The David Knight Show - INTERVIEW Challenging Content-Based Restrictions on Free Speech

Episode Date: June 8, 2023

Roger Gyron, Senior Counsel, First Liberty Institute firstliberty.orgAfter Liberty Institute's recent win at the Supreme Court defending Coach Joseph Kennedy's right to pray silently on the 50 yard line after the game (he was fired for doing so), Mr. Byron joins to talk about a new challenge to Colorado's law that imposes severe, content-based restrictions on speech outside of abortion clinics. It's clearly a violation of the First Amendment.Find out more about the show and where you can watch it at TheDavidKnightShow.comIf you would like to support the show and our family please consider subscribing monthly here: SubscribeStar https://www.subscribestar.com/the-david-knight-showOr you can send a donation throughMail: David Knight POB 994 Kodak, TN 37764Zelle: @[e-mail] App at: $davidknightshowBTC to: bc1qkuec29hkuye4xse9unh7nptvu3y9qmv24vanh7Money is only what YOU hold: Go to DavidKnight.gold for great deals on physical gold/silverFor 10% off Gerald Celente's prescient Trends Journal, go to TrendsJournal.com and enter the code KNIGHTBecome a supporter of this podcast: https://www.spreaker.com/podcast/the-david-knight-show--2653468/support.

All right, joining us now is Roger Byron. He is senior counsel for the First Liberty Institute, and they're involved in a case right now in Colorado. I'm going to let him lay that out. He's been involved in a lot of cases involving the First Amendment, primarily religious liberty cases. They've been very successful in a lot of these, but we wanted to get an update on this.

This is not the FACE Act, which is a federal situation. This is something that's a little bit different, and this is a state law. This is not the federal government's FACE Act. So joining us now is Roger Byron. Thank you for joining us, Roger. Thank you, David. How are you?

Doing good. Tell us a little bit about what's going on in Colorado. What are they doing around these abortion clinics to protect the abortion clinics from hearing any, the people going there from hearing anything? Well, let's lay a little groundwork first on how the First Amendment works, how free speech works. The government can't target someone's private speech because of the content of what that person is saying. It can't target that person's speech because of that person's viewpoint. That is blatantly unconstitutional. The whole point of the First Amendment is that the government can't squash messages it doesn't like,

and it can't punish the people that voice those messages because they're voicing those messages. That is free speech. One-on-one. Those are basic doctrines. And if we don't have that, if we don't have that, we don't have free speech. That's right. And that's why this case is so important. Regardless of what people think about this particular issue, because this is metastasizing across our society and we see it typically being done, you know, done with surrogates. I see them as surrogates. I call them the deputized state that are out there doing these

types of things. So the government doesn't have to say, well, we did it directly. But now you've got situations where the government is doing that directly. And I guess that's what's involved here in the Colorado case, right? If Colorado makes it a crime to be within 100 feet of the door of an abortion center, the law specifically says a healthcare facility, but that is code word here for an abortion center. You can't be within 100 feet of the door of one of those places and approach within eight feet of anyone for the purpose of counseling them or of educating them in any way or protest or even of handing them a piece of paper. So let me give a real world example here. It is a crime in Colorado

to be within that hundred feet of the abortion center door and walk up to someone, hand them a piece of paper, whatever it may say. That is a crime in Colorado. The only way, the only escape from that crime is to somehow get that person's permission before approaching them and doing that. So you're standing out on a noisy street or sidewalk outside of one of these centers, and a sidewalk counselor may want to walk up to one of these women who look like they may need help or may want to have some more information. She cannot do so until she first gets that woman's permission from far enough away. She effectively has to shout at her, even get her attention.

Yeah. Wow. And what is the punishment if you violate that restriction? It was originally a misdemeanor. It's now a petty crime. It could be anywhere from a fine to some amount of jail time. I guess it depends on what the court does. Wow. Wow.

So you have a particular case, an individual who, was she testing this or was she just somebody that was caught up in the details of this? Our client, Wendy Faustin has been a sidewalk counselor for many, many years in Colorado and the Denver area specifically. And this law has made her job, her ability to compassionately and lovingly approach women outside of an abortion center to just see if they would like to hear of alternatives they may have to what we're talking about or what the procedure that they're considering may be or if they want some additional help. She is effectively stopped from doing that in any way that makes sense or in any way

that is effective. She first essentially has to raise her voice to the woman to see if she even has permission to come and talk to her. In no other situation ever is that going to pass muster under the First Amendment. That is blatantly and clearly violative of basic First Amendment doctrine. And it was from the day it was put in place. And what's most surprising, David, is that the Supreme Court said that's perfectly all right. Wow.

And when did this law in Colorado, when did that go into effect? Sometime in the 90s, I think. And then it was litigated and made its way to the Supreme Court in a case called Hill v. Colorado. And the court decided that a law that clearly violates basic First Amendment doctrine would be held up under the First Amendment. Wow. So where do we stand now in this case with Wendy, Wendy Faustin? What is the situation with it? Well, the case has just been filed. We've just filed a federal complaint, or a complaint in federal court, challenging these laws under the First Amendment,

recognizing that there is precedent in place that protects these laws, but being very clear that we seek to strike down these laws and to overturn that precedent. And so, as you point out, you know, even though the Supreme Court has ruled on this, what, 20, 30 years ago, with a different composition of the Supreme Court, you're going to give it a try again, just as we've seen the Supreme Court hold to Roe v. Wade for about 50 years and then overturn this decision. We've had situations where the Supreme Court, with Andrew Jackson and the relocation of the Cherokee, they overturned themselves within one year of that. So these Supreme Court decisions are not engraved in stone. They can always be reconsidered.

Is that essentially what you're working on? Hill has been roundly criticized as bad law from the very beginning. It was bad law when it was decided. It's bad law now. Supreme Court decisions that he's handed down since Hill was decided make it even clearer. It's just irreconcilable with basic First Amendment doctrine, with basic free speech principles. It is such a bad law, David, that last year in the Dobbs decision, the Supreme Court formally recognized that its abortion jurisprudence

had distorted First Amendment law. And what was the poster child, the example they used of that distortion? Hill versus Colorado. Really? I example they used of that distortion, Hill versus Colorado. Really? I was not aware of that. I looked at it and I saw, you know, well, they're saying this is not our decision to make. We'll go back to the states.

I was not aware of the First Amendment aspects of that in this particular case. So that makes a lot of sense as to why you would want to relitigate this. It looks like you might have an open reception. Yeah, there's basically two First Amendments. There is the real First Amendment that is usually applied to protect everyone's rights the way it's supposed to. And then there's the other First Amendment, what the late Justice Scalia referred to as an entirely separate, abridged edition of the first amendment. And it is applied largely when it comes to the rights of pro-life advocates. It has been a prevalent issue, not just in Hill versus Colorado, but in other decisions as well.

So prevalent, in fact, that Scalia gave it a name. He called it the ad hoc nullification machine. Yeah, that's true. They can shape this thing however they want to go after whoever they want. And with that, if you don't support across the board the principle of the First Amendment, then you can shape it really to be a weapon against people, can't you? Yeah, it's actually far worse than that. You know, one thing that Martin Luther King said I've always remembered is that injustice anywhere is a threat to justice everywhere.

And he was right about that. Well, that applies to the First Amendment as well. I mean, if we have a group whose speech is disfavored and the government can squash that speech or make that speech nearly impossible, targeting that speech, then no one's speech is safe. That's right. And I think that's the thing. It simply depends on just a matter of time and a matter of who comes to power. That's right.

And that is not free speech. That's right. If free speech isn't enforced equally for everyone, then we don't have free speech. That's right. And that is not free speech. That's right. If free speech isn't enforced equally And that's what people don't think. They think, well, now our group is on top and we're going to call the shots and we don't really care about the Constitution. The Constitution was there to protect you when the people who don't like you get in power. That's the key thing about this. Tell us a little bit about your group. Well, before we leave this case here, tell us a little bit about, is this now just getting started? And what is the process? And, you know, you started a local level, I'm sure, at some place to file this appeal. What is the process to get it up to the Supreme Court?

About how long is that going to take, that fight? Well, you could never put a time limit on things like this. It doesn't quite work that way. We're just at the very beginning stages of this lawsuit. We filed a complaint in the U.S US District Court for the District of Colorado. We'll have to wait for that process to occur and see what the court does. I'd like to give another example, David, of how this law would work, how extreme it is. Under this law, you could walk up to a woman outside of an abortion center within that 100-foot radius and approach her you know, I don't support abortion. I don't think it's a good thing. I think it's a bad thing.

That is a form of protest. And that would be a crime under this law. Wow. Wow. That truly is amazing. Yeah, as you have said, this is about viewpoint discrimination. And, you know, we're going to censor what you have to say. We're going to construe that as hate speech. Is that what the justification,

did they try to come up with any justification for this thing when they put it through? They weren't even talking about hate speech back in the 90s, were they? This is simply about protecting abortion. That's what it comes down to. Yeah. It comes down to trampling a person's rights, you know, to do anything possible, you know, to put a huge bubble around this infamous procedure. Yeah.

It truly is amazing how this has become like a shrine, you know, in so many different ways to these people. And you have to ask yourself, whenever we look at censorship, denial of free speech, it always is the people who have something to hide that are trying to shut down the speech. You have to wonder what they are concerned about if they don't want somebody to just hand them a crisis pregnancy center card or say, hey, if you got some issues with some people here that would be happy to help you. It is truly amazing how jealously they guard their ability to do abortions. It truly is amazing. Tell us a little bit about your... Yeah, go ahead.

If these laws hindered, say, climate change advocates or anti-war protesters, they would be struck down instantly. The reason they were upheld is because of this ad hoc notification machine that Scalia called. That is true. Tell us a little bit about your organization, some of the other types of things that you've been involved with. And is this an organization that people can contribute to

in order to help you do these types of trials? Well, certainly. I mean, to learn more about what we do, the best way to do it is to go to firstliberty.org. It's firstliberty.org. I'm senior counsel at First Liberty Institute, and we focus explicitly and not only on religious freedom issues. That is usually under the First Amendment, can be under other federal laws or state laws. And we advocate in the courts, both on behalf of students and teachers, on behalf of religious institutions, on behalf of those in the military, on behalf of the workplace, and just the public arena in general. Tell us a little bit about some of the types of religious cases that you've been

involved with. Well, just last year, we had two major wins at the U.S. Supreme Court. One was Kennedy versus Bremerton School District. We represented Coach Joe Kennedy, the football coach who was fired for taking a knee after football games on the 50-yard line. I remember that case. I covered that case a lot. I didn't realize that was you guys. Well, that's great. Absolutely. Actually, that is a landmark case now that completely changed the landscape for establishment clause matters, for separation of church and state matters. For 50 years, the test that the Supreme Court would apply, primarily the Lemon Test, as it was called, and the tests that grew out of that were very hostile to religious freedom in general.

Under Kennedy, under our win last year, the court says now the test is to supply historical understanding and the original meaning of the Constitution, to look at history and tradition and the understanding of the Founding Fathers to determine what may or may not be a violation of the establishment clause and what may or may not separate what may or may not violate the idea of separation of church and state yeah it's an objective very applicable standard now that's really good and of course all this stuff about people exercising their religion being misinterpreted as the establishment of religion,

that didn't really come about until the middle of the 20th century. That was a novel idea at that point in time, wasn't it? Wasn't that about when that happened? Well, we've had the establishment clause in place, obviously, from the beginning. But back in the early to mid-20th century, it began being used more as a weapon against religious freedom than as a shield against government encroachment upon free exercise. That's right. Yeah. Originally, establishment meant that you had to pay an official state religion or you had to attend church or some combination of those types of things. And then they started making it about, well, you just can't, if you're a person that works for the school system,

you can't show your religious beliefs or exercise your religious beliefs in any way, shape, or form, as Coach Kennedy was doing, quietly going out and praying on the 50-yard line after a football game, right? Yes, and also currently right now, Dave, we have a case at the U.S. Supreme Court. We represent a man named Groff, who was an employee of the U.S. Postal Service. And he is a sabbatarian. It's his religious conviction that he not work on Sundays, which is one of the main reasons he went to work for the U.S. Postal Service, because they generally don't work on Sundays. But the US Postal Service in recent years has taken a contract or contracts with Amazon or different online carriers and have begun requiring people to work on Sundays. And our client, Gerald Groff, was asked to do that. He explained his religious convictions and was given an accommodation under Title VII of the Civil Rights Act, like he should have been. Then he wanted to work on Sunday again, and he decided to transfer to another post office

where he wouldn't have to do that, but he was ultimately fired because of his refusal to work on Sundays, his inability to do so, where he'd already been accommodated as the law required. He brought suit against the Postal Service and we brought that matter to the Supreme Court. And we're awaiting the decision now and hope for a good result there. So it's already been argued before the Supreme Court is waiting for them to publish the decision. Any expectations as to when that's going to be? I don't know what the court's schedule is. Are they in session now? Is there some point when they start to release these decisions? Well, we hope to hear sometime this summer.

This summer. Okay. Well, that's a very strong case for religious liberty. I think very clearly, as you point out, they've given accommodation and then they changed their mind about that. That looks like that should be a win for you guys. I certainly hope so. Any other interesting cases that are out there? Those are two big cases.

Those are the two biggest ones we have right now. Well, it certainly is interesting to see what is happening there, and I really do appreciate what you're doing. It's very important. People need to understand that this is bigger than the individual issues involved here, whether we're talking about somebody praying silently or being forced to work against their religion, or we're talking about the abortion, this is bigger than those issues because it's going to affect everybody everywhere, and it's going to affect people that are on the opposite side of this issue if we lose those

fundamental protections that protect us all. Give everybody your website one more time, First Liberty there. Again, we're First Liberty Institute at firstliberty.org. It's F-I-R-S-T-L-I-B-E-R-T-Y.org. Firstliberty.org. Great. Very good talking to you, Roger. Good luck. We'll be keeping an eye on these cases. I certainly hope that you're successful because certainly the First Amendment, they've done everything they can to abridge and to destroy it. And we're hoping that we can claw that back, certainly with this Supreme Court. Thank you so much for joining us. Appreciate it. Thank you, David. The common man.

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