​A new Maryland law regulating how energy companies describe their products as “green” or “renewable” raises significant First Amendment concerns. By restricting the language that companies can use to market their services, the law forces businesses to align with the state’s dictated views on sustainability. This case, now playing out in federal court, underscores the tension between government regulation and the constitutional right to free speech, even in the realm of commercial activity.
 
Green Mountain Energy and the Retail Energy Advancement League (REAL) argue that this law crosses constitutional boundaries by going beyond regulating misleading claims. It forbids the use of “green energy” for the resale of “renewable energy credits.” By dictating the context for terms like “green” and “renewable,” Maryland is attempting to enforce its own perspective on sustainability with a legal mandate. The state offers no evidence that the companies’ descriptions of their products are deceptive. Instead, it seeks to impose its definitions, effectively punishing businesses for expressing a viewpoint that doesn’t align with Maryland’s preferred narrative.
 
The state’s defense rests on the argument that this is "commercial speech," which has many exceptions from the broad protections of the First Amendment. Courts have long held that commercial speech can be regulated for truthfulness and safety. But applying that standard here is flawed reasoning. Commercial speech does not lose its constitutional safeguards simply because it involves business interests. Courts have repeatedly ruled that truthful and non-misleading commercial speech is protected. Maryland's law doesn’t regulate false advertising: it imposes civil penalties for truthful speech that doesn’t align with the state’s ideological preferences. This sets a dangerous precedent for governmental overreach.
 
Consumers benefit from robust, diverse speech in the marketplace. Allowing companies like Green Mountain to share their perspective on what constitutes “green” energy fosters healthy competition and transparency. If Maryland’s law stands, it sends a chilling message that the government can censor private speech to promote its policy agenda. The First Amendment exists to prevent precisely this kind of state overreach.
 
This case highlights a growing trend where governments seek to weaponize regulations to silence voices they don’t agree with. The Maryland law must be struck down to uphold the First Amendment's principles and ensure that businesses retain their right to speak freely.

​Of all the things Americans expressed thanks for last Thursday, Protect The 1st is so grateful for the First Amendment that we adopted it as our namesake. The First Amendment in the Bill of Rights is a simple guarantee of our constitutional right to speak freely, enshrined in our written constitution. It provides a bulwark against the encroaching tide of censorship that has eroded free expression in other countries.
 
The importance of a written guarantee of free speech is demonstrated in the alarming decline of free speech in Anglophone countries, long seen as bastions of liberty, that lack such a constitutional guarantee. Recent examples from the United Kingdom, Canada, and Australia underscore the importance of this uniquely American right.
​
The United Kingdom, the birthplace and champion of free speech, has increasingly succumbed to policing and punishing speech deemed offensive. Its 1986 Public Order Act made it a criminal offense to use “threatening, abusive, or insulting” words that might cause someone “harassment, alarm, or distress.” While the law’s language seems aimed at curbing harm, it effectively outlawed the mere act of offending someone. This led to absurd prosecutions, such as a man arrested for calling a police horse “gay” and a teenager detained for labeling Scientology a cult. These cases illustrate how the power to define “insult” can be wielded arbitrarily, stifling legitimate expression.
 
More recently, the UK has seen the rise of "non-crime hate incidents," where individuals are investigated for actions or speech perceived as offensive but not criminal. These incidents are recorded by the police and can affect individuals’ records, impacting their job prospects and social standing. For example, Essex Police investigated journalist Allison Pearson in 2024 over a year-old social media post allegedly inciting racial hatred. Although no charges were filed, the investigation drew backlash and raised concerns about the chilling effect of such probes on free expression.
 
Peaceful personal actions have also come under scrutiny. In 2024, Army veteran Adam Smith-Connor was convicted for silently praying outside an abortion clinic in Bournemouth. Despite the deeply personal nature of his prayer, he was ordered to pay significant prosecution costs. Similarly, Isabel Vaughan-Spruce was arrested in 2022 for silently praying near an abortion clinic in Birmingham, allegedly violating a local “buffer zone” order. Although she was later acquitted, her case sparked widespread concern over the criminalization of private thought and peaceful expression.
 
Canada, too, has seen troubling encroachments on free speech. The country’s human rights commissions have famously prosecuted individuals for “hate speech” under laws that are broad and subjective. One high-profile example involved comedian Mike Ward, who faced years of legal battles and was fined for making a joke about a disabled public figure. Such cases illustrate how speech, particularly humor (admittedly offensive) and dissenting opinions, can be punished when legal protections are weak or absent. The mere existence of these tribunals demonstrates a willingness to prioritize “dignity” over free expression, a choice that would be untenable under the First Amendment.

In Australia, free speech has also come under threat. In 2019, that country’s High Court upheld the dismissal of a public servant who criticized government policies anonymously on social media. The court ruled that such comments breached the Australian Public Service Code of Conduct, highlighting the limited protections for free speech, especially for government employees.
 
These examples from countries that share the common law tradition reveal a stark contrast. Britian gave us foundational texts like John Milton’s Areopagitica, a powerful argument for the liberty of unlicensed printing. Canada, with its Charter of Rights and Freedoms, has nevertheless allowed subjective interpretations of “hate speech” to override open debate. Australia, lacking a constitutional free speech guarantee, has seen judicial decisions that limit public discourse. By comparison, the United States’ written Constitution, fortified by a judiciary that has generally stood firm in defense of free speech, has proven to be a fortress against these trends.
 
Americans benefit from a legal framework that assumes offensive speech is not a bug but a feature of free expression. The U.S. Supreme Court has consistently upheld this principle, most notably in cases like Brandenburg v. Ohio, which protects even inflammatory speech unless it incites imminent lawless action. This robust protection enables a marketplace of ideas where good and bad arguments alike are subject to public scrutiny, not state suppression.
 
The comedian Rowan Atkinson of Mr. Bean fame has eloquently defended free speech, calling it “the most precious thing in life.” He warned that outlawing insult empowers orthodoxy to silence dissent and argued that “more speech” is the strongest weapon against hateful ideas. As we eat the last of our Thanksgiving leftovers, let us give thanks for the First Amendment, which guards the liberty to speak, argue, and dissent without fear. It is a fortress that protects us all.

​The decision by the Texas State Board of Education to offer the optional Bluebonnet curriculum, rich in Christian imagery and tropes, is a kind of Rorschach test. Those more sensitive to the “no establishment” clause of the First Amendment see it as foisting one religion on an increasingly diverse population of students. Those who relish the “free exercise” clause see it as exposing all children to common cultural touchstones in what was until recently an overwhelmingly Christian nation.
 
Religion has undeniably shaped American society, from the Puritans’ foundational settlements to the Great Awakening’s moral fervor and the influence of Presbyterianism on the structure of the U.S. Constitution. In the 19th and 20th centuries, churches played key roles in the abolitionist and civil rights movements. Including the lore of these movements in history classes enriches students’ understanding of the nation’s development and diverse social fabric.
 
“In my view, these stories are on the education side and are establishing cultural literacy,” said Will Hickman, a Republican who sits on the Texas Board of Education told The Texas Tribune. He has a point. Common phrases like “pearls before swine,” “turn the other cheek,” and “salt of the earth,” are sayings of Jesus that have become cultural bywords in ordinary American conversation.
 
More difficult questions arise when religious content goes beyond lessons about history and literature. One Bluebonnet lesson about fairness, for example, includes the story of The Good Samaritan, Jesus’ parable about helping people across barriers of background and religion. That story too is an important part of American moral culture.  But some Jewish, Muslim, Sikh, and Hindu parents might see such moral parables not as helping everyone share a common culture, but as an effort by conservative Christians to keep Christianity at the center of American identity. It’s the kind of issue that deserves to be discussed among all concerned stakeholders, at the local level, with people on all sides doing their best to understand others’ concerns and to develop approaches that are as inclusive as possible and that avoid unnecessary offense to their neighbors’ sensibilities. 
 
Wherever one comes down in that debate, one inclusive, and therefore laudable, approach to religious expression is to expand school choice, which Texas is ready to embrace.
 
Following the recent election, the Texas legislature now has a majority prepared to implement a universal school voucher program for the nation’s second most populous state. Such a program would give parents the freedom to select schools that align with their values, whether they seek religious or secular instruction. Gov. Greg Abbott is championing this initiative, recognizing the growing demand for educational options.
 
The foundation for this shift was laid by the U.S. Supreme Court’s 2022 decision in Carson v. Makin. The Court ruled that if a state offers funding to private secular schools, it cannot exclude religious schools. This principle ensures families can choose schools – religious or secular – that best meet their needs. In Texas, vouchers will allow children to attend quality private schools as long as they meet state standards in core subjects like science, civics, and math.
 
Religious schools, unlike public institutions, can easily integrate faith-based teachings into their curricula. Without generating internal controversy, for example, they may display and teach such things as the Ten Commandments as part of their broader mission. Far from undermining pluralism, this model respects it, allowing families to pursue education aligned with their beliefs while maintaining accountability to state standards in key subjects.
 
This seems to us the better way to respect both diversity and the maximum freedom of expression under the First Amendment, and in so doing allowing parents to share their values – religious or not – across generations.

​President-elect Donald Trump’s nominee for Chairman of the Federal Communications Commission promises he will “smash the censorship cartel.” A current FCC commissioner, Brendan Carr is a seasoned policymaker and scholar of communication law. He is an unabashed promoter of the free market, promising to reduce regulation and “refill America’s spectrum pipeline” to “unleash economic prosperity.”
 
Carr authored the FCC section of Project 2025, which encapsulates what the FCC’s policy efforts are likely to encompass in the coming years. Relevant to the First Amendment is Carr’s approach to Section 230. This is the law that grants social media companies immunity from liability for content produced by third parties, while acknowledging the companies’ right to moderate their sites.
 
Carr believes Section 230 has been expanded and abused to censor conservative and other speech, concluding it “is hard to imagine another industry in which a greater gap exists between power and accountability.” That’s why, in his view, the “FCC should issue an order that interprets Section 230 in a way that eliminates the expansive, non-textual immunities that courts have read into the statute.”
 
Specifically, Carr suggests that the “FCC can clarify that Section 230(c)(1) does not apply broadly to every decision that a platform makes. Rather its protections apply only when a platform does not remove information provided by someone else. In contrast, the FCC should clarify that the more limited Section 230(c)(2) protections apply to any covered platform’s decision to restrict access to material provided by someone else.”
 
What this means, in effect, will be much less immunity for platforms under Section 230(c)(1), broadly interpreted by courts to apply to both distribution and takedown decisions – even though Section 230(c)(2) speaks more directly to the latter. Carr’s proposal is a direct shot at the kind of censorship decisions that have so enflamed conservative circles in recent years, and it means platforms could have substantially less legal protection in such future cases. At the same time, basic publishing and editorial functions (even a hands-off editorial approach), as well as removal of lewd or violent material would likely remain covered under this framework. (For more on the distinction between Section 230(c)(1) and Section 230(c)(2)), we recommend this Congressional Research Service report.)
 
Carr’s writings make frequent appeals to Congress to reform and update the laws governing the internet, eager to work with Congress to harmonize his regulatory approach with the law. Given the role of courts in interpreting rules against the statutes they are based upon, it is hard, however, to predict what this new framework will look like.
 
There’s certainly a scenario where litigation against tech platforms could snowball in a way that harms innovation, consumer experience, and the overall speech climate. Moreover, the First Amendment upholds the right of social media companies to moderate their content. Courts should not allow any rule that compromises their rights. Still, Carr’s effort to carve out more respect for speech by reinterpreting Section 230 is a lighter touch than many legislative proposals.
 
Carr suggests placing transparency rules on big social media platforms – specifically, requiring “platforms to provide greater specificity regarding their terms of service.” We would prefer social media companies to voluntarily take up these rules. Platforms’ moderation decisions should take place in the open, providing clarity to consumers and furthering free expression and association on the handful of sites that have become the nation’s townhall.
 
Carr also advocates for returning “to Internet users the power to control their online experiences,” perhaps through choosing “their own content filters and fact checkers, if any.” At the same time, he concedes that such policies could be seen by some as intruding “on the First Amendment rights of corporations to exclude content from their private platforms.” Carr should heed his reservation. Protect The 1st wholeheartedly supports the speech rights of private companies and opposes external impositions on this fundamental right.
 
Regarding national security, Carr wholeheartedly supports a ban on TikTok, espousing that it provides “Beijing with an opportunity to run a foreign influence campaign by determining the news and information that the app feeds to millions of Americans.” We support the law that requires divestment by China’s ByteDance. With a sale to a U.S. owner, there would be no need for a blanket ban on TikTok that infringes on the speech and associational rights of Americans.
 
Lastly, Carr seeks to re-emphasize the establishment of wireless connectivity for all Americans by freeing up more spectrum and streamlining the permitting process for wireless builds. According to the FCC, 24 million Americans still lack high-speed Internet as of 2024, and that’s 24 million Americans who are less able to exercise their speech rights than their fellow countrymen.
 
Overall, Carr’s focus is to modernize the FCC and promote prosperity by turning to a “pro-growth agenda” over the heavy hand of regulatory decree. “The FCC is a New Deal-era agency,” Carr writes. “Its history of regulation tends to reflect the view that the federal government should impose heavy-handed regulation rather than relying on competition and market forces to produce optimal outcomes.”
 
In short, Brendan Carr promises to be a bold leader at the FCC who aims to break policy logjams. Protect The 1st looks forward to evaluating his proposals when they are fleshed out in January.

President Trump’s appointment of Linda McMahon as U.S. Secretary of Education sends a single and unmistakable signal – this incoming administration will prioritize the expansion of school choice, and associated parental rights, across the country.
 
Opponents of McMahon’s appointment have already called her credentials into question, pointing to her tenure as CEO of World Wrestling Entertainment as too undignified for a Cabinet secretary, disqualifying for any role that does not involve pointed elbow drops or figure-four leglocks. McMahon’s defenders cite her business acumen – building WWE into a multibillion-dollar powerhouse – as a demonstration that she is a manager and a leader.
 
What the oppositional hand-wringing actually boils down to is a fundamental policy disagreement between the educational establishment and the prospective new leader of the Department of Education. McMahon is an outspoken proponent of parental school choice, having co-founded the America First Policy Institute, in part, to advocate for “putting parents and students – not bureaucrats, unions, or politicians – in charge of educating our Nation’s next generation.”
 
As Protect The 1st has often pointed out, parents’ ability to choose how to educate their children is a fundamental First Amendment right, because it determines whether and to what extent parents will be able to extend their values (including those based on religion or belief) across generations. Parents should be able to freely choose a school that fits their child’s needs and to select an education that reflects their values.
 
It's an overdue blessing, therefore, that support for school choice is on the upswing. Today, according to EdChoice, there are 75 school choice programs operating across 33 states. A full quarter of the states have embraced some form of universal school choice. And in 2023, support for school choice reached 71 percent among voters, with strong majority backing across all political parties and demographics. Conversely, a 2024 Pew Research study shows that more than one-half of Americans say that traditional, public K-12 education is heading in the wrong direction.
 
With McMahon at the helm of the Department of Education against the backdrop of a GOP-led Congress, chances are better than ever that we’ll see passage of the Educational Choice for Children Act. This measure would provide tax credits for charitable contributions to organizations offering school choice scholarships.
 
In the meantime, we’re increasingly likely to see the nation’s second-largest state, Texas, join the broadening coalition fighting for the future of our children. In 2023, 21 Republicans joined 63 Democrats to vote down education savings accounts, a top priority for Gov. Greg Abbott. In 2025, 14 of those members are not returning to Austin, giving the governor an education choice majority in both chambers of the state legislature. 
 
Again, it cannot be emphasized enough that school choice is broadly supported among voters of both parties. November’s GOP sweep likely resulted in some part from the disconnect between Democrats and their constituents over our failing public education system. Democrats, simply put, need to listen to their core constituents, upset about public schools that have failed children for decades.
 
Until Democrats wake up – and PT1st hopes they will – the task of reform is left to elected conservatives. Regardless of party, we need political leaders who understand that the quality education and values we bequeath to our children are among the most important expressions of our core beliefs. McMahon’s nomination is nothing less than a “People’s Elbow” in favor of that proposition.  

​Award-winning journalist Catherine Herridge, who is being pressed by a federal judge to reveal her source for an investigative journalism series, has a lot on her plate.
 
She is walking the marbled halls of the U.S. Senate advocating passage of a bill, the PRESS Act, that would protect journalists and their sources. She is doing this while also facing the possibility of an $800 a day fine and jail time for not revealing the source behind her series of stories for Fox News in 2017.
 
Now Herridge is asking President-elect Trump to hear her out on why Senate passage of the PRESS Act is so important to independent, non-mainstream journalists who were so prominent in the last election. This new, rising sector of independent journalists, lacking the deep pockets of a newspaper or a network, are particularly vulnerable to government harassment. They are perhaps the most in need of a limited right to refuse demands from government prosecutors to reveal their sources. Here’s what Herridge told NewsNation:

​Following California’s lead, Michigan lawmakers are advancing legislation targeting election misinformation. It is a bill that is perhaps well-intentioned but nevertheless fatally flawed in its details. 
 
Senate Bill 707 would impose a fine of up to $1,000 on any individual who “knowingly makes a false statement or misrepresentation” to another regarding: the time, place, or manner of an election, the qualifications for or restrictions on voter eligibility, criminal penalties associated with voting in an election, or an individual’s voter registration status or eligibility. Any entity or organization that employs, for an election related purpose, someone guilty of violating these provisions must prove a lack of prior knowledge or be fined up to $10,000.
 
Constitutional problems about speech abound with this one, as well as a myriad of process issues that would make enforcement difficult at best.
 
Like it or not, lies are largely constitutionally protected. To the extent they are not, legal remedies like libel and perjury already exist. In New York Times v. Sullivan (1964), the U.S. Supreme Court held that even deliberate lies about the government are constitutionally protected. Even if we started punishing deliberate election-related falsehoods, questions will always persist about whether or not such falsehoods constitute jokes, parody, or satire.

Which brings us to the logistical problems at issue here. The bill defines the infraction at issue as requiring “the intent to impede or prevent another individual from exercising the individual’s right to vote in an election.” But proving intent around election adjacent representations is exceedingly difficult – and SB 707 fails to offer up a standard of proof for use in these situations (like, for example, clear and convincing evidence).
 
Moreover, the bill would put the burden of proof on the accused, hitting them with a requirement that one must prove a negative – that they had a lack of prior knowledge.
 
Precedent is all over the place on this issue. Legal scholar and PT1st Senior Advisor Eugene Volokh writes there appears be “some room” under United States v. Alvarez (2012) for narrow restrictions on lies regarding the “how, where, and when to vote.” Yet, in California, a very similar law to the one at issue here was recently enjoined by a United States federal court.
 
Another case out of Massachusetts might also provide some guidance. In Commonwealth v. Lucas (2015), the majority opinion noted that statutes punishing election-related falsehoods “may be manipulated easily into a tool for subverting its own justification, i.e., the fairness and freedom of the electoral process, through the chilling of core political speech.”
 
And therein lies our biggest concern. Even an unsuccessful case brought under this statute could still be used to throttle targeted political speech. No matter the outcome of a trial, the costs and risks of defending oneself in court is a punishment in itself.
 
We recognize the importance of protecting electoral integrity – and the increasing difficulty of doing so in this digital era. But the best, most constitutionally sound remedy against false speech is the same as the old one: counter-speech. Local authorities should always be at the ready to counter misleading statements about elections with a social media bullhorn.

​After extensive analyses of the recent election, let us suggest one more driver behind the dismal performance of Vice President Kamala Harris and the Democrats – their adamant refusal to listen to their constituents about school choice.
 
We’ve long appealed to Democratic politicians to be brave on school choice. For example, when Govs. Josh Shapiro of Pennsylvania and J.B. Pritzker of Illinois entertained modest tax breaks for school choice for needy children, they withdrew their support after being cuffed about the ears by the public teachers’ union.
 
How much longer can public unions bully elected officials to ignore the appeals of parents for more choice in education, especially from demographic groups long considered dependable Democratic voters? As the late economist Herb Stein said: If something cannot go on forever, it will stop.
 
Consider: Polling data from RealClear Opinion Research underscores that the growing bipartisan support for school choice crosses all demographic and political boundaries. In 2023, support for school choice reached 71 percent among voters, with strong backing from Democrats, Republicans, and Independents alike.
 
Minority support is especially pronounced: 73 percent of Black voters and 71 percent of Hispanic voters favor school choice. This surge in interest, especially among minority voters, likely contributed to a stronger minority turnout for Donald Trump, who has long championed school choice as a civil rights issue. Did Kamala Harris hurt herself by stiff-arming these voters who want better opportunities for their children?
 
The appeal of school choice lies in the frustrations many families feel toward public education systems that have struggled, especially in low-income and minority communities. Some public-school districts serving minority communities have a half-century record of graduating one class of students after another who are largely unprepared for success in adult life.
 
The legacy of underperformance in these schools has led many minority voters to demand alternatives, including charter schools and vouchers, that offer a more personalized approach to education. Protect The 1st advocates for these policies because they fulfill the ability of parents to exercise the First Amendment by extending their values to the next generation.
 
It is no mystery why school choice is sweeping the nation. One-quarter of the states have embraced some form of universal school choice. Texas is about to be next after the recent election added a solid majority to pass Gov. Greg Abbott’s school choice plan next year. The political landscape is shifting, and not just in red states. As long as Democrats consistently buckle to pressure from the government teachers union, they risk alienating a growing segment of an eroding voter base.
 
We urge elected Democrats to bravely reject political pressure from a special interest group. School choice is too important to be anything less than a bipartisan cause.

​An extreme measure that would give future U.S. Treasury Secretaries unprecedented authority to shut down non-profit, advocacy organizations remains a live option in Congress.
 
The “Stop Terror-Financing and Tax Penalties on American Hostages Act,” HR 9495, failed to pass the House last week. But it maintains momentum due to a little sweetener that is widely popular – a commendable side measure to offer tax relief to Americans held hostage in foreign countries. The main part of the bill would grant future U.S. Treasury Secretaries power to use secret surveillance to declare a tax-exempt, non-profit advocacy organization a supporter of foreign terrorism, and shut it down.
 
This provision, in essence, does one thing – it removes due process from existing law that allows the government to crack down on supporters of terrorist organizations. CRS reports that the IRS is already empowered to revoke the tax-exempt status of charitable organizations that provide material support to terrorist organizations, a power it has used.
                                                              
But current law also requires IRS to conduct a painstaking examination of the charge before issuing a revocation. It gives groups the ability to answer charges and to appeal decisions. But the “Stop Terror-Financing” bill would give targeted organizations a 90-day window to challenge the designation, while giving them no access to the underlying evidence behind the determination. An organization could challenge the designation in court but might not be able to access the charges against it due to the state secrets doctrine. In the meantime, being designated a terrorist-affiliate would be a death penalty for any organization and its ability to attract donors.
 
“The entire process is run at the sole discretion of the Secretary of the Treasury,” Kia Hamadanchy of the American Civil Liberties Union told the media. “So you could have your nonprofit status revoked before you ever have a chance to have a hearing.”
 
The latest attempt to pass this measure failed to reach a two-thirds majority needed to pass, with 144 Democrats and one Republican voting against it. Democrats were buoyed by a Who’s Who of liberal organizations, ranging from the ACLU to Planned Parenthood and the Brennan Center for Justice, that denounced the bill. Not surprisingly, pro-Palestinian groups were united in opposition as well.
 
But Republicans and conservatives would be well advised to consider the principled opposition to the bill by Rep. Thomas Massie (R-Ky). He surely appreciates that this power, once created, could be used by future administrations against nonprofits of all sorts. Could a conservative organization be targeted as a supporter of terrorism for advocating, for example, a settlement with Russia (certainly a state sponsor of terror) in its war against Ukraine?
 
Conservative principles and an adherence to the Constitution should begin with the notion that the government should not have the unilateral right to shut down the speech of advocacy organizations on the basis of secret evidence from surveillance, even if you despise what they advocate.
 
Conservatives would also be well-advised to consider not how this law would be used in the near future, but by future administrations. Have they forgotten Lois Lerner and the attempt to use tax law to shut down conservative advocacy groups? “We don’t need to worry about alien terrorists,” Lerner wrote in an email justifying her actions against right-leaning organizations. “It’s our own crazies that will take us down.”
 
Conservatives should be wary. This bill creates a weapon that can be aimed in any direction.

​John Oliver implores the Senate to pass the PRESS Act! It's already passed the House unanimously.

It would protect journalists across the political spectrum from spying and the threat of jail time for doing their jobs.

​A FEMA official in Florida overseeing damage assessments in the wake of Hurricane Milton reportedly instructed workers to avoid homes displaying Trump signs. Screenshots provided to The Daily Wire shows that FEMA volunteers tasked with visiting sites impacted by the storm – and informing residents of government benefits – bypassed homes because they displayed Trump campaign signs.
 
According to screenshots of an internal FEMA chat, the supervisor in question stated that it would be “best practice” to “avoid homes advertising Trump.” At least one worker filed a whistleblower complaint, and FEMA has subsequently terminated the official responsible for the guidance.
 
These actions of a federal agency in Florida present a clear case study on the First Amendment’s “viewpoint neutrality” mandate, which prohibits the federal government from discriminating based on private speech. It also reaffirms the limits of the speech rights of federal employees, who may engage in political speech in their private capacities – but not in the course of their official duties… and certainly not in the context of critical disaster recovery efforts.
 
Should the Florida supervisor contest the termination, she might bring up the wild theories from some influencers that circulated in the wake of Hurricane Helene, another terrible storm that rocked the southeast just prior to Milton. In mid-October, a single armed man – potentially ginned up by conspiracy theories – was arrested in North Carolina for making threats against FEMA.
 
There is still no rational argument that avoiding Trump-supporting households in Florida – part of a 74 million-vote majority – is a narrowly tailored solution aimed at achieving a compelling government interest. 
 
This story does not negate the good work FEMA has done in the wake of recent disasters, but it should serve as an instructive lesson to government employees tasked with upholding the Constitution.

​You probably had the same reaction we did to the story late last week that someone had sent racist text messages to the phones of African-Americans in at least 19 states: We hope they find the SOB.
 
Identifying the troll who blasted out text messages to thousands of Americans telling them to be ready to “pick cotton” would be satisfying. The troll could expect public shaming, likely loss of employment, business boycotts, social ostracism, as well as civil lawsuits. Many of the victims of this text attack did not understand that this was a mass event, not specifically aimed at them. Some were children. The texts caused some to understandably fear for their personal safety. So this was not an ugly prank. It was an attack on Americans’ sense of well-being.
 
All true. But was the message itself a crime?
 
Probably not. In a landmark decision, Brandenburg v. Ohio, the U.S. Supreme Court in 1969 found that the speech of the Klu Klux Klan, as odious as it was, could not be outlawed. The Court found that only speech that is “directed at inciting or producing imminent lawless action” could be deemed illegal. Otherwise, the First Amendment protects hate speech.
 
In every report of the text message we’ve read, there was no imminent threat of lawless action. And yet this text message managed to insult many Americans to the core and disturb the psyche of the nation. This attack – and others that are sure to follow – force us to ask if the Brandenburg standard needs revision. After all, the numbers of Americans exposed to the Klan’s ugly rhetoric in a park in Ohio was tiny. With the reach of digital technology, this message slapped thousands of Americans in the face. Amplified by social and traditional media, it then reached most Americans.
 
Thus, digital technology takes the speech of the marginal and the weird and gives it a national bullhorn.
 
Critics of the Brandenburg standard argue that if you demonize a racial or religious group before millions of people, you might egg on a few unstable individuals to commit acts of violence. This is not a theoretical concern. Consider the hate behind the slaughter that occurred at the Tree of Life Synagogue in Pittsburgh in 2018, or the killing of 10 Black customers at a Buffalo grocery store in 2023. The killer, at his sentencing, expressed remorse and said: “I believed what I read online and acted out of hate.”
 
Defenders of the Brandenburg standard point out that other countries that have hate laws have widened the circle of forbidden speech to an absurd extent. Governments have prosecuted people for soberly criticizing religious dogmas as narrow-minded. Others have prosecuted people for expressing traditional beliefs on sexual behavior advocated by all the world’s major religions.
 
As a First Amendment organization, we take a maximalist position on speech – holding that the antidote to bad speech is more speech. But we also acknowledge that digital amplification raises new questions about heightened risks. So far, we have more questions and concerns than answers. We invite you to follow us as we explore the tension between speech and safety more deeply in the coming year.

​Can we admit now that building out large bureaucracies in college administrations to investigate and punish speech crimes was a mistake?
 
A few decades ago, purported ugly behavior by an undergraduate was a matter policed by the Dean of Students. Those who behaved in an uncivil manner were called in by the dean for a “little talk.” Guided by common sense and wisdom, and depending on the seriousness of the matter, the dean might talk through a student’s emotional problem, issue an admonishment, or with reluctance turn to the possibility of suspension or even expulsion.
 
But students accused of speech infractions today don’t face the Dean of Students. They face long, legalistic investigations, often with their future at stake. Consider Pace University in New York, where Houston Porter, 28, is facing a sex-based discrimination probe. He is accused of “aggressively pointing” at a transgender student and misgendering her during a recent panel about “Saving Women’s Sports.”
 
The panel grew progressively heated as discussants debated the impact of New York’s Proposition 1 ballot measure. This measure codifies gender identity in state law. The panel, which included a constitutional lawyer and two state senate candidates, discussed if such a new law would force women’s sports teams to accept biological men.
 
When the panel opened for questions, the event erupted into chaos.
 
“There were a bunch of people in my face,” Porter told The New York Post. “I felt like I was getting swarmed.” He strenuously denies that he addressed an individual by the wrong pronoun and did not make any gestures toward anyone. A dean of old might have left the matter at that. But Pace is conducting a lengthy investigation of Porter under Title IX, a law prohibiting sex-based discrimination at any educational institution that receives federal funding.
 
Porter, a third-year law student, could now face expulsion or be suspended from practicing law altogether. Even a disciplinary action against him could have lifelong consequences since the bar exam requires applicants to disclose disciplinary actions they have faced.
 
“Any type of punishment will be super-detrimental to my reputation and to my professional career,” Porter told The Post. “It feels like my whole world is crumbling down. I feel like everything that I’ve been working toward might be destroyed over a misunderstanding.”
 
Let’s be clear. Members of sexual minorities, on college campuses and elsewhere, are sometimes discriminated against and physically assaulted. College administrations have a moral as well as a legal obligation to protect all their students from harassment and assault.
 
No one, however, is alleging that Porter did anything except point at someone and use the wrong pronoun – which again, he strongly denies. What is there is for Pace to investigate? Yet university bureaucracies, fearful of Title IX and the U.S. Department of Education, turn even trivial incidents like these into lengthy inquisitions, often concluding with an auto-da-fé. Curiously, it is usually those on the right side of these issues – like Porter, a member of the conservative Federalist Society – who get keelhauled. Did anyone swarming or verbally attacking Porter use foul or “aggressive” language? Did anyone else point a finger? Or worse?
 
The overreaction of universities would be laughable if the consequences weren’t so gravely serious for victims and chilling for speech. The mix of official intimidation, sanctioned and protected harassment, and self-righteous ostracism brings to mind the worst abuses of the McCarthy era. It is time to slim down the resources and authorities of these overweening campus bureaucracies and make it clear that Title IX exists to address serious discrimination, not purported (and in this case, literal) finger-pointing.

​Ever thought you had cancelled a subscription to a publication or an app only to find it has been renewed for another year on your credit card account? This is one of the most common problems reported to the Federal Trade Commission.
 
In response, the agency recently announced a “click-to-cancel” rule for subscriptions, gym memberships, and associations. We think that’s good news. Now why doesn’t the FTC, or the Labor Department, extend this logic to make it just as easy for a worker to resign from a labor union?
 
Unlike an angry consumers’ right to cancel The Washington Post, when a worker is forced to remain in a union, she has to pay dues to subsidize union political speech that she may disagree with. This is what happened to Kristine Kirk who attempted to resign from the Los Rios Classified Employees Association, a union for employees of a community college district in California. Or consider the 21 lifeguards, also in California, who wanted to resign as dues-paying members of a public-employee union but couldn’t.
 
FTC Chair Lina Khan said that some businesses require consumers to go through “endless hoops” to end their subscriptions. That’s nothing compared to the California lifeguards, who were told that they could only resign their union membership during a single thirty-day period every four years. This is typical of attempts at resignation that are blocked by such dilatory tactics and state “maintenance-of-membership” statutes.
 
The most egregious aspect of this compelled union membership is that it violates American workers’ First Amendment right not to pay for political speech that they may vigorously disagree with. This at the heart of a similar lawsuit by attorney Daniel Crowe, who is suing to be released from having to pay dues to the Oregon Bar Association, which prints magazine articles and makes statements with a partisan slant.
 
Isn’t the First Amendment important enough to allow these members to resign their union or association membership with one click?
 
The FTC itself is now a union shop. FTC staff just voted to join the National Treasury Employees Union. Can they resign or are they all captive dues-payers for union speech for now on?
 
How about it, FTC?

​There’s no denying that the U.S. Fifth Circuit Court of Appeals, which covers Louisiana, Mississippi, and Texas, has a maverick streak. Earlier this year, the court ruled that geofence warrants of cellphone data of suspects and innocents alike are inherently unconstitutional. Law enforcement, which routinely collects such data from the scene of a crime or around a suspect, found its practices upended.
 
And now… oops, they did it again. This week, the Fifth Circuit invalidated settled IRS regulations in a way that is certain to upend speech protections under the law, at least in states under the Fifth Circuit’s purview.
 
The court’s unanimous three-judge panel ruling on a healthcare organization’s tax exemption opens up for revision IRS regulations on 501 (c) (4) “social welfare organization’s” right to engage in political speech. This ruling concerns the current regulation stipulating that these groups can engage in political activities if 51 percent of their funds are spent on approved activities, like public education. Political activity – including ads and social media campaigns – are allowed if they account for no more than 49 percent of the group’s spending. The Fifth Circuit ruled that 501 (c) (4)s can now no longer qualify for tax exemptions if their political activity is at a level that is judged “substantial.”
 
As a result of the Fifth’s ruling it is anyone’s guess how other courts and the IRS will come to define the “substantial” standard for 501 (c) (4) organizations. If spending 49 percent of an organization’s time and money on political activity is substantial, how about 39 percent? Would 29 percent be too much? Five percent?
 
Critics of the 49 percent rule have long argued that it allows donors to pass so-called “dark money” through tax exempt educational organizations to fund political ads for and against candidates. This criticism sharpened in the aftermath of the U.S. Supreme Court’s Citizens United decision in 2010 that held that private groups unaffiliated with political campaigns are not limited by the donation limits set by law and enforced by the Federal Election Commission.
 
The Supreme Court found that limiting what someone can spend on their opinions about the issues and candidates of the day is a limit on speech itself. Protect The 1st agrees and defends Citizens United as a cornerstone of the First Amendment’s protection of speech. Undoing that standard would subject all political speech in America to bureaucratic regulation and parsing.
 
A possible collateral casualty of the Fifth’s ruling is donor privacy. The Supreme Court unanimously ruled in NAACP v. Alabama in 1958 that organizations have a right to withhold the identities of their donors. In this age of doxing and political retaliation against individuals and their businesses, the wisdom of NAACP seems greater than ever. The Fifth’s decision to open the rule to revision will almost certainly lead to efforts to force the disclosure of donors to 501 (c) (4) organizations. This opening has not exactly gone unnoticed. One advocate for donor disclosure told The Wall Street Journal that donors should be revealed if the tax law was “interpreted the way that we believe it should be.”
 
In the interest of full disclosure, Protect The 1st is organized as a 501 (c) (4), and we use our status to advocate for the PRESS Act, which protects the notes and sources of journalists from compelled exposure, as well as other important First Amendment causes, from donor privacy to the free exercise of religion. For our part, we believe that under all circumstances Americans have the right to freely associate and advocate for their opinions. Full stop. That is what the founders had in mind when they wrote and passed the First Amendment.

​Protect The 1st filed a brief urging the U.S. Supreme Court to hear a case in which a public school teacher was terminated over a search of her old retweets of social media memes. While a seemingly small case, it could have outsized influence over the speech rights of millions of Americans.
 
The case involves a public schoolteacher, Kari MacRae, who was hired by the Hanover High School in 2021. Months before, MacRae had been a candidate for the local school board in this Massachusetts town. At that time, she had shared and liked on her TikTok account several memes and videos poking fun at “woke” ideology. (You can decide for yourself what you think of MacRae’s reposted memes, highlighted in this Boston.com article.)
 
Hanover High learned of the unearthing of MacRae’s old TikTok reposts from local media. It then placed MacRae on administrative leave to conduct a 14-day investigation. The school then fired her.
 
MacRae sued for wrongful termination and the violation of her rights only to lose in federal district court and then on appeal before the U.S. First Circuit. In our view, the First Circuit misapplied a framework that if not reviewed and overturned by the Supreme Court, will leave the speech rights of government employees – 15 percent of the U.S. workforce – at risk.
 
The Supreme Court has already held in Garcetti v. Ceballos (2006) that when government “employees are speaking as citizens about matters of public concern,” they “must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” The First Circuit instead embraced a “balancing” standard between personal rights and public responsibilities.
 
Protect The 1st responds: “Framed in Garcetti’s terms, this case asks whether government employers, to ‘operate efficiently and effectively,’ must have carte blanche to punish their employees not for what they are now saying, but for anything they have ever said – even before they were hired. If the First Amendment means anything in this context, the answer to that question must be no. An alternative holding would silence prospective government employees lest their speech, whenever it was made, could later be cited as a reason to destroy their careers.”
 
We warn that if the First Circuit’s standard were adopted broadly, “fully protected speech could lose its protection with time – an untenable proposition.” Protect the 1st also told the Court:
 
“… that in a world where many people spend their lives online, a rule that anything they say there can later be the impetus for their termination from government employment would impose an unconscionable burden on the right to speak on issues of public concern: It would chill pre-employment speech at the front end and give a modified heckler’s veto to bad actors at the back end.”
 
We urge the Supreme Court, which has taken up few First Amendment cases so far in this term, to grant the petition and reverse the First Circuit’s erroneous ruling.

In a 3-0 decision, the Ninth Circuit Court of Appeals ruled today that California is violating the law by discriminating against religious parents and children in special-education programs.
 
That this ruling was needed at all in Loffman v. California Department of Education is remarkable. From Maine to California, states keep trying to isolate and defund private schools that are religious in character. Federal appellate courts have been consistent in laying down the law in upholding the First Amendment’s protection of “free exercise of religion.”
 
California, which channels funds from the federal Individuals with Disabilities Act (IDEA), allows children with disabilities to receive a free appropriate education that meets their needs. The California Legislature, however, added a condition – that special education program funds could not be distributed to schools that also have a religious character. This precluded Jewish parents from choosing an Orthodox Jewish school for their disabled children.
 
California has the option of appealing to the U.S. Supreme Court, but that is unlikely to be successful. All of the precedents cited by Judges Kim Wardlaw, Morgan Christen, and Mark Bennett cited Supreme Court precedents that supported their ruling that California’s “nonsectarian requirement fails the neutrality test” in the treatment of religious schools.
 
“Today’s ruling is a tremendous victory for the Becket law firm, which stood by these Jewish parents through a long and difficult case,” said Gene Schaerr, general counsel of Protect The 1st. “This victory is also one more sign, if any were needed, that the First Amendment requires the neutral and fair treatment of religious schools. Equitable treatment of religious schools is the law of the land. It is long past time for some states to end their campaign of resistance to this clear application of constitutional principle.”
​

​In the minds of many Americans, including some in high office, the First Amendment is synonymous only with free speech. It is easy to forget that freedom of speech is only one of the five freedoms guaranteed by the First. The others are freedom of religion, freedom of assembly, the right to petition the government… and freedom of the press.
 
Lawyer and legal scholar Floyd Abrams is consulting with historians, media lawyers, and journalists in a Yale Law School project to assess whether one of these freedoms – that of the press – has been protected to the extent that freedom of speech has been. Abrams reports in The Wall Street Journal on many issues we’ve covered, such as reporters being arrested for violating curfews to report on protests and civil unrest, and the exposure of confidential sources “who provide information about government misconduct or other sensitive information.”
 
In his piece, Abrams looks to the Supreme Court to bring the same force and clarity for press freedoms that it has brought to protecting speech overall. We agree and look forward to his forthcoming report. But there is another way forward.
 
This year, for the fourth time, with strong bipartisan support, the U.S. House of Representatives passed the PRESS Act, which shields the confidential sources and notes of reporters from the prying eyes of prosecutors. This bill allows for reasonable exceptions for emergencies. The PRESS Act is now before the U.S. Senate. With a little leadership from the Senate Judiciary Committee, it could be well on its way to becoming the law of the land before the end of the year.
 
So we don’t have to wait for the right cases to appear before the Supreme Court, at least as far as the protection of reporters’ confidential sources are concerned, we can contact our senators now and demand they pass the PRESS Act in the coming lame duck session.

​As we’ve noted, the right of parents to choose their children’s schools is overwhelmingly supported by Americans from all demographic groups and both political parties.
 
There are two reasons for school choice’s popularity. The first is disgust at the performance of many traditional public schools. Public schools serving low-income and minority communities, often in inner-cities, have a 60-year track record of failing children, graduating generation after generation of illiterate and innumerate Americans who start adult life behind the eight-ball.
 
Now Joshua C. Robinson, a pastor in Pennsylvania who is the founder and CEO of Black Pastors United for Education, illustrates this point with startling statistics in a recent Wall Street Journal editorial declaring that “School choice is the civil-rights issue of our time.” Robinson writes:
 
“Among eighth-graders in 2022, 91 percent of black students, 86 percent of Hispanic students and 64 percent of white students weren’t proficient in math. In reading, 84 percent of black students, 79 percent of Hispanic students and 62 percent of white students weren’t proficient.”

Many apologists for the status quo shrug and blame the communities, the families, and the children. But it doesn’t have to be this way. A study from the Progressive Policy Institute, “Searching for the Tipping Point: Scaling Up Public School Choice Spurs Citywide Gains,” counters the idea that charter schools “somehow drain legacy schools of the ‘best’ students and resources, to the detriment of those left behind.” PPI reports:
 
“In all ten cities where charter schools ‘reached a critical mass [more than 33 percent] in terms of student enrollment,’ performance improved citywide and was significant enough to start closing the performance gap with the wider state averages by 25-40 percent.”
 
PPI concludes:
 
“Evidently, the growth of enrollment in charter schools creates a positive competitive dynamic with the traditional district schools, which have to up their game to attract parents and students.”
 
What about the overall impact of all forms of school choice on public schools? We’ve previously reported that William Alexander Salter of Texas Tech University has demonstrated that on the question of the impact of school choice –
 
“Out of 28 studies that explore this question, 25 found that school choice improves educational attainment in traditional school systems. In terms of social-scientific validity, that’s a slam dunk.”
 
And yet Democratic politicians across the board continue to stand firmly behind a special interest – the powerful teachers unions – to reject any form of school choice. For example, Gov. J.B. Pritzker of Illinois and Gov. Josh Shapiro of Pennsylvania both tiptoed toward support for limited tax breaks to supply private school scholarships for low-income students. But the teachers unions were powerful enough to hold both governors over the abyss of political annihilation – and forced them to reverse course.
 
But now the pressure on politicians is coming from two directions. Republicans are making unprecedented inroads among minorities on the issue of school choice, while Democrats alienate those same minorities by standing in front of the schoolhouse door. How much longer can leading Democrats continue to resist the passionate, urgent, and increasingly angry demands of core constituencies? As the late economist Herb Stein once said, if something cannot go on forever, it will stop.
 
We predict, as the evidence in favor of school choice mounts – from a progressive institute, no less – and the angry demands from families in bad school districts intensifies, that politicians’ wall of resistance will crumble. We believe powerful Democrats may soon jump on the school choice bandwagon. And when they do, their support and leadership will be something to celebrate.

​The nation’s two presidential candidates sometimes seem at a loss to understand or appreciate the First Amendment, which protects religious expression and freedom of the press, among other forms of speech.
 
Case in point: when Vice President Kamala Harris was asked this week in an NBC interview if she would support a religious exemption for physicians on abortion, she flatly rejected any such “concession.” The Democratic nominee for president spoke about the “basic freedom” of a woman to control her own body, while rejecting the idea that a physician in a white surgical gown should have control over the actions of his or her own hands.
 
Let’s be clear what we’re talking about – the Harris position would pull the medical licenses of men and women of faith for declining to personally perform abortions. Never mind that this country has no lack of physicians willing to perform that procedure.
 
Contrast the vice president’s stance with the Democrats of New Mexico, where last year Gov. Michelle Lujan and her fellow Democrats in the legislature took a commendable step to improve a law they championed to make sure it observes the religious freedom of physicians. That law is the Elizabeth Whitefield End-of-Life Options Act, which went into effect in 2021. The law required doctors who objected to administering fatal drugs to a patient to refer them to a physician who would. Gov. Lujan and her allies in the New Mexico legislature heard the outcry from physicians of faith and responded with courage to correct their law to observe the religious freedom of expression.
 
Why can’t Harris follow that example?
 
Then there is former President Trump, who has been littering the airwaves with threats to pull the broadcast licenses of ABC and then CBS for disputes over their fact checks and editorial decisions. News flash: Networks don’t have broadcast licenses. Their local affiliates do. News organizations don’t need a “license” to practice journalism. Anyone can do it. Again, it’s called the First Amendment.
 
Contrast the Republican nominee’s frequent threats with those of his Republican predecessors. Presidents Reagan, Bush and Bush complained about media bias, but each of them found artful ways to counter it. The first President Bush forcefully rejected the contentions of CBS’s Dan Rather on air, then the allies of the second President Bush discredited him so badly that Rather eventually resigned from CBS. The presidential father and son did so by exercising their First Amendment rights, without resorting to threats of censorship.
 
Yet listening to our candidates today, we have to ask: is rubbishing the First Amendment the new normal in American presidential politics? At the very least, the current state of the presidential debate points to the urgency of restoring civics education that imparts a classical understanding of our Constitution.

​We recently reported on a poll from RealClear Opinion Research showing overwhelming bipartisan support for giving families the right to choose their schools. Some 77% of Democratic voters and 86% of Republican voters say they support school choice. Nearly 80% of Black Americans say the same.
 
This is happening because Americans see school choice as a natural extension of the guarantees of the First Amendment. School choice encourages true educational pluralism and eliminates top-down imposition of ideologies – which vary among the states – by monolithic, public-school systems. Choice allows all parents, religious or nonreligious, conservative or liberal, to find schools that best fit the values they want to pass on to their children. Competition for students is also demonstrated to improve educational outcomes, not just for private schools, but for public ones as well.
 
The Educational Choice for Children Act, which would provide tax credits for charitable donations to expand choices in quality education, recently picked up the support of House Speaker Mike Johnson. At least one of the two presidential candidates also supports school choice. Former President Donald Trump, echoing Sen. Tim Scott (R-SC), recently called school choice a “civil rights issue.” Lexi Lonas Cochran in The Hill reports that Trump “has hinted at a universal school choice policy and has adopted language used by the movement in states that have offered education savings accounts …”
 
Trump has also said: “We want federal education dollars to follow the student, rather than propping up a bloated and radical bureaucracy in Washington, D.C.”
 
As the Democratic nominee, Vice President Kamala Harris, grapples for a way to capture the center, she might do well to see a late campaign opportunity here. In Illinois and Pennsylvania, Democratic governors have flirted with school choice vouchers, only to retreat after being threatened with political extinction by the most powerful lobby in the Democratic Party – the public teachers unions. This leaves many Democrats, especially Black voters in urban areas disgusted by the poor quality of public schools, increasingly disaffected by politicians who are more responsive to a special interests than to their constituents. This is the wedge that Donald Trump is driving deep into the Democratic polity.
 
If Vice President Harris were to at least support tax credits for private schools, she would close that wedge and prove to American voters that she is more of a centrist who can be trusted to be president. If Harris were to take that opportunity, then we would have two pro-school choice candidates for president. Given the growing support for school choice across the board, it is likely inevitable that national leaders in both parties will support school choice, in this election or the next.

​California holds the unique position of being both the most innovative state in the union and perhaps the most ignominious when it comes to government overreach. Take a recent law that passed the California State Legislature back in September: AB 2839, which targets election misinformation, and which is now enjoined pursuant to a federal court order.
 
AB 2839 takes aim at “materially deceptive” communications distributed within 120 days of an election and up to 60 days after one. Specifically, the law states that “[a] person, committee, or other entity shall not…with malice, knowingly distribute an advertisement or other election communication containing materially deceptive content” of a candidate “portrayed as doing or saying something the candidate did not do or say if the content is reasonably likely to harm the reputation or electoral prospects of a candidate.” The law permits any recipient of the content to file suit against the content creator.
 
In an era in which many voters hold legitimate concerns about AI, deepfakes, bots, and other methods of digital manipulation, the impulse to use whatever means necessary to protect election integrity is not entirely misguided. AB 2839 goes way too far.
 
Like many such laws, AB 2839 “lacks the narrow tailoring and least restrictive alternative that a content-based law requires under strict scrutiny.” Its broad sweep, writes Judge John Mendez, “does much more than punish potential defamatory statements since the statute does not require actual harm and sanctions any digitally manipulated content that is ‘reasonably likely’ to ‘harm’ the amorphous ‘electoral prospects’ of a candidate or elected official.” For instance, as written, the law could subject the creator of any candidate deepfake to civil liability – even if it “does not implicate reputational harm.” 
 
As Mendez points out, New York Times v. Sullivan long ago addressed the issue of deliberate lies about the government, which are constitutionally protected. To the extent speech conduct targets public figures or private individuals, remedies like “privacy torts, copyright infringement, or defamation” already exist. As such, it is entirely unnecessary to separately target speech occurring within an electoral context, which is “a content-based regulation that seeks to limit public discourse.” Beyond the legal implications, it practically opens the floodgates to all manner of politically motivated censorship.
 
Parody is perhaps the most likely victim of AB 2839’s reach. The plaintiff, Christopher Kohls, runs a YouTube channel steeped in political satire. And, while the law does contain a carveout exempting such content, it requires a written disclaimer "no smaller than the largest font size of other text appearing in the visual media." In other words, it would render Kohls’ content unwatchable.
 
Judge Mendez writes, “Supreme Court precedent illuminates that while a well-founded fear of a digitally manipulated media landscape may be justified, this fear does not give legislators unbridled license to bulldoze over the longstanding tradition of critique, parody, and satire protected by the First Amendment. YouTube videos, Facebook posts, and X tweets are the newspaper advertisements and political cartoons of today, and the First Amendment protects and individual’s right to speak regardless of the new medium these critiques may take.”
 
We’ll be watching this case closely should the Golden State decide to appeal.

​In a recent piece from the Wall Street Journal, EdChoice’s Martin Lueken takes on assertions from some critics of school choice that such programs “will destroy public school funding and worsen educational outcomes.” As Lueken lays out, the data simply don’t support those claims.
 
According to a new study authored by Lueken, who is EdChoice’s director of fiscal research, an analysis of 48 school choice programs across 26 states showed that they “generated cumulative net fiscal benefits for taxpayers worth between $19.4 billion and $45.6 billion.” That’s up to $7,800 per student or between $1.70 and $2.64 in taxpayer savings for every dollar invested – a good ROI by any metric.
 
Moreover, as Lueken notes, the total cost of school choice programs constitutes only 0.3% of state budgets – hardly an exorbitant figure, particularly given the net savings they generate.
 
To the extent such programs lure parents and children away from public schools, Lueken writes, those schools should benefit in the short term by allowing teachers to turn their focus more to the needs of individual students. Budget cuts, meanwhile, are unlikely to present an immediate issue because “[s]tates often have protections that shield districts from immediate financial losses due to declining enrollment.”
 
As Protect the 1st has written extensively, how you educate your children is one of the fundamental expressions of parental responsibility. As such, parents should be able to freely choose a school that fits their child’s needs and select an education that reflects their values. Arguments to the contrary ignore not only the efficacy and economy of choice programs, but also neglect the First Amendment rights of parents.

​This term, the Supreme Court declined to hear at least 16 cases that involved significant First Amendment issues, leaving a number of critical questions unresolved. Among those left on the table were cases touching on free speech, freedom of association, and the extent of religious freedom under the First Amendment. With these denials, the Court missed an opportunity to clarify or expand upon key First Amendment protections in an era where such rights are up against new and unprecedented challenges.
 
Among the First Amendment cases the Court declined, several stand out as especially significant in terms of the broader impact on free expression and association. If a suitable vehicle for the issues in these cases were to come up in future litigation, we highly encourage the Supreme Court to take them.
 
No on E v. Chiu - Donor Disclosure and Free Speech
 
No on E v. Chiu centered on a challenge to a San Francisco law that required groups running election-related advertisements to disclose their donors, raising significant concerns about the balance between transparency in elections and the right to anonymous political speech. The plaintiffs argued that mandatory disclosure infringes on both free speech and association rights, raising fears of retaliation or harassment for individuals supporting controversial political causes. This is especially relevant in today’s hyper-connected digital world, where donor information is easily accessible, making contributors vulnerable to backlash.
 
As seen in Americans for Prosperity v. Bonta, the Supreme Court has already recognized that revealing donors’ identities can expose them to threats and harassment, deterring political participation. While transparency is often cited as a virtue in campaign finance, the risks to individuals' safety and privacy are real and growing. In response to these threats, 20 states have passed the Personal Privacy Protection Act (PPPA) to shield donors from exposure, acknowledging that the right to support causes anonymously is vital for a healthy democracy. The Court’s refusal to hear No on E allows these concerns to persist and leaves donor privacy vulnerable in states without such protections.
 
National Press Photographers Association v. Higgins - Drones and Press Freedom
 
In National Press Photographers Association v. Higgins, the Court declined to hear a case that highlights the growing tension between new technologies and First Amendment rights. The plaintiffs challenged a Texas law that bans drone surveillance without exceptions for journalists, arguing that the law restricts their ability to gather news. Drone technology is a new frontier for free press rights, where the tools used by journalists to report on important public issues — like protests or natural disasters — are being regulated or outright banned. Drone technology is rapidly becoming essential for covering stories from angles that are otherwise inaccessible, but without clear protections for its use, journalists are left vulnerable to restrictions that limit their news gathering capabilities. As technology continues to evolve, the Court's refusal to address this issue and others like it could have serious implications for how the press operates in the digital age.
 
Hile v. Michigan - Blaine Amendments and Religious Discrimination
 
Hile v. Michigan involved a challenge to Michigan’s Blaine Amendment, which prohibits public funding from supporting religious schools. The plaintiffs argued that this restriction discriminates against religious schools and families, violating both Equal Protection and Free Exercise rights under the First Amendment. This case mirrors other recent challenges to state-level Blaine Amendments, including South Carolina’s, which prohibit the use of public funds for religious schools.
 
Blaine Amendments, like Michigan’s, have their origins in 19th-century anti-Catholic bigotry and today block families from choosing educational options that align with their values. In South Carolina, for example, the state’s Supreme Court recently struck down a school voucher program, citing its Blaine Amendment, leaving thousands of students without financial support to attend religious schools. These rulings disproportionately harm low-income families who rely on school choice programs for access to quality education. As our amicus brief in that case argued, school choice promotes First Amendment-protected religious and speech rights by allowing families to select schools that reflect their beliefs and values. By refusing to hear Hile, the Court missed an opportunity to address the discriminatory legacy of Blaine Amendments and expand educational freedom for all families.
 
Saline Parents v. Garland - Chilling Speech in School Board Protests
 
Saline Parents v. Garland raised concerns about government overreach in monitoring political speech. The case challenged Attorney General Garland’s directive to the FBI to investigate threats at school board meetings, which parents argued unfairly targeted their free speech rights. The plaintiffs contended that the policy cast them as potential threats simply for speaking out against school policies, thereby chilling their ability to participate in public debates over education.
 
Garland’s memo suggests that parental dissent might be treated as a threat. While Garland assured Congress that the DOJ’s efforts were aimed at preventing violence, the mere initiation of an FBI investigation has a chilling effect on speech. Even the process of being investigated can suppress dissent, as individuals are subjected to the anxiety of scrutiny, potential legal costs, and damage to their reputations. Though it’s unlikely that parents would be prosecuted merely for voicing objections, the threat of federal surveillance is more than enough to stifle open debate on school policies. By refusing to hear Saline Parents, the Supreme Court left this chilling dynamic unaddressed.
 
Union and Free Speech Cases
 
The Court also passed on several cases involving unions and the First Amendment, where state employees challenged mandatory union dues deductions made after they had resigned their membership. These cases often focused on limited opt-out windows and union agreements with state agencies that enforced dues collection beyond an employee’s resignation. In previous cases, we have argued that this practice violates employees' First Amendment rights by forcing them to support union activities they may disagree with. By refusing to hear these cases, the Court left in place lower court rulings that continue to allow unions to infringe on individual speech rights through these financial extractions.
 
Why These Cases Matter
 
By denying these First Amendment cases, the Supreme Court missed key opportunities to clarify the scope of free speech and association rights in the modern age. Whether it's the rise of new technologies like drones, the balance between transparency and privacy in political advocacy, the exclusion of religious schools from public programs based on antiquated laws, or government surveillance of political speech at local levels, the Court’s passivity this term leaves many critical questions unanswered. We urge the Supreme Court to consider taking up these issues if, and when, they return in future litigation.

​Protect The 1st is proud to announce that we have filed an amicus brief with the U.S. Supreme Court in the ongoing Mahmoud v. Taylor case (formerly Mahmoud v. McKnight). Our brief strongly defends the rights of parents to protect their children from mandatory instruction on gender and sexuality that conflicts with their religious beliefs. In collaboration with the Jewish Coalition for Religious Liberty and the Islam and Religious Freedom Action Team, we argue that the imposition of such curriculum without an opt-out provision violates core First Amendment rights.
 
This case presents a fundamental question: can public schools burden parents’ religious exercise by compelling elementary school children to participate in lessons on gender and sexuality without giving families the ability to opt out? The right to direct the upbringing of children has long been established as a cornerstone of American jurisprudence, dating back to Pierce v. Society of Sisters and Wisconsin v. Yoder. Our brief emphasizes that these precedents should apply here, where the state's agenda contradicts parents’ most deeply held convictions.
 
The situation in Montgomery County, Maryland, has sparked outrage among religious communities. What began with the introduction of 22 “LGBTQ+-inclusive” texts has turned into a battleground for parental rights. These texts include material that many families find inappropriate for young children, yet the school district denies any possibility of opting out. The brief highlights that teachers are instructed to tell students that “at birth doctors merely ‘guess about our gender and label us ‘boy’ or ‘girl’ based on our body parts.’” Such teachings directly conflict with many faiths, including Christianity, Judaism, and Islam, which hold clear beliefs about sexuality and gender.
 
Our brief warns of the “cataclysmic consequences” that will arise if parents lose the right to teach their children in accordance with their own religious and moral frameworks. The manipulation of a "captive and vulnerable audience"—children in public schools—amounts to an unconstitutional burden on parental rights. No school district has the right to force-feed children views on sexuality and gender that contradict the moral teachings of the home. The stakes are high: this is about more than sex education; it’s about whether the state can undermine the very foundation of moral and religious instruction in the home.
 
The Fourth Circuit’s decision to deny that a religious burden exists in these circumstances shows a troubling trend. Similar rulings in multiple circuits leave millions of parents without protection against forced instruction on sensitive matters like gender and sexuality. Religious families are left with no choice but to tolerate indoctrination, pay for private school, homeschool their children, or risk legal penalties. We are asking the Supreme Court to correct this error and restore the constitutional protections that prevent the state from intruding on the family’s role in educating children.
 
Our work in this case is part of a broader effort to safeguard First Amendment freedoms for all. Whether Muslim, Jewish, Christian, or non-religious, parents should have the right to determine the values their children are exposed to—particularly on issues as contentious as sexuality and gender. As our brief concludes, "the time to decide the question presented—and thereby prevent these harms—is now." PT1st looks forward to further developments in this case.