​The recent decision by the South Carolina Supreme Court striking down that state's school voucher program has dealt a harsh blow to families seeking educational freedom. The court found that the Education Savings Trust Fund Act, which allowed low-income families to use state-provided scholarships for private school tuition, violates the South Carolina Constitution’s prohibition against using public funds for the “direct benefit” of private educational institutions.
 
The decision leaves families using the program to send their children to private, often religious, schools, scrambling to find alternatives after their financial support was cut off mid-school year. David Warner, a South Carolina dad, described the ruling as “a kick in the stomach,” knowing he now has to tell his son they can no longer afford the school he loves.
 
The court's ruling reflects a broader issue rooted in South Carolina's constitution, particularly its “Blaine Amendment.” This amendment, originally crafted in the 19th century to promote anti-Catholic bigotry, blocks access to educational choices for families of all stripes, religious or otherwise. The consequences are far-reaching; they limit the ability of parents, especially those with modest means, to choose a learning environment that aligns with their values.
 
Sen. Tim Scott (R-SC), a vocal advocate for school choice, has called school choice the “civil rights issue of our time.” His words resonate with many South Carolina families who view school choice not just as an educational policy, but as a step toward opportunity and empowerment. For many, the local public school might not provide an environment for their children that allows for the transmission of their values. Such schools are often not even safe.
 
Protect The 1st Foundation, in our amicus brief, told the South Carolina Supreme Court:
 
“The Educational Scholarship Account program serves many public purposes. It promotes the exercise of First Amendment-protected religious and speech rights by enabling families who could not otherwise afford to do so to choose among a wide variety of schools and find those that align with their own varied beliefs and values, and that provide an educational environment in which their children will thrive consistently with those values.
 
“It is no surprise, then, that the data show that school choice programs like the one challenged here lead to higher graduation rates, better test scores, and greater civic engagement – not only for students who receive scholarships through the program, but also for students who choose to remain in public schools.”
 
For now, the court’s decision has closed the door on a program that gave 5,000 students a chance to explore other educational opportunities. Yet, while the court acknowledged there is public demand for school choice, it also pointed out that any change must come from amending the state constitution.
 
The good news is that amending the state constitution presents a path forward for advocates of educational freedom. South Carolina has amended its constitution 100 times since 1974, including twice in 2022. This shows that the people have the power to enact change when there is sufficient public will.
 
Although the ruling has halted the current school choice initiative, it has also energized its supporters. South Carolina’s history of constitutional amendments suggests that restoring educational freedom is achievable. Advocates should now focus on amending the state constitution, removing the outdated Blaine Amendment, and ensuring every parent, regardless of income, can choose the best educational path for their child.
 
As Sen. Scott rightly points out, the power to choose a quality education should not be a privilege but a fundamental right for all families. Now is the time for South Carolinians to act and make their voices heard.

​The U.S. House recently passed the End Woke Higher Education Act. This bill, part of the GOP’s broader push against ideological bias, aims to limit increasingly Orwellian Diversity, Equity, and Inclusion (DEI) control over speech and hiring in higher education. It passed by a 213-201 vote and now faces a tough battle in the Democratic-controlled Senate.
 
This bill would regulate the role accrediting bodies play in determining whether colleges qualify for federal funding. Currently, accrediting organizations often require institutions to align with certain DEI initiatives to maintain their status. The End Woke Act would block these requirements, ensuring that schools don’t have to adhere to any political or ideological viewpoint to stay accredited.
 
We ask: Why should private accrediting bodies have such influence over public funding in the first place? Accreditation has become a bureaucratic tool, often favoring particular ideologies. The government should not outsource funding decisions to external organizations, much like courts and legislatures should not be beholden to the advice of the private American Bar Association.
 
The bill also incorporates the Respecting the First Amendment on Campus Act, which takes cues from the University of Chicago’s 2014 principles on free speech. These principles emphasize that universities should be arenas for open debate, where no idea is off-limits, even if offensive to some. This legislation would require colleges to disclose their free speech policies and ensure students and faculty are aware of their rights to free expression.
 
However, we must also be cautious about how such attempts to liberate speech can wind up restricting it. Florida’s Stop WOKE Act is an example of how well-intentioned laws can overreach. Its broad restrictions on how race and gender can be taught in higher education have made professors afraid to even discuss certain topics. This same chilling effect could result from overly detailed regulations in the End Woke Act.
 
This bill commendably opposes political litmus tests in hiring and promotion. In recent years, some colleges have required applicants to submit statements affirming their commitment to DEI as part of the hiring process. The result is that faculties in the humanities are monolithically left-wing. The bill seeks to ban such requirements, arguing that they suppress intellectual diversity. Protect The 1st agrees. Whether someone supports or opposes DEI or any other political or partisan stance should not determine their eligibility for academic positions.
 
Any ban on litmus tests, however, that restricts the free associational choices of private colleges and universities, as opposed to public institutions, undermines rather than promotes First Amendment rights. This is true even if it is done in the name of promoting First Amendment values. A private Catholic university should have the right to hire faculty who uphold its religious values. Similarly, a private liberal arts college committed to the Constitution, or a private sustainability-focused institution, may want professors who actively promote these ideals. There is little overlap between the communities of Hillsdale and Oberlin colleges. This bill could prevent such schools from ensuring faculty align with their institutional identities and core missions.
 
This last point gets to a serious shortcoming in this legislation. It uses access to federal funds to impose these rules on private universities and colleges as well as public ones. Those who want to use these strings to outlaw “woke” instruction in private institutions of higher learning are paving the way for government to dictate instruction of all kinds, including religious schools. If this approach were to become law, you shouldn’t be surprised if some future administration tells a Catholic college that its teachings on traditional marriage or abortion are not allowed. Once you meddle with speech, you create a weapon that can be pointed in any direction.
 
We applaud the thrust of this bill – absurd ideological demands, like requiring DEI statements, are anathema to academic freedom. However, there has to be a better way to restore ideological diversity to the academy than to give the government the power to approve curricula and compel instruction at private universities.
 
We urge the bill’s authors to return with a more targeted approach to opening public institutions of higher learning to true intellectual openness and vigorous debate on wide-ranging ideas.

​Boise State University is on the hook for $4 million in damages after a jury found the school liable for violating a coffee shop owner’s First Amendment rights. It’s another in a trend of free speech verdicts at higher-education institutions, and a reminder of just how expensive suppressing speech is becoming.
 
The lawsuit, resolved last month, stemmed from a controversy surrounding a business called Big City Coffee, which opened its doors at Boise State in September 2020 in the wake of the George Floyd protests. After opening, the shop’s owner – then engaged to a former police officer paralyzed from a gunfight with a fugitive – displayed a “thin blue line” sticker near the door to her establishment.
 
It was not, to say the least, well received by all.
 
Soon, students angry from the summer’s heated discourse turn their discontent on the small display of police support. This ignited social media back-and-forth that – according to accounts – quickly snowballed into acrimony. One student posted on Snapchat: "I hope y’all don’t go there if you truly support your bipoc peers and other students, staff and faculty.” When the shop’s owner saw the post, she responded with an explanation for her support of the police. So far, both sides had exercised their rights to free speech under the Constitution.
 
Them the university got involved. The details of the discussions that took place between the coffee shop and the university are disputed. What’s undisputed is that the coffee shop’s contract with Boise State was terminated. The owner sued, and a jury found in her favor, awarding $3 million in compensatory damages and another $1 million in punitive damages.
 
This case in Boise recalls another not-too-distant controversy concerning Oberlin College, in which students and administrators boycotted a local bakery after an employee there caught a student attempting to shoplift bottles of wine.
 
In that instance, Oberlin officials joined with students in protest outside the bakery, where flyers distributed among the crowd accused the store of being a “RACIST establishment with a LONG ACCOUNT OF RACIAL PROFILING and DISCRIMINATION.”
 
A jury sided with the boycotted business in the Oberlin case, too, finding the university liable for intentional infliction of emotional distress, intentional interference with a business relationship, and libel. The verdict included a whopping damages figure of $36.5 million. (The shoplifter, for what it’s worth, pled guilty.)
 
Recognizing that such disputes are often of a “(s)he said, they said” nature, it’s clear that it doesn’t often pay for a university to take sides against local businesses, particularly when facts are at issue, or the situation is subject to enflamed passions.
 
Higher education institutions must tread carefully in such cases, which is why many colleges and universities are now adopting viewpoint neutrality policies which prohibit administrators from speaking out on issues of public concern that don’t directly implicate university functions.
 
When universities are confronted with controversy, their best course of action is to stand back, do what they can to ensure safety, and let others do the talking. Being an arbiter of social justice can be costly.

​A new longform piece from ESPN documents the story of Anna Wolfe, whose Pulitzer Prize-winning reporting revealed a $77 million welfare scandal involving former Mississippi governor Phil Bryant and former NFL quarterback Brett Favre. Shortly after Wolfe’s Pulitzer win, Bryant sued the reporter and her paper, Mississippi Today, for defamation – demanding in the process the release of all confidential source material.
 
The story in question details how Bryant played a role in a program that misallocated state funds intended for welfare recipients. Those dollars ended up in a variety of business and sporting venues, with much of the money going to Favre’s concussion drug company and a volleyball facility at his alma mater.
 
In May, a circuit court judge ordered Mississippi Today to hand over privileged materials as part of the discovery process. Wolfe and her co-defendant fellow employees refused and are now appealing to the Mississippi Supreme Court.
 
This is set to be a case of first impression in Mississippi, which is one of the few states in the country without a formal “shield law” that protects reporters from giving up confidential sources. Such protections are critical for newsgathering efforts, enabling whistleblowers to come forward and helping journalists bring to light malfeasance and hidden crimes that otherwise would have continued.
 
Defamation suits like Bryant’s, meanwhile, can slowly drain the coffers of small papers that may not be able to afford protracted legal battles – even where the claims are baseless. As the Committee to Protect Journalists wrote about this case:
 
“Defamation, whose purpose is to protect an individual’s reputation from false statements, is being weaponized globally to shield powerful individuals from criticism. Legal attacks on journalists – often dubbed lawfare – are often effective in compromising their safety, silencing public interest reporting, and eroding trust in the press.”
 
We hope that the Mississippi Supreme Court will enshrine a precedent protecting the notes and sources of journalists. The state legislature should follow up by passing statutory protections for reporters’ sources, with reasonable exceptions for emergencies.
 
Reporters run such risks at the hands of federal prosecutors, similarly unrestrained by the lack of a national press shield law. Many journalists have faced the prospect of being sent to prison for refusing to expose a source. Most recently, famed journalist Catherine Herridge is at risk of facing prison for refusing to betray a source.
 
This is why Protect The 1st advocates for the passage of the Protect Reporters from Exploitive State Spying (PRESS) Act, passed by the U.S. House, which establishes protection for reporters and their sources against federal prosecutors and other federal actors.

​The First Amendment ratified first for a reason. The founders recognized that the right to speak, free of government interference, is the foundational rule of a democracy. Before anything else, free speech is the one principle that all Americans should know – and cherish – by heart.
 
That many Americans don’t understand the First Amendment is regrettably not surprising, given the erosion of what used to be called civics education in our public schools. What is shocking is how America’s political leaders – tasked with defending the Constitution – are showing a lack of basic understanding of the First Amendment.
 
In the vice-presidential candidates’ debate, Gov. Tim Walz told his opponent Sen. J.D. Vance: “You can’t yell ‘fire’ in a crowded theater. That’s the test. That’s the Supreme Court test.” Too bad J.D. Vance, Yale Law School graduate, didn’t take the opportunity to correct this widespread misperception.
 
Gov. Walz’s reference came from an opinion written by Justice Oliver Wendell Holmes in Schenck v. United States, which upheld the conviction of one Charles Schenck under the Espionage Act for distributing flyers appealing to draft age men to resist induction into World War One. Justice Holmes upheld the man’s conviction. In peacetime, Holmes wrote, such criticism can be allowed. In wartime, however, criticizing the government of the United States is akin to his metaphor of “falsely shouting fire in a theater.” (Popular imagination later added “crowded” to this quote. Sixties activist Abbie Hoffman offered his own memorable twist, defining free speech as having the right to “shout ‘theater’ in a crowded fire.”)
 
Thus, Justice Holmes declared, opposition to America’s war effort justified “a clear and present danger” test for speech. Schenck went to prison and criticism of the war became a crime.
 
Gov. Walz seems unaware that in 1969 the Supreme Court in Brandenburg v. Ohio overturned this “clear and present danger” test. It narrowed the exception to language meant only to direct or incite “imminent lawless action.”
 
The Brandenburg standard protects all speech – even what any fair person would call “hate speech” – so long as it does not call for imminent violence.
 
Another remark from John Kerry, former U.S. Senator and Secretary of State, also garnered a lot of criticism about the need to “curb” some media entities. He told an audience at the World Economic Forum: “But look, if people only go to one source, and the source they go to is sick, and, you know, has an agenda, and they’re putting out disinformation, our First Amendment stands as a major block to the ability to be able to just, you know, hammer that out of existence.”
 
Some have defended Kerry by saying he was merely explaining to an audience with foreigners that the First Amendment prevents the government from blocking disinformation, in this instance about climate change. TechDirt’s Mike Masnick writes: “He appears to be explaining reality to a questioner from the audience who wants to suppress speech.” Perhaps. But then Kerry immediately pivoted to the need to “win the ground, win the right to govern, by hopefully winning enough votes that you’re free to implement change.” What else could that mean but a landslide election that could justify government “hammering” unapproved speech out of existence?
 
Finally, there is Donald Trump. In the recent presidential debate, ABC News factchecked Trump, but not Vice President Harris. Still, Trump’s response to this biased treatment gives us pause. Donald Trump said of ABC News: “To be honest, they’re a news organization – they have to be licensed to do it. They ought to take away their license for the way they did that.”
 
No, no and no. No, you don’t have to have a license to be a news organization. All you need is a printing press or a broadcast studio. No, ABC News does not need a broadcast license – the FCC grants those to local stations, not to networks. And no, you cannot punish a news organization for legal content.
 
Politicians of all stripes need to understand that biased reporting, hateful comments, and “disinformation” are all protected speech. There is no “they” who can take away someone’s license to speak. And any attempt to regulate social media content that is or is not “disinformation” is to inevitably create a Ministry of Truth.
 
The generous space the First Amendment leaves for speech still allows laws that curb incitement to violence, defamation, false advertisement, and obscenity. For almost two and half centuries, Americans have left it to juries to decide such cases within strict guidelines. Let’s leave it that way.
 
In the meantime, perhaps all candidates for federal office would do well to check out this excellent video from Publius No. 86.

​An odd fellows coalition of left-wing supporters of Israel and Palestinians succeeded in forcing an Israeli lawmaker to retreat to Zoom to complete his remarks before the UC Berkeley School of Law.
 
The target was Simcha Rothman, a controversial right-wing member of Israel’s Parliament, who was invited to the law school as a guest of the conservative Federalist Society. Rothman had become a partisan lightning rod in Israel when he proposed a bill to give the Knesset greater oversight over Israel’s judicial system.
 
When Rothman tried to speak at Berkeley, he was hit with a barrage of criticism in Hebrew from members of UnXeptable, a group of liberal Israelis expats. He was next interrupted by a group of pro-Palestinian hecklers. The two groups turned on each other, heckling and jeering across the room. Rothman was rushed out of the room by security. Those who had reserved tickets to attend the event had to go home and watch Rothman on Zoom, losing a chance for personal interaction with the speaker.
 
Erwin Chemerinsky, dean of UC Berkeley law school, is no stranger to such controversies. In April, we reported on his ejection of protestors who mistakenly had imagined they had a right to disrupt a private dinner in the dean’s home. Dean Chemerinsky told the media that any students who were part of the disruption of Rothman’s talk would be punished. “It cannot be in an academic institution that we only hear those messages that aren’t shouted down,” he wrote.
 
We applaud Dean Chemerinsky’s willingness to deal with such a mess afterwards. But we respectfully suggest that campus security would be better used to remove the disruptors rather than the disrupted from the room. That is really the only way the heckler’s veto is going to stop.

​The University of Pennsylvania is punishing law professor Amy Wax with suspension and half-pay for her off-campus speech.
 
Wax has reportedly said in a podcast interview that “as long as most Asians support Democrats and help to advance their positions, I think the United States is better off with fewer Asians and less Asian immigration.” She also reportedly said that “Given the realities of different rates of crime, different average IQs, people have to accept without apology that Blacks are not going to be evenly distributed throughout all occupations. They’re just not, and that’s not a problem. That’s not due to racism.”
 
Wax is certainly provocative to a fault. Some see her statements as Socratic provocation, others as racist. For these infractions in her speech outside of the classroom, Wax has been given that one-year suspension at half pay as well as stripped of an academic chair in her name.
 
What is our take? Let us quickly admit that our ideal law professor would not be such an academic version of Don Rickles. But two things bother us about this case.
 
First, does academia deal with troubling remarks with an even hand? Would anyone in today’s academy have raised an eyebrow if Wax had instead said that America has too many Jews influencing U.S. foreign policy? Or if she had called for the end of Israel, as some professors have done?
 
Compare Wax’s treatment to that of Carol Christine Fair, the Georgetown law professor who in 2018 called for conservative Supreme Court Justices to die “miserable deaths” while being laughed at by feminists as “they take their last gasp.” Fair called for the dead Justices to then be castrated and to have their corpses fed to swine. Fair tweeted that she was merely trying to provoke thought by making people “UNCOMFORTABLE.” Georgetown reacted by dispatching Fair on an international journey for “university research” while things cooled down. Fair is now back teaching at Georgetown’s School of Foreign Service where, presumably, she is not making the men in her class UNCOMFORTABLE. By comparison, after scholar Ilya Shapiro issued an ill-worded tweet about President Biden considering only black women to fill a Supreme Court seat.
Georgetown responded by squeezing out Shapiro for an offer to lead the Georgetown Center of the Constitution.
 
Secondly, the principle of academic freedom should confer broad protection for speech outside of the classroom. The Academic Freedom Alliance recently warned against the dangers of this kind of “selective protection of academic freedom” and urged Penn not to sanction Wax. We agree. Penn’s Statutes of the Trustees permits discipline for “flagrant disregard of the standards, rules, or mission of the University, or the customs of scholarly communities.” The Statutes also say that “when speaking or writing as an individual, the teacher should be free of institutional censorship or discipline.” Wax’s provocations should fall well outside of the university’s wide standard.
 
Such controversies highlight the need for university and college leaders to quit hiding behind their desks and be bold in standing for free speech and academic freedom – even when it means defending the disagreeable.

​The Customs and Border Patrol (CBP) has little respect for the Fourth Amendment. From international airports to border stations, Americans returning from abroad often fall prey to the routine CBP practice of scanning their laptops, mobile phones, and other digital devices without a warrant.
 
As if that were not enough, CBP also scans people’s faith, violating their First Amendment rights as well.
 
Consider the case of Hassan Shibly, a U.S. citizen and student at the University of Buffalo Law School. When he returned to the United States in 2010 with his wife, a lawful permanent resident, and their seven-month-old son, from a religious pilgrimage and family visit in the Middle East, Shibly was taken aside by CBP agents. A CBP officer asked him: “Do you visit any Islamist extremist websites?” And: “Are you part of any Islamic tribes?” And then the kicker: “How many gods or prophets do you believe in?”
 
Other returning Muslim-Americans are interrogated about the mosques they attend, their religious beliefs, and their opinions about the U.S. invasion of Iraq and support for Israel. One New Jerseyan, Lawrence Ho, attended a conference in Canada and returned to the United States by car. He was asked: “When did you convert?” Ho does not know how the agent knew he had converted to Islam.
 
A group of Muslim-Americans, fed up by this treatment, are now being represented by the American Civil Liberties Union in a suit before the Ninth Circuit Court of Appeals against CBP for civil rights violations. The plaintiffs are correct that subjecting Americans to deep questions about their faith – as a condition to reentry to their home – violates their First Amendment rights, as well as the Religious Freedom Restoration Act (RFRA).
 
Ashley Gorski, senior staff attorney with ACLU’s National Security Project, said that “this religious questioning is demeaning, intrusive, and unconstitutional. We’re fighting for our clients’ rights to be treated equally and to practice their faith without undue government scrutiny.”
 
To be fair, CBP has its work cut out for it when it comes to screening the border for potential terrorists. And we should not avert our eyes to the fact that there are sick and dangerous ideologies at work around the world. But we are also fairly confident that actual terrorists would not be stumped by the kind of naïve and unlawful interrogations CBP has imposed on these returning Americans.
 
Heavy-handed questions about adherence to one of the great world religions doesn’t seem to be a useful security strategy or a demonstration that our government is familiar with its own Constitution.

A troubling update in Mahmoud v. Montgomery highlights the continued disregard for parental rights and religious freedom as Montgomery County Public Schools (MCPS) in Maryland persists in refusing to allow religious parents an opt-out for their children being exposed to sexually charged materials. Recent statements from school board members during public meetings reveal personal hostility toward the religious traditions of many parents.
 
In one striking exchange, Board Member Lynne Harris dismissed a parent’s objections to forced participation in the curriculum, saying the parent’s position was ‘just telling that kid, ‘here's another reason to hate another person.’” Couldn’t a dismissive statement like that count as “another reason to hate another person?” This kind of rhetoric doesn't just shut down dialogue – it delegitimizes parents’ deeply held religious values.
 
Even more egregious was Harris’s comment to a Muslim student who voiced her discomfort with the LGBTQIA+ content for conflicting with her faith. Harris said she “felt kind of sorry” for the student and went so far as to speculate whether she was “parroting [the] dogma” of her parents. The disdainful tone and dismissal of a young student's sincere religious beliefs underscore the problem – MCPS is not merely advocating for inclusivity. It is actively marginalizing the religious convictions of those who dissent from its progressive agenda.
 
Beyond the disrespectful treatment of religious families at these meetings, MCPS also took actions that restrict open participation in the democratic process.
 
When Foldi v. Montgomery County plaintiffs Matthew Foldi and Bethany Mandel, who write on education issues, sought to attend the June 27th school board meeting to cover and protest the curriculum, they were turned away. Foldi, a journalist, was barred from entry despite identifying himself as a reporter. Denying media access to a public meeting where major decisions were being made, including the denial of parental opt-out requests, raises serious First Amendment concerns. Such restrictions erode the public’s trust in the transparency of their government institutions.
 
No less troubling is MCPS's action toward dissenters in the digital space.
 
In the lead-up to the June 27th meeting, Mandel was blocked from the “@MCPS-StaffPRIDE” social media account, which had been used to share content and events related to instruction on sexuality. Blocking Mandel from viewing or engaging with the account, which is run by staff linked to the school, prevented her from participating in public discourse around the very topics the school board was debating.
 
A Maryland judge upheld the right of the school district to exclude Foldi and Mandel from the meeting, since they had missed a sign-in cutoff. Such a rule was permitted since it was viewpoint neutral. But the court found MCPS was in error when it blocked them from an official social media account.
 
Protect The 1st Legal Advisor Eugene Volokh observes: “The Supreme Court's Lindke v. Freed decision held that individual officeholders sometimes act in their private capacities when maintaining a social media page, and thus aren't constrained by the First Amendment in deciding whom to block from that page. But it left unaffected the lower court cases that have held that when government bodies maintain social media pages, they are indeed constrained by the First Amendment and may not block readers and commenters based on viewpoint.”
 
There is a troubling pattern of disregard for the First Amendment within MCPS. No one is trying to cancel its educational materials. The issue is that religious families are being denied an opt-out option for highly sexualized material. This infringement is made worse by a broader silencing of dissent, in person and online.
 
At the heart of this story is the right of parents to weigh in on how education impacts their religious traditions, as well as the right of citizens to speak out on matters of public concern. MCPS’s actions, both in its meetings and online, reflect a broader pattern of encroachment on First Amendment rights that should alarm everyone, regardless of their views on the underlying issues.
 
Protect The 1st will continue to monitor this story.

Last week, the U.S. House Ways & Means Committee passed the Educational Choice for Children Act, which provides tax credits for charitable donations to Scholarship Granting Organizations that would allow children from low-income families to attend private or religious K-12 schools.
 
Simply put, this bill would allow millions of American children to attend the highest-quality, most suitable school that serves the First Amendment rights of their families by aligning with their values.
 
We urge you to contact your U.S. Representative through this link with this message:
 
“Please call for a House vote this week on the Educational Choice for Children Act (ECCA), bill # H.R. 9462, and give it your vote and strongest support.”

​Most state constitutions allow for the issuance of Executive Orders (EOs) only for disasters and emergencies, but not to create policies. The reason is obvious – such orders are not passed by the people’s elected representatives, or easily subjected to judicial review.
 
A change of policy by EO is an especially harmful path when it skirts constitutional boundaries. But that’s the case with an executive order issued by Gov. Josh Shapiro (D) of Pennsylvania, who penned new restrictions prohibiting public employees from engaging in “scandalous or disgraceful conduct, or any other behavior, on or off duty, which may bring the service of the Commonwealth into disrepute.” The revision not only invokes conduct but speech, as the governor’s introductory recitals make clear.
 
Banning “scandalous or disgraceful” conduct is vague to the point of unenforceability – which the Foundation for Individual Rights and Expression (FIRE) pointed out to the Shapiro administration back in August. In a letter to the governor’s office, FIRE stated:
 
“The executive order and management directive violate the First Amendment because they unduly limit employees’ right to speak as citizens on matters of public concern, discriminate against speech based on viewpoint, and fail to give employees adequate notice of what speech is prohibited.”
 
Indeed, while government employers are within their rights to oversee employees’ on-the-job speech, government employees still retain First Amendment rights in their private lives – particularly on matters of public concern (whether the election, the Middle East conflict, or the guilt or innocence of Sean “Diddy” Combs).

Applying the Supreme Court’s decision in United States v. National Treasury Employees Union, in order to regulate an employee’s speech, the government “must make two showings: first, that it has identified ‘real, not merely conjectural’ harms; and second, that the ban as applied […] addresses these harms in a ‘direct and material way.’” Obviously, “scandalous or disgraceful” conduct is conjectural in the extreme – not to mention subject to the whims of unelected bureaucrats. The new order is neither narrowly tailored nor viewpoint neutral. To add a touch of hypocrisy, any number of elected officials at the state and federal level cannot clear the scandalous or disgraceful standard.
 
Unfortunately for all parties – especially the thousands of government workers in Pennsylvania prospectively targeted by this EO – the Shapiro administration failed to respond to FIRE’s good faith offer to help rewrite the directive and avoid a lawsuit. Now, FIRE is publicly calling for Pennsylvania state employees to contact them. They write:
 
“This isn’t a close call. Pennsylvania’s expansive restriction on state employees is unconstitutional. If the executive order is not promptly amended, FIRE looks forward to challenging it in court to defend public workers’ crucial First Amendment rights.”
 
Expect this EO to lead to a thousand abuses and ultimately terrible stories for Gov. Shapiro. Protect The 1st also looks forward to a court challenge, a necessary check on the expansive power of the executive pen.

This week, the U.S. House Ways & Means Committee passed the Educational Choice for Children Act, which provides tax credits for charitable donations to Scholarship Granting Organizations that would allow children from low-income families to attend private or religious K-12 schools.
 
Simply put, this bill would allow millions of American children to attend the highest-quality, most suitable school that serves the First Amendment rights of their families by aligning with their values.
 
We urge you to contact your U.S. Representative through this link with this message:
 
“Please call for a House vote on the Educational Choice for Children Act (ECCA), bill # H.R. 9462, and give it your vote and strongest support."

​Peaceful protesters from Arizona’s Apache Stronghold held a day of prayer outside the U.S. Supreme Court last week. In their quest to preserve the centerpiece of their faith from utter destruction, the Apache certainly deserve our prayers. But they also deserve our amicus briefs, for the Almighty helps those who help themselves.
 
The Apache and other Native peoples led the way by asking the Supreme Court to protect their sacred land and – by extension – the sacred lands and landmarks of Jews, Christians, Muslims, and all Americans of faith. That is why Sikhs, Muslims, the Mennonite Church, other tribes, and the Christian Legal Society have filed briefs supporting Apache Stronghold.
 
For centuries, the Apache have held sacred a site in the Tonto National Forest in Arizona they call Chí’chil Biłdagoteel, known colloquially as Oak Flat. Though under management by the U.S. Forest Service, Oak Flat has for centuries been recognized as the central location for the Apache’s religious worship – a place where they honor their ancestors, hold ceremonies, and mediate their relationship with the Creator. It’s their Mount Sinai, Temple Mount, and Vatican.
 
After the discovery of copper beneath and around the site, Congress in an 11th hour deal transferred Oak Flat to Resolution Copper, a foreign mining company. The Apache and their allies (including us) are now engaged in a legal struggle to prevent Resolution Copper from transforming the site into a crater as deep as the Washington Monument.
 
The Apache have demonstrated that the federal government’s conveyance of their sacred land constitutes a violation of the Religious Freedom Restoration Act. Yet the Ninth Circuit Court of Appeals – usually not known for indifference to minority rights – sided with the mining company and the government in a 6-5 decision.
 
The court’s reasoning is self-contradicting. The Ninth agreed that the land’s disposition to Revolution Copper will categorically prevent the Apache from participating in any worship at Oak Flat because their religious site will be obliterated. Yet the court found that the land transfer would not constitute a “substantial burden” on religion because that standard does not apply in instances of “the Government’s management of its own land and internal affairs.” These rulings ignore both the recognition of Oak Flat as the sacred land of the Apache in treaties going back to the 19th century and is an absurdly narrow reading of constitutes a substantial burden on the free exercise of religion.
 
The Apache’s petition identifies the circuit split that only the Supreme Court can resolve: “This remarkable result openly conflicts with RFRA’s text, which expressly applies to all Federal law and ‘the use … of real property for the purpose of religious exercise’ – with no carveout for government property.” Further, the appellate court ruling “conflicts with decisions of the Fourth, Sixth, Seventh, Eighth, Tenth and Eleventh Circuits,” which “have long recognized that the government substantially burdens religious exercise not only by penalizing it but also by preventing it from occurring.”
 
Without intervention from the high court, the government will not only destroy the Apache’s religious heritage but provide a skeleton key for “eviscerating RFRA in any context deemed part of the government’s ‘internal affairs’ – a concept that could cover almost anything the government does.”
 
If you are a person of faith or respect the faiths of others, you have a stake in Oak Flat.

​On Sept. 17 in 1787, thirty-nine American men signed their names to adopt the United States Constitution, setting in motion the political system we have today.
 
It is a system of checks and balances, one that allows the Legislative branch to deliberate the will of the people, the Executive branch to bring energy and focus to national leadership, and the Judiciary to keep their actions in check with the laws and Constitution.
 
In recent years we’ve seen the Executive branch step away from this system by devising executive orders that sidestepped Congressional statute and judicial review. One prime example is EO 12333, in which the president authorizes surveillance outside of any statute. It allows the executive branch to spy on Americans, violating their Fourth Amendment rights and potentially curtailing their speech and First Amendment rights (both part of the Bill of Rights, which was ratified in 1791).
 
Today, both presidential candidates are promising to make far-reaching changes by executive order. Check out this vintage (Obama era) Saturday Night Live skit that – when the laughter dies – should be a sobering reminder that the vision of the founders must be renewed by every generation.

​On Wednesday, the House Ways and Means Committee took a big step forward in expanding school choice nationwide by marking up and passing the Educational Choice for Children Act by a vote of 23-16. This is the furthest a school choice measure has ever advanced in Congress. With strong support from the House majority, this bill has a promising chance of passing the Senate next year, potentially becoming a landmark in the movement for educational freedom.
 
The Educational Choice for Children Act aims to provide tax credits for charitable donations to Scholarship Granting Organizations (SGOs) that support needy children. These scholarships can be used for private or religious schools, homeschooling, and other non-public educational options. The legislation includes express protections for religious schools, ensuring that parents can choose a learning environment consistent with their beliefs without fear of government interference.
 
Notably, the bill includes safeguards to prevent federal, state, or local government entities from exerting control over private or religious schools. It also prohibits discrimination against educational institutions based on their religious character, providing a robust defense of religious freedom in education. This bill advances the fundamental rights guaranteed by the First Amendment, reinforcing the right of parents and families to freely exercise religious belief.
 
Rep. Adrian Smith (R-NE) said during the hearing, “The credit will create a new pathway to fund scholarships and open new opportunities for countless families to have a say in where they want to send their children to school and tailor their education to their specific needs.”
 
With a quarter of all states now having comprehensive or universal school choice policies, this movement is spreading across the country like a prairie fire. Protect The 1st has been hard at work alongside allies, coalition partners, and leaders on Capitol Hill to promote this legislation in Washington, D.C., as well as the states. We support the national, bipartisan movement in favor of school choice because the ability to choose a school that aligns with one’s values – whether secular or religious – is one of the most profound expressions of the First Amendment we can make.
 
If passed, the bill would pave the way for millions of students to access better educational opportunities that align with their values and needs. As Sen. Tim Scott (R-SC), a key proponent of the bill, declared that school choice is “a civil rights issue,” giving parents the freedom to choose the best education for their children, regardless of their socioeconomic status.
 
With the growing support for school choice, this bill can be a historic step toward expanding educational freedom in the United States. It reflects a commitment to empowering parents and enhancing educational options for all children, reaffirming the importance of the First Amendment in safeguarding individual rights in education.
 
The path forward remains challenging, but the momentum behind this bill is unmistakable.

Stanford University, the University of Pennsylvania, and the University of Wisconsin have all embraced a viewpoint neutral stance that refrains from speaking out on the issues of the day. Protect The 1st hopes they will become national trendsetters for higher education.
 
The pitfalls of the old approach were made clear when the University of Wisconsin-Milwaukee, bedeviled by pro-Palestinian protests, cut a deal to end the protests in May. The administration agreed to consider severing ties with Israeli firms and to put the university’s prestige behind a call for a ceasefire in Gaza.
 
This was only a recent example of how university administrations became opinion factories, spitting out one declaration after another on the issues of the day. For example, the University of Pennsylvania put out a statement denouncing the U.S. Supreme Court’s ruling that overturned Roe v. Wade. Stanford spoke out on Israel and Gaza.
 
The outspokenness of universities to take positions on the crisis of the day was a hard turn from the standards of the 1967 University of Chicago Kalven Report, forged in the crucible of the Vietnam era. The Kalven Report advocated that universities be true to their stance as fora for free speech by refraining from commenting on issues that don’t affect them as institutions.
 
This is partly out of concern for allowing maximum range for free thought and free speech on campus. A professor, after all, might legitimately believe that Israel has the right to prosecute the war against the terrorists of Hamas, or that the Supreme Court’s Dobbs decision was correctly decided.
 
There are costs when universities negate opinions, as they did with their stance on Israel. These costs can be tangible when they offend the sensibilities of donors, as well as lawmakers who approve budgets for public universities. In the case of UW Milwaukee, the administration seemed panicked into trying to appease groups that used force to seize part of the campus. Such appeasement often encourages more pressure, turning the university into a mouthpiece for anyone willing to take over a quad or university building. It is no coincidence that Harry Kalven, who chaired the committee that produced the University of Chicago’s report on university neutrality, also coined the term “heckler’s veto.”
 
Appeasing the most animated and sometimes violent activists on campus with official statements is a guaranteed way to get more of the same. The challenge for universities is to be neutral without seeming heartless.
 
“The neutrality of the university as an institution arises then not from a lack of courage nor out of indifference and insensitivity,” the Kalven Report declared. “It arises out of respect for inquiry and the obligation to cherish a diversity of viewpoints. And this neutrality as an institution has its complement in the fullest freedom for its faculty and students as individuals to participate in political action and social protest.”
 
Here’s a tip for administrators: When a university is confronted with the next burning moral question, the best answer – after making clear that the university is a neutral forum – is have at the ready a list of professors and student groups willing to speak to the media. Let the university community speak out on the issues of the day. And let them disagree.

​Maine is openly defying the U.S. Supreme Court’s ruling in Carson v. Makin by forcing religious schools to comply with a state antidiscrimination law in order to receive state tuition funds. This action directly contradicts and attempts to nullify the Supreme Court's decision that states cannot exclude religious schools from publicly available tuition assistance programs solely because they are religious.
 
The Supreme Court’s ruling in Carson v. Makin, which Protect The 1st supported with an amicus brief, was a significant win for religious liberty. The Court decided that Maine's exclusion of religious schools from its tuition assistance program violated the Free Exercise Clause of the First Amendment. The decision followed precedents like Trinity Lutheran Church of Columbia, Inc. v. Comer and Espinoza v. Montana Department of Revenue, which established that states cannot discriminate against religious entities in public benefit programs.
 
Despite these clear directives, Maine lawmakers amended state laws to impose new conditions that effectively continue the exclusion of religious schools. Maine now requires all schools participating in the tuition program to comply with the Maine Human Rights Act. For many religious schools, these requirements conflict with their traditional religious beliefs about sexuality, making participation impossible.
 
Maine’s actions are a clear attempt to sidestep the Supreme Court's decision by creating a new set of rules specifically targeting religious institutions. By imposing conditions that contradict the faith of religious schools, the state seeks to maintain their exclusion from public funding, which undermines the constitutional mandate.
 
Two lawsuits have already been filed challenging Maine's new rules, arguing that the state’s policy violates constitutional rights. The cases, brought by Crosspoint Church in Bangor and the Roman Catholic Diocese of Portland, highlight the ongoing conflict between state law and the Supreme Court’s ruling. The plaintiffs argue that Maine's policy is designed to discriminate against religious schools.
 
The state's resistance goes beyond policy disagreement: It attacks the very principle of religious liberty. By enforcing a policy already struck down by the Supreme Court, Maine penalizes religious exercise and undermines parents' rights to choose a religious education for their children. This act of government overreach must be addressed to uphold constitutional rights.
 
Maine’s defiance also puts it at odds with the supremacy of the federal government and the Supreme Court – a principle that many young men from Maine gave their lives to uphold. States cannot be permitted to nullify federal law through legal maneuvering.
 
Courts must ensure that the rights guaranteed by the Constitution are respected. Maine’s defiance must be corrected to prevent further erosion of religious freedom.

​Can students who vehemently object to the religious beliefs of a religious college force that college to accept them and their beliefs? Would doing so be a blow for personal liberty, or a way to use the power of the law to force religious institutions to change their doctrine?
 
The Ninth Circuit considered these questions and came down hard on the side of religious liberty by affirming a lower court’s dismissal of just such a case.
 
At the center of that case is Title IX, the landmark civil rights law passed in 1972 that prohibits discrimination “on the basis of sex” at any educational institution that receives federal funding. A longstanding religious exemption, however, makes an exception for any school that is “controlled by a religious organization” and where “the application of [Title IX] would not be consistent with the religious tenets of such organization.”
 
In Hunter v. Department of Education, 33 LGBTQ+ students who applied to religious educational institutions, or attended such a school, brought suit against the government alleging that they experienced discrimination on the basis of their sexuality or gender identity. This may have seemed like a slam dunk. Some courts, the Ninth Circuit included, have interpreted Title IX’s prohibitions to also include discrimination based on such factors in addition to traditional understandings of biological sex.
 
The plaintiffs argued that Title IX’s religious exemption violates the First Amendment’s Establishment Clause as well as the Equal Protection Clause of the Fifth Amendment. In effect, they sought to prevent the future use of federal financial assistance (such as tuition grants and student loans) at religious schools that operate in accordance with their traditional beliefs on gender and sexuality.
 
In parsing the establishment claim, the court applied 2022’s Kennedy v. Bremerton precedent, which set forth a “historical practices” test in determining whether government action inappropriately assists religion in violation of the Establishment Clause. Writing for the court, Ninth Circuit Judge Milan D. Smith reinforced the basic tenets of religious liberty:
 
“First, the history of tax exemptions for religious organizations near the time of the Founding suggests that statutory exemptions that operate as a subsidy to religious institutions do not violate the Establishment Clause according to its original meaning. Second, case law evinces a continuous, century-long practice of governmental accommodations for religion that the Supreme Court and this court have repeatedly accepted as consistent with the Establishment Clause.”
 
In analyzing the equal protection claim, the court found that that the exemption survives all manner of judicial scrutiny because:
 
“[It] substantially relates to the achievement of limiting government interference with the free exercise of religion. The exemption does not give a free pass to discriminate on the basis of sex to every institution; it contains limits that ensure that Title IX is not enforced only where it would create a direct conflict with a religious institution’s exercise of religion.”
 
There is no question that the LGBTQ+ community has faced – and continues to face – harmful and insidious discrimination on many fronts. But preventing students from accessing desperately needed financial resources to attend educational institutions whose teachings align with their sincerely held religious beliefs is not an appropriate means of redress. The First Amendment to the Constitution exists in large part to protect the free exercise of religion – even when a religious organization’s teachings may offend one’s sensibilities. To do otherwise would be to use the power of the government to forcibly change religious dogma, a recipe for unending social strife and culture war. The best solution for the plaintiffs is to attend the one of the vast majority of schools that hold no such religious dogma.
 
Protect The 1st served in an advisory capacity on this case, and we celebrate this win for religious freedom. At the same time, we recognize that we must remain ever vigilant in seeking to strike an appropriate balance between religious freedom and equality – both of which are of critical importance to a free and functioning republic.

In a major win for free speech, a federal judge reinstated Maud Maron to the Manhattan Community Education Council 2 after she was removed for speaking against an anonymous student article she deemed antisemitic. Judge Diane Gujarati ruled the regulation used to remove her was unconstitutional, stating, “Securing First Amendment rights is in the public interest.”
 
Maron’s removal followed her public criticism of that anonymous student article that ran in a school publication, which she called antisemitic in an interview with The New York Post. Her comments, made as a concerned parent, drew the ire of Schools Chancellor David Banks, who invoked Chancellor’s Regulation D-210 to justify her ousting. Banks claimed her statements crossed a line, but Judge Gujarati found this regulation itself overstepped constitutional bounds by suppressing free speech.
 
The ruling also overturned another rule that prohibited parents from criticizing the conduct of school officials, affirming their right to speak freely at board meetings and online. Maron, celebrating the decision, declared: “Free speech rights protect parents when they speak up about our children’s education — on matters routine and controversial.”
 
The case highlights how policies like Chancellor's Regulation D-210 have been used to suppress dissent under the guise of maintaining order. Introduced during New York City’s de Blasio administration, these regulations have been criticized as overly broad and punitive toward those challenging the status quo.
 
By ruling in Maron's favor, the court affirmed that parents and community members must be free to discuss and debate educational policies. The decision is a reminder that such discourse is protected by the First Amendment, which allows open discussion on issues impacting children’s education.
 
Maud Maron's case sends a powerful message to school boards and education officials across the country: in America, the right to speak freely, even when the speech is uncomfortable or controversial, is fundamental. For those in authority, the lesson is clear — silencing critics isn’t maintaing order. It’s undemocratic and unconstitutional.

​The recent wave of government actions against social media platforms — from Brazil’s suspension of X to France’s charges against Telegram’s CEO — reveals a downward global trend in official respect for free speech in the digital age. Framed as efforts to protect public safety, national security, or the democratic process, governments around the world are increasingly bold in controlling what can be said and who can speak online.
 
While some actions target harmful content, many governments (including, as Meta CEO Mark Zuckerberg attests, our own) risk outright censorship that stifles dissent and restricts access to information.
 
Exhibit A is Brazil, in which the Supreme Court, led by Justice Alexandre de Moraes, ordered a nationwide block on X, formerly Twitter, after the platform refused to appoint a legal representative in the country. This decision follows confrontations over X’s refusal to remove content and block accounts linked to “disinformation” and “extremism” – even though some of the blocked accounts are those of a Brazilian senator and prominent critics of the current administration. X’s Elon Musk understandably is concerned that such “regulation” could be used to censor dissent and control public discourse. So he refused to appoint a legal representative who almost surely would be arrested and prosecuted.
 
Justice de Moraes frames his efforts as a battle against misinformation, citing X's failure to comply with directives as evidence of its disregard for Brazilian law. But Elon Musk, a "free speech absolutist," correctly portrays these actions as overreach by an authoritarian judge.
 
France recently charged Telegram CEO Pavel Durov with failing to prevent illicit activities on his platform. Some argue that pressure from the U.S. Congress and Biden Administration for TikTok to divest from its Chinese parent company is also censorship, though many (Protect The 1st included) have concerns about TikTok’s threats to the data privacy of 170 million Americans and national security.
 
What is clear is that governments are more aggressively regulating platforms they see as threats to public order or sovereignty. Each presents a mix of justifications and overreach. Brazil's crackdown on X is seen by some as necessary to safeguard democracy, while others view it as an overreaction that threatens rights. France’s prosecution of Durov is an overreach if it criminalizes encryption and undermines privacy. Concerns over the data practices of TikTok, its parent ByteDance, and the Chinese government are legitimate, while cracking down on perceived “Chinese-friendly” content would be a clear First Amendment issue.
 
It is true that social media platforms wield considerable power to shape public discourse and influence the conduct of elections; however, methods to counter these threats risk stifling dissent, restricting information, and setting dangerous precedents for censorship. For example, targeting Starlink, Musk's satellite internet provider, for X’s fines seems excessive. Similarly, arresting Durov risks conflating the platform with the actions of Telegram’s users.
 
Is there a better path? Regulators should focus on transparency, accountability, and due process rather than outright bans. Overregulation risks losing a vibrant, open digital space where even controversial ideas can be freely exchanged. If not carefully calibrated, efforts to protect will become efforts to suppress.
 
It won’t be easy, but democratic governments must both defend against illegal content and protect principles of free speech and the robust sharing of information – even when that information is deemed to be wrong.

​Earlier we compared the First Amendment records of Sen. J.D. Vance and Gov. Tim Walz, finding the two vice presidential candidates problematic with notable bright spots.
 
So how do the two candidates at the top of the ticket compare on defending speech? Answer: Even more problematic, but also with some bright spots.
 
Vice President Kamala Harris
 
As a U.S. Senator, Harris in 2017 co-sponsored an amendment with her fellow Californian and leading Democrat, the late Sen. Dianne Feinstein, that would have required federal agencies to obtain a probable cause warrant before the FISA Court could allow the government to review the contents of Americans’ emails. Protecting Americans from warrantless surveillance of their private communications concerning personal, political, and religious lives is one of the best ways to protect speech.
 
As a senator, Harris also defended the First Amendment rights of social media platforms to moderate their content. This is not surprising given that she was from California and big tech is one of her best backers. The Washington Post reports that Karen Dunn, one of Google’s top attorneys in against the Biden administration’s antitrust case, is a top Harris advisor. This closeness suggests a danger that a Harris administration might lean heavily in support of using friendly relations with big tech as a backdoor way to censor critics and conservative speech.
 
Consider that Harris once called for the cancellation of former President Donald Trump’s then-Twitter account, saying:
 
“And the bottom line is that you can’t say that you have one rule for Facebook and you have a different rule for Twitter. The same rule has to apply, which is that there has to be a responsibility that is placed on these social media sites to understand their power … They are speaking to millions of people without any level of oversight or regulation. And that has to stop.”
 
Why does it have to stop? Americans have spoken for two centuries without any level of oversight or regulation. You might find the speech of many to be vile, unhinged, hateful, or radical. But unless it calls for violence, or is obscene, it is protected by the First Amendment. When, exactly, did liberals lose their faith in the American people and replace it with a new faith in the regulation of speech?
 
Worse, as California Attorney General, Harris got the ball rolling on trying to force nonprofits to turn over their federal IRS Form 990 Schedule B, which would have given her office the identities of donors.
 
Under Harris’s successor, this case went to the U.S. Supreme Court. Protect The 1st was proud to submit an amicus brief, joined with amici from a coalition of groups from across the ideological spectrum. We demonstrated that the likely exposure of donors’ identities would result in various forms of “cancellation,” from firings and the destruction of businesses, to actual physical threats. A Supreme Court majority agreed with us in Americans for Prosperity Foundation v. Bonta in 2021 that the same principle that defended Alabama donors to the NAACP extends to all nonprofits.
 
The Biden-Harris administration has also been mum on worldwide crackdowns on speech, from a Brazilian Supreme Court Justice’s cancellation of X, to hints from the French government that this U.S.-based platform might be the next target after the arrest of Telegram CEO Pavel Durov.
 
Former President Donald Trump
 
This is a harder one to judge. It’s long been said that Donald Trump wears better if you turn the sound off.
 
On the plus side, President Trump took a notably strong approach in supporting surveillance reform. A victim himself of illicit surveillance justified by the FBI before the FISA Court with a doctored political dossier and a forged document, President Trump was sensitive to the First Amendment implications of an overweening surveillance state. To his credit, he nixed the reauthorization of one surveillance authority – Section 215, or the so-called “business records provision.”
 
During the pandemic, Trump issued guidance in defense of religious liberty. He said: “Some governors have deemed liquor stores and abortion clinics essential but have left out churches and houses of worship. It’s not right. So I’m correcting this injustice and calling houses of worship essential.” He backed up his defense of religious liberty by appointing three Supreme Court Justices – Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh – who have been strong defenders of religious liberty.
 
But turn the sound back on and you will hear Donald Trump call the American press “the enemy of the people.” Call the media biased, corrupt, in the bag for the Democrats, whatever you like … but “enemy of the people?” Trump’s rhetoric on the media often edges toward physical hostility. As president, he mocked a CNN reporter who was hit with a rubber bullet while covering the 2020 riots in Minneapolis. “Remember that beautiful sight?” Trump asked.
 
At a time when journalists are under threat in America and around the world, this is a decidedly un-American way to confront media bias.
 
Donald Trump has also called for a loosening of the libel laws to allow elected officials to more easily pursue claims against journalists without having to meet the Supreme Court’s “actual malice” standard. We agree that there is room for sharpening libel law in the age of social media amplification, but allowing wealthy politicians to sue news outlets out of business would be one effective way to gut the First Amendment.
 
So what should we conclude? Both Harris and Trump have mixed records. Both have taken bold stands for speech. Both have treated the opposition as so evil that they do not deserve legal protections. Both seem capable of surprising us, either by being more prone to censorship or to taking bold stands for free speech.
 
Whatever your political leanings, urge your candidate and your party to lean on the side of the First Amendment.

​The ever-astute Ayaan Hirsi Ali details the decline of free speech in Britain in a way that perfectly delineates the American distinction between incitements to violence (“fighting words”) and speech that is merely ugly.
 
“After the recent [anti-Muslim] riots, people were given prison sentences for posting words and images on social media. In some cases, the illegal incitement to violence was obvious. Julie Sweeney, fifty-three, got a fifteen-month sentence for a Facebook comment: ‘Blow the mosque up with the adults in it.’ Lee Dunn, fifty-one, on the other hand, got eight weeks for sharing three images of Asian-looking men with captions such as ‘Coming to a town near you.’”
 
Ali writes in The Spectator that a “triple whammy” at the end of the century ended a long period of liberalization in the UK’s speech laws – the arrival of fundamentalist Islam in the West, the rise of far-left critical theories of social justice and the advent of the internet as the public square. The UK’s Online Safety Act, passed by the Tory government, could serve as a “censor’s charter” because of its “inclusion of the phrase ‘legal but harmful’ to characterize certain content.”
 
“The losers in all this are not the hapless fools languishing in jail because of their crude online posts,” Ali writes. “The losers are the millions of people who believe the government exists to protect us from foreign enemies and criminals, not to prohibit ideas, words or images that might offend.”

​When a professional association makes a political statement that some members disagree with – and membership in that association is compulsory – are the First Amendment rights of the dissenting members violated? The answer, according to the Ninth Circuit is … well, it’s complicated. 
 
Oregon attorney Daniel Crowe filed suit against the Oregon State Bar (OSB) following publication of the April 2018 issue of the “Bulletin,” the state Bar’s dedicated publication. In that issue, the Bar published two statements on “White Nationalism and [the] Normalization of Violence.”
 
The first statement, emblazoned with OSB’s logo and signed by six OSB officers, responded to the 2017 white supremacist rally in Charlottesville, condemning violence and “the proliferation of speech that incites such violence.” So far, not much a decent person could disagree with there.
 
The second statement, featured on the opposite page and signed by the presidents of seven Oregon Specialty Bar Associations, built on the first statement and criticized President Trump’s actions in “allow[ing] this dangerous movement of racism to gain momentum.”
 
You don’t have to be a Trump supporter to see the shoehorning of members in the service of a debatable political proposition.
 
Crowe, joined by other attorneys as well as a non-profit called Oregon Civil Liberties Attorneys, filed suit against OSB, arguing that the organization’s use of mandatory dues for activities not “germane” to its purpose violates Crowe’s right to freedom of speech and freedom of association.
 
The case so far has taken a meandering path.
 
First, a federal judge dismissed Crowe’s lawsuit, finding that OSB’s activities were in fact “germane to improving the quality of legal services.” Crowe appealed.
 
Then, the Ninth Circuit upheld the dismissal of Crowe’s freedom of speech claim (noting he had received a refund for his portion of the costs of the “Bulletin” publication, thus satisfying any injury). At the same time, the court found that Crowe’s freedom of association claim could proceed.
 
Finally, the lower court, on remand, held that OSB’s predominantly non-partisan, germane activities precluded the freedom of association claim.

Still with us?
 
Back to the Ninth Circuit, which upon another appeal has now found in Crowe’s favor. Writing for the court, Judge Michelle T. Friedland said:
 
“Crowe has demonstrated an infringement on his freedom of association because he objects to certain communications by the Bar that would reasonably have been imputed to the Bar’s members. We also hold that the infringement was not justified because the communications in question were not related to the Bar’s regulatory purpose.”
 
A related question – whether the OSB is entitled to sovereign immunity as an arm of the state – was also addressed. The court found that it is, though Crowe’s claims against individual officers may now proceed.
 
This is a complicated case. But the simplest solutions are to either scale back or eliminate mandatory membership in the Bar altogether, or for the Bar to refrain from making political statements on behalf of its members.
 
OSB published a statement condemning violence right next a statement condemning Trump’s role in promoting violence. If it isn’t an explicit endorsement of that particular statement, it’s close enough to seem so to a reasonable observer.

​Daron Djerdjian is a popular economics professor at Occidental College in Los Angeles, highly rated by students on online review sites. He is also reportedly the last full-throated proponent of free-market economics at Occidental. And yet Djerdjian was, after years of exemplary reviews, released from his contract.
 
This is just one more sign of how, at many leading universities, an ideological monoculture has taken root. This is not to say that academics with conservative or “classically liberal” views are being routinely expelled from the academy, as Djerdjian was. In the economics, law, and humanities departments of many leading universities, conservatives have simply not been hired in the first place.
 
More than one-third of Americans identify as “conservative.” Yet the best jobs in academia are off limits to them. Liberals, no less than conservatives, should find this replacement of intellectual diversity by an ideological monoculture a sign of moral and intellectual rot in higher education. But what to do about it?
 
Indiana lawmakers believe they have the solution. Indiana has passed a new law that requires professors to demonstrate “intellectual diversity” in order to retain tenure at public universities and colleges. This law relies on university trustees, often politically appointed, to enforce this vague mandate. This approach is rooted in the state's argument that professors lack First Amendment rights in their classrooms because their speech is “government speech.” This law not only won’t have the intended effect. It is as misguided as it is dangerous.
 
Defenses of this law echoes similar arguments made in Florida, where that state seeks to control university curricula through legislative measures like the Stop WOKE Act, which restricts discussions about gender and race. Despite their stated aims of promoting diversity of thought, such laws ultimately threaten to erode the very foundation of academic freedom. By framing professors’ classroom speech as merely “government speech,” the state reduces educators to mouthpieces for the state, stripping them of their role as independent thinkers.
 
The Indiana law, much like Florida’s Stop WOKE Act, risks creating a chilling effect on academic discourse, where professors may self-censor to avoid jeopardizing their careers. This would not only harm educators but also deprive students of the robust education that comes from engaging with challenging and diverse ideas.
 
There are better ways to counter ideological uniformity in academia than through constitutionally questionable laws that undermine academic freedom. First, efforts should focus on protecting faculty and students, designating campuses as open for expressive activity of all kinds, as New Hampshire just did.
 
Occidental College is a private, liberal arts institution. If it were located in Indiana, it would be unaffected by this new law. But it is perfectly valid for donors, both wealthy individuals and institutions, to press private universities and colleges, as well as the fundraising arms of public universities, to accept more intellectual diversity in the hiring of professors.
 
The university ideological monoculture cannot – and should not – be strongarmed out of existence. The answer to the policing of speech on campus in not more policing.
 
Protect The 1st will keep an eye on this Indiana law and how it unfolds.

​The resignation of Minouche Shafik as president of Columbia University closes the tumultuous months since the congressional hearing that has now led to the resignations of three Ivy League presidents. Many conservatives, led by Rep. Elise Stefanik, accused Shafik of foot-dragging in her response to violent campus protests.
 
But there is much more to this story. And it is not what many conservatives think.
 
Inside Higher Education reports that the real catalyst for Shafik’s resignation was not timidity in the protection of free speech. It was a faculty backlash over Shafik’s recent conciliatory remarks before Congress and her eventual crackdown on students violently occupying buildings. In doing so, Shafik upheld the rule of law and the openness of the Columbia campus to all but was condemned by those prioritizing ideological conformity over free speech.
 
The irony here is stark. The very people who purport to defend free speech have effectively silenced a university president for enforcing the law in defense of free speech. This contradiction is reminiscent of the twisted logic that characterized the 1960s Berkeley “Free Speech” Movement. Originally, this movement began as a fight for the rights of students to engage in political activities on campus. But the Free Speech Movement quickly turned to speech coercion.
 
Today, Columbia’s situation shows how this mentality has morphed into a bizarre inversion of free speech principles. Apostates are silenced or threatened. Physical intimidation and the disruption of university operations – effectively silencing the speech and association rights of the many in the service of the few – are now tolerated or even celebrated as legitimate forms of expression. This shift is not just confined to Columbia.
 
Universities, once bastions of free inquiry, are now becoming environments where only certain viewpoints are deemed acceptable. This creates a chilling effect, where students and faculty may feel pressured to conform to prevailing ideologies or risk facing social or professional consequences. The very essence of academic freedom – exploring, challenging, and debating diverse perspectives – is being eroded in favor of a narrow, ideologically driven discourse.
 
This troubling development reflects the growing influence of Herbert Marcuse’s “Repressive Tolerance,” an essay that has increasingly shaped contemporary academic thought. Marcuse argued that true tolerance should not be extended to ideas or actions that reinforce the status quo, and that society must suppress regressive elements to allow for progressive change.
 
The forced resignation of Shafik appears to be a real-world application of this philosophy. “I am still an employee of Columbia University, and she’s not,” one faculty member crowed on X. By ousting a leader who defended law and order, as well as the proper functioning of the university, Columbia’s faculty has, in effect, endorsed a selective approach to free speech – one that tolerates only those forms of expression that align with their ideological preferences.
 
Shafik’s subtly forced departure represents a loss for the fundamental principles of free expression and academic freedom. The fact that she was pressured to leave for doing the right thing – cracking down on students breaking the law – shows how far the academy has strayed from its commitment to open discourse.
 
Her departure is not a victory for free speech. It is a clear manifestation of the Orwellian doublethink that now pervades higher education.