Can we admit now that building out large bureaucracies in college administrations to investigate and punish speech crimes was a mistake? A few decades ago, purported ugly behavior by an undergraduate was a matter policed by the Dean of Students. Those who behaved in an uncivil manner were called in by the dean for a “little talk.” Guided by common sense and wisdom, and depending on the seriousness of the matter, the dean might talk through a student’s emotional problem, issue an admonishment, or with reluctance turn to the possibility of suspension or even expulsion. But students accused of speech infractions today don’t face the Dean of Students. They face long, legalistic investigations, often with their future at stake. Consider Pace University in New York, where Houston Porter, 28, is facing a sex-based discrimination probe. He is accused of “aggressively pointing” at a transgender student and misgendering her during a recent panel about “Saving Women’s Sports.” The panel grew progressively heated as discussants debated the impact of New York’s Proposition 1 ballot measure. This measure codifies gender identity in state law. The panel, which included a constitutional lawyer and two state senate candidates, discussed if such a new law would force women’s sports teams to accept biological men. When the panel opened for questions, the event erupted into chaos. “There were a bunch of people in my face,” Porter told The New York Post. “I felt like I was getting swarmed.” He strenuously denies that he addressed an individual by the wrong pronoun and did not make any gestures toward anyone. A dean of old might have left the matter at that. But Pace is conducting a lengthy investigation of Porter under Title IX, a law prohibiting sex-based discrimination at any educational institution that receives federal funding. Porter, a third-year law student, could now face expulsion or be suspended from practicing law altogether. Even a disciplinary action against him could have lifelong consequences since the bar exam requires applicants to disclose disciplinary actions they have faced. “Any type of punishment will be super-detrimental to my reputation and to my professional career,” Porter told The Post. “It feels like my whole world is crumbling down. I feel like everything that I’ve been working toward might be destroyed over a misunderstanding.” Let’s be clear. Members of sexual minorities, on college campuses and elsewhere, are sometimes discriminated against and physically assaulted. College administrations have a moral as well as a legal obligation to protect all their students from harassment and assault. No one, however, is alleging that Porter did anything except point at someone and use the wrong pronoun – which again, he strongly denies. What is there is for Pace to investigate? Yet university bureaucracies, fearful of Title IX and the U.S. Department of Education, turn even trivial incidents like these into lengthy inquisitions, often concluding with an auto-da-fé. Curiously, it is usually those on the right side of these issues – like Porter, a member of the conservative Federalist Society – who get keelhauled. Did anyone swarming or verbally attacking Porter use foul or “aggressive” language? Did anyone else point a finger? Or worse? The overreaction of universities would be laughable if the consequences weren’t so gravely serious for victims and chilling for speech. The mix of official intimidation, sanctioned and protected harassment, and self-righteous ostracism brings to mind the worst abuses of the McCarthy era. It is time to slim down the resources and authorities of these overweening campus bureaucracies and make it clear that Title IX exists to address serious discrimination, not purported (and in this case, literal) finger-pointing. Ever thought you had cancelled a subscription to a publication or an app only to find it has been renewed for another year on your credit card account? This is one of the most common problems reported to the Federal Trade Commission. In response, the agency recently announced a “click-to-cancel” rule for subscriptions, gym memberships, and associations. We think that’s good news. Now why doesn’t the FTC, or the Labor Department, extend this logic to make it just as easy for a worker to resign from a labor union? Unlike an angry consumers’ right to cancel The Washington Post, when a worker is forced to remain in a union, she has to pay dues to subsidize union political speech that she may disagree with. This is what happened to Kristine Kirk who attempted to resign from the Los Rios Classified Employees Association, a union for employees of a community college district in California. Or consider the 21 lifeguards, also in California, who wanted to resign as dues-paying members of a public-employee union but couldn’t. FTC Chair Lina Khan said that some businesses require consumers to go through “endless hoops” to end their subscriptions. That’s nothing compared to the California lifeguards, who were told that they could only resign their union membership during a single thirty-day period every four years. This is typical of attempts at resignation that are blocked by such dilatory tactics and state “maintenance-of-membership” statutes. The most egregious aspect of this compelled union membership is that it violates American workers’ First Amendment right not to pay for political speech that they may vigorously disagree with. This at the heart of a similar lawsuit by attorney Daniel Crowe, who is suing to be released from having to pay dues to the Oregon Bar Association, which prints magazine articles and makes statements with a partisan slant. Isn’t the First Amendment important enough to allow these members to resign their union or association membership with one click? The FTC itself is now a union shop. FTC staff just voted to join the National Treasury Employees Union. Can they resign or are they all captive dues-payers for union speech for now on? How about it, FTC? There’s no denying that the U.S. Fifth Circuit Court of Appeals, which covers Louisiana, Mississippi, and Texas, has a maverick streak. Earlier this year, the court ruled that geofence warrants of cellphone data of suspects and innocents alike are inherently unconstitutional. Law enforcement, which routinely collects such data from the scene of a crime or around a suspect, found its practices upended. And now… oops, they did it again. This week, the Fifth Circuit invalidated settled IRS regulations in a way that is certain to upend speech protections under the law, at least in states under the Fifth Circuit’s purview. The court’s unanimous three-judge panel ruling on a healthcare organization’s tax exemption opens up for revision IRS regulations on 501 (c) (4) “social welfare organization’s” right to engage in political speech. This ruling concerns the current regulation stipulating that these groups can engage in political activities if 51 percent of their funds are spent on approved activities, like public education. Political activity – including ads and social media campaigns – are allowed if they account for no more than 49 percent of the group’s spending. The Fifth Circuit ruled that 501 (c) (4)s can now no longer qualify for tax exemptions if their political activity is at a level that is judged “substantial.” As a result of the Fifth’s ruling it is anyone’s guess how other courts and the IRS will come to define the “substantial” standard for 501 (c) (4) organizations. If spending 49 percent of an organization’s time and money on political activity is substantial, how about 39 percent? Would 29 percent be too much? Five percent? Critics of the 49 percent rule have long argued that it allows donors to pass so-called “dark money” through tax exempt educational organizations to fund political ads for and against candidates. This criticism sharpened in the aftermath of the U.S. Supreme Court’s Citizens United decision in 2010 that held that private groups unaffiliated with political campaigns are not limited by the donation limits set by law and enforced by the Federal Election Commission. The Supreme Court found that limiting what someone can spend on their opinions about the issues and candidates of the day is a limit on speech itself. Protect The 1st agrees and defends Citizens United as a cornerstone of the First Amendment’s protection of speech. Undoing that standard would subject all political speech in America to bureaucratic regulation and parsing. A possible collateral casualty of the Fifth’s ruling is donor privacy. The Supreme Court unanimously ruled in NAACP v. Alabama in 1958 that organizations have a right to withhold the identities of their donors. In this age of doxing and political retaliation against individuals and their businesses, the wisdom of NAACP seems greater than ever. The Fifth’s decision to open the rule to revision will almost certainly lead to efforts to force the disclosure of donors to 501 (c) (4) organizations. This opening has not exactly gone unnoticed. One advocate for donor disclosure told The Wall Street Journal that donors should be revealed if the tax law was “interpreted the way that we believe it should be.” In the interest of full disclosure, Protect The 1st is organized as a 501 (c) (4), and we use our status to advocate for the PRESS Act, which protects the notes and sources of journalists from compelled exposure, as well as other important First Amendment causes, from donor privacy to the free exercise of religion. For our part, we believe that under all circumstances Americans have the right to freely associate and advocate for their opinions. Full stop. That is what the founders had in mind when they wrote and passed the First Amendment. Protect The 1st filed a brief urging the U.S. Supreme Court to hear a case in which a public school teacher was terminated over a search of her old retweets of social media memes. While a seemingly small case, it could have outsized influence over the speech rights of millions of Americans. The case involves a public schoolteacher, Kari MacRae, who was hired by the Hanover High School in 2021. Months before, MacRae had been a candidate for the local school board in this Massachusetts town. At that time, she had shared and liked on her TikTok account several memes and videos poking fun at “woke” ideology. (You can decide for yourself what you think of MacRae’s reposted memes, highlighted in this Boston.com article.) Hanover High learned of the unearthing of MacRae’s old TikTok reposts from local media. It then placed MacRae on administrative leave to conduct a 14-day investigation. The school then fired her. MacRae sued for wrongful termination and the violation of her rights only to lose in federal district court and then on appeal before the U.S. First Circuit. In our view, the First Circuit misapplied a framework that if not reviewed and overturned by the Supreme Court, will leave the speech rights of government employees – 15 percent of the U.S. workforce – at risk. The Supreme Court has already held in Garcetti v. Ceballos (2006) that when government “employees are speaking as citizens about matters of public concern,” they “must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” The First Circuit instead embraced a “balancing” standard between personal rights and public responsibilities. Protect The 1st responds: “Framed in Garcetti’s terms, this case asks whether government employers, to ‘operate efficiently and effectively,’ must have carte blanche to punish their employees not for what they are now saying, but for anything they have ever said – even before they were hired. If the First Amendment means anything in this context, the answer to that question must be no. An alternative holding would silence prospective government employees lest their speech, whenever it was made, could later be cited as a reason to destroy their careers.” We warn that if the First Circuit’s standard were adopted broadly, “fully protected speech could lose its protection with time – an untenable proposition.” Protect the 1st also told the Court: “… that in a world where many people spend their lives online, a rule that anything they say there can later be the impetus for their termination from government employment would impose an unconscionable burden on the right to speak on issues of public concern: It would chill pre-employment speech at the front end and give a modified heckler’s veto to bad actors at the back end.” We urge the Supreme Court, which has taken up few First Amendment cases so far in this term, to grant the petition and reverse the First Circuit’s erroneous ruling. In a 3-0 decision, the Ninth Circuit Court of Appeals ruled today that California is violating the law by discriminating against religious parents and children in special-education programs. That this ruling was needed at all in Loffman v. California Department of Education is remarkable. From Maine to California, states keep trying to isolate and defund private schools that are religious in character. Federal appellate courts have been consistent in laying down the law in upholding the First Amendment’s protection of “free exercise of religion.” California, which channels funds from the federal Individuals with Disabilities Act (IDEA), allows children with disabilities to receive a free appropriate education that meets their needs. The California Legislature, however, added a condition – that special education program funds could not be distributed to schools that also have a religious character. This precluded Jewish parents from choosing an Orthodox Jewish school for their disabled children. California has the option of appealing to the U.S. Supreme Court, but that is unlikely to be successful. All of the precedents cited by Judges Kim Wardlaw, Morgan Christen, and Mark Bennett cited Supreme Court precedents that supported their ruling that California’s “nonsectarian requirement fails the neutrality test” in the treatment of religious schools. “Today’s ruling is a tremendous victory for the Becket law firm, which stood by these Jewish parents through a long and difficult case,” said Gene Schaerr, general counsel of Protect The 1st. “This victory is also one more sign, if any were needed, that the First Amendment requires the neutral and fair treatment of religious schools. Equitable treatment of religious schools is the law of the land. It is long past time for some states to end their campaign of resistance to this clear application of constitutional principle.” In the minds of many Americans, including some in high office, the First Amendment is synonymous only with free speech. It is easy to forget that freedom of speech is only one of the five freedoms guaranteed by the First. The others are freedom of religion, freedom of assembly, the right to petition the government… and freedom of the press. Lawyer and legal scholar Floyd Abrams is consulting with historians, media lawyers, and journalists in a Yale Law School project to assess whether one of these freedoms – that of the press – has been protected to the extent that freedom of speech has been. Abrams reports in The Wall Street Journal on many issues we’ve covered, such as reporters being arrested for violating curfews to report on protests and civil unrest, and the exposure of confidential sources “who provide information about government misconduct or other sensitive information.” In his piece, Abrams looks to the Supreme Court to bring the same force and clarity for press freedoms that it has brought to protecting speech overall. We agree and look forward to his forthcoming report. But there is another way forward. This year, for the fourth time, with strong bipartisan support, the U.S. House of Representatives passed the PRESS Act, which shields the confidential sources and notes of reporters from the prying eyes of prosecutors. This bill allows for reasonable exceptions for emergencies. The PRESS Act is now before the U.S. Senate. With a little leadership from the Senate Judiciary Committee, it could be well on its way to becoming the law of the land before the end of the year. So we don’t have to wait for the right cases to appear before the Supreme Court, at least as far as the protection of reporters’ confidential sources are concerned, we can contact our senators now and demand they pass the PRESS Act in the coming lame duck session. As we’ve noted, the right of parents to choose their children’s schools is overwhelmingly supported by Americans from all demographic groups and both political parties. There are two reasons for school choice’s popularity. The first is disgust at the performance of many traditional public schools. Public schools serving low-income and minority communities, often in inner-cities, have a 60-year track record of failing children, graduating generation after generation of illiterate and innumerate Americans who start adult life behind the eight-ball. Now Joshua C. Robinson, a pastor in Pennsylvania who is the founder and CEO of Black Pastors United for Education, illustrates this point with startling statistics in a recent Wall Street Journal editorial declaring that “School choice is the civil-rights issue of our time.” Robinson writes: “Among eighth-graders in 2022, 91 percent of black students, 86 percent of Hispanic students and 64 percent of white students weren’t proficient in math. In reading, 84 percent of black students, 79 percent of Hispanic students and 62 percent of white students weren’t proficient.” Many apologists for the status quo shrug and blame the communities, the families, and the children. But it doesn’t have to be this way. A study from the Progressive Policy Institute, “Searching for the Tipping Point: Scaling Up Public School Choice Spurs Citywide Gains,” counters the idea that charter schools “somehow drain legacy schools of the ‘best’ students and resources, to the detriment of those left behind.” PPI reports: “In all ten cities where charter schools ‘reached a critical mass [more than 33 percent] in terms of student enrollment,’ performance improved citywide and was significant enough to start closing the performance gap with the wider state averages by 25-40 percent.” PPI concludes: “Evidently, the growth of enrollment in charter schools creates a positive competitive dynamic with the traditional district schools, which have to up their game to attract parents and students.” What about the overall impact of all forms of school choice on public schools? We’ve previously reported that William Alexander Salter of Texas Tech University has demonstrated that on the question of the impact of school choice – “Out of 28 studies that explore this question, 25 found that school choice improves educational attainment in traditional school systems. In terms of social-scientific validity, that’s a slam dunk.” And yet Democratic politicians across the board continue to stand firmly behind a special interest – the powerful teachers unions – to reject any form of school choice. For example, Gov. J.B. Pritzker of Illinois and Gov. Josh Shapiro of Pennsylvania both tiptoed toward support for limited tax breaks to supply private school scholarships for low-income students. But the teachers unions were powerful enough to hold both governors over the abyss of political annihilation – and forced them to reverse course. But now the pressure on politicians is coming from two directions. Republicans are making unprecedented inroads among minorities on the issue of school choice, while Democrats alienate those same minorities by standing in front of the schoolhouse door. How much longer can leading Democrats continue to resist the passionate, urgent, and increasingly angry demands of core constituencies? As the late economist Herb Stein once said, if something cannot go on forever, it will stop. We predict, as the evidence in favor of school choice mounts – from a progressive institute, no less – and the angry demands from families in bad school districts intensifies, that politicians’ wall of resistance will crumble. We believe powerful Democrats may soon jump on the school choice bandwagon. And when they do, their support and leadership will be something to celebrate. The nation’s two presidential candidates sometimes seem at a loss to understand or appreciate the First Amendment, which protects religious expression and freedom of the press, among other forms of speech. Case in point: when Vice President Kamala Harris was asked this week in an NBC interview if she would support a religious exemption for physicians on abortion, she flatly rejected any such “concession.” The Democratic nominee for president spoke about the “basic freedom” of a woman to control her own body, while rejecting the idea that a physician in a white surgical gown should have control over the actions of his or her own hands. Let’s be clear what we’re talking about – the Harris position would pull the medical licenses of men and women of faith for declining to personally perform abortions. Never mind that this country has no lack of physicians willing to perform that procedure. Contrast the vice president’s stance with the Democrats of New Mexico, where last year Gov. Michelle Lujan and her fellow Democrats in the legislature took a commendable step to improve a law they championed to make sure it observes the religious freedom of physicians. That law is the Elizabeth Whitefield End-of-Life Options Act, which went into effect in 2021. The law required doctors who objected to administering fatal drugs to a patient to refer them to a physician who would. Gov. Lujan and her allies in the New Mexico legislature heard the outcry from physicians of faith and responded with courage to correct their law to observe the religious freedom of expression. Why can’t Harris follow that example? Then there is former President Trump, who has been littering the airwaves with threats to pull the broadcast licenses of ABC and then CBS for disputes over their fact checks and editorial decisions. News flash: Networks don’t have broadcast licenses. Their local affiliates do. News organizations don’t need a “license” to practice journalism. Anyone can do it. Again, it’s called the First Amendment. Contrast the Republican nominee’s frequent threats with those of his Republican predecessors. Presidents Reagan, Bush and Bush complained about media bias, but each of them found artful ways to counter it. The first President Bush forcefully rejected the contentions of CBS’s Dan Rather on air, then the allies of the second President Bush discredited him so badly that Rather eventually resigned from CBS. The presidential father and son did so by exercising their First Amendment rights, without resorting to threats of censorship. Yet listening to our candidates today, we have to ask: is rubbishing the First Amendment the new normal in American presidential politics? At the very least, the current state of the presidential debate points to the urgency of restoring civics education that imparts a classical understanding of our Constitution. We recently reported on a poll from RealClear Opinion Research showing overwhelming bipartisan support for giving families the right to choose their schools. Some 77% of Democratic voters and 86% of Republican voters say they support school choice. Nearly 80% of Black Americans say the same. This is happening because Americans see school choice as a natural extension of the guarantees of the First Amendment. School choice encourages true educational pluralism and eliminates top-down imposition of ideologies – which vary among the states – by monolithic, public-school systems. Choice allows all parents, religious or nonreligious, conservative or liberal, to find schools that best fit the values they want to pass on to their children. Competition for students is also demonstrated to improve educational outcomes, not just for private schools, but for public ones as well. The Educational Choice for Children Act, which would provide tax credits for charitable donations to expand choices in quality education, recently picked up the support of House Speaker Mike Johnson. At least one of the two presidential candidates also supports school choice. Former President Donald Trump, echoing Sen. Tim Scott (R-SC), recently called school choice a “civil rights issue.” Lexi Lonas Cochran in The Hill reports that Trump “has hinted at a universal school choice policy and has adopted language used by the movement in states that have offered education savings accounts …” Trump has also said: “We want federal education dollars to follow the student, rather than propping up a bloated and radical bureaucracy in Washington, D.C.” As the Democratic nominee, Vice President Kamala Harris, grapples for a way to capture the center, she might do well to see a late campaign opportunity here. In Illinois and Pennsylvania, Democratic governors have flirted with school choice vouchers, only to retreat after being threatened with political extinction by the most powerful lobby in the Democratic Party – the public teachers unions. This leaves many Democrats, especially Black voters in urban areas disgusted by the poor quality of public schools, increasingly disaffected by politicians who are more responsive to a special interests than to their constituents. This is the wedge that Donald Trump is driving deep into the Democratic polity. If Vice President Harris were to at least support tax credits for private schools, she would close that wedge and prove to American voters that she is more of a centrist who can be trusted to be president. If Harris were to take that opportunity, then we would have two pro-school choice candidates for president. Given the growing support for school choice across the board, it is likely inevitable that national leaders in both parties will support school choice, in this election or the next. California holds the unique position of being both the most innovative state in the union and perhaps the most ignominious when it comes to government overreach. Take a recent law that passed the California State Legislature back in September: AB 2839, which targets election misinformation, and which is now enjoined pursuant to a federal court order. AB 2839 takes aim at “materially deceptive” communications distributed within 120 days of an election and up to 60 days after one. Specifically, the law states that “[a] person, committee, or other entity shall not…with malice, knowingly distribute an advertisement or other election communication containing materially deceptive content” of a candidate “portrayed as doing or saying something the candidate did not do or say if the content is reasonably likely to harm the reputation or electoral prospects of a candidate.” The law permits any recipient of the content to file suit against the content creator. In an era in which many voters hold legitimate concerns about AI, deepfakes, bots, and other methods of digital manipulation, the impulse to use whatever means necessary to protect election integrity is not entirely misguided. AB 2839 goes way too far. Like many such laws, AB 2839 “lacks the narrow tailoring and least restrictive alternative that a content-based law requires under strict scrutiny.” Its broad sweep, writes Judge John Mendez, “does much more than punish potential defamatory statements since the statute does not require actual harm and sanctions any digitally manipulated content that is ‘reasonably likely’ to ‘harm’ the amorphous ‘electoral prospects’ of a candidate or elected official.” For instance, as written, the law could subject the creator of any candidate deepfake to civil liability – even if it “does not implicate reputational harm.” As Mendez points out, New York Times v. Sullivan long ago addressed the issue of deliberate lies about the government, which are constitutionally protected. To the extent speech conduct targets public figures or private individuals, remedies like “privacy torts, copyright infringement, or defamation” already exist. As such, it is entirely unnecessary to separately target speech occurring within an electoral context, which is “a content-based regulation that seeks to limit public discourse.” Beyond the legal implications, it practically opens the floodgates to all manner of politically motivated censorship. Parody is perhaps the most likely victim of AB 2839’s reach. The plaintiff, Christopher Kohls, runs a YouTube channel steeped in political satire. And, while the law does contain a carveout exempting such content, it requires a written disclaimer "no smaller than the largest font size of other text appearing in the visual media." In other words, it would render Kohls’ content unwatchable. Judge Mendez writes, “Supreme Court precedent illuminates that while a well-founded fear of a digitally manipulated media landscape may be justified, this fear does not give legislators unbridled license to bulldoze over the longstanding tradition of critique, parody, and satire protected by the First Amendment. YouTube videos, Facebook posts, and X tweets are the newspaper advertisements and political cartoons of today, and the First Amendment protects and individual’s right to speak regardless of the new medium these critiques may take.” We’ll be watching this case closely should the Golden State decide to appeal. In a recent piece from the Wall Street Journal, EdChoice’s Martin Lueken takes on assertions from some critics of school choice that such programs “will destroy public school funding and worsen educational outcomes.” As Lueken lays out, the data simply don’t support those claims. According to a new study authored by Lueken, who is EdChoice’s director of fiscal research, an analysis of 48 school choice programs across 26 states showed that they “generated cumulative net fiscal benefits for taxpayers worth between $19.4 billion and $45.6 billion.” That’s up to $7,800 per student or between $1.70 and $2.64 in taxpayer savings for every dollar invested – a good ROI by any metric. Moreover, as Lueken notes, the total cost of school choice programs constitutes only 0.3% of state budgets – hardly an exorbitant figure, particularly given the net savings they generate. To the extent such programs lure parents and children away from public schools, Lueken writes, those schools should benefit in the short term by allowing teachers to turn their focus more to the needs of individual students. Budget cuts, meanwhile, are unlikely to present an immediate issue because “[s]tates often have protections that shield districts from immediate financial losses due to declining enrollment.” As Protect the 1st has written extensively, how you educate your children is one of the fundamental expressions of parental responsibility. As such, parents should be able to freely choose a school that fits their child’s needs and select an education that reflects their values. Arguments to the contrary ignore not only the efficacy and economy of choice programs, but also neglect the First Amendment rights of parents. This term, the Supreme Court declined to hear at least 16 cases that involved significant First Amendment issues, leaving a number of critical questions unresolved. Among those left on the table were cases touching on free speech, freedom of association, and the extent of religious freedom under the First Amendment. With these denials, the Court missed an opportunity to clarify or expand upon key First Amendment protections in an era where such rights are up against new and unprecedented challenges. Among the First Amendment cases the Court declined, several stand out as especially significant in terms of the broader impact on free expression and association. If a suitable vehicle for the issues in these cases were to come up in future litigation, we highly encourage the Supreme Court to take them. No on E v. Chiu - Donor Disclosure and Free Speech No on E v. Chiu centered on a challenge to a San Francisco law that required groups running election-related advertisements to disclose their donors, raising significant concerns about the balance between transparency in elections and the right to anonymous political speech. The plaintiffs argued that mandatory disclosure infringes on both free speech and association rights, raising fears of retaliation or harassment for individuals supporting controversial political causes. This is especially relevant in today’s hyper-connected digital world, where donor information is easily accessible, making contributors vulnerable to backlash. As seen in Americans for Prosperity v. Bonta, the Supreme Court has already recognized that revealing donors’ identities can expose them to threats and harassment, deterring political participation. While transparency is often cited as a virtue in campaign finance, the risks to individuals' safety and privacy are real and growing. In response to these threats, 20 states have passed the Personal Privacy Protection Act (PPPA) to shield donors from exposure, acknowledging that the right to support causes anonymously is vital for a healthy democracy. The Court’s refusal to hear No on E allows these concerns to persist and leaves donor privacy vulnerable in states without such protections. National Press Photographers Association v. Higgins - Drones and Press Freedom In National Press Photographers Association v. Higgins, the Court declined to hear a case that highlights the growing tension between new technologies and First Amendment rights. The plaintiffs challenged a Texas law that bans drone surveillance without exceptions for journalists, arguing that the law restricts their ability to gather news. Drone technology is a new frontier for free press rights, where the tools used by journalists to report on important public issues — like protests or natural disasters — are being regulated or outright banned. Drone technology is rapidly becoming essential for covering stories from angles that are otherwise inaccessible, but without clear protections for its use, journalists are left vulnerable to restrictions that limit their news gathering capabilities. As technology continues to evolve, the Court's refusal to address this issue and others like it could have serious implications for how the press operates in the digital age. Hile v. Michigan - Blaine Amendments and Religious Discrimination Hile v. Michigan involved a challenge to Michigan’s Blaine Amendment, which prohibits public funding from supporting religious schools. The plaintiffs argued that this restriction discriminates against religious schools and families, violating both Equal Protection and Free Exercise rights under the First Amendment. This case mirrors other recent challenges to state-level Blaine Amendments, including South Carolina’s, which prohibit the use of public funds for religious schools. Blaine Amendments, like Michigan’s, have their origins in 19th-century anti-Catholic bigotry and today block families from choosing educational options that align with their values. In South Carolina, for example, the state’s Supreme Court recently struck down a school voucher program, citing its Blaine Amendment, leaving thousands of students without financial support to attend religious schools. These rulings disproportionately harm low-income families who rely on school choice programs for access to quality education. As our amicus brief in that case argued, school choice promotes First Amendment-protected religious and speech rights by allowing families to select schools that reflect their beliefs and values. By refusing to hear Hile, the Court missed an opportunity to address the discriminatory legacy of Blaine Amendments and expand educational freedom for all families. Saline Parents v. Garland - Chilling Speech in School Board Protests Saline Parents v. Garland raised concerns about government overreach in monitoring political speech. The case challenged Attorney General Garland’s directive to the FBI to investigate threats at school board meetings, which parents argued unfairly targeted their free speech rights. The plaintiffs contended that the policy cast them as potential threats simply for speaking out against school policies, thereby chilling their ability to participate in public debates over education. Garland’s memo suggests that parental dissent might be treated as a threat. While Garland assured Congress that the DOJ’s efforts were aimed at preventing violence, the mere initiation of an FBI investigation has a chilling effect on speech. Even the process of being investigated can suppress dissent, as individuals are subjected to the anxiety of scrutiny, potential legal costs, and damage to their reputations. Though it’s unlikely that parents would be prosecuted merely for voicing objections, the threat of federal surveillance is more than enough to stifle open debate on school policies. By refusing to hear Saline Parents, the Supreme Court left this chilling dynamic unaddressed. Union and Free Speech Cases The Court also passed on several cases involving unions and the First Amendment, where state employees challenged mandatory union dues deductions made after they had resigned their membership. These cases often focused on limited opt-out windows and union agreements with state agencies that enforced dues collection beyond an employee’s resignation. In previous cases, we have argued that this practice violates employees' First Amendment rights by forcing them to support union activities they may disagree with. By refusing to hear these cases, the Court left in place lower court rulings that continue to allow unions to infringe on individual speech rights through these financial extractions. Why These Cases Matter By denying these First Amendment cases, the Supreme Court missed key opportunities to clarify the scope of free speech and association rights in the modern age. Whether it's the rise of new technologies like drones, the balance between transparency and privacy in political advocacy, the exclusion of religious schools from public programs based on antiquated laws, or government surveillance of political speech at local levels, the Court’s passivity this term leaves many critical questions unanswered. We urge the Supreme Court to consider taking up these issues if, and when, they return in future litigation. Protect The 1st is proud to announce that we have filed an amicus brief with the U.S. Supreme Court in the ongoing Mahmoud v. Taylor case (formerly Mahmoud v. McKnight). Our brief strongly defends the rights of parents to protect their children from mandatory instruction on gender and sexuality that conflicts with their religious beliefs. In collaboration with the Jewish Coalition for Religious Liberty and the Islam and Religious Freedom Action Team, we argue that the imposition of such curriculum without an opt-out provision violates core First Amendment rights. This case presents a fundamental question: can public schools burden parents’ religious exercise by compelling elementary school children to participate in lessons on gender and sexuality without giving families the ability to opt out? The right to direct the upbringing of children has long been established as a cornerstone of American jurisprudence, dating back to Pierce v. Society of Sisters and Wisconsin v. Yoder. Our brief emphasizes that these precedents should apply here, where the state's agenda contradicts parents’ most deeply held convictions. The situation in Montgomery County, Maryland, has sparked outrage among religious communities. What began with the introduction of 22 “LGBTQ+-inclusive” texts has turned into a battleground for parental rights. These texts include material that many families find inappropriate for young children, yet the school district denies any possibility of opting out. The brief highlights that teachers are instructed to tell students that “at birth doctors merely ‘guess about our gender and label us ‘boy’ or ‘girl’ based on our body parts.’” Such teachings directly conflict with many faiths, including Christianity, Judaism, and Islam, which hold clear beliefs about sexuality and gender. Our brief warns of the “cataclysmic consequences” that will arise if parents lose the right to teach their children in accordance with their own religious and moral frameworks. The manipulation of a "captive and vulnerable audience"—children in public schools—amounts to an unconstitutional burden on parental rights. No school district has the right to force-feed children views on sexuality and gender that contradict the moral teachings of the home. The stakes are high: this is about more than sex education; it’s about whether the state can undermine the very foundation of moral and religious instruction in the home. The Fourth Circuit’s decision to deny that a religious burden exists in these circumstances shows a troubling trend. Similar rulings in multiple circuits leave millions of parents without protection against forced instruction on sensitive matters like gender and sexuality. Religious families are left with no choice but to tolerate indoctrination, pay for private school, homeschool their children, or risk legal penalties. We are asking the Supreme Court to correct this error and restore the constitutional protections that prevent the state from intruding on the family’s role in educating children. Our work in this case is part of a broader effort to safeguard First Amendment freedoms for all. Whether Muslim, Jewish, Christian, or non-religious, parents should have the right to determine the values their children are exposed to—particularly on issues as contentious as sexuality and gender. As our brief concludes, "the time to decide the question presented—and thereby prevent these harms—is now." PT1st looks forward to further developments in this case. An important analysis from Real Clear Investigations probes the extent to which censorship abroad threatens the First Amendment here at home. Writer Ben Weingarten asks whether foreign demands that domestic media companies operating abroad comply with those nations’ often far more censorial legal requirements will lead in turn to more censorship here at home. The preponderance of the evidence suggests bad news for fans of the First Amendment. Weingarten points specifically to the European Union’s Digital Services Act, which imposes content moderation standards that far exceed what would be considered constitutional in the United States. For example, companies doing business in the EU must combat “illegal content online,” which includes the disfavored rhetoric like “illegal hate speech.” Writes Weingarten: “Platforms also must take ‘risk-based action,’ including undergoing independent audits to combat ‘disinformation or election manipulation’ – with the expectation those measures should be taken in consultation with ‘independent experts and civil society organisations.’ The Commission says these measures are aimed at mitigating ‘systemic issues such as … hoaxes and manipulation during pandemics, harms to vulnerable groups and other emerging societal harms’ driven by ‘harmful’ but not illegal content.” What’s more, investigations pursuant to the DSA can result in fines of up to 6% of annual global revenue, a potential outcome likely to give companies like X and Facebook pause when considering whether to comply with the invasive oversight of European bureaucrats and NGOs serving as arbiters of the appropriate. Then there’s the question of whether social media companies that agree to the EU’s demands are likely to run parallel services – for example, a DSA compliant version of X and another that is consistent with the requirements of the First Amendment. Elon Musk seemed willing to abandon Brazil after that country banned X for failing to de-platform the account of former president Jair Bolsonaro. (Though Musk’s company is now very much back in business there.) But the EU is a much bigger market with a lot more monetizable users. As Weingarten documents, the punishment of media companies abroad for speech that is well within the bounds of the First Amendment is a growing trend – not just in the EU but also in countries like the UK and Australia. And Weingarten reserves no small amount of criticism for the Biden Administration’s silence – and even capitulation – in the face of such foreign censorship. Bills like the No Censors on our Shores Act, which could “punish foreign individuals and entities that promote or engage in the censorship of American speech,” offer one potential solution to foreign censorship creep. So do articles like Weingarten’s, which provide a much-needed diagnosis of our speech-related ailings and failings. Recently, the Club for Growth brought to our attention a salient piece by Russ Latino of Mississippi’s Magnolia Tribune Institute regarding the state’s passage of education savings account legislation. In the article, Latino aptly and cogently refutes an assertion by new Superintendent of Education Lance Evans that “…if one single dollar of public money goes into a private school, then every single child in that school has to be subjected to the same assessment of every single student in public school.” Latino’s tripartite response goes like this:
Latino goes on to repudiate the argument that Mississippi’s school choice program is somehow unconstitutional. Like many states, Mississippi’s constitution prohibits the direct appropriation of public monies to private schools. And, also as in many other states, the issue of giving public funds to individual students has already been adjudicated – in Mississippi, some 80 years ago. Latino writes, “In that case, the Court ruled that since [textbook aid] went to ‘individual pupils’ the private schools were not the direct beneficiaries of the program and it was constitutional. The decision and its logic have remained untouched.” Kudos to Mr. Latino for combating the illogical arguments of school choice opponents with some unassailable logic of his own. His thoughts are well worth the read. California’s move to ban legacy admissions across all colleges and universities, including private ones, marks a bold shift in the battle over fairness in higher education. Governor Gavin Newsom framed the bill as a way to open doors for students based on their own achievements rather than family connections, tapping into widespread frustration over how wealth and privilege often shape college admissions. The ban follows the Supreme Court’s decision limiting affirmative action, with many seeing legacy admissions as another form of unfair advantage in the scramble for elite education. The legislation, Assembly Bill 1780, was introduced in response to growing scrutiny of admissions practices that favor wealthier applicants. Proponents of the bill argue that legacy admissions perpetuate inequality by giving an advantage to students with family ties to alumni, often from wealthier and less diverse backgrounds. The University of California system had already eliminated legacy preferences in 1998, but AB 1780 expands the ban to private institutions. Supporters of the bill claim it ensures that merit, not personal connections, determines access to higher education. However, by targeting private colleges, the law goes beyond leveling the playing field and crosses into unconstitutional territory. Imposing this ban on private institutions violates the constitutional right to freedom of association. Private colleges have the legal right to make independent decisions about whom to admit, including factoring in alumni relationships, as part of building their unique communities. This right to self-governance and association is protected under the First Amendment, and government interference with these choices oversteps constitutional boundaries. Unlike bans on discrimination based on race—which targets a constitutionally protected class—prohibiting legacy admissions attacks decisions based on familial or alumni connections, categories that are not subject to the same legal protections. Wealth and privilege may be controversial factors, but they do not give the government the power to dictate how private institutions should build their student bodies. This ban effectively strips private schools of their right to shape their communities according to their values and traditions. By enforcing a one-size-fits-all admissions policy through legislation, California undermines the autonomy of private institutions and their constitutionally protected right to freely associate. Forcing private universities to comply with a state-mandated admissions process infringes on their ability to pursue their own educational missions, which is a direct violation of their First Amendment rights. While the new law purports to address inequities in access to higher education—and may well even do so in practice—it disregards the fundamental constitutional protections that allow private organizations to operate free from unwarranted government intrusion. California’s ban on legacy admissions at private schools is unconstitutional, and this overreach into the affairs of private institutions threatens the diversity and independence that make these academic communities vital. Speaking of the First Amendment: Cass Sunstein’s Arms Control Theory of the First Amendment10/13/2024
Cass Sunstein’s argument that the First Amendment functions as an “arms control agreement” is a sharp, compelling analogy. In a world where everyone wants to censor someone else—whether it’s banning critical race theory or eliminating speech that offends on campuses—Sunstein argues that the Constitution forces all parties to “lay down their arms.” The First Amendment, in Sunstein’s view, serves as a neutral zone, preventing any one group from suppressing another’s speech, no matter how repugnant that speech might seem to them. Sunstein draws a powerful parallel to the 1943 case of *West Virginia State Board of Education v. Barnette*. In that case, Justice Robert Jackson wrote what Sunstein calls “the greatest opinion in the history of the Supreme Court.” Jackson warned, “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters.” In a clear rebuke to authoritarianism, Jackson argued that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” For Sunstein, this is the essence of the arms control agreement: no viewpoint may be forbidden, no matter how tempting it might be to do so. While Sunstein acknowledges that this broad understanding of the First Amendment is not easily squared with its original meaning, he points out that the robust protections we now have evolved in response to historical moments of danger, like World War II and the 1960s. “It is perhaps unsurprising that a robust understanding of free speech would develop during the war against fascism,” he writes, and that it would solidify during the fierce debates of the 1960s. Sunstein’s advice for today? College administrators, and others in positions of power, “should avoid the temptation” to suppress views they find beyond the pale. They “should lay down their arms.” If we’re going to have a constitutional arms control agreement, everyone needs to disarm—especially those most eager to wield the weapons of censorship. After all, no one should have a monopoly on banning speech. That would be the ultimate arms race. With a contentious election looming, Republicans and Democrats can at least agree on one thing: school choice.
Per a poll from RealClear Opinion Research, 77% of Democratic voters and 86% of Republicans say that they support school choice. Nearly 80% of Black Americans say the same. Speaker Mike Johnson recently declared his support for the Educational Choice for Children Act, which would provide tax credits for charitable donations to expand choices in quality education. The legislation, sponsored by a large group of United States senators and House members, would grant individuals and businesses tax credits for donating to Scholarship Granting Organizations (SGOs) that provide scholarships to eligible students for attending private or religious schools, homeschooling, or other non-public educational options. The bill’s supporters persuasively show that private options are often superior choices over available public schools. An estimated two million students in any elementary or secondary education setting, including homeschooling, would be eligible to receive scholarships that can cover tuition, fees, books, supplies, and equipment necessary for enrollment or attendance in non-public educational options. Minority Leader Hakeem Jeffries should bridge the partisan divide by working with Republicans to help young people and their parents express their First Amendment freedoms by choosing the educational forum and curriculum that is right for them. Former senator and presidential candidate John Kerry said the quiet part out loud in recent comments before the World Economic Forum.
In answer to a question regarding critics of climate change, Kerry responded vigorously, saying: “You know, there’s a lot of discussion now about how you curb those entities in order to guarantee that you’re going to have some accountability on facts, etcetera. 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 be able to just, you know, hammer it out of existence.” We at Protect the 1st are no critics of the climate change debate, which is important. But we cast a critical eye at those who would minimize First Amendment protections to silence their opposition. Kerry said, "Democracies around the world now are struggling with the absence of a sort of truth arbiter, and there’s no one who defines what facts really are." With all respect to Kerry, we’re a hard pass on a Ministry of Truth. The free exchange of ideas, even bad ideas, is essential for an informed discourse. 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. |
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