In a narrow 9-8 ruling last week, the U.S. Court of Appeals for the Fifth Circuit upheld a 2025 Texas law that requires the Ten Commandments to be displayed in public school classrooms. Louisiana has a similar law. As these laws proliferate, so do age-old constitutional fault lines.

Does the Constitution allow or forbid government mandates to post the Ten Commandments? This is a healthy debate for any pluralistic society – what is permitted when it comes to the expression of religion in public life? The standard used to be tighter. In 1971, the Supreme Court found in Lemon v. Kurtzman that state statutes do not violate the First Amendment’s Establishment Clause if they have a secular purpose, do not advance or inhibit religion, and do not result in “excessive government entanglement” with religion.

That Lemon test sounded precise, but in practice proved so vague as to give government wide latitude to impose burdens on religious practice. For that reason, the Supreme Court itself effectively abandoned Lemon in Kennedy v. Bremerton School District (2022).

In recent years, the Court has also repeatedly upheld the notion that the First Amendment doesn’t require treating religion as if it were a contaminated petri dish, to be hygienically removed from the public square. After all, there is no way to understand American history and culture without acknowledging the influence of religion, from abolitionism to the civil rights movement. The Supreme Court’s notion of “ceremonial deism” would also seem relevant. Such references have long been accepted in American public life – from “In God We Trust,” to modern presidents’ promise to uphold the U.S. Constitution with an added, “So help me God,” to courtroom oaths in many states.

But are the laws in Texas and Louisiana consistent with these historical standards?

Opponents point out that posting “the” Ten Commandments raises a troublesome prior question: Which version? There are Jewish, Catholic, and Protestant versions of the Ten Commandments, differing in wording and order. Politicians almost always mean the Protestant version, a decision that effectively excludes Catholic and Jewish children.

And what about the 4.5 million Muslims in the United States? Would the same politicians who welcome postings of the Protestant Ten Commandments want to see the key tenets of the Quran posted in schools in Dearborn, Michigan? Or what about the 3.5 million Hindus in the United States? Some school districts in Dallas have large numbers of Hindu students. Should they post sections of the Upanishads?

The good news is that this controversy prompts a healthy debate on the nature of the First Amendment in a pluralistic society.
​
Whatever the answer, we can be glad that at 234 years of age, the First Amendment is still in the news. What better way to honor that primary law than to argue about it?

The U.S. Supreme Court has now stepped into St. Mary Catholic Parish v. Roy, agreeing to decide whether Colorado can exclude Catholic preschools from its “universal” preschool program because of their traditional beliefs on sexuality. The parish refuses to accept the children of same-sex and/or transgender parents. Because families that enroll are participating in the parish community, the parish wants participant families to hold beliefs in line with Catholic teachings.

However you feel about that, this case is a telling example of Colorado’s disregard for the First Amendment’s protection of religious expression.

What the Court Just Did

Last week, the Court granted certiorari, setting the stage for arguments in its upcoming term. At issue is Colorado’s requirement that participating preschools comply with nondiscrimination mandates tied to sexual orientation and gender identity.

On paper, that may sound neutral. In practice, it forces religious schools into an untenable choice: abandon core teachings or be shut out of a public benefit open to others.

Catholic preschools argue that this is precisely what the Constitution forbids – conditioning participation in a public program on surrendering religious identity. Lower courts nevertheless sided with Colorado, accepting the state’s claim that the policy is “neutral and generally applicable.”

The Supreme Court will now decide whether that label reflects reality – or masks discrimination. The Court will need to make a keen evaluation. The Archdiocese of Denver does not wish to allow same-sex couples to join their congregation. Colorado does not like that. Many of us feel the same. But traditional marriage – whatever you think of that as a standard – is a central tenant of the Catholic faith.

Why It Matters

Protect The 1st stands firmly against discrimination in all its forms. We see no contradiction in upholding the Supreme Court’s Obergefell v. Hodges acceptance of same-sex marriage and supporting the Roman Catholic Church’s right to define its constitutionally protected beliefs. When this case was before the Tenth Circuit, PT1st told that court:

“ … Colorado has violated Plaintiffs’ expressive association rights … Whatever one may think about same-sex relationships or gender transitions – and PT1st does not oppose them – a religious institution has a constitutional right to decide whom to admit into its communities, and cannot be excluded from a publicly available benefit program for making those religion-based choices.”

In a pluralistic society, these Catholic preschools serve a vital need and deserve equal access to public support. Eighty-five percent of the congregation in one parish school in Denver qualifies for free and reduced-price school meals program. For the Catholic Church, this case goes to the heart of a vital First Amendment principle: the government cannot condition benefits on narrowing the freedom of religious exercise. Colorado’s program is billed as “universal.” But a program is not universal if it excludes participants the moment they act like the religious institutions they are. That is not neutrality. It is exclusion dressed up as policy.

That tension is not new. The Supreme Court has repeatedly held that religious institutions cannot be treated as second-class participants in public life. This case will test whether states can evade that rule by redefining exclusion as compliance.

The Road Ahead

The Court’s decision to hear the case signals that at least four justices see serious constitutional concerns. A ruling is expected by mid-2027.

The stakes are clear. If Colorado prevails, “universal” programs across the country could become vehicles for sidelining religious providers. If the Court holds the line, it will reaffirm a foundational rule: government benefits cannot be conditioned on the abandonment of faith.
​
The First Amendment demands nothing less.

Tragedy was narrowly averted in a park in Miami when a reporter assailed Miami-Dade Mayor Daniella Levine Cava with an impertinent question about $60 million in public funds spent on electric buses that are not working. Fortunately, before the mayor could have been fatally embarrassed in front of a local TV news camera, a valiant plainclothes Miami-Dade County deputy sheriff intervened. Without identifying himself or flashing a badge, he physically confronted the reporter, pushing him backward.

While this incident prevented the impertinent question from being asked, we cannot yet say that the danger of these kinds of confrontations is over. There are an estimated 80,000 reporters, news analysts, and journalists running loose in America, putting all sorts of unpredictable and potentially embarrassing questions to officials about how public funds are being spent, with far too few law enforcement officers on the spot to shut them up by pushing them around and threatening them with arrest.

American YouTuber Johnny Somali calls himself a “Political Prisoner in South Korea on trial for Freedom of Speech and Expression.” Instead of being recognized as such by the U.S. State Department, he has learned a couple of civics lessons that perhaps every U.S. citizen should take to heart.

First, the First Amendment isn’t something you can take with you to a foreign country in your carry-on luggage. Its protections don’t apply beyond U.S. borders.

Second: the First Amendment does not give you the right to be a clueless, trespassing, vandalizing jackass anywhere, including here at home.

To paraphrase Mark Twain, if a book about American internet trolls in foreign countries were written today, it could well be titled The Idiots Abroad. Johnny Somali would be the book’s central anecdote, thanks to actions that now have him serving a six-month prison term in South Korea.

In 2024, he posted video of himself twerking in front of and then kissing the sculpture of a woman depicted in front of a “Statue of Peace” memorial in Seoul. Given the larger cultural context, it was an act that was beyond tasteless.

Such installations have proliferated in South Korea and elsewhere in the last 15 years to remember the women who were forced into sexual slavery by the Japanese military before and during World War II. Many in Japan still refer to those forced prostitution victims offensively as “comfort women.” The subject has been a long-simmering source of tension between Japan and South Korea; the original Statue of Peace was installed in 2011 – directly across from the Japanese embassy in Seoul.

All of which was apparently lost on Johnny Somali, who apologized and pleaded ignorance. His “don’t know much ‘bout history” defense strains credulity, however, when one considers that he had previously traveled to Japan, where he taunted subway commuters about Hiroshima and Nagasaki. According to the BBC, he dared South Korean residents to fight him, disrupted public transportation, and vandalized a convenience store. He was also detained in Tel Aviv for making inappropriate remarks towards a female officer.

Sorry, Johnny, but vandalism and harassment are not protected as speech rights under the First Amendment. In this country, the First Amendment absolutely did protect the late George Carlin’s act as he enumerated and dramatized the seven dirty words. But no American could tap-dance on top of the Tomb of the Unknown Soldier without facing immediate arrest. Even if the Bill of Rights were being written anew today, “internet troll” would not be a free speech defense against trespassing, much less vandalism and harassment.
​
And Johnny, one more word of advice: Maybe you need to find a new schtick. You went to all of this trouble, and you still only had 5,000 followers by the time YouTube banned you? That’s worth about $500 a month. Something to think about while you do your time.

​Congress recently passed the first federal education tax credit, providing billions of dollars to scholarship-granting organizations that support tuition, tutoring, special-needs resources, school supplies and technology for both public and private school students. This program is funded by individual taxpayers who receive dollar-for-dollar tax credits on their federal tax returns, up to $1,700 a year for contributions to K-12 scholarship organizations.

If Maryland opts in, many thousands of students will be able to attend the private school of their choice. This also allows parents to make full use of living in a First Amendment society by choosing a school that best reflects their values – whether a science-based academy, an arts school, or a religious school, all subject to state standards in education.

Under this law, states must affirmatively opt in to accept these scholarship funds. Gov. Wes Moore has said that acceptance is currently “up in the air.”
​
Please tell Gov. Moore that Maryland must opt in to this federal tax credit before the program’s January 1, 2027, deadline.

Doing so:

• Will not divert money from the State of Maryland or our public-school budgets.  
• Will serve both public- and private-school students.
• Will improve educational outcomes for Maryland and give our children a better shot at a great future – without encouraging families to move to states where these scholarships are accepted. It would be a tragedy to forgo this unique opportunity for Maryland children.

​
If you believe that Maryland families deserve more educational opportunity, call or email Gov. Moore and urge him to opt in to the federal Educational Choice for Children Act.

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

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

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

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

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

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

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

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

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

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

The order also sounds a discordant historical note.

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

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

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

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

The FBI’s suspect categories include:

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

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

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

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

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

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

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

• Accept a government-imposed statement they may disagree with

 

• Or fail in their ethical duty to represent their clients

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

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

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

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

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

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

The Founders Knew This Playbook

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

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

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

The Stamp Acts – Regulation as Suppression

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

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

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

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

“Seditious Libel” – Punishing the Critics

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

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

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

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

Executive Power Was Meant to Be Limited

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

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

The Modern Echo

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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