​Religious liberty had already taken root in America long before the drafting of the U.S. Constitution. In 1649, the Maryland Toleration Act – passed in St. Mary’s City – became a landmark law protecting the free exercise of religion, a harbinger of the guarantees of the First Amendment.

On Saturday, April 18, 2026, that legacy comes alive at Historic St. Mary’s City with a “Free Exercise Walk” and roundtable discussion on why religious freedom still matters today.

At 10 a.m., Protect The 1st General Counsel Gene Schaerr and other experts will lead a discussion at the very site where the Toleration Act was created. They will explore how religious liberty continues to shape American life – from education to public participation – and why it remains essential at a time when religious expression is increasingly contested.

A tour and lunch will follow, offering a chance to reflect on the roots of a freedom too often taken for granted.

The message is simple: religious liberty did not begin with the First Amendment, and it will not endure without vigilance. The principles behind the Maryland Toleration Act still matter – and it is up to each generation to carry them forward.
​
Register here.

​The act of collecting the names of certain faculty members at a university in order to protect them from discrimination sounds like a good idea. But from a constitutional perspective, it can very quickly start to sound like a registration program, and nothing good can come from that.

Yet that’s exactly what’s happening at the University of Pennsylvania, where this month a federal judge ordered the school to turn over the names of Jewish faculty members. The U.S. Equal Employment Opportunity Commission (EEOC) is investigating the possibility of antisemitism and had issued a subpoena requesting the names.

Penn objected on privacy grounds and its decision was supported by the American Academy of Jewish Research and the school’s own Jewish Law Students Association. The Anti-Defamation League is skeptical too, on the basis of unintended consequences: “History has taught us to be vigilant when governments compile lists of people based on religious identity, and we hope that the EEOC’s important work can continue without such a list.”

From a First Amendment perspective, the privacy dangers inherent in the government’s subpoena and the judge’s order trace out a larger trajectory: publishing lists of names is a kind of outing, and that represents a direct threat to associational privacy. Anonymity – the right not to be known – is a particular kind of privacy, one that carves out space for a particular kind of free expression, namely the right to anonymous association.

Disclosure can quickly become exposure in today’s digital world, especially when the environment is as politically and culturally charged and prone to doxing as it is today. 

The order also sounds a discordant historical note.

The government’s request, no matter how well intentioned, is inadvertently contaminated by the most notorious crime in human history, the first stage of which began when the new Nazi government in April 1933 listed and purged Jewish professors from Germany’s universities. 

In this country, recall the Nixon “Jew count” episode of 1971. And lest we forget our Dickens, in A Tale of Two Cities lists were not just administrative tools but instruments of fate, symbols of cold-blooded revenge, and the literal difference between life and death.

At the very least, there is something coarse about such counts. Consider the vintage Saturday Night Live skit in which Tom Hanks played a game show host asking contestants to look at photos of celebrities and to press the buzzer to answer, “Jew or not Jew?” Answers: actor Michael Landon, Jew; then-Defense secretary Caspar Weinberger, not Jew.
​
We applaud the desire of the government to come to the protection of Jews on campus, many targeted by a fierce and vicious upwelling of hate. But a list of Jews on campus is too intrusive, too problematic. We urge the EEOC to find another way to protect Jews and people of all beliefs on campus.

​As Ken Klippenstein reports, the FBI is planning to create a new center to proactively track the social media posts of Americans who may be “domestic terrorists.” The dangers to privacy and the Fourth Amendment associated with such extensive surveillance are obvious. But when one considers the list of proposed categories, George Orwell’s notion of “thoughtcrime” leaps to mind rather than anything resembling actual terrorism.

The FBI’s suspect categories include:

• Three varieties of “anti”: anti-Americanism, anti-capitalism, and anti-Christianity
• Three varieties of extreme: concerning migration, race, and gender
• Three varieties of hostility: toward traditional American families, religion, and morality

It’s a perfectly malleable list, capable of being repurposed according to what antagonizes whoever is in power. Today it’s atheists, agnostics, and Bernie Sanders supporters. (Good thing Thomas Paine, the anti-Christian patriot who helped spark the American Revolution, did not live to fall under suspicion from this list.) But tomorrow the government could just as easily cast suspicion on gun owners or perhaps once again target “radical traditional Catholics.”

According to the budget request that Klippenstein highlighted, airing your opinions on social media seems like the best way to get included in the new database:

“Domestic terrorists exploit a variety of popular social media platforms, smaller websites with targeted audiences, and encrypted chat applications. They use these platforms to recruit new adherents, plan and rally support for in-person actions, and disseminate materials encouraging radicalization and mobilization to violence.”

Terrorists do, in fact, use social media. They also use mobile phones, get around in cars, and eat at restaurants. Similarly, most of us use social media, and often use encrypted apps to protect our privacy. Once again, the government is using the broadest of brushes to make everyone a potential suspect.

In other words, warns Klippenstein, under such a regime we should all be officially “on notice.” The Biden administration had convinced itself that the First Amendment did not protect speech it regarded as disinformation or misinformation. Now the Trump administration is ready to use nebulous categories to render people suspect, from your local atheist to the anti-ICE protester.
​
More than ever before in our history, the federal government seems ready to demonize what citizens think. These are the times that try men’s souls.

Ever wonder where the phrase “Hobson’s Choice” comes from?
 
Thomas Hobson was an Elizabethan-era owner of a large stable in Cambridge, England, with 40 horses. This led new customers to believe they had a choice of mounts. Once they had put down the princely sum of four pounds, they discovered that the only horse they could choose was the one that Hobson had placed in the stable nearest the door. 
 
Hobson would fit right in with the state of Colorado, a repeat offender when it comes to testing the limits of the First Amendment with phony choices, only to get smacked down by the courts. The most-recent smackdown occurred when the Supreme Court ended Colorado’s attempt to control the speech of therapists. The Court’s ruling was 8-1, with a concurrence from liberal Justices Elena Kagan and Sonia Sotomayor.
 
A new controversy out of the state’s court system suggests Colorado hasn’t learned the lesson.
 
Jimmy Sengenberger of The Denver Gazette reports that Colorado’s judicial branch imposed a certification requirement on attorneys using its e-filing system – one that many lawyers say forces them into a compelled statement tied to the state’s policy agenda. It requires them to make a binding agreement – under “penalty of perjury” – that they will not use personal information from the system to cooperate with, participate in, or assist federal immigration enforcement.
 
Attorneys report that they could not access court filings unless they clicked “accept,” even after trying to decline. That puts lawyers in an impossible bind:

• Accept a government-imposed statement they may disagree with

 

• Or fail in their ethical duty to represent their clients

 
In the end, there is no choice. As one attorney put it, his professional obligations forced him to comply – even over his personal objection. That’s not consent. That’s coercion.
 
Compelled Speech, By Another Name

The First Amendment protects not only the right to speak – but the right not to speak. The U.S. Supreme Court has repeatedly held that the government cannot force individuals to endorse messages they do not believe.
 
Yet here, the state conditions access to the courts on agreement with a state-mandated certification. Critics say the rule is “blatantly content- and viewpoint-based,” raising serious constitutional concerns. 

Worse, the statutory authority cited for the rule reportedly does not clearly authorize such a requirement, leaving “considerable ambiguity” about its scope. When the government compels speech without clear authority – and ties it to access to justice – it crosses a dangerous line.
 
Lawyers are officers of the court, but they are also citizens with First Amendment rights. When the state pressures them to adopt specific positions – particularly on politically charged issues – it risks turning advocates into instruments of government policy.
 
Colorado has a choice – to continue down the road of speech control and add another loss to its record, or to finally embrace the principle that in America, the government does not get to script what we say.

When the Founders drafted the First Amendment, they were not writing on a blank slate. They were responding to a long, bitter history of governments punishing disfavored speakers – especially critics of official power.

That history is not abstract. It is the core of a new amicus brief filed by Protect the First Foundation and its co-amici – Neutral Principles and the Center for Individual Rights – challenging four executive orders targeting law firms that have drawn the ire of President Trump. It warns that what is happening now has happened before. And the warning comes with a remedy – the Founders’ gift of the First Amendment to protect speech.

At issue are executive orders that impose penalties on law firms because of the clients they represent, the lawyers they have hired, and the arguments they have made. That is not just politics. It is viewpoint discrimination – government retaliation for disfavored speech and association.

The Founders Knew This Playbook

Long before the American Revolution, English rulers used licensing systems to control who could speak and publish. Printers needed government approval. Critics were denied licenses. Dissenters were punished. And the secret Star Chamber enforced these rules without juries or meaningful safeguards. Its purpose was simple – to punish opposition.

America’s Founding generation saw this clearly. As the brief explains, these systems were “among the very evils they identified as threats to the freedoms they would later enshrine in the First Amendment.” What mattered was not just outright censorship. It was targeted punishment – the government’s ability to choose who could speak and publish, and who could not.

That same dynamic is at work today when the government uses its power to deny contracts, revoke access, or impose regulatory burdens on disfavored speakers.

The Stamp Acts – Regulation as Suppression

The British Crown did not always silence critics directly. Sometimes it taxed them into submission. The Stamp Acts imposed costs on newspapers and pamphlets, especially those used to spread political dissent. Meanwhile, pro-government publications were spared or supported. The result was predictable – critics were marginalized, and government-approved voices flourished.

The Founders understood this as a direct assault on the freedom of the press. As the brief notes, even indirect burdens – when applied selectively – were understood as assaults on freedom. 

That principle matters today. You don’t need to ban speech outright to violate the First Amendment. You can burden it, isolate it, and punish it through the selective use of government power. Witness the attempts by Federal Communications Commission Chairman Brendan Carr and Federal Trade Commission Chairman Andrew Ferguson to punish journalists and commentators.

Or consider the executive orders that would have stripped lawyers of the ability to obtain security clearances, do any kind of business with the government, or enter a federal building – perhaps including a courthouse.

“Seditious Libel” – Punishing the Critics

The clearest historical parallel is the doctrine of seditious libel – the crime of criticizing the government. Under British law, even truthful criticism could be punished. As one formulation had it, “the greater the truth, the greater the libel.”

The colonial trial of John Peter Zenger in 1735 became a turning point. Prosecuted for criticizing a royal governor, Zenger was acquitted by a jury that rejected the idea that government could punish its critics.

The Zenger case underscored for the Founders, who would later write the Constitution, that a government that can punish its critics is a government without limits.

The amicus brief draws a direct line from that history to today, noting that punitive actions against lawyers for representing unpopular clients or advancing disfavored arguments were understood as classic violations of core freedoms. 

Executive Power Was Meant to Be Limited

The danger is compounded when such actions are justified as exercises of executive discretion. The Founders had just fought a revolution against a king who claimed broad, unchecked authority. They determined not to allow any form of Caesarism in their new country.

As the brief explains, the Constitution’s grant of “executive Power” was understood to be narrow – focused on carrying out the law, not creating new authorities and punishing political opponents. Unchecked discretion was not a feature of the new system. It was the very abuse the Constitution was designed to prevent.

The Modern Echo

We have seen in the Biden Administration’s attempts to secretly censor “disinformation” on social media, and now in the Trump Administration’s attempt to punish speech, a return of concepts like licensing regimes, the Stamp Act, and seditious libel in modern form.

The Founders did not trust government – or anyone – to police speech fairly. That is why they wrote a rule, not a suggestion, forbidding the government from abridging the freedoms of speech, press, or association. Full stop.

It doesn’t matter what you think of a journalist, a law firm, or a commentator. An authority that can be used against them can one day be used against you.

If the punishment of speech is allowed to return, the First Amendment becomes not a shield for dissent – but a relic of a freedom we once had.

The Founders saw this danger clearly. The question now is whether we still do.

​The recent consent decree signed by the parties that settled Missouri v. Biden has been hailed by civil libertarians as a “major blow against social media censorship,” signaling that “Free Speech Wins Big in Court.”
 
Kenin Spivak in RealClearPolitics says, “not so fast.”
 
Missouri v. Biden (formerly Murthy v. Missouri) combined lawsuits filed by the attorneys general of Louisiana and Missouri with claims of several leading health care professionals. After a serpentine trip through the courts, including a remand from the Supreme Court to lower courts, the case has ended with that consent decree. Along the way, an egregious pattern of secret government censorship was exposed.
 
Spivak reports that the case revealed that 80 senior Biden officials and at least 11 federal agencies, including the White House, pressured social media companies into censoring conservative speech. Spivak writes:
 
“Underscoring the left’s strange and newly formed view that the First Amendment somehow does not protect ‘misinformation,’ ‘disinformation,’ or ‘malinformation’ (truthful information that nonetheless undermines the approved policy agenda), in 2021, CISA (Cybersecurity and Infrastructure Security Agency) director Jen Easterly claimed that social media speech is a form of ‘infrastructure’ that fell within her agency’s purview, and that Americans should not be allowed to make their own decisions about what is true.”
 
Spivak lists censorship targets that included YouTube’s suspension of The Hill newspaper for posts that included Donald Trump’s speech at the CPAC conference, Sen. Ted Cruz, actor James Woods, The New York Post, the Babylon Bee satirical site, and many more.
 
These facts landed hard in court. On July 4, 2023, federal judge Terry A. Doughty issued a preliminary injunction that blocked numerous federal agencies from communicating with social media companies for “the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.” These included government requests to social media companies to delete posts that were critical of President Biden, gasoline prices, climate change, and social issues.
 
The judge likened the government’s actions to George Orwell’s Ministry of Truth from 1984.
 
One would hope that, in the face of such a massive violation of the First Amendment, the consent decree would arrive like the famous Apple MacIntosh TV ad in 1984, in which an athletic woman hurls a sledgehammer into Big Brother’s screen. Judging from Spivak’s account, the consent decree was more like a hurled paperclip.
 
The consent decree, Spivak writes, is “powerful-sounding pap” in which, for ten years, the Surgeon General, CDC, and CISA will refrain from threatening Facebook, Instagram, X, LinkedIn, or YouTube “with some form of punishment (i.e., an adverse legal, regulatory, or economic government sanction)” to remove or deemphasize protected speech.
 
Not included were other bad actors, including the Department of Homeland Security, the Justice Department, the State Department, and the FBI. The decree does not cover other social media companies or those that may arise in the next decade. It includes vague and easily exploited exceptions for “criminal activity” and “national security” that may leave the named plaintiffs vulnerable.
 
We would add that refraining from threatening is a weak standard – one that fails to account for the reality that in such “jawboning” explicit threats are often unnecessary when government officials issue demands to heavily regulated industries.
 
“The First Amendment and Americans have lost an opportunity that may not recur for a strong permanent injunction that would have been nearly impossible to amend, modify, or avoid,” Spivak writes. “Instead, we got press releases.”
 
Read his full piece here.

​Freedom of expression withers when governments are always watching. Our First Amendment freedoms to think, speak, publish, and worship as we choose are strengthened by the privacy protections of the Fourth Amendment.

For this reason, defenders of the First Amendment have much at stake in the looming reauthorization debate over Section 702 of the Foreign Intelligence Surveillance Act (FISA). This surveillance authority, which Congress enacted to allow the surveillance of foreign threats on foreign soil, has been used extensively by the FBI to conduct warrantless surveillance of Americans millions of times in the last five years.

Section 702 was last reauthorized with a two-year extension in April 2024 under the Reforming Intelligence and Securing America Act (RISAA). It is now up for a reauthorization by April 20. Will the U.S. House reauthorize Section 702 the right way – by installing robust constitutional guardrails? Or will the House choose a “clean” reauthorization – rejecting all reform amendments – and continue to allow Americans’ personal communications to be swept up in a web of warrantless, at-will surveillance?

Protect The 1st General Counsel Gene Schaerr described how disregard of the Fourth Amendment has directly undermined the pillars of the First Amendment in testimony before Congress:
​

• Freedom of Religion: Under Section 702, the FBI illegally searched the communications of religious leaders who applied to the FBI's “Citizens Academy.” The FBI has shown an appetite to spy on the religious, from surveillance of “traditional radical Catholics” to Americans who attend their local mosque. If federal agencies can use collected data to generate comprehensive “religious dossiers” on every American, what’s next?

• Freedom of the Press: The expansion of what is called the “make-everyone-a-spy provision” under RISAA allows the government to force providers of office space, including landlords for media organizations, to facilitate warrantless surveillance. The FBI’s searches of journalists’ and political commentators’ communications have become a recurring practice.

• Freedom of Speech and Political Expression: “Backdoor searches” are another favorite FBI tactic – and when used to illegally surveil presidential campaigns and transitions, they amount to interference in political expression. Not to mention the warrantless search of the communications of 19,000 donors to a congressional campaign. “Political dossiers,” anyone? Better watch what you post on social media.

• Freedom of Assembly and Association: By purchasing sensitive digital data from brokers, the government acquires information that reveals Americans’ political activities and associations. Case in point: The FBI searched (without a judge-approved warrant) the communications of individuals participating in mass gatherings, specifically Black Lives Matter and January 6 protesters.

• The Right to Petition the Government: In a direct affront to citizens interacting with the justice system, the FBI conducted warrantless searches of victims who approached the Bureau to report crimes. The FBI also spied on a state judge who reported suspected civil rights violations committed by a local police chief.

As these examples illustrate, attempted reforms like RISAA in 2024 offered little in the way of meaningful guardrails on Section 702 operations. Congress has one more chance to get this right. The House must legally require government agents to obtain a warrant to search through Americans’ communications, with reasonable exceptions for emergencies.

Given that 80 percent of Congress’s constituents want these changes to become law, it seems like it should be easy. This is the time to reinforce that the “consent of the governed” still matters.

​On Thursday, the Finnish Supreme Court found parliamentarian Päivi Maria Räsänen and Lutheran bishop Juhana Markus Pohjola guilty of “hate speech” for “making and keeping available to the public a text that insults a group.”
 
What was this insidious document? It was a church pamphlet from 2004 in which they upheld traditional views on marriage and criticized homosexuality. Räsänen had later shared this pamphlet on social media.
 
Whether you are an atheist, agnostic, or believer – whether you are straight or gay – there is no place in a free society for what is essentially a secular blasphemy law.
 
Conservative views on sexual relations are held by all the traditional forms of Christianity, Jewish Orthodoxy, Islam, and many traditions within Hinduism and Buddhism. Agree or disagree with those views – criminalizing them, which Finland’s Supreme Court did, means criminalizing the traditional forms of the great world religions.
 
While Räsänen was acquitted of another charge regarding a past tweet, this conviction is no less serious a criminalization of speech and religious liberty – for a church pamphlet!
 
“You can cite the Bible, but it is Räsänen’s interpretation and opinion about the Bible verses that are criminal,” the Finnish state prosecutor told the court. In other words, it is up to the state to determine what is – and what is not – an acceptable interpretation of the Bible.
 
Räsänen, a former Finnish interior minister, physician, and mother of 12, said: “I am shocked and profoundly disappointed that the court has failed to recognize my basic human right to freedom of expression.” So should we all. Räsänen is considering an appeal to Europe’s top human rights court.
 
Such an appeal would only highlight an absurd situation. If Europe declines to hear her case, will it signal that even the speech of Pope Leo XIV is “hateful” and therefore outside the law? The idea that speech should be criminalized because people within a church or some other group hold one view that others find insulting is a never-ending quest for busybody persecution of speakers.
 
Europe, once again, reminds us why we are so fortunate to have the First Amendment, which not only guarantees freedom of speech but also the free exercise of religion – to believe in this doctrine or that, or not to believe at all, regardless of what other people think.
 
Thank you, once again, James Madison.

Can police arrest a journalist simply for asking questions? The U.S. Supreme Court on Monday declined to say “no.”

The plight of journalist Priscilla Villarreal began with her arrest in 2017, with Laredo, Texas, police clearly out to use the law to punish her. She was followed throughout the booking process by police officers, who humiliated her by jeering and snapping pictures of her during the booking process.

What was Villarreal’s crime? She had asked questions.

Under the moniker “La Gordiloca,” Villarreal has amassed a large following for her coverage of events in Laredo on her Facebook page. Her reporting has long irked local officials, from live-streaming Laredo Police Department officers choking an arrestee, to criticizing the Webb County District Attorney for not charging a relative with a crime, despite evidence that the relative had abused animals.

Following up on two stories – a Border Patrol agent who had committed suicide, and family involved in a fatal car crash – Villarreal confirmed the names of these victims with a Laredo Police Department officer before reporting them. Months later, she was charged under a Texas statute forbidding the “misuse of official information.” This law held that it was illegal to solicit information from a public official to obtain a “benefit.”

Under this rubric, any journalist could be charged for seeking to obtain the “benefit” of a scoop.

After a national outcry, these absurd and abusive charges were dropped. But what about the thuggish behavior of the Laredo Police Department? It is often said in law that a right without a remedy is no right at all. Villarreal filed a civil rights lawsuit against the police, seeking damages for her clearly unconstitutional mistreatment.

Villarreal won her case before the Fifth Circuit Court of Appeals, only to lose on appeal before the full bench. That court held that the doctrine of qualified immunity, a judge-created doctrine that shields officials from being held liable for constitutional violations, protected the Laredo police. This shield applies unless officials violate “clearly established law.”

Did that not happen?

When the U.S. Supreme Court refused to grant certiorari in Villarreal’s case, the Laredo Police Department got off scot-free. The First Amendment suddenly became not quite as clearly established as we thought it was.

“It should be obvious that this arrest violated the First Amendment,” Justice Sonia Sotomayor wrote in a dissent, calling the Court’s refusal to take up the case “a grave error.”

Judge James Ho, in Villarreal’s initial win, wrote for the court that “if the First Amendment means anything, it surely means that a citizen journalist has the right to ask a public official a question, without fear of being imprisoned.”
​
We have seen time and again, from the raid of a newspaper by police in Kansas, to arbitrary arrests of people peacefully filming ICE officers, a growing appetite to arrest reporters for doing their jobs. It is only a matter of time before an even more egregious abuse of the First Amendment brings a new test to the doctrine of qualified immunity.

​The Department of Justice had troubling deciding whether to defend the administration’s unprecedented campaign against disfavored law firms or retreat from it. That hesitation betrays something important, that department lawyers recognize just how constitutionally dangerous this effort is.
 
This campaign began with President Trump issuing executive orders to try to punish, if not destroy, law firms in retribution for the political activities of their past associates. When DOJ announced earlier this month that it had decided to drop its appeal of four cases brought by affected law firms, Daniel Barnes of Politico observed that doing so made good legal sense: cut your losses (0-4) and regroup.
 
Which is why it surprised Barnes and nearly everyone else when DOJ announced a day later that the appeal would proceed as originally planned. What's not surprising is the anemic logic of the appeals brief the department ultimately filed that Friday, which not even more than 90 pages of window dressing could cure. 
 
It only takes one court, however, to accept these weak arguments to render them dangerous. There are multiple constitutional threats in play here to the First Amendment. None of these threats was lost on District Judge Richard Leon, appointed by President George W. Bush, when he found for one of the four affected large-law firm plaintiffs last May. He wrote, in an exclamation-point-filled opinion in U.S. District Court in Washington, D.C.:

“The cornerstone of the American system of justice is an independent judiciary and an independent bar willing to tackle unpopular cases, however daunting. The Founding Fathers knew this!”

To let President Trump’s order stand, Leon wrote, “would be unfaithful to the judgment and vision of the Founding Fathers!”
​
Here are some of the most notable flaws in the government’s case that emerged from Judge Leon’s opinion: 
 
Retaliation for Protected Speech: The First Amendment prohibits the government from punishing people for exercising their right to free speech.
 
A law firm representing clients in court is certainly a form of protected expression. Stripping security clearances and restricting access to federal buildings – simply because a president dislikes the causes and clients the firm represents – directly punishes the firm. Pulling security clearances and denying access to federal buildings, including possibly federal courts, is a death penalty for firms that do business in Washington.
 
Curtails the Right to Petition: The Constitution guarantees the right to take grievances to court to resolve disputes, whether in the District of Columbia or the Dakotas. Blocking D.C.-centric lawyers from entering federal buildings is designed to stop those firms from bringing future cases.
 
Viewpoint Discrimination: It is illegal for the government to suppress speech just because it disagrees with the specific opinion or "viewpoint" being shared. The executive orders in question unlawfully weaponize government power to target and threaten the firms specifically because of their legal advocacy and political viewpoints.  
 
Freedom of Association: The First Amendment protects the right of people and businesses to freely associate with one another. The executive orders against the law firms violate this protection by forcing federal contractors to declare if they do any business at all with the named firms, and threatening to cancel their government contracts if they do not sever ties.
 
DOJ’s do-over is more than a bad look – it is a warning. When the government claims the power to punish lawyers for their advocacy, it threatens every American’s right to speak, to associate, and to seek justice in court. The courts, always our last line of defense for constitutional rights, must make it clear – the right to speak and to petition the government is never subject to political retaliation.

What is left is right, and what is right is left – and both are getting it all wrong.

A convergence is taking place between the philosophies of some on the new right and the progressive left that treats social media as a “product” that must be regulated in the best interests of the American people, sweeping aside quaint concerns about the First Amendment guarantee of free speech.

We recently covered attempts by the Trump chairmen of the Federal Trade Commission and Federal Communications Commission to regulate journalism by overriding the First Amendment with appeals to consumer protection and airwave regulation.

This dovetails nicely with a recent New York Times op-ed by Tim Wu – who led the implementation of progressive policies from inside the Biden White House – arguing that social media is “a defective, hazardous product” that must be regulated “as a matter of public health.”

He echoes the reasoning of trial lawyers seeking to hold Meta, Google, Snap, and TikTok liable for harming youth. Wu lists a parade of horribles – “algorithmic recommendations, infinite scroll, auto video play and intermittent reinforcement (in which likes, comments, and refreshed content are rewarded unpredictably rather than consistently).”

Put aside, for a moment, the obvious lack of utility of a social media platform that doesn’t guide users to what they want to see, or that requires manual intervention to get something to play. Wu’s point here is that “the very design of social media is intentionally engineered to create compulsions and habits of overuse, regardless of the content provided.”

He adds: “Lofty platitudes about free speech ring hollow in the face of teenage depression, self-harm and suicide.”

Thus the circle squares, from Trump FTC Chairman Andrew Ferguson, who wants to apply consumer product regulation to Apple News, to Wu, who wants public regulation of social media to make it less harmful.

Wu is, to say the least, less than an ardent defender of free speech. He achieved notoriety with an essay that asked, “Is the First Amendment Obsolete?” (Short answer from Wu: yes.) There is also a more thoughtful side to Wu. He is right that American teens are too absorbed by social media, many dangerously so. But the solution, if there is one, could never come from government control of speech.

Several years ago, Elizabeth Nolan Brown in Reason magazine summed up the problem with blaming all the ills of the world on algorithms – which are, after all, a way to give users control of the content they see. Brown wrote:

“It's no secret that tech companies engineer their platforms to keep people coming back. But this isn't some uniquely nefarious feature of social media businesses. Keeping people engaged and coming back is the crux of entertainment entities from TV networks to amusement parks.

“Moreover, critics have the effect of algorithms precisely backward. A world without algorithms would mean kids (and everyone else) encountering more offensive or questionable content.”

Brown quoted Meta’s former vice president of Global Affairs, Nick Clegg, who said that without the news feed algorithm, “the first thing that would happen is that people would see more, not less, hate speech; more, not less, misinformation; more, not less, harmful content.”

Algorithms pluck what users follow out of a torrent of billions of global messages. Without them, that torrent would hit us all in the face.

For reasons spelled out by Brown, Wu’s idea of turning over algorithmic control – and thus speech control – to law enforcement and trial lawyers has no hope of working. The same is true of the efforts of FCC Chairman Brendan Carr and FTC Chairman Andrew Ferguson to force journalists to adhere to their idea of greater ideological balance.

If either side ever succeeds in putting their schemes into action, they are sure to be disappointed when their controls fail to deliver the intended results. The obvious answer, to them at least, will be that even more control is needed. Then more.

Both ideological extremes are in a race to the bottom. Defenders of the First Amendment must be bolder than ever in declaring that speech is not a product – it is a human right.

We briefly wondered if Brendan Carr, chairman of the Federal Communications Commission, was having a bad day when he threatened ABC if it did not fire late-night host Jimmy Kimmel. “We can do this the easy way or the hard way,” he told a podcaster, suggesting the regulatory options available to the FCC to punish the network.

Carr also used his authority over media mergers to force Paramount into paying a $16 million settlement to the Trump library project. Paramount, then seeking to complete a merger, was forced to settle the president’s nuisance complaint against its CBS News division for how it edited an interview with former Vice President Kamala Harris.

On Saturday, Chairman Carr left no doubt where he stands on censorship – he is for it and he is the would-be censor. He doubled down by threatening to revoke broadcasters’ licenses if they do not stop the “hoaxes and news distortions” about the Iran war. If they want to stay in the good graces of the FCC, Carr wrote that broadcasters must “correct course” and toe the administration’s line or risk losing access to the airwaves.

One can argue that networks have focused too much on the blowback to U.S. actions against Iran. This is perhaps more of a matter of proximity than of bias. It is much more visually compelling to show an Iranian drone strike on the Dubai International Airport than it is to show a map of Iran with an explosion emoji designating a strike on an Iranian airfield.

It is also true that the media is sometimes sensational and biased. Consider the recent story about Defense Secretary Pete Hegseth “blowing” millions of dollars on lobsters and steaks. What was left out in many accounts is that the U.S. Department of Defense has made such expenditures for decades – as an occasional morale booster for deployed troops who often subsist on the preserved food of Meals Ready-to-Eat.

All of these are fair points. Similar criticisms can be made about much of the current war coverage.

But would we be better off if these content decisions were made by the FCC? Is the “public interest” standard of the FCC Act too easily defined as the agenda of whichever party is in power? Would officially sanctioned coverage be more objective or trustworthy? Ask the people of Russia, of China, and of Iran.

The threat in Carr’s message is unmistakable. Some of the strongest objections to Carr’s attempts at censorship come from conservatives. Sen. Ted Cruz, who oversees the FCC as Chairman of the Senate Commerce Committee, likened Carr’s statements to a mobster’s threat – “nice bar you have here… it’d be a shame if something happened to it.”

Conservatives, who were victimized by secret acts of censorship by the Biden administration, should be especially wary. If the power of the FCC to punish networks for content becomes institutionalized, Fox News, Newsmax, and other conservative outlets are sure to be targeted by a future Democratic administration.

We expect Russia to crack down on media for spreading “distortions” and undermining national unity. We do not expect to see the idea of licensed speech in America.

Chairman Carr: the First Amendment protects speech that you find disagreeable, biased, or wrong. It exists to protect all speech and a free press. The government does not supervise or license journalism. Period.
​
Conservatives who were righteously angry about the ham-handed jawboning of the Biden administration should be furious about this far-greater abuse of the First Amendment, and the roadmap it creates for future administrations. These breaches of principle, as Sen. Cruz said, “are dangerous as hell.” They are also profoundly un-American.

Censorship is making a comeback as extremists in both parties try to use the mechanisms of government to shut down the bad speech of all those stupid people who just won’t shut the @#%$*& up!
 
On the left, the Biden administration engaged in an official censorship program by deploying 80 FBI agents to secretly jawbone social media companies into shadow-banning and removing conservative content. It also had a State Department program that quietly funded efforts through a London-based NGO to scare off advertisers from conservative news outlets.
 
On the right, Andrew Ferguson, Chairman of the Federal Trade Commission, apparently determined to leave no bad idea behind, is flirting with censorship by asserting the right of his agency to regulate the editorial decisions of a journalistic enterprise and a media rater.
 
We could credit Ferguson with doing publicly what the Biden administration did secretly. But the brazen, public assertion of FTC authority over private, journalistic enterprises is perhaps the greater danger – one that if accepted by the public and the courts would transform the United States from a First Amendment society into a semi-free, authoritarian country like Hungary.
 
Apple News and Journalistic “Deception”

The previous FTC chair, the progressive Lina Khan, gave a broad interpretation to Section 5 of the FTC Act that empowers the agency to bring legal actions against private actors for “unfair or deceptive practices.” Her predecessors in both parties interpreted this vague authority with modesty, choosing to go after phony claims of cancer cures or the selling of worthless swamp land. Khan used it freely to investigate businesses.
 
But not even Khan asserted that this vague authority gave her the ability to regulate news outlets. That bit of pioneering belongs to Ferguson. He recently fired off a “warning letter” to Apple CEO Tim Cook accusing Apple News of violating its terms of service and the “reasonable consumer expectations of tens of millions of Americans.”
 
Apple News is an aggregator that features content from outlets ranging from Politico to The Wall Street Journal to USA Today. Ferguson accuses Apple News of favoring liberal content while ignoring stories from conservative media – which to be clear, the First Amendment would protect even if true.
 
What about Ferguson’s “terms of service” claim? We pored over the terms of service for Apple News (so you don’t have to) and found that this document eschews any promises about quality, neutrality, balance, or editorial fairness. It’s not even as if its marketing catchphrase is “Fair and Balanced,” or “All the News that’s Fit to Print.” In fact, this document explicitly disclaims responsibility for content accuracy or quality arising from Apple News’s curated, third-party material. And apart from any disclaimer, accusations of editorial slant or an assumed obligation of balance or good judgment ultimately boil down to matters of opinion – of the editors and the readers – not government diktat.
 
Quite simply, Ferguson is attempting to extend consumer protection laws to allow the government to regulate the editorial decisions of a news organization and impose its own editorial slant on organizations it dislikes. That is not consumer protection. It is phony concern about terms of service to promote terms of censorship.
 
FTC Seeks to Ransack the Files of Media Rater
​
The FTC also issued a civil investigative demand related to an antitrust investigation, requiring NewsGuard – a for-profit organization that rates the credibility of news organizations – to produce all its documents. This order includes any documents NewsGuard created or received since its founding in 2018, including reporters’ notes and lists of subscribers.
 
Many conservatives had their suspicions raised when they learned that this business received $25,000 in 2020 from the Pentagon and the State Department to identify hoaxes about COVID-19. On the other hand, as The Wall Street Journal has noted, NewsGuard rates Fox News ahead of MS Now, and National Review above CNN.
 
Of course, even if one thinks it is biased, NewsGuard and its viewpoints are protected by the First Amendment. NewsGuard understandably responded to the FTC’s actions by suing the government for attempted censorship.
 
Regardless of whether you privately agree with Ferguson’s underlying point about overall media bias against conservatives, that is a private opinion for you to make and others to reject. That opinion can control your choices about which media to follow, praise, or criticize, but other individuals get to make those same choices for themselves. Giving the government the means to regulate editorial decisions, and to constrain those choices from on high, guarantees abuse and censorship. Conservatives should be the first to recognize this. If Ferguson’s tactics stick, they will surely be used against conservatives tomorrow just as they are being used against allegedly biased news organizations today.
 
More and more, leaders on the right and the left seem dedicated to living out what Ray Bradbury predicted in 1953 in his dystopian novel, Fahrenheit 451: “There is more than one way to burn a book. And the world is full of people running about with lit matches.”

We don’t usually associate camels with Scotland. Yet the old proverb about the camel’s nose under the tent applies to what nearly happened in the Scottish Parliament in Edinburgh. A legislative proposal before that body threatened to force medical professionals who object to assisted suicide to help end their patients’ lives – or face fines and firings.

The sponsor of the bill allowing terminally ill people to choose suicide added an amendment that removed the “no duty, no detriment” protections for caregivers who have religious or ethical objections to helping a patient commit suicide. It would have forced healers of conscience to either violate their religious or ethical convictions or to potentially lose their ability to practice medicine altogether.

The medical community fought back. The Royal College of Psychiatrists in Scotland protested that its members “could face pressure from colleagues and employers, or be placed in contentious situations without adequate legal backing.” Faced with this backlash, the bill’s sponsor backed down, stripping the provision from the bill.

The issue, however, remains a live one not only in the United Kingdom, but also in the United States.

Four years ago, it took the intervention of a federal court to protect the right of physicians in California to opt out of participating in assisted suicide when they have religious or ethical objections. This was made necessary by a clause in California law providing that, while doctors were not required to assist, they were required to “document” a patient’s request to die and to “educate” that patient about the procedure and its prescribed pharmaceuticals.

In other words, even physicians who refused to take part in the act itself were still compelled to facilitate it.

A federal judge sided with the Christian Medical and Dental Association, issuing an injunction preventing California from forcing physicians to participate in these aspects of assisted suicide. The court based its ruling on the provision’s likely violation of the physicians’ First Amendment right to the free exercise of religion.

Such laws – whether compelling assistance in assisted suicide or abortion – force healers to choose between their deepest convictions about life and their ability to practice medicine. Wherever one stands on these contentious moral questions, the idea of forcing physicians or other healthcare workers to participate against their conscience is a grave violation of their constitutional rights. It is no less offensive to liberty than trying to compel an atheist to take part in a religious ceremony.

Like many bad ideas, this one has a way of returning in new guises – through legislation, regulatory mandates, or quiet amendments buried in complex bills. It is also entirely unnecessary. In jurisdictions where assisted suicide or abortion are legal, there is no shortage of providers willing to provide these services.

The Scottish law, once passed, will be reviewed by the Labour government in Westminster, which may or may not clarify, modify, or perhaps restore the deleted provision. That review will determine whether this camel keeps its nose outside the tent – or pushes further in.

In the United States, at least, we can be grateful that federal courts rely on the ultimate backstop: the First Amendment.
​
But constitutional rights survive not only in letter, but in practice, when people insist on them. And the continuing push to compel participation in procedures that violate conscience suggests this fight is far from over.

The Bill of Rights, the first ten amendments to the U.S. Constitution, has an underlying architecture in which each principle and right rests on – and reinforces – the others.

We hope that when the U.S. Supreme Court considers Chatrie v. United States, the Justices will see that surveillance, privacy, and expressive freedom are all facets of human liberty. At stake isn’t merely the correct application of the Fourth Amendment’s warrant requirement – that a neutral magistrate must find probable cause and specify the persons or places to be searched – but also the very conditions under which Americans can think, speak, and publish freely.

In Chatrie, the question is concrete: whether a geofence warrant – a broad data dragnet that compels companies to disclose the location information of all devices within a specific place and time – satisfies the Fourth Amendment. But the constitutional implications extend to conditions essential for our First Amendment freedoms to flourish.

Why the Supreme Court Should Not Try to Untangle Americans’ First and Fourth Amendment Rights

In an amicus brief, the Project for Privacy and Surveillance Accountability (PPSA) urges the Supreme Court to rein in geofence warrants. PPSA explains that these are “digital general warrants” incompatible with the Constitution because they invert the Fourth Amendment’s core design. Instead of naming a person or place based on individualized suspicion, they authorize the government to sift through massive data sets to identify potential suspects after a crime has occurred. This practice is not targeted policing. It is suspicionless data mining. 

These “reverse warrants” are consequential for more than location privacy. The same digital dragnets now being used to capture location data are being deployed in other contexts – keyword warrants, genetic data searches, and other forms of “reverse” searches that sweep up innocent Americans’ information merely because they intersected with a place, word, or characteristic.

The chilling effect is real – when people know that their movements, associations, or digital footprints can be turned over to the government without particularized cause, they think twice before seeking information, attending meetings, joining protests, or talking to journalists.

Thus, the Fourth Amendment’s privacy protections are not some narrow procedural right that disappears in the face of convenience. A world in which the government can collect comprehensive data about who attended a political rally or who was near a place of worship at a given time – without a warrant – is a world in which expressive liberty is chilled.

The Chatrie First Amendment Amici Make This Connection Explicit

The amicus brief filed by the Reporters Committee for Freedom of the Press, the Knight First Amendment Institute at Columbia University, and the Foundation for Individual Rights and Expression (FIRE) drills down on the point that Fourth Amendment privacy protections are also about protecting the informational foundations of a free society.

“Few investigative tools are more invasive than those that allow government to identify who met with a reporter,” Mara Gassman of the Reporters Committee for Freedom of the Press said in a statement. “There are longstanding safeguards designed to prevent law enforcement from intruding on confidential newsgathering because those intrusions endanger sources and impair public interest reporting.

“Dragnet location searches bypass those protections and threaten the independence of the press far beyond a single investigation,” Gassman said.

Without the Fourth Amendment’s requirement for particularized description of the targeted person or place, sweeping digital dragnets become the default – location data, communications, browsing behavior, social associations, and even journalists’ sources become vulnerable.

And when that happens, the law becomes a tool for monitoring who is where, talking to whom, and concerned about what. Even the perception of surveillance can dampen speech. When combined with the real potential for government access to rich troves of data, the effect is even greater.

The Constitutional Order Must Be Preserved

The Founders tied the First and Fourth Amendments together because a free society depends on privacy from arbitrary governmental intrusion and liberty of thought, speech, and press. When courts dilute the requirements for probable cause and particularity – as the Fourth Circuit did in Chatrie – they undermine that constitutional order. 
​
Chatrie presents the Supreme Court with a chance to reaffirm the Fourth Amendment’s historic protections and avoid acquiescing to a surveillance state.

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:
​
“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.
​
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.
​
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.