You might like, laugh at, or deplore the renaming of the Gulf of Mexico to the Gulf of America. One thing that cannot be disputed is that the administration’s new designation has spawned the sale of innumerable T-shirts. Private organizations are free to adopt or not adopt the administration’s terminology. Google, for its part, enacted a diplomatic solution. Use Google Maps in the United States and you will find that it reflects the new name – Gulf of America. But Google Maps users in Mexico will find that the old name, the golfo de méxico, is intact. The AP news organization does not have the luxury of splitting names in its reportage. It stuck with the old name, as do most Americans. This makes sense, given that Mexico’s Gulf coastline is longer than that of the United States. Now AP says the White House has informed the news organization that because AP “did not align its editorial standards” with the executive order renaming the Gulf of Mexico, “AP would be barred from accessing an event in the Oval Office.” An AP reporter was later blocked from an executive order signing. AP says that these actions violate its First Amendment rights. It remains to be seen whether courts will hold that this action violates the letter of the First Amendment. AP can argue that the White House is engaged in viewpoint discrimination, even if about access to a limited public forum. This kind of petty play and attempts to direct editorial policy from above is a violation of the spirit, if not the letter, of the First Amendment. Those who advocate such a muscular approach to press relations were the first to protest attempts by the recent progressive administration to strongarm corporations, universities, and media into language policing. We were told to refer to America’s Latino population as “Latinx” (which most Latinos hated), to women as “birthing persons,” and to pronoun policing. The Trump press office would do well to discontinue the tradition of heavy-handed language control. Journalist Matt Taibbi testified before the House Judiciary Committee on Wednesday. He noted that many politicians, such as former Senator and Secretary of State John Kerry, are publicly justifying curtailment of free speech, saying that the First Amendment gets in the way of building “a consensus.” Matt Taibbi told the committee that building “consensus” is not his job as a journalist. He went on to say: “This is an Alamo moment for the First Amendment. Most of America’s closest allies have already adopted draconian speech laws. We’re surrounded. The EU’s new Digital Services Act is the most comprehensive censorship law ever instituted in a democratic society. “Ranking member Raskin, you don’t have to go as far as Russia or China to find people jailed for speech. Our allies in England now have an Online Safety Act that empowers the government to jail people for nebulous offenses like ‘false communication’ or causing ‘psychological harm.’ Germany, France, Australia, Canada, and other nations have implemented similar ideas. “These laws are totally incompatible with our system. Our own citizens have been arrested in some of these countries, but our government hasn’t stood up for them. Why? Because many of our bureaucrats believe in these laws. “Take USAID. Many Americans are in an uproar now because they learned about over $400 million going to an organization called Internews, whose chief Jeanne Bourgault boasted to Congress about training ‘hundreds of thousands of people’ in journalism. Her views are almost identical to Kerry’s. “She gave a talk about ‘building trust and combatting misinformation’ in India during the pandemic. She said that after months of a ‘really beautifully unified Covid-19 message,’ vaccine enthusiasm rose to 87%, but when ‘mixed information on vaccine efficacy’ got out, hesitancy ensued. “We’re paying this person to train journalists, and she doesn’t know the press doesn’t exist to promote ‘unity’ or political goals like vaccine enthusiasm. That’s propaganda, not journalism. “Bourgault also once said that to fight ‘bad content,’ we need to ‘work really hard on exclusion lists or inclusion lists’ and ‘really try to focus our ad dollars’ toward ‘the good news.’” “Again, if you don’t know the fastest way to erode ‘trust’ in media is by having government sponsor ‘exclusion lists,’ you shouldn’t be getting a dollar in taxpayer money, let alone $476 million. And USAID is just a tiny piece of a censorship machine Michael and I saw across a long list of agencies. Collectively they’ve bought up every part of the news production line: sources, think-tanks, research, ‘fact-checking,’ ‘anti-disinformation,’ commercial media scoring, and when all else fails, censorship. “It’s a giant closed messaging loop, whose purpose is to transform the free press into a consensus machine. There’s no way to remove the rot surgically. The whole mechanism has to go. “Is there ‘right-wing misinformation’? Hell yes. It exists in every direction. But I grew up a Democrat and don’t remember being afraid of it. At the time, we didn’t need censorship because we figured we had the better argument.” Congress is once again attempting to keep children off of social media. It’s a noble and well-intended effort – but it also implicates the First Amendment in ways that deserve more scrutiny in Congressional debate. The bill, dubbed the “Kids Off Social Media Act,” is a bipartisan effort spearheaded by Sen. Brian Schatz (D-HI) and Sen. Ted Cruz (R-TX). According to a press release on Sen. Schatz’ website, the legislation would ban social media accounts for children under 13 and prohibit algorithmic recommendations to users under the age of 17. A large body of research implicates social media as harmful to child development. Sen. Schatz himself cites an alarming study showing that social media is a leading driver of poor mental health among youth. According to the CDC, 57 percent of high school girls and 29 percent of high school boys felt persistently sad or hopeless in 2021. This social despondency is often attributed to sites like Instagram that proliferate unattainable standards for children in looks, wealth, and travel. As parents ourselves, we do not underestimate the risks social media can pose to children. At the same time, we cannot ignore that children have free speech rights, too. Some digital rights activists have also expressed concern that implementing new rules around social media would cause platforms to collect even more data from consumers. The Open Technology Institute demonstrates that such a law could make it necessary to engage in “the installation and use of AI-powered spyware to surveil students’ online activities during and outside of school hours.” We advise Congress to move with great deliberation in considering this bill – and others like it – to ensure that Congress fully considers its secondary effects like the law’s potential to promote AI surveillance of students. There are few serious problems in America that cannot be made worse by an overly ambitious law and regulatory regime. It’s one thing to want to keep our kids happy and healthy – it’s another to prescribe broad fixes with insufficient detail and safeguards. Members of Congress should think hard about the implications inherent in any bill regulating the speech rights of Americans. Perhaps this debate might spur social media companies to preempt legislation by taking serious steps to address the multitude of problems children face on social media. If social media companies were to create safer, more kid-friendly spaces, Congress may not need to act at all. The United States Military Academy at West Point last week ordered all extracurricular clubs centered around gender or race to immediately “cease all activities.” While the directive is likely legal, we might want to take a deep breath to navigate entry into tricky territory. According to a recent memo issued by West Point deputy commandant Chad Foster, such clubs must immediately “unpublish, deactivate, archive, or otherwise remove all public facing content.” All other group activities, meanwhile, have been paused – presumably pending a review. Affected clubs include the Society of Women Engineers, the National Society of Black Engineers Club, the Asian-Pacific Forum Club, the Contemporary Cultural Affairs Seminar Club and the Latin Cultural Club. In total, at least a dozen groups are explicitly required to disband. It's understandable why Defense Secretary Pete Hegseth would want to end DEI programs within our national security apparatus. DEI is an eccentric and extreme ideology that defines people based on their immutable characteristics – permanently branding them as privileged colonizers or oppressed victims. Replacing “equality” with “equity” is not exactly the best way to build unit cohesion in the military, or even to address racial disparities in the civilian world. On the other hand, protecting us against the threat of the West Point chapter of the National Society of Black Engineers seems like overkill. Such affinity groups have traditionally been where minorities go for mutual support. West Point now has 280 women in a class of more than 1,200. It’s perfectly understandable why women might want their own affiliate group in a traditionally male-dominated institution like West Point. Groups that will likely survive the order include gender-oriented clubs centered around athletics, such as women’s boxing and women’s team handball. West Point’s “Clubs and Organizations” web page is currently – and perhaps unsurprisingly – buggy and largely useless. It is not immediately obvious how the First Amendment right to speech and free association should be treated at a military academy. Once a plebe takes the R-Day Oath to the Constitution, they are in a unique zone where some of those constitutional rules no longer strictly apply. It is reasonable to keep military education free of ideological indoctrination. But care must be taken to remove DEI in a way that is neutral in its application. We’ll continue to closely monitor this situation as it develops. “You mess around with me, and I’ll wipe the floor with you,” Judge Judy told an obstreperous litigant. That’s how judges, even TV judges, run their courtrooms – as monarchs. But the reality is that the inner workings of these little kingdoms are delicate operations, protected from the outside world by stone, marble, X-ray machines, and metal detectors. Courtrooms also need protection from outside protesters using sound-trucks and other devices to try to intimidate jurists or interfere with judicial operations. 18 U.S. Code § 1507 does this by prohibiting “interfering with, obstructing, or impeding the administration of justice” through “pickets or parades in or near a building housing a court of the United States, or in or near a building or residence occupied or used by such judge, juror, witness, or court officer.” At present, the crime is punishable by a maximum prison sentence of up to one year. A new bill introduced in Congress would boost the punishment to five years. Are this law and its proposed amendment precise enough to avoid sweeping in legitimate protest? Respect for the Constitution, of course, requires protecting the deliberations of a courtroom. In recent years, we’ve seen a marked increase in intimidation and even violence against the judiciary. Look no further than the horrifying case of Daniel Anderl, the son of federal judge Esther Salas, who was gunned down in a despicable act of vengeance by culprit – and attorney – Roy Den Hollander. Nor are Justices of the Supreme Court immune from danger. Consider Justice Brett Kavanaugh, who was threatened by an armed gunman outside of his house in Maryland. These are serious concerns, and it is good that we have laws criminalizing threatening conduct. The new bill’s broad penalties, though they arise out of understandable concerns, could have the unfortunate effect of chilling free speech. Moreover, the reach of the federal statute – particularly when coupled with the proposed five-year penalty – could very well be sufficient to scare off law-abiding folks engaged in legitimate, peaceful protest. After all, what exactly constitutes “influencing any judge, juror, witness, or court officer, in the discharge of his duty” through “pickets or parades” near a courthouse? How far away from a courthouse do protestors have to be to be considered legal? When coupled with such a draconian penalty, this law could discourage law-abiding citizens and their publicly aired complaints and criticisms. The U.S. Supreme Court allows such statements on the sidewalk in front of its majestic façade. Where are the lines drawn for other protests for other courts? Our take: Though well-intentioned, the expansion of this bill overshoots the mark. Perhaps both civil libertarians and security-minded senators alike would profit from clarifying the existing law. Rabbi Mier Soloveichik has a touching piece in The Wall Street Journal about an Israeli women, Agam Berger, 20, who during her long imprisonment by Hamas refrained from engaging in any activities on Saturday that would violate the Sabbath. Journalists reported: “Thus when ‘Hamas terrorists ordered Agam to cook food … she steadfastly refused.’ Another hostage, Liri Albag, 20, reportedly described how Ms. Berger refrained from eating nonkosher meat throughout her time in captivity, which doubtless involved enormous sacrifice.” Such religious persecution has happened throughout history to people of every faith. This story got us to thinking of the sacrifices of such faithful, from the abolitionists and underground railroad volunteers to the heroes and martyrs of the civil rights movement. These stories make us think of Dietrich Bonhoeffer and Dr. Martin Luther King Jr. writing to the world from their jail cells. We applaud the courage of such people and are amazed by the steadfastness of their conviction. But governments, regimes, and terrorists should not be allowed to exact such costs on people of faith, even if brave ones like Agam rise to the challenge. We cannot tolerate power that forces such people into making these brave choices. In a better world, Dietrich Bonhoffer would have continued to write theology. Rev. King should have enjoyed a long and happy life as a minister tending to his Atlanta congregation. Such stories reinforce our appreciation for the First Amendment’s protection of the free exercise of religion. And they inspire us to work harder with our civil liberties colleagues to ensure that in America, at least, people won’t have to pay a severe price for living out their faith. Speaking of the First Amendment: Do Foreign Students Have First Amendment Rights? President Trump has ordered the Justice Department to deport “Hamas protestors” on campuses and pull their student visas. The president’s order states: “To all the resident aliens who joined in the pro-jihadist protests, we put you on notice: come 2025, we will find you, and we will deport you. I will also quickly cancel the student visas of all Hamas sympathizers on college campuses, which have been infested with radicalism like never before.” Can President Trump do this legally? And should he do this? Eugene Volokh, Protect The 1st Senior Legal Advisor and scholar at UCLA’s School of Law, gives an account of the divergent precedents on this question. He then provides his reaction: “I should say that I don't support the deportation of aliens for supporting foreign violence (at least unless there is reason to think they will act violently here) … There are lots of legitimate arguments for violence when it comes to foreign wars and other international matters. Which arguments are morally sound and which aren't should be a matter for debate, not for government fiat. “And I think that chilling the speech of lawful visitors to the U.S. does interfere with the marketplace of ideas for Americans. Indeed, even pro-Hamas speech on American university campuses has, I think, taught many Americans a valuable lesson about various speakers, groups, and ideologies. That would be true of speech by foreign students or by lawful permanent residents as well as by American citizens.” Volokh quotes Sarah McLaughlin from her piece on the website of the Foundation for Individual Rights (FIRE): “Advocates of ideological deportation today should not be surprised to see it used against ideas they support in the future.” The United Kingdom, birthplace of free speech, is still showing a disturbing trend towards censorship. Look no further than the heated debate over the UK’s grooming gangs, cabals of vile criminals that exploit young women. Though it has become unfashionable to voice basic facts in Britain, the truth is that 83 percent of defendants prosecuted for group-based child sexual exploitation had Muslim names. That’s unfortunate, but true. And we need to be able to talk about it. The Public Order Act of 1986 made it a statutory offense to use threatening, abusive, or insulting words or behavior, or to display any writing, sign, or other visible representation that is threatening, abusive, or insulting. In 2019, then-Labour leader Jeremy Corbyn ushered in the adoption of a form of such threatening speech – “Islamophobia,” which is “a type of racism that targets expressions of Muslimness or perceived Muslimness.” How far did the law go? In 2006, an Oxford man put that law to the test when he was arrested for calling a police horse “gay.” The absurdity of this and similar cases led to Parliament removing “insult” as a crime. But you can still be arrested in Britain for saying “the wrong thing” – or the right thing if you are factual. As Sadanand Dhume points out in the Wall Street Journal, even talking about Islamic men committing crimes is considered jumping on the “far-right bandwagon,” and is thus threatened as forbidden speech. This is nonsense on stilts, designed to shut down discussion of any community with a minority of adults who are creating a problem. We cannot address the reality of, say, America’s Klu Klux Klan without implicating the minority of white men who join that organization. We should not pretend that immigrant- or ethnic-based criminal organizations, whether La Cosa Nostra or the Russian mob, don’t have an ethnic basis. And it is a fact that more than 1,400 girls in the town of Rotherham in Northern England were sexually exploited by a group of British men who were mostly of Pakistani descent. Speaking about this should not be a crime. Yet one father of an abused girl was arrested by the police when he tried to persuade his daughter to leave a brothel. Another was forcefully told by local law enforcement to quiet down about his daughter’s abuse, or else he might cause the community to “erupt.” At the red-hot center of controversy is Elon Musk, who used X to criticize Prime Minister Kier Starmer in harsh terms for his purported failure to fully investigate and prosecute these crimes when he served as the UK’s director of public prosecutions. This prompted UK Justice Minister Heidi Alexander to talk about strengthening sanctions against “misleading and inflammatory statements” in the Online Safety Act, which goes fully into effect this year. Nigel Farage, leader of the UK Reform movement, said Musk had used "very tough terms” about Prime Minister Starmer, but that: “In public life, tough things get said. They get said by both sides of the debate.” Farage said he believed in free speech: “… even if what people say is offensive, if you find it offensive, if most people find it offensive. This man [Musk] happens to be the richest man in the world, but equally, the fact that he’s bought Twitter now actually gives us a place where we can have a proper open debate about many things … We may find it offensive, but it's a good thing, not a bad thing.” In the United States Mark Zuckerberg has recently ended fact-checking by Facebook’s resident arbiters of “truth.” But in London, Prime Minister Starmer seems poised to go for more linguistic crackdowns. One outsider’s perspective in the New Indian Times accurately described the situation: “Many social media videos show British police arresting people holding anti-Hamas placards while violent protestors calling for the death of Jews march free on the roads. British woke culture has a lot to answer for.” Perhaps Labourites need to break out their Milton. The poet declared: “Let her [Truth] and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?” When Linda McMahon, President Trump’s nominee to be Education Secretary, arrives at the Senate for her upcoming confirmation hearing, she will be the prospective leader of a paradigm shift in how America’s children are taught. President Trump made this clear on Thursday by directing the Secretaries of Education and Labor to review their discretionary grant programs and submit plans to “expand education freedom for America’s families and teachers.” If confirmed as Secretary, McMahon will issue guidance to states on how to use federal funds for school choice. Other agencies, from the Department of Defense to the Bureau of Indian Affairs and the Department of Health and Human Services will also look to repurpose block grants to “expand educational choice.” This is a bold move that puts existing federal grants behind the exploding school choice movement. Twelve states have recently adopted some form of universal school choice. Texas appears poised to become the next sometime this year. Now, thanks to this brisk action by the Trump Administration, existing funding will be redirected to bolster educational competition. Though the president’s actions were denounced by Randi Weingarten, president of the American Federation of Teachers “as a direct attack” on public schools, the evidence says otherwise. Out of 28 studies that explored the causal relationship between school choice and the performance of public schools, 25 found that school choice improves educational attainment in traditional school systems. School choice fulfills the promise of the First Amendment by allowing parents to exercise their right to extend their values across generations. Competition brings out the best in all of us. Now federal agencies will be competing to be the best in realizing the president’s school choice vision. In celebration of National School Choice week, we quote Wall Street Journal columnist William McGurn, who writes movingly of the superior performance of religious schools. “The 4,731 Catholic grade schools and 1,174 secondary schools now celebrating do a superb job educating their students – with the National Catholic Educational Association reporting 99% of their high-school students graduating on time and 85.2% going on to four-year colleges … “Where five years ago not a single state offered universal school choice, today 12 states offer it, with the NCEA reporting that 13.7% of Catholic school students are there because of a choice program. For the first time in nearly a quarter-century, Catholic school enrollment in 2023 increased slightly, to 1.7 million students. And on the menu for 2025 are school-choice proposals in Texas, Idaho, New Hampshire, North Dakota, South Dakota, Tennessee and Wyoming.” McGurn notes that 21 percent of all Catholic school students are not of that faith. We would add that school choice, in addition to delivering superior performance, helps parents to exercise their First Amendment rights by allowing them to extend their values across generations. “Catholic schools aren’t the only ones who deliver: There are charter schools, home schools, private schools and countless variations of all three. But Catholic schools work, and have worked for some time. Although it isn’t fashionable to say, their success might have something to do with treating every child as created in the image of God.” Operator: “Bias hotline.” Puck: “I’d like to report three men who are making remarks that denigrate people’s identities. Some of their remarks have to do with race, some with religion, some with personal characteristics.” Operator: “There are three of them? Are they some kind of gang?” Puck: “Yes, three, obviously some kind of extremist organization, and they are making these remarks in front of large crowds of drunk, jeering people who egg them on.” Operator: “That’s terrible. Do you know who they are?” Puck: “I do. Their names are Dave Chappelle, Chris Rock, and Bill Burr.” Operator: “Can you spell those for me?” At first, we at Protect The 1st didn’t believe it. There are a lot of unsubstantiated allegations floating around; this had to be another crazy internet rumor. The idea that blue states, where more than 100 million Americans live, are operating snitch lines to keep records of unsubstantiated accusations of jokes or remarks that are alleged to show bias had to be an internet myth. It just couldn’t be true, we thought. Surely we are not so far gone from the spirit and letter of the First Amendment that our government is taking down anonymous accusations of bad speech. And yet here we are. California, Illinois, Maryland, New York, Oregon, Rhode Island, and Vermont are running “bias reporting hotlines” that people can call and report bad or hateful speech. Washington State is preparing to launch its own hotline soon. Like many rotten ideas, the bias hotline started out with a commendable concern. Some high schools and then colleges had hotlines through which students who felt bullied could turn for confidential reporting. In America today, however, no good idea goes unperverted. Once adopted by colleges and universities, the bias hotline morphed into an all-purpose receptacle for anything anyone didn’t like. For example, the Foundation for Individual Rights and Expression (FIRE) reports that a “bias incident report” at the University of California, San Diego, was written up about a student humor publication that satirized “safe spaces.” The bias incident hotline concept then migrated to the states, latching on to legitimate hate crimes hotlines, to include offensive jokes or “imitating someone’s cultural norm or practices.” So we went from reporting hate “crimes,” to reporting vague infractions of anything offensive. So much so that in states like Vermont the police are now keeping faithful records of people accused of making statements that are “biased but protected speech.” Why? In some states, authorities can reach out to the purported offender and urge them to seek counseling. In Oregon, self-reported “victims” of “non-crime hate incidents” can receive public assistance for therapy, security cameras, and even ask the state to pay their rent. The worst aspect of these hotlines is that they are easily weaponized. They give a perfect opportunity for an aggrieved person to snitch on their landlord, ex-lover, or the barista who forgot their skim latte order. Worse, the definition of bias – even hate speech itself – is inherently subjective. It is vague enough to encompass the inoffensive, the tasteless, and the despicable. Yet even what reasonable people would agree is hate speech is protected by the First Amendment. That doesn’t make it okay. But it does make it legal. Consider: While the three comedians’ routines are often borderline, they are used to hold up a mirror to society. And they are worth protecting because Chappelle, Rock, and Burr are funny, edging their comedy with humility and humanity. Of course, genuine hate speech is real. But no government agency can change hearts and minds. Only culture, faith, community, and a little bit of public shaming every now and then can do that. But sending authorities to someone’s house to tell them to tone down their language is a recipe for inspiring more hate speech. And dispatching someone with a gun and a badge to police speech, even if no arrests are made, threatens to create a national speech nanny like the one emerging in the United Kingdom. Why don’t these states get this? “If it is not a crime, we sometimes contact the offending party and try to do training so that it doesn’t happen again,” Saterria Kersey, a spokeswoman for the Philadelphia Commission on Human Relations, told The Washington Free Beacon. We say if it’s not a crime, the authorities have no business poking their noses into it. And hey, Saterria, you sound like a nice person. Please give us your home address. We’d love to swing by your house and share our take on the First Amendment. Or not: After we re-read that last paragraph again, it sounded vaguely threatening. We certainly didn’t mean it that way, we swear! But that’s the point. St. Isidore of Seville Catholic Virtual School v. Drummond The Supreme Court on Friday agreed to hear St. Isidore of Seville Catholic Virtual School v. Drummond to determine whether it violates the Free Exercise Clause to deny state funds to an online Catholic school solely because of their religious character. This is the latest in a string of cases in which the Court has had to push back on states’ unequal treatment of religious schools. It is also an opportunity to functionally invalidate the unconstitutional Blaine Amendments that litter many state constitutions. Above all, it is a chance for parents to reaffirm their right to choose schools that align with their values. The Oklahoma Supreme Court ordered the state’s Charter School Board to rescind a contract with the Archdiocese of Oklahoma City and the Diocese of Tulsa to establish St. Isidore of Seville Catholic Virtual School. According to the court, the Board’s approval of public funding for a sectarian school violated the Oklahoma Constitution, the Oklahoma Charter Schools Act, and the Establishment Clause. As we wrote at the time, the opinion is “buttoned down, logical, and eminently overturnable,” relying on “that state’s version of a Blaine Amendment, a movement that gathered momentum when American politics was infected with anti-Catholic bigotry.” Blaine Amendments in 37 states prohibit public funding for schools run by religious organizations. They were passed in an era when Catholics faced wanton discrimination in a largely Protestant America. Doubts as to their unconstitutionality were raised by the Supreme Court’s ruling in Espinoza v. Montana (2020), which found that state-based scholarship programs providing public funds for students to attend private schools cannot discriminate against religious schools under the First Amendment’s Free Exercise Clause. The Court, quite specifically, took the Blaine Amendments to the woodshed, writing that they were “born of bigotry.” Congress should end the revolving door of state defiance of clear judicial precedent by overriding the Blaine Amendments and reiterating that Espinoza and the similarly reasoned Carson v. Makin meant what they said and remain the law. The Court has plenty of reasons to overturn the Oklahoma ruling. Oklahoma Justice Dana Kuehn’s dissenting opinion spells them out: “St. Isidore would not become a ‘state actor’ merely by contracting with the State to provide a choice in educational opportunities. By allowing St. Isidore to operate a virtual charter school, the State would not be establishing, aiding, or favoring any particular religious organization. To the contrary: Excluding private entities from contracting for functions, based solely on religious affiliation, would violate the Free Exercise Clause of the First Amendment to the United States Constitution.” Further, Judge Kuehn wrote: “Contracting with a private entity that has religious affiliations, by itself, does not establish a State religion, nor does it favor one religion over another. Allowing St. Isidore to operate a charter school does not give it any preference over any other qualified entity, sectarian or otherwise.” The Constitution’s prohibition of an established religion does not diminish the free exercise of religion. Religious schools must be free to apply for state funding to the extent that they meet mandated standards in English, math, history, science, and other subjects. Such allowances, in turn, will give more parents the opportunity to choose schools that reflect their values, the ultimate expression of the First Amendment. We agree with Gov. Kevin Stitt, who said: “This stands to be one of the most significant religious and education freedom decisions in our lifetime. I believe our nation’s highest court will agree that denying St. Isidore’s charter based solely on its religious affiliation is flat-out unconstitutional.” Stay tuned. Dad’s Place of Bryan, Ohio, v. City of Bryan The city of Bryan, Ohio, last week successfully prosecuted a local pastor for keeping the doors of his church open for the homeless overnight during minus-5-degree weather. The guilty party is Pastor Chris Avell of Dad’s Place, a church that offers free haircuts and a “warming center” in cold weather for homeless people. The city conducted seven surprise fire-code inspections of the church, before leveling 18 criminal charges against the pastor in a local court. With help from the First Liberty Institute, Pastor Avell is appealing to the federal Sixth Circuit, which has issued a stay. In a filing, Avell describes rough treatment by the city. He learned about the charges against him from a local newspaper. Bryan officials chose to serve the criminal complaints against the pastor in front of his congregation on a Sunday morning just before services began. The city’s case is not without substantive claims. The city charges Dad’s Place with violating municipal fire and safety codes, including blocked exits, electrical outlets that need to be reinstalled, and a lack of a fire suppression system. Defenders of Dad’s Place say that the church in the town center has been targeted and harassed to enforce a widespread not-in-my-back-yard attitude toward the homeless. “Only government officials could say with a straight face that people are safer in the sub-zero temperatures on the street than inside the warmth of a church,” said Ryan Gardner, counsel for First Liberty, which represents Pastor Avell. On the surface, this case appears to be a dispute about enforcing zoning ordinances. But Dad’s Place raises serious issues with the guarantee of free religious exercise under the First Amendment as well as the Ohio Constitution. It also implicates the guarantees of the Religious Land Use and Institutional Persons Act, which among other things mandates strict scrutiny when houses of worship are targeted by zoning laws. Pastor Avell can present a strong case that Dad’s Place is a victim of targeted enforcement of the zoning code and pretextual enforcement of the fire code. But at the core of his case is a lack of appreciation by local and state governments that the charitable function of a church is integral to its practice of religion. In a similar vein, the U.S. Supreme Court is set to decide Catholic Charities v. Wisconsin, in which state bureaucrats decided that charitable activities a diocese has provided for a century to the disabled, the elderly and the poor are not part of the church’s exercise of religion. In Christianity – as in all other major world religions – caring for the outcast, the poor, and the helpless is not a hobby, or a side venture. It is the very practice of – the soul, if you will – of religion. The Sixth Circuit should recognize this. And if it doesn’t, perhaps the Supreme Court will. King Henry II, after having his royal prerogatives blocked time and again by the Archbishop of Canterbury Thomas à Becket, blurted out “will no one rid me of this troublesome priest?” Some Republicans felt the same when President Trump and his family attended an Episcopal service the other day. The president was subjected to a sermon by Bishop Mariann Edgar Budde of Washington, D.C., who appealed to the new president to “have mercy on the people who are scared now,” including immigrants, refugees, and sexual minorities. President Trump himself took it all in stride (and with a comeback tweet or two). This was all in keeping for a president who had just decisively defended free speech in his inaugural address and then bolstered it hours later with an executive order. But at least one prominent critic of Bishop Budde had a different response. He asked that the bishop be put on the “deportation list.” It would be right and fair to come back at the bishop with some substantive riposte, as the president did. But the Right Rev. Budde, as an American citizen born in New Jersey, cannot – and must not – ever be considered for deportation because of how she chooses to exercise her First Amendment rights. For an American citizen, a threat of deportation is never a good joke. Critics should keep in mind that overreaction tends to valorize rather than intimidate. After King Henry’s call, several followers overreacted to the king’s frustration by drawing their swords and killing Archbishop Becket at the altar. This, of course, led to Becket becoming a saint. “If we don’t have free speech, then we just don’t have a free country,” Donald Trump declared in a campaign speech. “When I am president, this whole rotten system of censorship and information control will be ripped out of the system at large.” Now President Donald Trump has taken a strong step toward fulfilling that promise. We urge him to continue his defense of free speech by protecting another part of the First Amendment, a free press, by supporting the PRESS Act. But first, let’s celebrate this welcome recognition for the central place of the First Amendment in American life. In his inaugural address, President Trump denounced “illegal and unconstitutional federal efforts to restrict free expression.” He said “never again will the immense power of the state be weaponized to persecute political opponents.” Hours later President Trump issued an executive order that begins by denouncing government trampling of “free speech rights by censoring Americans’ speech on online platforms, often by exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve.” The executive order declares: “Government censorship of speech is intolerable in a free society.” We certainly agree and look forward to such practices ending under the current and all future administrations. Congress prepared the president’s way by defunding the State Department’s Global Engagement Center (GEC) that distributed blacklists of American publications to advertisers. The GEC had coordinated in secret with the FBI, CIA, and the rest of the alphabet to collect content government agents found objectionable, then issued threats to social media companies to censor those views. The GEC shuttered its operation before the beginning of the year. Better to quit than wait around to be fired. The president’s executive order now forbids any officer, employee, or agent to engage in or facilitate any conduct that would unconstitutionally abridge the free speech of any American citizen. The use of the word “agent” is a shrewd choice, since it would cover groups like the UK-based NGO Global Disinformation Index, which received direct State Department grants to compile that enemies list of U.S. publications, including RealClearPolitics, Reason, and The New York Post. This prohibition should stand against any administration’s future violation of these principles. The next order of business, we respectfully suggest, is for President Trump to extend and enforce the Justice Department News Media policy that prevents the government from seizing the notes and sources of journalists. For similar reasons, this is also the moment for President Trump to announce his support for the Protect Reporters from Exploitive State Spying (PRESS) Act, which was passed by a Republican House last year and essentially codifies the Department’s policy. Rule-making is not enough and won’t bind the next administration. Consider: outgoing Attorney General Merrick Garland first formalized the Justice Department’s News Media Policy, forbidding compulsory legal processes to obtain the newsgathering records of journalists in 2022. But this rule did not deter the FBI from raiding the Tampa home of journalist Tim Burke the following year to seize his computer, hard drives, cellphone and all they contain. Clearly, a mere departmental rule is not enough to keep the FBI and some in the Department of Justice from interfering in journalism, just as the GEC interfered with free speech in social media. Surely President Trump appreciates the courageous reporters who revealed IRS persecution of conservative non-profits, the highly politicized FBI investigation of the Trump campaign in 2016, and the truth behind the Hunter Biden laptop. Many of President Trump’s media allies – small, thinly funded independent journalists – have a lot to fear from federal agents pawing through their personal effects. Such protections extend to Donald Trump’s media critics as well as his media fans. That is the essence of free speech. And supporting those measures would be a courageous example for Donald Trump to set and in keeping with his pledge to end the weaponization of the power of the state, whether against him and his supporters, or against his own political opponents. We can’t think of another president who came to the defense of the First Amendment in his inaugural address and then followed up on it with an executive order just hours later. We respectfully suggest that President Trump’s support for the PRESS Act would be a great addition to this legacy. Free Speech Coalition, Inc. v. Paxton How much scrutiny must a court apply to a Texas law that requires porn sites to use age verification procedures or technology to prevent minors from accessing pornography? What are the security and reputational risks for adults who upload their IDs or submit to biometric analysis? How can such a law be squared, if it can be, with the First Amendment and past precedent? The U.S. Supreme Court on Wednesday heard oral arguments about Texas law H.B. 1181, which requires some media platforms that display sexual material to age-gate some or all of their site to verify that all users are 18 years of age or older. Erik Jaffe, Protect The 1st Policy Director, in this lively Federalist Society webinar, breaks down the oral argument, the issues, and the precedents the Court must now consider. WATCH HERE: Becket’s Survey Shows Highest Level Ever for Religious Liberty Today we celebrate Religious Freedom Day, 2025, the anniversary of The Virginia Statute for Religious Freedom, Thomas Jefferson’s model for the First Amendment’s guarantee of the “free exercise” of religion. In our era, the danger to religious liberty comes not from those who would establish a theocracy for their denomination or religion, but from those who would use state power to scale back the right of Americans to engage in the free exercise of their beliefs. We should heed the words of Jefferson, who as governor of Virginia disestablished the Church of England as his state’s “official” church and granted religious freedom to all Virginians. Jefferson’s proclamation denounces: “The impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible[.]” The U.S. Supreme Court is currently weighing whether to hear cases on the religious liberty rights of Americans at the hands of just such fallible civil officials. One case under consideration is Mahmoud v. Taylor, which concerns the rights of parents in Montgomery County, Maryland, to opt their children out of teachings about sexuality contrary to their religion. Another case, Apache Stronghold v. United States, seeks protection for the long-recognized sacred site of the Apaches in Arizona whose very existence is under threat by a mining company more concerned about profit than about the Apaches’ religious beliefs. Courts have also had to deal with the state of Maine, which continues to defy the plain language of Supreme Court precedent by isolating and defunding religious schools. Every year on this day, the Becket Fund for Religious Liberty releases its “Religious Freedom Index,” assessing the degree to which religious liberty is respected nationally. The news here is heartening. While bureaucrats and officials try to narrow the scope of religious liberty, a solid and growing majority of Americans understand and support religious liberty for all. In 2024, Becket’s index, based on 21 questions put to a representative sample of 1,000 Americans, revealed its highest level of support for religious freedom ever. Becket’s findings include the following:
Most interesting of all, even Gen Z’s support for religious freedom is growing. Becket’s survey also finds that a plurality of Americans looks first to the courts to safeguard religious freedom over state governments, Congress, and even the president. This confidence will only be bolstered if the U.S. Supreme Court decides to take up both Mahmoud and Apache. As Thomas Jefferson put it, “Truth is great, and will prevail if left to herself.” Biden Officials Yelled at Facebook “to Take Down Things that Were True" Joe Rogan’s recent interview of Mark Zuckerberg was a bro-fest, complete with discussions of the joys of hunting, Nordic curls, and ju-jitsu. The CEO of Meta also recounted how he got boiled by degrees in giving in to the demands of government agencies and the Biden Administration in censoring content. “They pushed us super hard to take down things that honestly were true. Right? I mean they basically pushed us and said, you know, anything that says that vaccines might have side effects, you basically need to take them down. And I was like, we’re not gonna do that …” Zuckerberg pointed to the voluminous report by Chairman Jim Jordan of the Judiciary Committee documenting the government’s efforts to manipulate content. The committee’s analysis and the government’s documents show the reality of government “jawboning” on social media. “I mean basically these people from the Biden Administration would call up our team and like scream at them and curse,” Zuckerberg said. “They want[ed] us to take down this meme of Leonardo DiCaprio looking at a TV talking about how 10 years from now or something, you know, we’re going to see an ad that says, okay, if you took a COVID vaccine, you’re eligible … for this kind of payment, like, some sort of like class action lawsuit type meme. And they’re like, ‘no. You have to take that down.’ We’re not gonna take down humor and satire. We’re not going to take down things that are true.” When Meta resisted some of the persistent demands of the government to remove content, Zuckerberg notes that President Biden in a 2021 press conference accused social media companies of “killing people.” The Federal Trade Commission launched antitrust lawsuits and investigations against Facebook and a number of other big social media outlets. Zuckerberg said, “all these different agencies and branches of government basically just started investigating, coming after our company. And it was brutal.” Any suggestion that jawboning by officials at the White House and in the agencies was purely a matter of advice should be laid to rest by the Judiciary Committee’s analysis and postings, as well as Zuckerberg’s description of being on the receiving end of this treatment. As Zuckerberg said, “you can’t censor that if it’s real legitimate information because it’s not ideologically convenient for you.” Does an inaccurate poll constitute consumer fraud? That’s the question at issue in an Iowa lawsuit in which President-elect Donald Trump is taking pollster J. Ann Selzer and The Des Moines Register to court for a pre-election poll indicating a slight Harris advantage in the Hawkeye State. This late bit of news in the election buoyed the Democrats and sent a ripple of worry through the Republican camp. And for good reason – late campaign news like that has the potential to affect turnout. It is easy to see why Donald Trump is miffed – he won Iowa by 13.2 percent, a landslide. Selzer is a Des Moines-based pollster once described as “the best pollster in politics” by FiveThirtyEight, which also awarded her company an A+ for accuracy. In both 2016 and 2020, Selzer correctly predicted Trump’s Iowa victories. But polling is increasingly an inexact science (just ask FiveThirtyEight), and the prognosticators now get it wrong more often than not. Often very wrong. This is the new reality of polling in an age of social media and spam filters. After the race, Selzer said she had made the “biggest miss of my career.” She publicly shared her poll’s crosstabs of demographic and attitudinal groups, as well as her methodology. This did not deter the lawsuit. Now, the Foundation for Individual Rights and Expression (FIRE) has announced it will be defending the pollster. Is FIRE right to do so? President-elect Trump alleges that Selzer is biased against him. While Selzer’s record would tend to disprove that, President-elect Trump is well within his rights to think so given how far off this poll was. The deeper question is: What if Selzer is biased against Donald Trump? Many polls on the left and right are considered more as expressions of political activism than as the kind of professional polling that Selzer does. Even if you buy the notion that Selzer is a partisan hack, however, the First Amendment would still protect her. President-elect Trump’s argument is a legal square peg failing to fit a statutory round hole. His lawsuit asserts that Selzer violated the Iowa Consumer Fraud Act, which requires the president-elect to “identify a fraudulent or deceptive statement ‘in connection with the advertisement, sale, or lease of consumer merchandise, or the solicitation of contributions for charitable purposes ...’” Putting aside the obvious joke about a “bill of goods,” it’s readily apparent that Selzer’s poll had nothing to do with selling merchandise or soliciting contributions. FIRE says that President-elect Trump’s lawsuit amounts to a “strategic lawsuit against public participation” (SLAPP). Such lawsuits, they say, “are filed purely for the purpose of imposing punishing litigation costs on perceived opponents, not because they have any merit or stand any chance of success.” There is widespread bias across the media landscape, especially in unfair reporting about things Donald Trump has allegedly done or said. No question. But if we were to grant politicians power against media bias, perceived and real, that power would inevitably lead to the kind of official censorship that Donald Trump campaigned to end. After future elections, such a grant of power to politicians is guaranteed to end with results that Trump supporters will not like. Fox News could be targeted during Democratic administrations just as CBS could be targeted during Republican administrations. Selzer, for her part, owned up to her bad call. She has been transparent, showing once again that sunlight remains the best disinfectant. We advise President-elect Trump to bask in the glory of winning the electoral college, the national popular vote, and Iowa – by a country mile. Justice Kagan: Foreign Corporations Don’t Have First Amendment RightsThe U.S. Supreme Court heard oral arguments Friday in TikTok v. Garland, setting the table for a quick ruling – or potentially even an administrative stay, although the Court has already denied such relief once – on the question of whether the government can force China’s ByteDance to divest its holdings in the popular social media platform. Based on the line of questioning from the Justices, the Court seemed inclined to uphold the ban on national security grounds. Chief Justice John Roberts said that the law is “not a burden” on the speech rights of TikTok or its users. Rather, it targets “a foreign adversary … gathering all this information about the 170 million people who use TikTok.” Justice Brett Kavanaugh expressed similar concerns over the future implications of allowing a foreign-owned corporation to gather data about platform users, information that could be used in the future “to turn people, to blackmail people – people who a generation from now will be working in the FBI or the CIA or in the State Department.” Justice Elena Kagan questioned whether speech rights are relevant at all, noting that: “The law is only targeted at this foreign corporation, which doesn’t have First Amendment rights.” Justice Ketanji Brown Jackson seemed to agree, at one point suggesting the platform was “wrong” to rely on ByteDance’s putative speech rights. Freedom of association, Justice Jackson suggested, may be the more plausible legal basis for TikTok’s case. It's never wise to predict where the Supreme Court will land based on questioning during oral arguments. Justices tend to lean into the devil’s advocate role, coming up with difficult questions and often esoteric extrapolations based on the fact patterns at play. Justices Amy Coney Barrett and Neil Gorsuch did just that, with the latter wondering if requiring warning labels about the dangers of foreign data manipulation would suffice to fill the role of “counter-speech” often cited as the best remedy for bad speech. But this particular exercise felt a little more straightforward – possibly due to the abbreviated timeline in which the Justices must render a decision. The divestiture deadline for ByteDance is Jan. 19th – one day before Donald Trump’s inauguration. The once-and-future president, for his part, has asked the Court to hit pause until after he takes office. According to a brief filed on his behalf, he seeks “a negotiated resolution that could prevent a nationwide shutdown of TikTok, thus preserving the First Amendment rights of tens of millions of Americans, while also addressing the government’s security concerns.” Many civil liberties organizations have expressed concern over the forced divestiture of a media platform. It is undeniably a drastic action. Yet the U.S. Court of Appeals for the District of Columbia found that the measure is the result of intense legislative debate in the service of the most compelling of government interests – national security. It’s hard to argue with the national security assessments of Congress, and the high Court is historically loath to do so. True, the Supreme Court might do what the incoming president wants and issue a stay, sidestepping the danger of a sweeping, potentially problematic precedent. Josh Blackman, in a post published on the Volokh Conspiracy, believes that is exactly what the Court will do, particularly given the law’s tight deadline. Or the Justices might, as National Review’s Dan McLaughlin writes, rule narrowly on the national security issue. Taking a position on the connected issue on “covert manipulation” of TikTok’s newsfeed is a sticky wicket with serious implications for domestic platforms, too. In any event, we likely won’t have to wait long to know the Court’s decision – and begin to parse its implications. Mark Zuckerberg, Meta's CEO, announced the company will adopt X standards that reduce the number and grounds on restrictions on speakers and their speech. This new policy will be in effect across Facebook, Instagram, and Meta platforms. Meta will also end its third-party fact-checking program to focus more intently on removing content that is criminal or fraudulent. Jonathan Turley, George Washington University law professor and author of The Indispensable Right: Free Speech in an Age of Rage, writes in RealClearPolitics: “Around the world, free speech is in a free fall. Speech crimes and censorship have become the norm in the West. A new industry of ‘disinformation’ experts has commoditized censorship, making millions in the targeting and silencing of others. An anti-free speech culture has taken root in government, higher education, and the media … “For the free speech community, it [Zuckerberg’s announcement] was like the United States entering World War II to support Great Britain. Where [Elon] Musk stopped the progress of the global anti-free speech movement, Zuckerberg could actually help us regain ground around the world.” On Tuesday, the First Circuit Court of Appeals heard opening arguments in St. Dominic v. Makin, a case that challenges Maine’s renewed attempt to circumvent the U.S. Supreme Court’s ruling in Carson v. Makin. That 2022 opinion should have settled the question of the participation of religious schools in secular programs. It prohibited the exclusion of religious schools from Maine’s tuition assistance program “on the basis of their religious exercise.” But now, Maine has chosen, as we have said before, to go full Confederate in nullifying the authority of the U.S. Supreme Court. Here's the backstory: Maine has a tuition assistance program that for many years allowed parents to use government funds to send their children to the schools of their choice – whether religious or secular. Then, in 1981, the state began excluding religious institutions based on the conclusion that allowing such use violated the Establishment Clause. In Zelman v. Simmons-Harris in 2002, the Supreme Court found that this constitutional interpretation was incorrect. Maine then adopted a new strategy, continuing its exclusionary policy towards religious schools based on the sectarian “use” to which any governments funds might go. Twenty years later, the Court ruled again, concluding that “the prohibition on status-based discrimination under the Free Exercise Clause is not a permission to engage in use-based discrimination.” True to form, Maine pivoted again, this time amending the Maine Human Rights Act (MHRA) to explicitly condition the receipt of state funds by religious institutions on compliance with state non-discrimination policies. The new law’s effect is to ensure that a religious school cannot accept tuition assistance if its beliefs and practices conflict with the state’s take on gender issues like traditional marriage. Under the new law, a religious school cannot express preference in admissions for students of that same religion – a condition that applies to Christian, Muslim, and Jewish schools. They must hire teachers whose views or lifestyles are inconsistent with school beliefs. And they must permit countervailing speech within school walls under a new “religious expression” rule that would require an allowance for “dissenting religious views” – even if those views completely undermine the school’s mission. To borrow a quote from the Becket Fund, which represents the plaintiffs, this is a “poison pill” that continues the tuition exclusion in a different guise. Moreover, it’s an obstinate and cynical ploy that displays contempt for both the high Court and for the rule of law. Maine’s maneuvering has real, harmful impacts on people like appellants Keith and Valori Radonis, who want only to send their children to a school that upholds their beliefs. As we’ve written about many times over, educating your children is among the most fundamental and consequential expressions of speech. Maine’s new policy puts the state squarely between families in need and their free exercise of religion and those beliefs. As Becket explains in its opening brief, the new provisions are patently and quite obviously unconstitutional. First, they violate Carson “by simply re-enacting the same exclusionary practices in a different code section.” They “entangle Maine officials in judging the internal religious practices of religious schools ...” And they “violate the Free Speech Clause because they compel religious schools to speak in ways that are contrary to their beliefs and force them to include speakers who reject the schools’ core commitments.” After Maine moved its exclusion policy to a different code section, one law professor wrote a piece in the New York Times entitled, “There’s a Way to Outmaneuver the Supreme Court, and Maine Has Found It.” Now, the state finds itself back in the principal’s office on the same issue with likely the same result. The First Circuit should find for the plaintiffs, upholding the First Amendment and the rule of law. President-Elect Trump’s Concern for “First Amendment Rights of Tens of Millions of Americans" On Jan. 10 the U.S. Supreme Court will hear oral arguments in TikTok v. Garland to decide whether the First Amendment requires the Court to block the law requiring the social media platform to undergo a forced sale by its Chinese owner, ByteDance, or be shuttered. Many civil liberties organizations have come to TikTok’s defense in recent months, making the point that if the government can silence one social media platform, it can close any media outlet, newspaper, website, or TV channel. And they are right that forcing a private media company to sell or go out of business is a drastic action usually associated with authoritarian rule. President-elect Trump filed an amicus brief with the Court asking the Justices to stay the legislative deadline that falls on Jan. 19, one day before his inauguration. The incoming president wants to be free to negotiate a solution for TikTok that will not require the blunderbuss of a forced sale or closure. His brief seeks “a negotiated resolution that could prevent a nationwide shutdown of TikTok, thus preserving the First Amendment rights of tens of millions of Americans, while also addressing the government’s security concerns.” The president-elect’s brief also contained a nod to the real danger in TikTok’s accumulation of the personal data of its 170 million American users, including 67 percent of U.S. teens. A year-long, bipartisan investigation in the House concluded that TikTok is being used by Beijing to spy on American citizens. The Senate agreed by voting for a bipartisan aid bill that included the “ban-or-sale” measure. The U.S. Court of Appeals for the District of Columbia upheld the law as constitutional, concluding that the measure satisfied strict scrutiny due to the national security necessity of preventing China from secretly collecting the data of United States citizens (and covertly manipulating content, too). As one TikTok official said in a leaked communication, “Everything is seen by China.” As we reported, TikTok also surveils journalists like Emily Baker-White from Forbes. Want a good way to chill speech in America? How about permitting an adversarial nation to spy on reporters and their sources? With such facts in mind, Judge Douglas Ginsburg, who wrote for the court, declared that the law does not violate the speech rights of users. Nor does it necessarily even curb disfavored speech. Judge Ginsburg wrote: “Content on the platform could in principle remain unchanged after divestiture and people in the United States would remain free to read and share as much [People’s Republic of China] propaganda (or any other content) as they desire on TikTok or any other platform of their choosing.” In short, the lower court has held that the First Amendment should not apply to the corporate subsidiary of a hostile foreign adversary. The D.C. Circuit suggests that since the measure is the narrowly tailored result of considered legislative processes in furtherance of a compelling government interest, it can be allowed. The court understands that the government could never ban a media outlet for its content. But could it ban an online website that distributes foreign spyware on the computers of its readers? That’s not so far off from what so many have concluded is happening here. Yet forcing the sale or closure of a media outlet is an extreme measure for any democracy to take. The Court will have much to consider. Stay tuned. On Thursday, the U.S. Court of Appeals for the Sixth Circuit delivered a stinging rebuke to those who believe social media companies should be treated as common carriers. One of those true believers is Tim Wu, former Biden administration advisor and widely regarded as a thought leader of progressive policy. Wu wrote: “Since its activation, the First Amendment has presupposed an information-poor world, and it focuses near-exclusively on the protection of speakers from government, as if they were rare and delicate butterflies threatened by one terrible monster.” Wu’s quote, in which the monster is the government, comes from a 2018 Michigan Law Review piece entitled “Is the First Amendment Obsolete?” In The New York Times more recently, Wu protests that “liberal as well as conservative judges and justices have extended the First Amendment to protect nearly everything that can be called ‘speech,’ regardless of its value or whether the speaker is a human or a corporation.” The implication here, of course, is that we need smart regulators who can spot the difference between speech that has value, and that which should be discarded. Wu also seems to suggest that corporations – collections of humans that can range from ExxonMobil to the ACLU – shouldn’t have First Amendment rights at all. More than anything, Wu’s conceit is that we should live under a noocracy (rule by the supposed wise, as attested to by their Ivy League degrees). Wu advocates reducing large social media companies to common carrier status, to be regulated by the government. This is all relevant today because it was Wu who coined the term “net neutrality,” a set of rules adopted by the Federal Communications Commission to force all internet service providers to give all content in their pipeline the same priority. The Sixth Circuit in Cincinnati bought none of this when it struck down the FCC’s net neutrality rules. The court’s reasoning was prosaic. Under Loper Bright, a recent Supreme Court opinion that limits (Chevron) deference to government agencies, such sweeping rule-making by the FCC would require authorization by Congress. Transforming social media companies into common carriers to be regulated like railroads or airlines is an act that must be rooted in a statute. Congress has passed no law authorizing common carrier status for social media companies or net neutrality. But issues of grand principle were also protected by the Sixth Circuit. First, the court protected the financial model that incentivizes investors to fund companies like Verizon or Comcast to build out and maintain the national networks of fiber optic cable. Without this incentive, there would be no internet to regulate. Second, and most important, if internet companies become common carriers, then the way in which they handle content can also be regulated. The FCC’s rules would have put speech itself in the hands of regulators. And then the one terrible monster truly would be destroying the butterflies. Protect The 1st salutes the Sixth Circuit for a wise decision that protects speech from those who believe they know which speakers have “value” and which ones don’t. Texas is politically poised this year to become the last big red state to adopt a statewide public school choice program. Vince Bielski of RealClear Investigations surveyed the school choice movement in the aftermath of this development and reports that it is now ready to push into blue-state territory. Gov. Josh Shapiro of Pennsylvania is the Democrat most likely to break open the first cracks in the blue wall public teachers unions have erected against school choice. After being compelled to line-item veto a voucher proposal for low-income children, Gov. Shapiro called school choice “unfinished business.” Bielski reports: “The fate of another voucher program [in Pennsylvania] may depend on whether a few Democrats are willing to break with House leadership and risk political payback, according to a veteran of Pennsylvania battles … ‘Governor Shapiro has a chance to deliver on his promise to expand educational opportunity for underserved children,’ said Tommy Schultz, CEO of the advocacy group American Federation for Children. ‘It will require bold leadership to bring House leadership to the table and get it done.’” Opponents of school choice charge that vouchers for private schools will lead to two separate school systems, leading to the defunding of public schools. However, Bielski reports that such programs “have been restricted mainly to lower-income parents who may be dissatisfied with lax discipline and lackluster instruction – problems exacerbated by the pandemic – at their public schools. All told, private choice programs enroll only about 2% of all K-12 students.” That number shows there is both room for competition to inspire improvement among public schools, and much more room for private school choice in states both red and blue. |
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