have to take place through a unified effort against present book bans, the letter says.

It calls on the public to agree to “use their voice” at the local level. “We must band together, because a threat to one form of art is a threat to all,” it declares.

Included on the long list of celebrity signatories are Idina Menzel, Gabrielle Union, Abigail Disney, Andy Cohen, Judd Apatow, Judy Blume, Margaret Atwood, Padma Lakshmi, Ron Perlman, and Sharon Stone.

Jazz Jennings, an LGBTQ+ rights activist who documented her experiences with identifying as transgender on the TLC series “I Am Jazz,” signed the letter to “empower young readers to embrace their identities and fight for their rights.” Actress Gabrielle Union cautioned that people should not “stand idly by as book bans spread hate and fear,” emphasizing that “our differences must be celebrated, and our children deserve to have resources to explore the fullness of our world.”

MoveOn political action executive director Rahna Epting echoed the sentiment to resist right-wing censorship of diverse perspectives. “We won’t surrender to their extremism. They cannot erase us. We are the majority; we are defiant, and we will prevail,” she said.

Outcome 

MoveOn connects signatories to advocacy opportunities

MoveOn’s website encouraged those who signed the petition to participate in future advocacy events hosted by the organization. 

One of those was MoveOn’s Banned Bookmobile, which engaged in a multi-city tour in Florida during the summer of 2023 to distribute free books that the administration of Republican Gov. Ron DeSantis had banned, such as The Bluest Eye by Toni Morrison, a novel that describes instances of child sexual abuse. MoveOn’s Banned Bookmobile continued distributing free banned books through October. 

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A Virginia photographer gained the right to refuse to take pictures of same-sex weddings following a settlement that the state committed to in a filing with the 4th U.S. Circuit Court of Appeals. A federal lawsuit brought by the photographer had challenged the state’s statute regarding discrimination.  

Key Players

Bob Updegrove, a Virginia-based photographer, sought to refuse capturing the weddings of same-sex couples because of his religious beliefs. 

The Alliance Defending Freedom (ADF), a Christian conservative nonprofit, filed the lawsuit on behalf of Updegrove. 

Further Details

In 2020, former Gov. Ralph Northam (D) signed the Virginia Values Act into law, which prohibited discrimination on the basis of sexual orientation, gender identity, and race, among other protected classes. Those who violated the law could be fined up to $50,000 or $100,000 for repeated acts of discrimination. 

At the time, Northam said it sent “a strong, clear message” that “Virginia is a place where all people are welcome to live, work, visit, and raise a family.”

Later that year, with the help of ADF attorneys, Updegrove filed a federal lawsuit to challenge the law, asserting that the act would force him to go against his religious beliefs and photograph same-sex weddings. Updegrove detailed his lawsuit in a Washington Post op-ed entitled “A new Virginia law is censoring artists like me.”

“Virginia legislators have decided that artists can no longer choose the content of their creations if they refuse to promote the state’s preferred views on certain subjects,” Updegrove wrote. “And my state has targeted people of faith more than anyone else.”

Jonathan Scruggs, senior counsel at the ADF, said that artists like Updegrove faced “an impossible choice” when it came to violating the law and promoting views against their faith. “The government cannot demand that artists create content that violates their deepest convictions,” he said. 

But in 2021, U.S. District Judge Claude M. Hilton, nominated by former President Ronald Reagan, dismissed the lawsuit, claiming it lacked evidence that Updegrove needed protection from the statute. According to Hilton, the photographer had “never been approached by anyone seeking his photography services for a same-sex wedding.” 

Shortly after, the ADF filed an appeal. 

In June 2023, the U.S. Supreme Court ruled on a similar case, 303 Creative LLC v. Elenis, holding that the First Amendment allowed certain businesses to refuse to work for same-sex couples. The case involved a Christian graphic artist from Colorado who did not want to design wedding websites for same-sex couples. 

In both Updegrove’s case and 303 Creative, the ADF argued that the work implicated was not just a service, but a form of personal expression subject to First Amendment protection.

Outcome 

Virginia settles Updegrove’s case applying 303 Creative v. Elenis

On Nov. 3, 2023, Updegrove and Virginia Attorney General Jason Miyares reached a settlement that permitted Updegrove to refuse to provide services for same-sex weddings. 

The parties agreed that Updegrove was not required “to offer or provide photography celebrating same-sex weddings” or prevented from explaining his position on his website. The settlement cites the precedent of 303 Creative, indicating that the First Amendment permits some businesses to refuse work for same-sex couples. 

ADF legal counsel Johannes Widmalm-Delphonse said Updegrove’s victory underscored “how the 303 Creative decision will protect countless Americans from government censorship and coercion. The U.S. Constitution protects his freedom to express his views as he continues to serve clients of all backgrounds and beliefs.”

Virginia officials divided, legal implications unclear

Miyares stated that the settlement simply respected the U.S. Supreme Court decision “that the government cannot compel people like Mr. Updegrove to speak contrary to their conscience.”

However, state Sen. Adam Ebbin (D), whose district encompasses parts of Alexandria and Arlington, in northern Virginia, said there was no reason for Virginia officials to settle the case, especially in light of the previous ruling by the circuit court. He dismissed Updegrove’s case and other pre-enforcement challenges, such as 303 Creative, as “made-up lawsuits” that are meant to be divisive. 

Going forward, many legal scholars were speculating on how the lower courts might choose to apply the precedent of 303 Creative to additional cases. Nelson Tebbe, a professor at Cornell Law School, stated that “303 Creative will be enforced in cases concerning wedding photographers and other vendors as well.”

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A middle school student in the San Diego area was suspended for two days and banned from school sporting events after he covered his face in eye black at a football game. School administrators alleged the student was in effect using objectionable blackface, but a Free Speech advocacy group defended the student’s act as harmless. 

Key Players

J.A., identified by his initials in public documents for privacy, was an eighth-grade student at Muirlands Middle School in La Jolla, California, at the time of the incident.

The Foundation for Individual Rights and Expression (FIRE) is a nonprofit Free Speech advocacy organization based in Philadelphia.

Further Details

Blackface is “dark makeup worn to mimic the appearance of a Black person.” The practice originated in 19th-century minstrel shows, where white performers used burnt cork or shoe polish to paint their faces darker and mimic enslaved Africans on Southern plantations.

Eye black, on the other hand, is a grease or paint used by athletes to reduce glare from the sun or bright stadium lights. Its earliest known use occurred in the 1930s. Today, athletes frequently wear eye black for aesthetic purposes. 

On Oct. 13, 2023, J.A. attended a football game between La Jolla High School and Morse High School. Inspired by those wearing eye black in the stands and images he had seen online, J.A. asked his friend to apply eye black to his face. It covered nearly the entirety of his cheeks.

“My understanding is a lot of people were wearing face paint and he wanted to join in on the fun,” Aaron Terr, FIRE’s director of public advocacy, told the La Jolla Light.

“He had a fun, great night without any trouble,” J.A.’s father said, adding that a Black security guard even told J.A. to add more eye black.

On Oct. 19, J.A. and his parents were called into the office of Principal Jeff Luna. According to J.A.’s father, Luna defended the decision by noting that Morse has a large Black component in its student body. 

Luna gave J.A. a two-day suspension for violating the Muirlands’ hate incidents policy and banned him from attending San Diego Unified School District sporting events for the remainder of the year. Neither Luna nor the suspension report, which lists J.A.’s offense as “Offensive comment, intent to harm,” indicated that anyone complained about J.A.’s face paint at the game, or that it caused any disruption. 

Attorney Karin Sweigart, who specializes in constitutional and Free Speech issues and previously worked on another blackface accusation case, called Muirlands’ actions “constitutionally suspect,” saying there were “serious constitutional problems on what the school did and with California law. [Muirland Middle School is] really not on very solid ground.”

Outcome

FIRE appeals suspension and ban

On Nov. 8, FIRE sent a letter to Luna, defending J.A.’s use of eye black as constitutionally protected expression.

The organization explained that the First Amendment protects nonverbal expressions, such as tattoos and face or body paint. Additionally, in the 1969 case Tinker v. Des Moines, the Supreme Court determined that public school officials may not restrict student speech unless there is evidence that the speech has or will “materially and substantially disrupt the work and discipline of the school.” FIRE argued that there was no such evidence of disruption in J.A.’s case.

“The complete lack of disruption is unsurprising, as the sight of fans in face paint is familiar to and expected by anyone who has ever attended a football game or other sporting event,” the letter states. Terr called the eye black “a harmless display of school spirit at a football game.”

FIRE demanded that Muirlands Middle School remove the suspension from J.A.’s disciplinary record, lift the ban on his attendance at school sports games, and reaffirm its commitment to the First Amendment.

J.A.’s father said he is worried about his son’s future if this accusation remains on his record. “My son’s name needs to be cleared,” he said. “It’s reckless to assume the worst in a child only because he’s white […] With such a serious allegation you would think there would be a thorough investigation of intent from all parties.”

FIRE requested a “substantive response” to its letter by Nov. 22, after which, the organization claimed, J.A.’s family would consider taking legal action against the school.

School district defends decision, FIRE presses on

On Nov. 8, the same day FIRE sent its first letter, the San Diego Unified School District denied J.A.’s request for appeal of his suspension. 

On Nov. 13, FIRE sent a second letter, this time addressed to Superintendent Lamont Jackson, to express its discontent with the decision and asking for confirmation on whether the matter would be reconsidered. 

“The student’s father has said they intend to sue if the district does not reverse its decision,” Terr told the La Jolla Light on Nov. 24. “We plan to confer with the family soon about potential next steps.”

As of Dec. 18, there were no further developments.

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The Colorado Supreme Court agreed to review a case involving a baker’s refusal to make a gender transition cake. The baker had previously refused to bake a cake for a same-sex wedding, arguing the request violated his religious beliefs as a Christian, a belief he has maintained throughout his legal battles. 

Key Players 

Autumn Scardina, a lawyer originally from California, runs Scardina Family Law in Denver, Colorado. 

Jack Phillips, a cake artist and Colorado native who opened Masterpiece Cakeshop in 1993, sells custom-decorated cakes for special events. He sued the Colorado Civil Rights Commission (CCRC), contending that requiring him to bake a custom wedding cake for same-sex couples violated his First Amendment rights. That case went to the U.S. Supreme Court, which  ruled in 2018 that the CCRC acted with anti-religious hostility against him in violation of the free exercise clause; but it did not establish whether a business could refuse services to LGBTQ+ clients on a religious basis. 

Further Details

Five years after Phillips refused a custom wedding cake to the same-sex couple, Scardina placed an order with Masterpiece Cakeshop for a birthday cake with blue frosting and pink cake inside.  Phillips’ wife, who answered the call on June 26, 2017, initially agreed to the request. But after hearing Scardina’s reason for the order, to celebrate her seven-year anniversary of coming out as transgender, the bakery told her it could not fulfill her request. 

On July 21, 2017, Scardina filed a complaint with the Colorado Civil Rights Division (CCRD), alleging that the shop and Phillips had violated the Colorado Anti-Discrimination Act (CADA) by refusing her service because she was transgender. 

Charged with the enforcement of CADA, the CCRC is a separate body from the CCRD. The CCRD is a division of the Department of Regulatory Agencies (DORA).

On June 28, 2018, the CCRD found probable cause that Masterpiece Cakeshop and Phillips had violated the law. CCRD ordered both parties to attend mediation, which was ultimately unsuccessful. 

On Aug. 14, 2018, Masterpiece Cakeshop and Phillips filed a federal lawsuit against the CCRD, accusing the state of a “crusade to crush” him by pursuing the complaint made by Scardina. On March 4, 2019, Phillips and the CCRD agreed to a settlement in which both parties would dismiss their actions against one another. This settlement did not include Scardina, and the CCRD never fully addressed the merits of Scardina’s discrimination charge.

On June 5, 2019, in response to the CCRD’s settlement of her case, Scardina sued Phillips and Masterpiece.  

At the trial, Phillips testified that he had refused to make the cake because he did not believe a person could change their gender and declined to celebrate “somebody who thinks that they can,” The Associated Press reported. Scardina said that she was not attempting to bully Phillips with the lawsuit; instead “it was more of calling someone’s bluff” and enforcing state anti-discrimination law.

On June 15, 2021, Judge A. Bruce Jones of the Denver District Court found that Phillips had violated CADA and fined him $500, the maximum allowed for a violation of the act. 

Jones did not find Phillips’ decoration of cakes to be “compelled speech,” meaning that his First Amendment rights were not being called into question – reaching his decision instead on the basis that “the refusal to provide the bakery item is inextricably intertwined with the refusal to recognize Ms. Scardina as a woman,” thus violating CADA. 

Outcome

Appeals court upholds earlier decision, agrees Phillips violated CADA

On Jan. 26, 2023, the Colorado Court of Appeals unanimously agreed that the cake Scardina requested was not a form of speech. 

“We conclude that creating a pink cake with blue frosting is not inherently expressive and any message or symbolism it provides to an observer would not be attributed to the baker,” the court wrote. 

The appeals court also found that the state law making it illegal to refuse service based on protected characteristics like race, religion, or sexual orientation did not violate business owners’ right to practice or express their religion. 

Jake Warner, one of Phillips’ lawyers from the Christian legal group Alliance Defending Freedom, released a statement opposing the court’s decision. “Free speech is for everyone,” the statement read. “No one should be forced to express a message that violates their core beliefs.”

John McHugh, one of Scardina’s lawyers, issued a statement to Reuters, claiming that the decision was “a victory not just for Ms. Scardina and the greater LGBT community, but for all Coloradans, who can take comfort that our laws apply equally to everyone.”

In April, Phillips appealed the decision to the Colorado Supreme Court. Conservative attorneys general from 22 states filed a brief urging the court to hear the case and rule in his favor. 

Colorado Supreme Court agrees to review case

On Oct. 3, the Colorado State Supreme Court granted Alliance Defending Freedom’s petition for a writ of certiorari. 

The order agreed to review whether the decision of Masterpiece Cakeshop not to create the cake violated CADA’S prohibition on transgender discrimination, and whether the decision not to create the cake is protected by the First Amendment. 

“We won all the lawsuits up to this one, and we expect to win this one,” Phillips told Deseret News. “I don’t feel like I’m not a winner. I feel like these things need to be clarified and hopefully the court will do that.”

As of Jan. 3, 2024, there were no further developments. 

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A student in an Iowa high school filed a federal lawsuit against her school district after she was suspended for wearing a pro-Second Amendment T-shirt.

Key Players 

A.B. was a student at Johnston High School (JHS), a public school northwest of Des Moines. She was identified publicly by only her initials.

Thomas Griffin, a teacher at JHS, serves as an adjunct history and government instructor at William Penn University and Nebraska Methodist College, and is an active member of the Bill of Rights Institute, a civic education organization. 

Nate Zittergruen is the human resources director of the Johnston school district, but served as associate principal during “all times relevant” to the lawsuit. 

Randy Klein is an associate principal at JHS. 

Chris Billings is the district executive director of school leadership, a position he has held since June 2022. 

Laura Kacer was the district’s superintendent from 2018, but stepped down in June 2023.

Further Details

On Aug. 29, 2022, Griffin taught his senior government class about the Free Speech rights of students, specifically mentioning Tinker v. Des Moines, a 1969 ruling by the U.S. Supreme Court that set the precedent for First Amendment rights for students in public schools.  

Griffin told the students that their Free Speech rights were limited once they stepped onto school property, Law & Crime reported. He then allegedly told them that he would decide what speech was allowed, and that he would not permit students to wear clothing that depicted guns, alcohol, or other “inappropriate material.” 

A.B. felt that Griffin was “wrong about the scope” of the First Amendment and decided to challenge him. On Sept. 1, 2022, she wore a shirt to class with the words “what part of ‘shall not be infringed’ don’t you understand?” that had an image of a rifle. A.B. and her brother said they had previously worn the shirt to school without any issues. 

In response, Griffin told A.B. the shirt violated the school dress code and that she needed to leave the classroom. She told him that the shirt had not caused a disruption and was a legal form of expression. But Griffin said she was incorrect and that the school administration would agree with him.

A.B. then called her mother, who came to the school and met with Zittergruen and Klein. Zittergruen said that the image of a gun could be perceived as threatening to other students. A.B.’s mother asked whether any student had complained about the shirt to the administration, which they had not. 

At the end of the meeting, the administrators told A.B. she could only return to class if she changed her shirt, but she refused. The administrators informed her that she was suspended and had to leave. 

Allegedly, Billings had advised school leadership that the shirt violated the school dress code. Once A.B. got home, her mother received a letter from Klein that formally documented the out-of-school suspension, citing a violation of the dress code.       

Kacer backtracks 

After receiving the formal suspension letter, A.B.’s mother emailed the school board, explaining the incident and her belief that the school had gone too far.

Kacer allegedly called A.B.’s mother and apologized for the school’s actions. Billings then sent an email to A.B., apologizing and claiming that he understood that the shirt represented political speech. A.B. was able to return to school the next day.

A.B.’s mother files federal lawsuit

On Feb. 6, 2023, A.B.’s mother filed a federal lawsuit, demanding that the school publicly state that clothing portraying firearms in a nonthreatening manner was protected by the First Amendment. The suit also sought a permanent injunction preventing the school from suspending a student for similar clothing.

Ken Paulson, director of the Free Speech Center at Middle Tennessee State University, said that A.B.’s supposed violation must be “spelled out in the dress code or has to be something that is so disruptive that it’s clear that they would need to keep it out of the classroom.” Paulson added that students’ choice of clothing was expressive conduct, and that the school’s actions were “a terrible lesson to teach a young woman who is trying to demonstrate her First Amendment right and support her Second Amendment rights.”

Outcome

Parties settle

In June 2023, A.B. settled the lawsuit with the school district, which denied any wrongdoing but agreed to pay A.B. $15,000. It also committed to providing training for its staff on First Amendment issues, including student speech.

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Several portions of the Middle Eastern broadcast of “Last Week Tonight” were cut, after host John Oliver mentioned various controversies surrounding the Saudi government. 

Key Players

John Oliver hosts “Last Week Tonight,” an American late-night satire show on the Home Box Office (HBO) television network. Prior to “Last Week Tonight,” Oliver won three Primetime Emmy awards for his work as a writer on “The Daily Show” between 2006 and 2013.

Orbit Showtime Network (OSN), a satellite television company based in Dubai that largely broadcasts in the Middle East and North Africa, airs both mainstream programming and regional content. The company only has two shareholders: KIPCO, an investment firm linked to the Kuwait ruling family, and Mawarid Group Ltd., a private Saudi investment firm.

Further Details

On Oct. 22, 2023, Oliver hosted an episode on McKinsey and Co., a global management consulting firm based in New York City. Parts of the episode were censored by OSN, which cuts various mentions of McKinsey in the context of Saudi politics.

Journalist Jon Gambrell, who reported the majority of details surrounding the censorship of Oliver’s segment, described a segment in the show as a “satirical, fake McKinsey promotional created by the show.” Oliver largely focused on McKinsey’s relationship with Middle Eastern governments, as a result of the global scope of the consulting firm. McKinsey has maintained ties with the Middle East, boasting over 1,000 consultants at its offices in the region, as well as 10,000 projects completed since the year 2000. 

McKinsey’s website also contains a page dedicated to its work in Riyadh, the Saudi capital. The firm claims to recruit “some of the most talented people” in the country, with the goal of generating “a more competitive private sector and modern public sector.” McKinsey conducted nearly 600 projects with Saudi Arabia from 2011 to 2016 alone. 

Referring to the Saudi government’s alleged role in the assassination of Jamal Khashoggi, a former journalist and opinion columnist for The Washington Post who continually criticized Saudi Arabia for a history of egregious Free Speech violations, Oliver claimed that “McKinsey now has offices all over the world, and from them they’ve cozied up to some truly terrible clients.”

In October 2018, Khashoggi traveled to the Saudi consulate in Istanbul to obtain documents that would permit him to marry his fiancée. However, it became clear that Khashoggi never exited the consulate; U.S. intelligence, among others, concluded that he had been assassinated and dismembered under the orders of Crown Prince Mohammed bin Salman. This conclusion was denied by the Saudi government, which initially claimed that Khashoggi had never entered the consulate and later insisted that his death was the result of a “fistfight.”

Despite the controversy surrounding Khashoggi’s murder, McKinsey continued to uphold relations with Saudi Arabia, attending a Saudi investment conference in Riyadh that same October. Oliver deemed the conference a “journalist-chopping business jamboree,” referring to the Saudi government as one of several “rootin’-est, tootin’-est, journalist-shootin’-est regimes in the Middle East.”

OSN removed mentions in the episode of the austerity measures that the Saudi government implemented in 2015, when McKinsey allegedly identified three major dissenters — writer Khalid al-Alkami, Canadian Omar Abdulaziz, and an anonymous user by the name of Ahmad — on Twitter and reported them to the Saudi government. Alkami was arrested, while Abdulaziz’s phone was hacked and his brothers were arrested. Ahmad’s account was closed down.

“We were never commissioned by any authority in Saudi Arabia to prepare a report of any kind or in any form to identify critics. In our work with governments, McKinsey has not and never would engage in any work that seeks to target individuals based on their views,” a McKinsey spokesperson claimed after news of the report circulated around the time of Khashoggi’s death. 

The decision by OSN to censor “Last Week Tonight” came after the United Arab Emirates, where OSN is located, declared that it would allow protests at the United Nations Climate Change Conference in late November. 

Sarah Leah Whitson, the executive director of Democracy for Arab World Now, an organization that Khashoggi himself founded, expressed concern for the lack of backlash against the continued censorship on behalf of the Saudi government surrounding Khashoggi’s death. “I’m more concerned with the content providers like HBO that are allowing their content to be censored,” Whitson stated.

Outcome 

OSN releases statement to The Associated Press

While OSN refused to answer specific questions from The Associated Press about the reasoning behind specific instances of censorship of the episode, it released a statement shortly after the incident justifying the cuts as a whole.

“As with all aspects of our business, OSN complies with the laws of the markets in which we operate, including all content-related compliance across the region,” OSN claimed. “As such, from time to time we make minor content edits.”

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Cultural center 92NY announced it was putting its widely admired literary reading series on pause following criticism and boycott over having canceled an appearance by Viet Thanh Nguyen, a prominent writer who has condemned Israel. 

Key Players 

92NY, short for 92nd Street Y and commonly referred to as “the Y”, was founded in 1874 as the Young Men’s Hebrew Association with the mission of serving “the social and spiritual needs of the American Jewish community.” In the 20th century, the institution became a leading culture and arts organization. The center’s Unterberg Poetry Center was founded in 1939 and has played host to a variety of prestigious authors. 

Viet Thanh Nguyen is a Pulitzer Prize-winning author based in Los Angeles. His work largely centers around the themes of war, refugees, exile, memory, and identity. 

Further Details

On Oct. 20, 2023, six hours before Nguyen was slated to appear at 92NY’s Unterberg Poetry Center alongside novelist Min Jin Lee to discuss his memoir A Man of Two Faces, the institution canceled the event. The conversation was held that afternoon at a different venue, the McNally Jackson bookstore in Lower Manhattan, without sponsorship from 92NY.  

The following day, 92NY released a statement that cited Nguyen’s criticism of the Israeli government as justification for his cancellation. The statement highlighted the position of 92NY as a “Jewish institution that has always welcomed people with diverse viewpoints,” but claimed that “given [Nguyen’s] public comments … on Israel” in light of “the brutal Oct. 7 attack by Hamas … we felt the responsible course of action was to postpone the event while we take some time to determine how best to use our platform.” 

Nguyen was among 750 artists who signed an open letter in the London Review of Books calling for an immediate ceasefire in Gaza and accusing the Israeli government of committing “grave crimes against humanity.” On instagram Nguyen has also emphasized his support for BDS, the movement to boycott, divest from, and sanction Israel, which purportedly  seeks to “end international support for Israel’s oppression of Palestinians and pressure Israel to comply with International law.” 

Outcome 

Writers scheduled to appear in future Unterberg literary reading series pull out

Critics Christina Sharpe and Saidiya Hartman and writer Dionne Brand canceled their upcoming appearances at a 92NY event. In a joint statement issued on Sharpe’s X (formerly Twitter) account, the trio explained that their actions were informed by their roles “as writers of conscience, as anti-imperialist, anti-racist and anti-colonial thinkers.” Poet Paisley Rekdal also withdrew from her 92NY events. In an email, Rekdal expressed her sympathy for the difficult position the organization was put in, but warned that “Y’s decision has unintentional knock-on effects for the writing community as a whole, in particular an implicit chilling effect on free speech.”  

Members of Unterberg Poetry Center Staff resign

Sarah Chihaya, the poetry center’s director, and senior program coordinator Sophie Herro both left their posts following the cancellation of Nguyen’s event. 

Over 30 writers sign open letter

On the Literary Hub website on Nov. 3, a group of writers who previously worked with 92NY posted a joint statement in opposition to the institution’s actions against Nguyen. The statement acknowledged that “the Y has a right to take a political stance on Gaza,” but urges it “to recommit to its core values of intellectual pluralism and free speech before it does irreparable harm to its reputation and legacy.” The writers also warned that “many of us will be forced to reconsider present and future association with this institution … if the Y continues down the dark road of stifling dissent.”