Protect The 1st's general counsel, Gene Schaerr, examines how the ongoing persecution of heroic dissident Jimmy Lai exemplifies how capitalism and civil liberties reinforce one another in the National Review. 

​The time has come to end struggle sessions and professional ruin for people whose remarks are overheard, half-heard, or misunderstood. This should especially apply when comments that sound offensive are actually part of a discussion condemning the very prejudice they appear to express.

Such is the case with Hunter College biology professor Dr. Allyson Friedman, whose career now hangs in the balance because of what listeners think they heard her say during a Zoom meeting.

At a Community Education Council meeting on Manhattan’s West Side, participants were discussing Mayor Zohran Mamdani’s proposal to close or relocate several schools. A Black student spoke passionately in defense of her school.

Then came an overheard comment.

“They’re too dumb to know they’re in a bad school,” Dr. Friedman was heard saying on a hot Zoom mic. “If you train a Black person well enough, they’ll know to use the back. You don’t have to tell them anymore.”

Taken at face value, the remark sounded shocking. Many attendees were understandably offended.

But that is not the full story.

Moments earlier, Reginald Higgins, the district’s interim acting superintendent, had quoted historian Carter G. Woodson, the son of formerly enslaved parents and the second Black scholar to earn a Ph.D. from Harvard. Woodson wrote in his classic work The Mis-Education of the Negro:
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“When you control a man's thinking you do not have to worry about his actions. You do not have to tell him not to stand here or go yonder. He will find his ‘proper place’ and will stay in it. You do not need to send him to the back door. He will go without being told. In fact, if there is no back door, he will cut one for his special benefit. His education makes it necessary.”

Woodson’s point was not racist. It was an indictment of racism and the power of internalized oppression.

Dr. Friedman says she was speaking privately to her daughter during the meeting, paraphrasing Woodson’s point in conversational language while explaining the quote Higgins had referenced. Part of that explanation was not captured by the hot mic, stripping away the context that made clear she was criticizing racism, not endorsing it.

Context, however, rarely survives a viral moment.

New York politicians quickly seized on the clip. Social media erupted with demands that she be fired. Hunter College, part of the City University of New York, launched a review and issued a statement:

“We expect our community members’ actions and words to comport with our institutional identity, values, and policies. We stand firm in our enduring commitment to sustain an inclusive educational environment.”

That principle is sound. But it makes little sense to apply it against an academic who, by all accounts, has a strong professional record and who appears to have been discussing the history of racism rather than expressing it.

The Foundation for Individual Rights and Expression (FIRE) captured the stakes succinctly:

“Should someone’s livelihood be up to the whims of lawmakers and social media mobs? A mother is facing unemployment for discussing systemic racism with her child – what kind of message does that send to the working parents of NYC?”

Nevertheless, Dr. Friedman has been placed on leave.
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If universities begin firing professors for what people think they heard in an overheard fragment of a conversation, then reason, fairness, and academic freedom will all become collateral damage.

​While missiles are flying and bombs detonating in the Middle East, domestic political rhetoric has predictably become progressively more bombastic and incendiary. As in all wars, the First Amendment will be tested by the desire to shut down speech judged to be warmongering, unpatriotic, or just plain stupid.

It was off to the races after New York Mayor Zohran Mamdani called President Trump’s strikes on Iran “a catastrophic escalation in an illegal war of aggression,” adding: “I want to speak directly to Iranian New Yorkers: you are part of the fabric of this city – you are our neighbors, small business owners, students, artists, workers, and community leaders. You will be safe here.”

When we read this we had the same thought as millions of other Americans – yes, they will be safe here. No sanctioned religious police will cuff Iranian-American women about the ears if they appear in public without a headscarf on Lexington Avenue, or rape them in a police station if they are arrested. Iranian-American students, artists, and community leaders need not fear being slowly strangled to death by having a steel cable put around their necks before being lifted into the air by a crane.

Masih Alinejad, an Iranian-American journalist in New York, shot back at the mayor: “I don’t feel safe in New York listening to someone like you, Mamdani, who sympathizes with the regime that killed more than 30,000 unarmed Iranians in less than 24 hours.”

We would add that if Iran’s ambition to build a nuclear bomb is not arrested, then no New Yorker will be safe. But let us leave that point and examine how the First Amendment comes into this debate.

We predict that before the cherry blossoms bloom around Washington’s Tidal Basin, official threats will be leveled against the speech rights of critics of the attack on Iran. We also expect a few lonely voices in Hollywood, academia, and other centers of monolithic opinion will be hounded, harassed, and threatened if they dare break with the received views of the cultural cognoscenti.

With rhetorical bombs bursting in air, we should keep in mind that the United States has a history of government trying to crack down on “unpatriotic” speech on one side, and violence to end participation in a war on the other. During World War One, the Woodrow Wilson administration secured a 10-year prison sentence against presidential candidate Eugene Debs of the Socialist Party for criticizing America’s entry into that conflict. During the Nixon years, the Weather Underground planted more than two dozen bombs to protest the Vietnam War.

In the face of a new war, we should keep in mind that the First Amendment protects speech that is stupid, false, unpatriotic, warmongering, and ungrounded in fact. The hot exchange between Mayor Mamdani and Alinejad shows that speech and counter-speech can be pointed, polemical, and angry – hallmarks of American political speech since before we were a country – without resorting to laws or mob action to punish the speaker for speaking.
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President Trump said on Monday that the military action against Iran could last for weeks. As events roll forward, we should keep our emotions in check and respect the speech rights of all – even if we have no respect for what is said.

Sometimes it takes an athlete competing for an authoritarian regime to remind Americans why the First Amendment matters.

Eileen Gu, winner of the gold medal in freeskiing in the recent Milan Cortina Winter Olympics, is an American-born Stanford University student who chose to compete for the People’s Republic of China. It was, as soccer star Megan Rapinoe said on her podcast, an “excellent business decision.” Gu reportedly earned an estimated $23 million in partnerships with mostly Chinese companies, as well a reported $6.6 million from the Beijing Municipal Sports Bureau in 2025.

The government underwriting her wealth stands accused by the U.S. State Department, as well as by the United Kingdom and Canada, of committing genocide in the persecution of Uyghurs and other predominantly Muslim minorities in Xinjiang. Well-documented crimes against humanity in the region include concentration camps, slavery, forced sterilization, sexual abuse, and cultural eradication.

Asked by Time magazine about China’s persecution of minorities, Gu declined to take a position. “It’s not like I can read an article and be like, ‘Oh, well, this must be the truth.’ I need to have a ton of evidence. I need to maybe go to the place, maybe talk to 10 primary source people who are in a location and have experienced life there.

“Then I need to go see images. I need to listen to recordings. I need to think how history affects it. Then I need to read books on how politics affects it. This is a lifelong search. It’s irresponsible to ask me to be the mouthpiece for any agenda.”
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To which we reply – what an excellent idea! Ms. Gu could do a lot to illustrate the state of free speech and inquiry by “going to the place” to talk to the ten primary source people, see the images, listen to the recordings, and read the books – inside China! Please do that, Ms. Gu, if you think China will actually let you get to the actual sources. You could even make it your senior capstone project at Stanford… if China ever lets you return.

Anonymity online can be a mask that allows people to say ugly, hateful or untrue things without taking responsibility for them. But it can also be a shield that protects women hiding from abusers, whistleblowers one step ahead of their pursuers, journalists reaching out to confidential sources about wrongdoing, and consumers searching online for answers to questions about their health that they’d rather not have anyone know about.

This is why the current effort by the Immigration and Customs Enforcement (ICE) agency to use emergency subpoenas to force Big Tech companies to reveal the identities of Americans who make critical posts about ICE is so dangerous. If this practice sticks, it will likely migrate to other federal agencies and erode anonymity online.

But the shedding of anonymous speech might come by a different route – not from executive-branch meddling or legislative mistakes, but from lawsuits claiming harms from child internet “addiction.”

Dan Frieth of the digital anti-censorship advocacy group, Reclaim The Net, listened to five hours of Meta CEO Mark Zuckerberg’s testimony in a Los Angeles civil case and distilled it to a jarring and important warning – the age of anonymity could be coming to an end at the hands of the trial bar.

Zuckerberg testified in one of 1,600 lawsuits over internet addiction. In this case, a woman claimed that at age nine Meta’s Instagram addicted her, plunging her into a hell of anxiety, body dysmorphia, and suicidal thoughts.

Frieth notes that the science of internet addiction is “genuinely disputed.” He writes:

“None of this means the harms alleged are fabricated. It means the word ‘addiction’ is doing heavy rhetorical and legal work, and the policy consequences are far beyond anything a jury in Los Angeles will decide.

“‘Addiction’ is how you get a public health emergency. A public health emergency is how you get emergency powers and make it easier for people to overlook constitutional protections. Emergency powers applied to the internet mean mandatory access controls. And mandatory access controls on the internet mean the end of anonymous and pseudonymous speech.

“When social media is classified as a drug, access to it becomes a medical and regulatory matter” justifying “identity verification, access controls, and a surveillance architecture that follows users across every platform and device.”

Frieth notes that a win for the plaintiff in this case would strip the current law protecting platform design decisions. This danger is not theoretical. Frieth reports that Zuckerberg repeatedly suggested that any age verification mandate – and thus identification – be shifted from platforms to owners of operating systems. Zuckerberg would thus toss his liability hot potato from Instagram to Apple and Google.

“This is more than age verification,” Frieth concludes. “It is a national digital ID layer baked into the two operating systems that run the majority of the world’s smartphones.”

There are a lot of competing interests in this case – the safety of children, the nature of the internet, and the value of free speech. Juries don’t have to balance these equities. They can just side with the plaintiff and inadvertently make policy for U.S. tech – and by extension, the world.
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Any new approach to child safety should not require adults to give up speech rights recognized in this country since Alexander Hamilton, James Madison, and John Jay wrote collectively as the pseudonymous “Publius” in The Federalist Papers.

French President Emmanuel Macron at an AI summit in New Delhi on Wednesday said that U.S. objections about European crackdowns on free speech are, pardon our French, “pure bullshit.”

Macron argued that “we have no clue” how a social media “algorithm is made, how it’s tested, trained, and where it will guide you – the democratic consequences of this bias could be huge … Free speech is pure bullshit if nobody knows how you are guided to this so-called free speech, especially when it’s guided from one hate speech to another.”

So-called free speech? Let’s take a look at what’s missing from Macron’s analysis from the American point of view.

First, Who Gets to Define Hate Speech?

American law, as interpreted by the U.S. Supreme Court, doesn’t prohibit hate speech, unless it calls for imminent acts of violence. The reasoning is that once you begin parsing speech, the fine distinctions are endless and are apt to wind up with the kind of absurdities we’ve seen in Europe and Canada, where even well-reasoned, evidence-based criticisms of a minority social practice or a tenet of elite ideology are treated as too obscene to tolerate.

Once a society goes after “hate speech,” activists and bureaucrats start to draw the line. The House Judiciary Committee reports that such determinations are made for the European Union by a hodgepodge of left-wing NGOs that tend to find almost any critique of prevailing orthodoxy as “hate.” If this sounds overwrought, consider the former EU Commissioner who tried to censor an interview with Donald Trump during the 2024 campaign – as if the opinions of a former president and major-party nominee were something the public needed to be shielded from.

Second, Can the EU Censor Americans in America?

The First Amendment in the United States will not be harmed if Europeans censor Europeans in Europe. The problem is that when a post made by an American on an American-based platform is removed by the EU, the global nature of the internet necessarily means it is removed in the United States as well.

Forgive us, President Macron, but we find that to be “pure connerie.”

Third, Is the EU Taxing America’s Speech Platforms?

The European social media landscape is dominated by American companies because Europe has increasingly proven unable to innovate and compete in high technology. Many Americans believe that Europe’s Digital Services Act and Digital Markets Act, which effectively outlaw the business model of American social media companies, smack of rank protectionism.

For example, the EU is trying to compel U.S. companies to offer their services without selling user data to advertisers. This would cripple Facebook, Instagram, and TikTok by essentially requiring U.S. companies to provide their services for free. When Meta responded to European demands by creating a two-tiered system for Facebook and Instagram – one in which European users could consent to tracking in exchange for the free service or pay a subscription fee for no tracking – the EU slapped Meta with a €200 million fine.

The EU is also trying to compel U.S. companies to share the guts of their algorithms with competitors – virtually guaranteeing that China will gain access to their business secrets and possibly customer data.

Worst of all, Europe has found reasons to hit American tech firms with almost $12 billion in fines from 2021 to 2025. And its laws allow the EU to levy fines on U.S. companies of up to 10 percent of their global turnover or revenue. Even for corporate giants, these fines could have death-penalty consequences.

Is There Room for Common Ground?

The House Judiciary Committee has commendably detailed the censorship threat from Europe. American leaders have expressed outrage to Europe in no uncertain terms. Washington would be well advised, however, to lower the temperature and look for some common ground in defense of free speech before more damage is done.

There are many technical problems with making algorithms public property, as Macron suggests. But there may be ways for Washington and Brussels to promote more accountability and transparency online that would satisfy European concerns.
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Secretary of State Marco Rubio, in his recent speech in Munich, cleared the way for a more respectful discussion that could lead to productive agreements. It is time for the difficult spadework of business diplomacy to start. But first, let’s bury the bullshit.

​The latest furor over whether Stephen Colbert can air an interview with Democratic Texas Senate candidate James Talarico exposes a relic of broadcast regulation that no longer fits the modern media world: the FCC’s “equal time” rule. And what we’re seeing isn’t just awkward – it’s constitutionally and technologically outdated.

The rule, rooted in the Communications Act of 1934, requires broadcasters who give airtime to one political candidate to offer comparable time to opponents. In an era of three networks and scarce spectrum, regulators claimed such mandates served the public interest. Today, the rule feels as antiquated as a Philco radio crackling with the Eddie Cantor Show.

Even worse, enforcement is inconsistent. Traditional news programs are largely exempt from strict balancing requirements, while talk shows face a shifting and often opaque standard. When Arnold Schwarzenegger announced his California gubernatorial run on The Tonight Show in 2003, the FCC declined to invoke equal time. Yet now, Colbert faces scrutiny for doing what modern media personalities do every night – interview public figures.

Joe Lancaster, writing in Reason magazine, spells out how badly the equal time rule had become superannuated by 2024.
 
“Today the broadcast networks no longer have a stranglehold on what people can watch. Last year, according to Nielsen, the combined share of TV viewership that took place on over-the-air broadcasts or cable fell below 50 percent for the first time, as streaming skyrocketed. Only 20 percent took place on conventional broadcast television – meaning 80 percent of all TV viewership was not subject to any FCC content regulation, much less equal time rules.

“When the equal time rule was drafted, a far more limited number of frequencies were available across the broadcast spectrum. But that world no longer exists. We've reached the point where nearly 17 percent of American adults get their news from TikTok.
 
“The equal time rule imposes burdens on one group of broadcasters while sparing their cable or streaming competitors. Any public benefit that its drafters intended no longer meaningfully exists. Let's abolish it before the next election cycle begins.”
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Lancaster points to some history that should be our guide.
 
In 1974, the U.S. Supreme Court in Miami Herald Publishing Co. v. Tornillo overturned a Florida law that required publishers to print a reply to any political editorial or personal criticism, print version of the equal time rule.
 
At that time, a dominant newspaper held tremendous sway in a market. Today, in most cities, the local newspaper is just another website. As with newspapers, broadcasters are now just one of many media outlets constantly competing for our attention.
 
It is time for the law to adjust. Throw the equal time rule into the round file.

The FBI calls them “assessments.” Americans may experience them as First Amendment violations. 
 
A new Government Accountability Office (GAO) report suggests that many supposedly preliminary inquiries function as probes in waiting – particularly when they involve politics, journalism, or religion. According to the report, posted by the Cato Institute, more than 1,000 individuals and organizations have been subjected to preliminary assessments for investigation, a scope that should trigger immediate congressional concern. (Hat tip to Cato’s Patrick Eddington.)
 
The most alarming category involves so-called “Sensitive Investigative Matters,” or SIM assessments. These are FBI inquiries potentially into political campaigns and candidates, elected officials, journalists, religious leaders, or any other Americans engaged in core First Amendment activities. If any government scrutiny demands transparency and restraint, it is surveillance that begins with our rights to freedom of speech, belief, and association.
 
The GAO found that the FBI converted 48 percent of SIM assessments into Preliminary or Full Investigations. Eddington reports that these sensitive cases were 3.5 percentage times more likely to escalate than ordinary assessments – a statistical red flag for anyone told these probes are narrow, cautious, or exceptional.
 
Eddington writes:
 
“That’s especially alarming since, under Preliminary or Full Investigations, the agents running the case can employ wiretaps or other extremely intrusive and clandestine investigative techniques.”
 
Those tools – from electronic surveillance to confidential informants and covert collection – once deployed, are difficult to unwind. Lawmakers should require the FBI to disclose whether SIM assessments have targeted:
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• Members of Congress

 

• Political candidates and parties

 

• News organizations, think tanks, and NGOs

 

• News reporters and opinion journalists

 

• Churches, temples, and mosques.

At a minimum, the Bureau should provide the relevant oversight committees – especially the House Judiciary Committee – with a full accounting of past SIM targets and the total number of assessments elevated into full investigations. Congress should also ask who authorized these escalations. Were investigative decisions influenced by political appointees? 
 
And why are First Amendment-sensitive assessments more likely to escalate than ordinary cases?
 
The Founders knew the danger of unchecked investigations aimed at political and religious dissent. They rebelled against general warrants that allowed agents of the Crown to search first and justify later. SIM assessments risk reviving that same model – quiet surveillance justified by internal labels rather than public law.
 
Surveillance powers are easy to grant and hard to retract. Congress should press for an understanding of how existing authorities have been used against Americans exercising our most basic freedoms.

Sol Wachtler, former chief judge of the New York Court of Appeals, crafted perhaps the most famous aphorism in American law – that any prosecutor could persuade a grand jury to “indict a ham sandwich.”

Jeanine Pirro, longtime television judge turned U.S. Attorney for the District of Columbia, may have thought it would be that easy when she tried to indict six Democratic Members of Congress for posting a video informing active-duty military personnel that they had an obligation to refuse illegal orders. What she got from a grand jury on Tuesday was a lot of mustard on her face.

Wachtler’s point was that grand juries almost never refuse to issue an indictment. The reason is simple – in grand jury proceedings, there is no defense counsel to challenge the facts as presented. The jurors hear what the prosecutor wants them to hear, and only that. In Pirro’s case, they were told that these six lawmakers had violated a World War II-era statute – of questionable constitutionality – that makes it a crime to “interfere” with “the loyalty, morale, or discipline” of the U.S. military.

And yet these jurors refused to indict two U.S. senators and four Members of the House, including former Navy pilot Sen. Mark Kelly (D-AZ) and former CIA analyst who served in Iraq, Sen. Elissa Slotkin (D-MI). The four House Members include two Navy veterans, a former Air Force officer, and a former Army Ranger.

Critics of this video post make the point that it appeared at a time when President Trump was ordering the military to fire missiles into what were believed to have been boats ferrying drugs destined for the United States. Whatever one thinks of the boat strikes, some made the legitimate criticism that these members were flirting with the encouragement of defiance of lawful orders.

Outside of that context, however, these Members of Congress made a flatly factual statement – that under the U.S. Uniform Code of Military Justice, service members are required to disobey orders that are direct commands to commit a crime or violate the U.S. Constitution.

In the grand jury hearing, it is likely that no one made the point that the unprecedented prosecution of sitting Members of Congress for speech would represent an assault by the executive branch on the legislative branch. Nor is it likely that anyone told them that such an indictment would degrade the First Amendment, criminalizing speech in a way that exceeds any abuses of the past.
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These American citizens came to these conclusions on their own. And in so doing, they demonstrated the value of the grand jury system as a check on overweening prosecutors. It isn’t just ham sandwiches, after all.

​If you’re going to tell a mean joke about Donald Trump – like Trevor Noah did last week at the Grammys – expect the president to threaten a lawsuit.

“Song of the Year,” quipped Noah. “That is a Grammy that every artist wants almost as much as Trump wants Greenland. Which makes sense, I mean, because Epstein’s island is gone, so he needs a new one to hang out on with Bill Clinton.”

Yes, the joke was factually off-center; Trump says he never went to Epstein’s Island, and there is no evidence that he did. Moreover, it wasn’t even a particularly well-written or clever joke.

But it’s still a joke – not a news report. Such distinctions are often lost on public figures, who seem not to understand the difference between slander and libel, versus humor. The former purports to be fact and is meant to be taken seriously, to be believed as true. With news reporting, the wisdom of New York Times v. Sullivan endures, which allows public figures to sue for journalism corrupted by malice.

Various forms of humor are by their nature not meant to be believed. A joke is funny precisely because it is off-kilter and hyperbolic. As such, jokes are protected as free expression under the First Amendment.

The threat of a lawsuit is perhaps inevitable, both because jokes can wound and because going to court is a perfectly American reaction. But, like a bad joke, frivolous lawsuits brought by billionaires can have a chilling effect on the public’s willingness to express views critical of those with power. Threatening to sue a comedian for insulting you is not censorship, but the expense of having to defend oneself against a billionaire who happens to be the President of the United States amounts to punishment by litigation.

Presidents have structural advantages as well. The U.S. Supreme Court has held that presidents can be sued for unofficial acts, but not for official acts. On the other hand, the president can sue at will, just like anyone else. And let’s not forget that this administration has shown no restraint in weaponizing the executive branch and using its regulatory authority to go after its critics (just ask Jimmy Kimmel).

What can be done about this imbalance in legal power?

Perhaps Congress should pass a law stipulating that a lawsuit filed by a president must be stayed until the occupant leaves office. Only once he is a private citizen again could the lawsuit move forward. Where state laws constrain or complicate this stipulation, the Constitution’s Supremacy Clause ought to override them.
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In the meantime, thin-skinned public figures in both parties and of all stripes need to learn how to take a joke – even bad ones. In a free society, the proper response to a bad joke isn’t a lawsuit – it’s a better joke.

​Does eating pork rinds make a Buddhist, who is also a convicted murderer, ineligible to be served Muslim Halal meat on death row? 

The meandering fact pattern of this case and its underlying principles were carefully parsed by the Ninth Circuit Court of Appeals, which came to a firm “no” on that question. The Ninth Circuit’s majority opinion, penned by Judge Ryan D. Nelson, is a magisterial declaration on the limits of governmental adjudication of Americans’ religious beliefs. It offers a masterclass in the religious rights of convicts who have had most of their other rights lawfully stripped from them – and a reminder of how integral the free exercise of religion is to all Americans.

The Case – Why a Buddhist Selects Muslim Food

It would be hard to find a less sympathetic plaintiff than Maurice Lydell Harris. He was convicted in 1994 for murdering his girlfriend, Alicia Allen, and her unborn child. In the more than 32 years that have passed since his conviction, Harris has become a practitioner of Nichiren Buddhism, which originated in medieval Japan but is now popular throughout the world. Perhaps you’ve heard practitioners in a park chanting Nam-myoho-renge-kyo in an effort to cultivate their “Buddha nature.”

The founder of this school of Buddhism, a priest named Nichiren, was a vegetarian who left his followers free to eat meat. His only requirement was that practitioners “eat wisely” and with “mindfulness.” Harris, a meat-eater, interpreted this instruction to mean he should eat “clean” – avoiding foods that are highly processed, non-organic, or artificial.

California prisons offer four religious meal-plan alternatives, one of which is halal-certified meat slaughtered in accordance with Islamic religious requirements. Though he is not a Muslim, Harris decided that halal-certified food came the closest to his requirements as a Nichiren Buddhist.

Enter the Pork Rinds

Inmates who enroll in the prison system’s “Religious Meat Alternative Program” must agree to allow officials to monitor their discretionary food purchases to ensure compliance to their diet. The California Department of Corrections and Rehabilitation screens out inmates who sign up for one diet or another out of preference instead of religious belief.

Harris was kicked out of the program when he made purchases at the prison canteen for very un-Islamic pork rinds and salami, as well as meat-flavored ramen and beef steaks. Harris made these purchases after the prison temporarily switched his diet to a vegetarian option which, he said, left him feeling lightheaded.

The Religious Land Use and Institutionalized Persons Act (RLUIPA)

This law requires government to use the “least restrictive means” of meeting a compelling government interest. It has been invoked to allow Sikhs to wear long beards in prison and to permit a Christian inmate facing execution to have his pastor touch him as he was to be injected with lethal drugs.

Harris’s claim for preliminary relief was denied by a federal district judge, who ruled that the diet the inmate chose “does not fulfill the dictates of the Plaintiff’s religion.” Judge Nelson, however, stood firmly in favor of allowing Harris to decide what his religious obligations were.

Judge Nelson wrote:

“Judges ought not to be Pharisees, decreeing from on high what practices are relevant to a prisoner’s understanding of his own faith … It is for Harris to determine whether being on [a halal diet] satisfies Harris’s Nichiren Buddhist beliefs. And if external forces cause Harris to fall short of the exact dictates of his religion, it is for him and his conscience, not us as courts, to decide what compromises are appropriate.”

Such “dictates” include pork rinds to cure lightheadedness. Judge Nelson continued:

“Harris’s departures from the Islamic diet – or even a Buddhist diet – do not demonstrate that his beliefs do not require him to adhere to that diet if possible … Each man’s faith is his own, and judges must avoid questioning whether a prisoner has strictly abided by the letter of his own sincere belief.”
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In other words, RLUIPA does not require prisoners to be flawless theologians – only that government refrain from acting as one.

​Irish comedian and television writer Graham Linehan testified this week before a House Judiciary Committee hearing: “But I warn you – the Atlantic is not as wide as you think.”
 
That is the thesis of a staff report from that same committee, also released this week, entitled, Europe’s Decade-Long Campaign to Censor the Global Internet and How It Harms American Speech in the United States.
 
This committee staff report, the second in a series, is informed by evidence from subpoenaed communications between ten U.S. tech companies and the European Union. It draws on thousands of documents and communications to present an eye-popping portrayal of Europe’s ambition to control speech across the Atlantic.
 
That report declares:
 
“The European Commission, in a comprehensive decade-long effort, has successfully pressured social media platforms to change their global content moderation rules, thereby directly infringing on Americans’ online speech in the United States.”
 
The EU’s enabling authority in this effort springs from the Digital Services Act (DSA), which went into effect in 2023. In December 2025, the European Commission finally cracked its knuckles and hit X with the first DSA fine, a whopping €120 million ($140 million). Of the several justifications for this punishment, the most telling was that X was charged with not being as forthcoming as possible in providing American data to “vetted researchers” around the world.
 
The first committee staff report in 2025 traced “these so-called researchers” back to academia and NGOs, finding them to be “uniformly left-wing and pro-censorship.”
 
The DSA also lists many content infractions, revealing a determination to restrict free speech in the United States and to curtail our First Amendment. The report details an EU handbook that helpfully lists “offending” categories, which include:
 
• “Populist rhetoric”
• “Anti-government/anti-EU” content
• “Anti-elite” content
• “Political satire”
• “Meme subculture”
 
To help enforce this censorship, a European disinformation “task force” is focused on specific disinformation topics, including “fact-checking, elections, and demonetization of conservative news outlets.”
 
The committee recounts how TikTok was forced to buckle to pressure from such groups. It was compelled to report to the European Commission how it censored over 45,000 pieces of alleged “misinformation,” including political speech on topics such as migration, climate change, security, and defense, ahead of the 2024 EU elections.
 
Most alarming of all is Europe’s desire to control American speech about American elections. The absurd lengths of Europe’s ambition were on full display when then-EU Commissioner Thierry Breton “threatened X with regulatory action under the DSA for hosting a live interview with Donald Trump in the United States during the 2024 elections, warning that ‘spillovers’ of U.S. speech into the EU could spur the Commission to adopt retaliatory ‘measures’ against X under the DSA.”
 
Such “spillover” is the EU’s excuse for trying to deny users of X around the world the ability to watch an interview with a former president who was a major-party nominee seeking to return to the White House. Whatever your view of Donald Trump, Breton’s actions revealed the breathtaking determination of Europe to try to manage our domestic political dialogue.
 
The report concludes that the EU’s Digital Services Act “represents a grave danger to American freedom of speech online: the European Commission has intentionally pressured technology companies to change their global content moderation policies, and deliberately targeted American speech and elections.”
 
In short:
 
“The European Commission’s extraterritorial actions directly infringe on American sovereignty.”

That conclusion should alarm anyone who values the First Amendment. Europe is not merely regulating its own digital marketplace – it is attempting to export its censorship regime to the United States by pressuring American companies to silence American speakers.

If American leaders allow foreign regulators to dictate what Americans may say, hear, or share online, the First Amendment will not be repealed. It will be quietly nullified, one “spillover” at a time.

An Irish comedian, a physician elected to the Finnish Parliament, and a lawyer defending speech rights in Europe – all testified about the growing danger that EU and UK censorship poses to the health of free speech in America and around the world.

Graham Linehan, longtime television comedy writer, who was arrested at Heathrow Airport for an off-color tweet:

“The First Amendment protects you from government censorship. It does not protect you from what the British government has learned to outsource.

“In the UK, police record ‘non-crime hate incidents’ against citizens who have broken no law. These records appear on background checks. They affect employment. They create a chilling effect without a single prosecution.

“But the state has also learned to let others do its work. When employers fire workers for protected speech, when banks close accounts, when publishers drop authors, when platforms suspend users – the government's hands stay clean. The censorship happens. The state didn't do it. In Britain, we have discovered that you can have formal free speech and no free speech at all.”

Dr. Päivi Räsänen, physician, member of the Finnish Parliament since 1995, and former Minister of the Interior, fighting in court for posting a traditional view on sexuality:

“I expressed my Christian beliefs about marriage and sexuality in a Twitter post … I added a picture of Scripture verses from the book of Romans …”

“For this exercise of my free speech, I was investigated by the police and interrogated for more than thirteen hours. The questions from police were shamelessly about the Bible and its interpretation. I was asked, ‘What is the message of the book of Romans and its first chapter?’ and ‘What do I mean by the words ‘sin’ and ‘shame’?’ A joke spread on social media that Päivi Räsänen was once again meeting for a Bible study at the police station …

“The crime of ‘agitation against a minority group’ falls under the ‘war crimes and crimes against humanity’ section in the Finnish criminal code and can carry up to two years of prison time. I did not insult or call for harm against anyone. I was being criminally charged for simply expressing convictions rooted in my faith and conscience …

“Even when courts ultimately acquit, our story shows how the process itself becomes the punishment. We have faced years of investigation, public scrutiny, and legal uncertainty. This creates a chilling effect, not just for Christians, but for everyone who holds views outside a narrow, state-approved consensus.”

Lorcán Price of the Alliance Defending Freedom International testified on the anti-free speech extremism of the European Union:

“The EU’s obsession with harmonization and regulation is at odds with the values of free speech and a free press. Those are supposed to be universal human freedoms as well as European values … In practice, the DSA undermines the right to express opinions, the freedom to receive and impart information, and the respect for media freedom and pluralism inherent in European human rights law …

“This opens the prospect of worldwide enforcement of draconian European hate speech laws, such as the law against insulting public figures in Germany … The effect of the DSA is to require U.S. companies to apply the lowest common European legal denominator to police memes, jokes, and controversial commentary across the globe.

“The DSA permits each EU member state to implement its own rules and procedures … Thus, the nightmare scenario X currently finds itself in includes active parallel investigations by two regulatory bodies, under differing procedures and in different legal contexts, both using sweeping powers to scrutinize the company and levy enormous fines against it. This fate will befall any company that refuses to bend the knee to the Commission’s demands …

“Germany, France, and every other European country have all adopted criminal speech offences in vague, overbroad, and ambiguously worded laws that are used to prosecute legitimate political speech. At times in a democracy, citizens will use robust, rude, irreverent, and sometimes offensive speech to express themselves on matters of public importance.”

***

The committee’s Democratic minority refused to cooperate with Chairman Jim Jordan (R-OH) and the Republican majority in discussing the subject of the hearing, which was exploring European censorship. Democrats focused, instead, on the actions of Immigration and Customs Enforcement agents in Minnesota and elsewhere. From the Democrats’ protest, useful insights on free speech emerged – showing us that as egregious as European censorship is, we must also continue to practice vigilance at home.

Deepinder Mayell, Executive Director of the American Civil Liberties Union of Minnesota, spoke on the right to record law enforcement:

“Taking photographs and video of things that are plainly visible in public spaces is a constitutional right – and that includes police and other government officials carrying out their duties. Specifically, the First Amendment protects the right to photograph and video police conduct occurring in public, both because it protects the right to gather information about what public officials do on public property, and because it protects the right to record matters of public interest. This includes the right to livestream such content.

“The repression I have described is not just happening in Minnesota. From Illinois to Southern California, again and again, we have seen federal agents threaten peaceful protesters and physically assault them – including veterans, members of the clergy and the elderly.”

Overall, the hearing reinforced what Ronald Reagan said years ago:
​
“Freedom is never more than one generation away from extinction. It has to be fought for and defended by each generation.”

​CNN reports that comedian Megan Stalter taped a video asking her fellow Christians to speak out against the heavy-handed tactics of Immigration and Customs Enforcement (ICE) agents in Minneapolis, only to be iced out of TikTok.
 
Her video was popular on Instagram, reposted more than 12,000 times. But several attempts to upload her video on TikTok failed. Others have complained of similar experiences. For its part, TikTok responded that power outages at a data center were to blame.
 
Even if TikTok’s behavior was completely above board, a little history shows the basis for users’ suspicion: Congress, concerned by the national security implications of a Chinese-owned company collecting the personal data of 170 million Americans, passed a law requiring TikTok’s parent company, ByteDance, to sell the platform or face a U.S. ban by Jan. 19, 2025.
 
When Donald Trump was sworn in as president a day after the statutory deadline, he promptly refused to enforce that law. The president instead worked to secure a deal for U.S. ownership of TikTok. Last month, a group of investors led by Trump ally Larry Ellison of Oracle acquired TikTok’s U.S. operations.
 
With this deal brokered out of the Oval Office, is it any wonder that TikTok users immediately leapt to the conclusion that they were being censored to please the administration?
 
The distrust of these anti-ICE critics follows the distrust of conservatives, who still rankle from being deplatformed and shadowbanned on major social media platforms. During the Biden administration, eighty FBI agents in a program overseen by the White House quietly contacted social media companies to “jawbone” them into removing conservative content.
 
What the Biden administration did privately, Federal Communications Commission Chairman Brendan Carr has done publicly. He threatened to withhold the approval of the Paramount-Skydance merger. Carr only relented when CBS News, owned by Paramount, agreed to pay $16 million to settle a weak lawsuit filed by President Trump regarding how 60 Minutes edited an interview with Kamala Harris.
 
CBS News editor-in-chief Bari Weiss – a noted critic of mainstream liberal journalism – entered the job saddled with this history. When she made the controversial decision to hold and revise a story about the Trump administration’s detentions of deportees to El Salvador’s notorious CECOT prison facility, there was an immediate outcry from fellow journalists. Her editorial judgment was quickly tainted by the perception that CBS was kowtowing to federal regulators for business reasons – and perhaps to CBS’s new owner, the Ellison family.
 
The Wall Street Journal summed up Holman Jenkins’ editorial on this debacle with this subhead: “The Ellison family is getting what it paid for when it acquired the journalistic mouthpiece.” 

Fair? Probably not. Weiss may have made a defensible editorial decision and TikTok may, in fact, be having technical issues. The problem remains that when government officials can reward or punish media companies through secret “jawboning” and selective enforcement of licensing and mergers, the line between private editorial judgment in the media and the political needs of administrations begins to blur.
 
When the business of media is entangled with political agendas and government wheeling and dealing, even innocent explanations are tainted.

Colorado calls its Universal Preschool program just that – universal. But as Protect The 1st demonstrates in our amicus brief before the U.S. Supreme Court, that promise comes with a catch.

Catholic preschools in Colorado want to participate in the state’s publicly funded preschool program on the same terms as secular private schools. The state excludes them – not because they fail to meet academic, health, or safety standards, but because they insist on maintaining a religious mission consistent with Catholic teaching. In response, the schools, parents, and the Archdiocese of Denver are asking the U.S. Supreme Court to step in.

Protect The 1st is supporting them with a brief urging the Court to take this case and correct a dangerous error by the Tenth Circuit. At issue is Colorado’s attempt to condition access to a public benefit on these Catholics’ surrender of their First Amendment right to the free exercise of religion.

Colorado objects that Catholic preschools require families to support the faith-based mission of the school, including traditional teachings on sexuality and marriage. Faced with that reality, the state offered a blunt ultimatum – abandon your religious identity or stay out of the program.

That is not neutrality. It is coercion – and it violates the First Amendment’s Free Exercise Clause. Supreme Court precedent is clear – when the government creates exceptions to its rules for secular reasons, it may not refuse to accommodate religion. In Carson v. Makin (2021), the Court made the rule unmistakable: “A State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.”

Colorado’s regulations permit flexibility for many schools in many contexts while denying any accommodation to religious schools. That disparity between secular and religious schools should trigger strict scrutiny – a test the state cannot and should not pass.

The state’s demand also infringes on the schools’ right to expressive association.

Religious schools teach and transmit values as well as education. Forcing them to accept students whose families openly reject those values alters the message the school conveys to its community. The Supreme Court has long held that the government may not force private organizations to accept members in ways that undermine their expressive mission – nor may it achieve the same result indirectly by attaching improper conditions on funding.

The Tenth Circuit brushed aside these concerns, treating participation in the preschool program as a privilege the state may ration on its own terms. That reasoning is deeply flawed. The Constitution does not allow the government to do indirectly – through benefit programs – what it may not do directly through regulation.

If this decision stands, the implications extend far beyond Colorado. States could routinely exclude religious schools, charities, and social-service providers from public programs unless they conform their beliefs to official orthodoxy. That is not pluralism. It is pressure for ideological conformity.

The Supreme Court should grant review and reaffirm a simple principle – religious families do not forfeit their First Amendment rights when they seek equal access to public benefits.

​When federal agents clamped handcuffs on independent journalist Don Lemon at the Beverly Hills Hotel as he prepared to cover the Grammys, this made-for-headlines arrest immediately raised a serious question: Do journalists enjoy First Amendment protections when they are embedded in an unlawful protest?

Lemon was arrested after covering an anti-ICE demonstration that disrupted a Sunday worship service in St. Paul, Minnesota, on Jan. 18. This case exposes questions about the constitutional boundaries separating worshippers, protesters, and journalists.

Can you protest during a church service?

The protesters entered Cities Church, shouting “Justice for Renée Good!” This church was apparently targeted because one of its pastors, David Easterwood, heads an Immigration and Customs Enforcement (ICE) field office in that city. At least two of these protesters have been arrested, along with Lemon.

A federal indictment naming Lemon and other defendants portrays the protesters entering the church in a “coordinated, takeover-style attack” that caused congregants to flee and children to panic. The indictment claims one protester told two crying children: “Do you know your parents are Nazis? They’re going to burn in hell.”

The protesters might be found guilty of violating the Freedom of Access to Clinic Entrances (FACE) Act, a federal law from the Clinton era that protects both abortion clinics and churches from interference by protesters. Does the First Amendment, which is the supreme law over any statute, override the statute and protect these protesters on the basis of free speech?

Short answer: No.

Of course, churches are open to all. The protesters had every right to enter, just like anyone else. But if a church official considered them disruptive and told them to leave – and they didn’t – they were trespassing and also possibly guilty of a FACE Act violation. A first offense carries a penalty of up to six months in prison and a $10,000 fine.

Wait, how is the FACE Act not a violation of the First Amendment’s free speech clause?

If anything, the First Amendment protects the church, not the protesters.

While the “right of expressive association” is not explicitly articulated in the U.S. Constitution, the Supreme Court has held that this right of expressive association is inherent in the First Amendment’s protection of free speech. And it is likewise inherent in the First Amendment’s protection of the free exercise of religion. Indeed, if the government were to make a church exception to the enforcement of ordinary trespass laws, that would be blatant discrimination against religion in violation of the free exercise clause.

Think of it this way: How could any group of people, banding together for the same expressive or religious purpose, enjoy any associational and collective speech or religious rights if anyone could storm in and shout them down?

This principle applies to mosques, synagogues, churches, private university classrooms, board meetings, award ceremonies, and even Don Lemon’s online show.

So Lemon is in big trouble, right?

It depends on whether the allegations in the indictment hold up.

The federal government charges that Lemon met with other defendants at a shopping mall to plan the entry into the church. It also alleges that Lemon stood close enough to the pastor to restrict his freedom of movement in an effort to “oppress and intimidate” him. Did he do that, or was it an attempt to interview the pastor that he perceived as an attack?

What we can see online is that Don Lemon went into the service with a camera and interviewed both protesters and worshippers. Walking around a church sanctuary interviewing people is potentially disruptive, but it will take a trial to test the government’s allegations. Did Don Lemon lead or follow the protesters into the church? If he merely followed the protesters, he may have been reporting on a newsworthy disruption, not causing it. But if the government’s portrayal of Lemon being involved in planning the protest is proven, Lemon faces legal jeopardy.

C’mon, Lemon is a left-wing activist himself. Now he’s a “journalist”?

Lemon, who was fired by CNN for alleged rudeness and misogynistic remarks, is no Walter Cronkite. He’s an opinion journalist with a leftward, progressive slant. He is undoubtedly sympathetic to the protesters and their cause. That still makes no difference in this case.

A thought experiment brings home the principle protecting Lemon: Imagine if a Fox News reporter had been at Cities Church to cover the trashing of its service for an outraged audience. That hypothetical reporter’s sympathy in favor of the church would leave no one questioning his First Amendment rights (unless, of course, he was asked to leave and didn’t).

The same applies to Lemon and his sympathies. As long as he didn’t plan the protest – but merely followed up on a tip that there was a story brewing at the church – and did not ignore a proper request to leave the premises, he is likely protected as a journalist.

What will be the practical effects of this arrest?

U.S. Attorney General Pam Bondi said Lemon was arrested at her direction, posting: “WE DO NOT TOLERATE ATTACKS ON PLACES OF WORSHIP.”

That’s all well and good, with the all-caps warranted. But to convict Lemon, the government will need to prove its allegations.

If the government’s allegations don’t hold up in court, and Lemon is acquitted, it would hard be to imagine a greater gift AG Bondi could have granted a left-wing, web-based, independent journalist than to arrest him as an anti-ICE, free speech martyr in the very epicenter of his progressive base of viewers.
​
What we can definitively say is that the losers will be anyone – including Lemon – properly found guilty of violating the FACE Act. Tip to the protest community: Wrecking a church service is not a good look for you, nor a help to your cause. It’s also against the law.

​Within the last week, two Members of Congress were physically assaulted in public settings – grim reminders that political violence in America is no longer hypothetical.

Rep. Ilhan Omar (D-MN) was physically attacked on Tuesday during a town hall meeting by a man who used a syringe to squirt an unknown substance at her face. Rep. Maxwell Frost (D-FL) reported that on Friday he was punched in the face by a man at the Sundance Film Festival in Park City, Utah.

These attacks bring to mind House Majority Whip Steve Scalise (R-LA), who was shot along with three other people at a congressional baseball game in the Washington, D.C., area, in 2017. Rep. Scalise almost died.

Rep. Omar’s assailant has been described by his brother in the media as a “right-wing extremist.” Rep. Frost’s attacker appeared to be drunk and reportedly mouthed racial slurs. Rep. Scalise’s attacker was a left-wing activist with a history of domestic violence.

When extremists and unstable people attack elected officials, there can be no room for equivocation. Political violence is not a protest, is not justifiable by passion, and it is most certainly not speech. It is the negation of speech.

The normalization of such behavior would be a profoundly dangerous trend. In 1856, after Rep. Preston Brooks of South Carolina used a walking cane to beat and almost kill Sen. Charles Sumner of Massachusetts on the Senate floor, fury spread among the citizens of those states. The assault was not dismissed as an isolated outburst. It was understood, rightly, as a symptom of a nation losing its ability to resolve moral and political disputes without force. The resulting embitterment helped spark the Civil War, a bloodletting that didn’t end until more than 600,000 Americans were dead.

We might admire or deplore a given Member of Congress. But we must remember that every Member has been chosen in an election in a district that typically includes more than 700,000 Americans. Any physical attack on a representative is therefore an attack on the represented.
​
Whenever we hear someone whose views strike us as blinkered, stupid, hypocritical, or radical to the left or to the right, the best solution is to take a deep breath and resolve to exercise our First Amendment rights.

A woman in Maine was using her cellphone on Friday to record the public actions of Immigration and Customs Enforcement (ICE) agents.
 
When one agent began taking pictures of her and her car, she said: “It’s not illegal to record.”
 
“Exactly, that’s what we’re doing,” the agent replied.
 
“So why are you taking my information down?” she asked him.
 
“Because we have a nice little database,” he replied. “And now you’re considered a domestic terrorist, so have fun with that."

This is consistent with a report by Ken Klippenstein on his independent news site that a federal law enforcement official told him that the Department of Homeland Security (DHS) has ordered immigration officers to collect information on anyone video-recording ICE agents at work. The official told Klippenstein that intelligence agents use this data to perform a “work-up” on targets that likely includes running their license plates and criminal history checks, and even analyzing their social media profiles.
 
Why is the federal government building intelligence files on Americans engaged in activity that is plainly protected by the First Amendment? Will Americans in this database suddenly find themselves facing legal restrictions, such as appearing on a “No Fly” list, barring them from air travel?
 
That would run counter to rulings by seven federal circuits that have recognized Americans’ “right to record” – the right to hold up a smartphone and make a video of law enforcement in action. One of those – the Fourth Circuit Court of Appeals – noted that “recording police encounters creates information that contributes to discussion about governmental affairs.”
 
Yet DHS Assistant Secretary for Public Affairs Tricia McLaughlin said that “videotaping ICE law enforcement and posting photos and videos of them online” is a crime, and that “we will prosecute those who illegally harass ICE agents to the fullest extent of the law.”
 
DHS Secretary Kristi Noem seems to have a similar view. After the shooting of Renée Good, Noem connected her to  “domestic terrorism.” And McLaughlin labeled Alex Pretti – slain by agents after he filmed them – as also committing an “act of domestic terrorism.” 
 
Preemptively labeling Good and Pretti as terrorists when official investigations have hardly begun seems counterproductive. And the current administration would do well to remember the Biden Administration, which linked parents who got into heated discussions at school board meetings and “radical traditional Catholics” to “domestic terrorism.” Remember, too, that the Woodrow Wilson administration freely labeled Americans as “disloyal” and worse if they criticized America’s participation in World War I.
​
History has been unkind to every administration that has tried to stretch charged words like “terrorism” to cover lawful dissent. The Trump Administration would do well to make a clean break with these broad-brush depictions of Americans exercising their First Amendment rights. Let us hope that such a break will be part of President Trump’s recently announced “reset” of his administration’s immigration enforcement policy.

​Iran did not merely censor dissent last week. It turned off the lights on an entire nation.

In a recent post on X, Greg Lukianoff, a free speech lawyer and CEO of the Foundation for Individual Rights and Expression (FIRE), pointedly reminded defenders of liberty what the tumult in Iran represents:

“So, my international free-speech brethren: this is a big one. A tyrannical theocracy has shut down the internet for an entire country so the world can’t see the brutal tactics it plans to use to crush a free Iran. In my view, this is the biggest free-speech story in the world.”

Behind these drawn curtains, international observers believe that thousands of protesters were tortured and executed. Many U.S. commentators are asking why American college students, who so vigorously protested the human rights dimensions of Israel’s actions in Gaza, have been largely silent about Iran. This is a double standard in which Israel and other democracies are always fair game for severe criticism and protest, but tyrants, perhaps because they are expected to behave badly, get a free pass. (Not all campuses have been quiet. The Iranian Student Association of Northeastern University in Boston occupied the campus quad and chanted, “Hey hey, ho ho. Ayatollah must go.”)

Every American, not just college students, should be alarmed at the ease with which the Iranian regime cut off dissidents and protesters from the world. This incident shows how internet access has become the oxygen of safety and free speech. Shutting it down, like stepping on an oxygen tube, is an act of authoritarian aggression against people. As FIRE’s Sarah McLaughlin posted, with internet blackouts, the repression of information goes hand-in-hand with brutal violence:

“Iran isn’t just using brute force to escalate the crackdown on its people. It’s also deploying a repressive tactic that’s become increasingly common: suppression of the tools government critics use to broadcast their message on a mass scale. Authorities’ ultimate aim is to limit what their subjects can say – and what the rest of the world can know about it.”

And while Tehran is a repeat offender, it is by no means alone:

“Last year marked the most severe year yet for internet shutdowns, with researchers tracking nearly 300 disruptions and blackouts in dozens of nations. India, Myanmar, Pakistan, and Russia stood among the worst offenders.”

No doubt, Iran’s tyrants are deeply worried. Authoritarians, McLauglin points out, wouldn’t work so hard if they thought their populations were powerless. When they believe their people are cowed, they are happy to let them have their digital distractions.

What’s happening in the world’s dictatorships is also happening in democracies in quieter, more bureaucratic forms (see more on India). “The future of freedom depends on the internet,” writes McLaughlin. “We must start acting like it.”

That means recognizing internet access not just as a convenience or source of entertainment, but as a critical civic infrastructure – no less essential than open roads, courts, or elections. When governments claim the power to silence networks “temporarily,” they are asserting the power to disappear people permanently. Iran’s blackout is not a foreign aberration. It is a stress test – and one free societies should not assume they will pass by default.

​We didn’t hear church bells pealing on Jan. 16 after New York State sounded the retreat. Chalk it up to modesty.
 
After almost a decade of trying to force Catholic and Anglican nuns, and faith-based social ministries, to pay for abortion coverage, state officials finally surrendered to the reality that their demand violates the First Amendment’s guarantee of free religious expression. They dropped their case.
 
This victory only required these religious organizations to endure years of litigation that included two trips to the U.S. Supreme Court.
 
“For nearly a decade, New York bureaucrats tried to strong-arm nuns into paying for abortions because they serve all those in need,” said Lori Windham, senior counsel at Becket and an attorney for the religious groups. “At long last, the state has given up its disgraceful campaign. This victory confirms that the government cannot punish religious ministries for living out their faith by serving everyone.”
 
This case arose out of a New York law that included an abortion mandate for health care plans. Despite early promises that religious groups were exempt, New York reneged on its promised protections and extended the mandate to apply to religious groups that hire or serve people of other faiths.
 
In 2021, the Supreme Court remanded the case to lower courts, ordering them to reconsider it. After New York courts refused to follow Supreme Court guidance, these religious organizations had to return to the Supreme Court to ask it intervene.
 
In a similar case, the Court in 2025 ruled unanimously against Wisconsin bureaucrats, Catholic Charities Bureau v. Wisconsin. The Court held that the state had violated the First Amendment by denying a Catholic social ministry an exemption from state unemployment taxes. Wisconsin sought to force Catholic Charities to violate its beliefs by funding contraceptives and abortifacients.
 
“It is fundamental to our constitutional order that the government maintain ‘neutrality between religion and religion,’” Justice Sonia Sotomayor wrote for the majority. “There may be hard calls to make in policing that rule, but this is not one.”
 
This is relevant because Wisconsin’s theory resembled New York’s, declaring that if a charity serves people of other faiths, it must comply with the mandate. Taken literally, these states would have religious charities either abandon their beliefs about the sanctity of life or ask the needy about their religious beliefs and discriminate against those who are of other faiths or non-believers.
 
In remanding the Catholic Charities case, the Court included language that the “government cannot use schemes like New York’s to discriminate among religious people.” The Court thus held out New York as an example of what not to do. That undoubtedly convinced New York State to stop rowing toward yet another legal waterfall.
 
Will New Jersey and Pennsylvania get the message as well?
 
After also losing before the U.S. Supreme Court – twice! – these states are pressing a new theory to try to force the Catholic nuns of the Little Sisters of the Poor to comply with a federal contraception mandate. New Jersey and Pennsylvania offer a convoluted argument under which they are trying to compel the federal government to uphold an administrative requirement for groups to “self-certify” – even though the feds themselves hold that requirement to be “optional.”
 
Attempting to force expressive organizations – whether atheists or evangelicals – to violate their core beliefs is offensive to the Constitution. Yet some states remain Inspector Javert-like in their obsession with enforcing ideological conformity, even when the Supreme Court has told them to stand down.
 
It is time to cut it out.

​Take your mind back to October 7, 2023. Hamas fighters, amped up by amphetamines and toxic ideology, sprinted from Gaza into Israel. They massacred young concertgoers. They raped Israeli women. They slaughtered babies in their cribs and murdered children in front of their parents.
 
More than 1,200 Israeli civilians were killed.
 
Three days later, University of California, Davis, American Studies professor Jemma DeCristo reacted to that event with the above statement on X. For the obtuse who still didn’t get her point, DeCristo added emojis of a knife, an axe, and three giant drops of blood.
 
For obvious reasons, this post sparked outrage around the world. Unlike many similar posts, it didn’t seek to justify violence in a distant land. It called for doxing and murder – how else is one to interpret axes and blood? – against American journalists and their children. After a two-year investigation, the university last week decided not to fire DeCristo, accepting her argument that the post was meant to be “sarcastic.”
 
This story highlights many academic controversies, from rising antisemitism on the American campus to the capture of many departments by far-left ideologues (DeCristo is a self-described “anarchist”). For our part, we see this case as a Gordian knot of First Amendment issues.
 
For example, did DeCristo have a First Amendment right to post this?
 
It could be argued that since DeCristo called for violence against an identified group of Americans – journalists and their children – DeCristo’s post met the U.S. Supreme Court’s definition of speech likely to incite imminent lawless action. The saving grace is that no such violence occurred. If this post wasn’t incitement, however, it was right up against the line.
 
Another issue: Would U.C. Davis – which put a letter of censure in her file – have been within the parameters of the First Amendment if it had fired DeCristo?
 
While the “right of expressive association” is not explicitly articulated in the Constitution, the U.S. Supreme Court has held that the right of expressive association is inherent in the First Amendment’s protection for free speech. Consider the impact on a group’s speech if the NAACP were forced to include the Klan in its leadership? Or the Freedom from Religion Foundation had to include clergy on its board?

Groups centered around a message have the right to set the terms of their membership and leadership, or else the integrity of their speech is destroyed. Perhaps the obverse of that principle is also correct. A First Amendment culture cannot thrive in the face of threats against people based on their race, religion, or gender. The U.C. Davis investigation confirmed that the post “injured members of the Jewish community, who felt scared, isolated, and angry to see this type of violent and hateful rhetoric from a U.C. Davis professor.” 

Professors enjoy wide latitude under the rubric of academic freedom. That is a good thing. But is that latitude infinitely elastic? U.C. Davis, as a public university, also has some degree of accountability to the California Legislature and the taxpayers of California. And it has a right to employ professors who convey respect for the values of tolerance and civility.  

One lesson should have been clear since 1956, when Autherine Lucy had to be driven from class to class by the dean of women at the University of Alabama while more than a thousand men screamed threats at her and pelted the car. Were they merely expressing their First Amendment rights through their rage at a Black woman who had the temerity to study at Alabama? If a professor had been among them, would he have been protected by the doctrine of academic freedom? 
​
Concerning the latter, we have to ask how vibrant the First Amendment can be in today’s academic monoculture. It is, for example, just and necessary to give students a full understanding of the ugly history of slavery in the United States. But shouldn’t students also know that if you scan world history – the empires of China, Persia, Greece, Rome, and ancient Mexico – you will not find another civilization waging a civil war against itself in order to eradicate slavery?
 
And yet the academic discipline to which DeCristo belongs literally seems to have nothing good to say about America, as detailed in a recent Wall Street Journal article by Richard Kahlengberg and Lief Lin entitled, “American Studies Can’t Stand Its Subject.” They found that of 96 articles in the flagship journal of the discipline, American Quarterly, 77 percent focused on American racism, imperialism, classism, sexism, xenophobia, homophobia and transphobia. Not a single positive article was found over a three-year period – not one about America’s dominance in Nobel Prizes, the defeat of Nazi Germany, or the moon landing.
 
The First Amendment won’t thrive if the academy succumbs to a crabbed, ideological, and frankly pathological view of America – now spiced by hatred of American Jews – with screeds crowding out scholarship. Nor will it be restored by the clumsy, top-down efforts of some in the current Administration to dictate instruction by fiat.
 
What is needed is a cultural shift back to open debate and curiosity. A good first step would be to redirect Jemma DeCristo’s salary to an earnest American Studies scholar who will challenge students with hard questions about our nation’s complex history and culture.

​The media has had a field day with indignant headlines over Texas A&M University forbidding the teaching of Plato – in a philosophy class! There must be an Aggie joke in there somewhere.

But underneath the headlines are some deeper issues worthy of discussion.

The Texas A&M University System’s Board of Regents voted in November to require professors to seek the approval of their campus presidents in advance for any courses that “advocate race or gender ideology, or topics related to sexual orientation or gender identity.” They simultaneously prohibited faculty from teaching material inconsistent with a course’s approved syllabus.

Since Texas A&M is a public institution, it can be directed – or at least influenced – by public policy in a way that a private university cannot. The board was responding to the widespread conviction within the conservative majority in the Texas Legislature that “gender studies” is too ideological and crowds out serious studies with turgid, jargony papers.

But Plato is anything but turgid or jargony. The philosopher who invented the concept of academia had a lot to say about sex. The many facets of Plato’s discussion on eros provoke critical thinking, as it was meant to.

The proposed curricula included parts of Plato’s Symposium in which seven characters express varying views on sexuality. One speaker praises homosexuality as a way to create virtuous and courageous armies. Another extols the supposed benefits young males receive when having relations with older men. The drunken Alcibiades regrets that he couldn’t seduce the elderly, homely, Socrates.

Socrates, as usual, seems to speak for Plato when he turns from these earth-bound considerations to spiritual ones. He recounts a relationship he had as a young man with an older woman, Diotima. She taught him about the “ladder of love,” an escalation from physical attraction to a love of knowledge, ultimately to a sublime appreciation for Beauty. Socrates concludes by extolling the “pregnancy of the mind,” which gives birth to insights and virtue.

These passages would have also given Texas A&M students insights into Socrates’ unique take on eros as an invitation for the soul to climb the ladder of love. It certainly wouldn’t have corrupted them (leave that to the internet). Corruption of youth is the charge behind the sentence that resulted in Socrates drinking hemlock. Today, we just make the professor pull the course.

Texas legislators and leaders of the Texas A&M system alike should consider that their backlash is a mirror image of what they are reacting against. Is this action no less a betrayal of the First Amendment’s protection of the free expression of ideas than was the preceding, decades-long hostility towards conservative ideas (often disguised as “speech codes”)?

“This is what happens when the board of regents gives university bureaucrats veto power over academic content,” wrote Lindsie Rank of FIRE, the Foundation for Individual Rights and Expression. “You don’t protect students by banning 2,400-year-old philosophy.”

If all of this strikes you (as it does us) as impinging on academic freedom, you’re not alone.

“That’s not education,” tweeted FIRE, “it’s risk management.” The purpose of higher education, from a First Amendment perspective, remains the opposite of that, namely intellectual risk taking. Should faculty follow their syllabi? Common sense requires that they do. But the content of those syllabi – by whom should that be governed?
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After he founded the University of Virginia, Thomas Jefferson declared to his Enlightenment pen pal William Roscoe, “This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.”