​Al Gore wrote in 1992 about predictions that within the next few decades “up to 60 percent of the present population of Florida may have to be relocated” due to rising seas caused by global warming.

Kyle Smith, a columnist for The Wall Street Journal, noted that far from shrinking, Florida’s population has grown from 13 million in 1992 to 23 million today. Should Al Gore be liable for a multibillion-dollar judgment in a lawsuit for getting the science wrong?

If the answer is no, then the same principle should apply when states and localities sue fossil fuel companies not merely for what they produce, but for the scientific claims they’ve made about this highly contested issue of global warming.

Others have focused on the issue of whether the city and county of Boulder, Colorado, should be able to launch a lawsuit that effectively drives policy for other states and the nation. Protect The 1st is weighing in with an amicus brief before the U.S. Supreme Court that details the First Amendment principles at stake in Suncor v. Boulder County.

One problem with punishing scientific claims is that the history of science is replete with loudly dismissed claims later proved to be right.

Our brief tells the story of the 19th-century Hungarian physician Ignaz Semmelweis, whose advocacy of handwashing dramatically reduced maternal deaths. But Dr. Semmelweis’s theory was harshly rejected by much of the medical establishment because of its “inclination to adhere to established norms and resist new ideas that challenge them,” a tendency in science now known as the “Semmelweis reflex.” The brief asks readers to imagine a world in which Semmelweis or Joseph Lister, who advanced the understanding of the importance of sterile conditions for surgery, had been sued for questioning the scientific orthodoxy of their times.

Our brief tells the Court that “if history teaches anything, it is that today’s consensus may be tomorrow’s cautionary tale.”

While the Suncor case is often framed as a dispute over environmental policy, we are telling the Court that such lawsuits pose a much broader threat to free speech and open scientific inquiry.

After all, the First Amendment does not permit government officials or private litigants to use lawsuits to penalize speakers for expressing views on matters of public concern. Nor does it allow government officials to favor one side of a debate while burdening the other.

The danger in such climate lawsuits is that they target particular speakers because of who they are. “These theories are dripping with textbook speaker-based discrimination,” we wrote. “Respondents have singled out Petitioners – fossil-fuel producers and sellers – and seek to impose on them special burdens that no other industry, environmental group, or renewable-energy advocate faces.”

Would a climate-change NGO be held liable for prompting a community to build a seawall it doesn’t need? The brief warns that such selective targeting undermines a core constitutional principle. As Justice Neil Gorsuch has observed, “the First Amendment does its real work in giving voice to those a majority would silence.”

Likewise, the brief notes that our scientific understanding of climate issues is still evolving. Although the plaintiffs contend that catastrophic climate consequences of greenhouse gases (GHGs) were known decades ago, our brief points out that in 2001 the Environmental Protection Agency still stated that “a [causal] linkage between the buildup of [GHGs] in the atmosphere and the observed climate changes during the 20th century cannot be unequivocally established.”
​
Just a few days ago, the United Nations removed the worst-case scenario from its global warming predictions. Who knows which directions the science will go in the future? The lesson is that scientific inquiry should remain free and unpunished.

A free press depends on the ability of journalists to gather information without fear that the government will seize their records, expose their confidential sources, or use surveillance for fishing expeditions. Recent reports about aggressive Justice Department leak investigations tied to coverage of Iran should remind Congress why passage of the bipartisan Protect Reporters from Exploitative State Spying, or PRESS Act, is needed now more than ever. 
 
A Bipartisan Problem
 
The Justice Department is firing off subpoenas right and left to reporters and news organizations over stories involving internal deliberations about Iran policy and military action. Targets of these investigations include The Wall Street Journal, The Washington Post, Axios, and other major outlets. 
 
These subpoenas represent an erosion of principle. For decades, the Justice Department and its prosecutors were cautious about using the law to breach the confidential notes and sources of journalists. That discretion ended in 2009 when the Obama Justice Department investigated a Fox News reporter as a co-conspirator in an alleged violation of the Espionage Act. The Obama Administration also secretly helped itself to the phone records of Associated Press reporters.
 
Not to be outdone, the first Trump administration secretly snooped on the phone records of reporters at the Washington Post, the New York Times, and CNN. The second Trump administration is now, in the words of Andrew McCarthy in National Review, “going to war with the press.” McCarthy writes that the Justice Department is “flexing its muscles to squeeze reporters into giving up their sources, threatening to imprison them if they don’t.” McCarthy, a former prosecutor, offers this “word of caution” for those who oppose this bill. He writes:
 
“The reason press-shield legislation has not gotten traction, even though we’ve always had tension between the public’s security and its need to be informed, is that the DOJ has generally been seen as a responsible arbiter of that tension. Not always, but generally. As the executive branch has become more imperious during the past 20 years, that assumption has eroded. I suspect we’re about to see whether there’s anything left of it.”
 
A Bipartisan Solution
 
The House unanimously passed the PRESS Act in 2024 because lawmakers across the political spectrum recognized that press freedom is not a partisan issue. With the Justice Department under administrations of both the left and the right using national security as a pretext to threaten reporters, bipartisan support for the PRESS Act continues to grow.
 
What would this law do? Just as important, what would it not do?
 
The PRESS Act would prohibit the federal government from compelling journalists and communications providers to disclose protected newsgathering materials, but with reasonable exceptions. It does not grant blanket immunity to journalists. Contrary to some critics, the bill does not shield reporters who commit crimes. It does not prevent investigations into genuine national security threats. It simply requires the government to meet meaningful standards before intruding into the newsgathering process. 
 
Consider that throughout American history, some of the most important reporting on government misconduct, military operations, intelligence failures, and executive overreach has depended on confidential sourcing. Without such protections, many stories of immense public value would never have been published.
 
Congress should not wait for another escalation in the conflict between government secrecy and press freedom. The current controversy surrounding Iran reporting is merely the latest reminder that constitutional protections cannot depend on the goodwill of whichever administration holds power.
 
It is time for the House and the Senate to pass the PRESS Act.​

​We earlier reported on the $3 million payout Marion County, Kansas, made to The Marion County Record after that newspaper was illegally raided by the sheriff’s office and its editor’s home was ransacked. The editor’s distraught 98-year-old mother, a co-owner of the paper, died shortly afterward.
 
Now a county and a sheriff in Tennessee are receiving another expensive lesson – this time to the tune of $835,000 – for holding a retired law enforcement officer in jail for 37 days for posting a meme. Here’s the report from the Foundation for Individual Rights and Expression (FIRE), which helped represent the plaintiff, Larry Bushart, in a federal civil rights lawsuit. FIRE reports:
 
“After the September 2025 assassination of conservative activist Charlie Kirk, Larry commented on a Facebook post promoting a vigil in nearby Perry County by sharing a meme that accurately quoted Donald Trump’s statement after a school shooting: ‘We have to get over it.’
 
“That meme – which Larry didn’t create or alter – included a reference to the 2024 school shooting at Perry High School in Perry, Iowa. But that did not stop Weems from seeking and obtaining a warrant for Larry’s arrest, based on the absurd notion that the meme could be interpreted as a threat against Perry County High School in Tennessee ...
 
“Weems admitted in a later interview that he knew at the time of the arrest that Larry’s Facebook post was a pre-existing meme that referred to an actual shooting that took place in a different state, over 500 miles away. But Weems and Morrow left out that extremely important context from their warrant application. Not that it should have mattered; the Supreme Court has long held that heated political rhetoric is fully protected by the First Amendment.
 
“Larry spent over a month behind bars on a $2 million bond. Perry County released him from jail only after his plight went viral nationwide and prompted outrage. During his stay in jail, Larry lost his post-retirement job and missed his anniversary – as well as the birth of his grandchild. After his release, he teamed up with FIRE to hold those who violated his constitutional rights accountable.”
 
Kudos to FIRE for helping Bushart stand up to this bullying. As many Americans are being arrested for exercising their First Amendment rights – whether by making controversial posts, reporting public information, or recording the police – they are pushing back in the courts. We hope local officials will learn that trashing their citizens’ First Amendment rights is hard on the résumé and the wallet.

​The Federal Communications Commission under Brendan Carr is winning a special place in American history – for mounting the most serious effort to impose government control of Americans’ speech since President John Adams used the Sedition Act to imprison writers for making disrespectful statements about the president and the government.
 
The victim this time is ABC’s The View, of Whoopi Goldberg and Joy Behar fame.
 
We know, we know… You might love it – 2.5 million viewers do. You might be a conservative who finds The View utterly biased. Or you might be a fan of Saturday Night Live and find The View supremely ridiculous. Wherever you land, you should find this latest foray into speech regulation deeply troubling.
 
Carr first rankled many, including principled conservatives, when he tried to use his regulatory authority to force ABC to remove a late-night talk show host. Now he’s using his regulatory authority over broadcast television to open an investigation of Disney-ABC Television and The View for, well, its viewpoint.
 
Carr’s ire was raised when the program invited James Talarico, a Democratic candidate for the U.S. Senate in Texas, on the show in February. For some programs, this could have been a violation of the “equal-time” rule – which originated in the Radio Act of 1927 and requires candidates to get equal access to the airwaves. Recognizing that this requirement was chilling news coverage, Congress added an exemption for news programming in 1959. The View, which has enjoyed such a news exemption for decades, suddenly found this status being questioned by the government and ABC affiliates bombarded with demands by the FCC’s Media Bureau to file their license renewal applications early.
 
Former U.S. Solicitor General Paul Clement, a Republican, is representing Disney-ABC in a petition with the FCC against these actions. He argues that the Commission’s aggressive regulatory approach threatens “critical protected speech” and could chill political coverage ahead of the 2026 elections. The filing states that the FCC’s current posture risks interfering with “editorial discretion” and could force broadcasters to alter political programming out of fear of regulatory retaliation.
 
Clement’s filing notes that the FCC is not going after stations that aired the conservative Mark Levin Show in which that host interviewed Dan Patrick, who is running for re-election as the lieutenant governor of Texas. Nor did it investigate the Glenn Beck Program for its interview of a Republican candidate for Texas attorney general. Why, then, did the FCC only investigate The View over Talarico?
 
For a conservative administration, this selective, let-me-see-your-papers approach to regulatory enforcement is a decidedly unconservative act. The Disney-ABC filing quotes conservative commentator Ben Shapiro:
 
“I do not want the FCC in the business of telling local affiliates that their licenses will be removed if they broadcast material that the FCC deems to be false. Why? Because one day the shoe will be other foot … I know a lot of people on the Right are saying, ‘The shoe will never be on the other foot, and if it is, the Left will just do it anyway.’ But preemptively breaking things because you believe that the Left is going to break the things still makes the things broken – and you can’t unbreak them.”
 
We would like to add just one more point – it is time to toss the equal-time rule entirely. It is a vestige of laws that hark back to the era of flappers and Model-Ts, when broadcast was king. Streaming and cable today make up about 70 percent of television viewing. Media today is multi-dimensional – full of short videos, websites, influencers, social media platforms, streaming shows, and now AI. Worrying about a candidate getting scarce “airtime” in this environment is an increasingly antiquated concern.
 
Worse, it gives government regulators too much room to meddle in speech. Congress should send the equal-time rule to the scrap heap.

​When College Democrats invite speakers to campus, they usually aren’t forced to include Republicans for “balance.” Nor are conservative campus groups generally required to include liberals in their discussions. Yet the Catholic University of America is imposing this oppressive standard on its Students Supporting Israel (SSI) chapter (hat tip to Sara Weissman at Inside Higher Ed).

SSI tried twice to invite speakers Catholic University apparently considered too controversial and had their requests for an event on campus denied. In each instance, the group was told the university would reconsider approval “for this topic and speaker as long as there is a balanced presentation,” and asked SSI to kindly “restructure the event and resubmit a request to have speakers representing both sides of this issue.”

How many “sides” must a pro-Israel student group be required to invite to its pro-Israel – and by definition anti-antisemitic – event? And what exactly are the other “sides” that need consideration? A pro-Hamas speaker, many of whom defend the barbarity of Oct. 7?

For what it’s worth, it would be just as obnoxious for an event critical of Israel’s actions in Gaza or the West Bank to be forced to include speakers defending Israel’s current policies.

Whatever happened to free expression on campus, including the right to ask any invited speaker really tough questions? Or to protest peacefully outside the event? That’s the American way. And that’s exactly what happened last fall when the university approved SSI’s request to bring two Israeli Defense Force soldiers to campus. Difficult questions were asked and peaceful protesters showed up.

Catholic University’s new approach is now as inconsistent as it is capricious, which makes its administrators’ rationalizations in this case read more like recriminations. The university’s vice president for communications told Inside Higher Ed that the school wanted to hear from a greater variety of voices about how to fight antisemitism – beyond the ones that SSI chose to invite.

Fine, if so, then the university should sponsor its own event.
​
In an interview with Jewish News Syndicate, SSI chapter president Felipe Avila discussed the letter to CUA that the organization sent in response. It’s a refreshing (and much-needed) crash course on the First Amendment and we’ll close with one line from it. The university’s decision, it reads, is “not an exercise in academic freedom. It is forced speech.”

​“Hi … Stacy … This is the Social Security Administration. We will be suspending your Social Security Number because we found some suspicious activities on your Social Security Number …
 
“If we do not hear from you, we will have to file a case against you and your assets will be frozen. Please call back immediately.”
​
The above transcript is a scam – the Social Security Administration never sends phone messages like this – from a real robocall script posted in a warning from the Federal Trade Commission. Even when such calls are not fraudulent, they are always intrusive and bothersome.
 
Little wonder that Americans are understandably frustrated by scam calls, spoofed numbers, and relentless solicitations that invade daily life and often pressure people into buying products, disclosing sensitive information, or taking actions they otherwise would not take. Businesses do not have a First Amendment right to anonymously bombard consumers with unwanted commercial solicitations. Reasonable regulation of robocalls is both necessary and constitutional.
 
At the same time, some critics worry that aspects of the FCC’s proposed response could go too far and unintentionally burden lawful speech and legitimate anonymous communication. Mike Pearl at Gizmodo reports that the FCC’s proposed cure “might be worse than the disease” when it comes to broader civil liberties concerns.
 
The commission reportedly plans to require telecom providers to adopt stringent “Know Your Customer” rules. According to telecom law firm Wiley, the proposed changes could require customers to present government IDs and provide physical addresses, legal names, and alternate phone numbers. “High-volume” customers could face additional scrutiny, including disclosure of IP addresses and statements regarding the intended use of their phones.
 
Critics are particularly troubled by the idea that large-volume callers could be required to explain their “intent” before obtaining access to a communications device or service. This may not be a sketchy outfit selling solar panels that don’t exist or insurance you don’t need. It could be a public interest organization seeking to generate grassroots support to change a law, a candidate seeking to reach voters, or some other expression that impacts core First Amendment rights. While the government collects information related to certain types of political advocacy for campaign finance reporting, this broadscale exploration of “intent” expands the government’s interest from campaign finance law into the monitoring and oversight of viewpoints.
 
There is an important distinction between regulating anonymous commercial robocalls and preserving the ability of ordinary people to communicate anonymously for lawful reasons. Anonymous commercial solicitations can legitimately be restricted because they are intrusive and frequently deceptive. The government certainly has a legitimate interest in tracking behavior – such as cyberstalking, child pornography, and extreme forms of harassment – that is clearly unlawful. But anonymous communication itself is legal. It has long played an important role in American civic life (consider The Federalist Papers). Political advocacy, whistleblowing, journalism, religious outreach, and unpopular or dissenting speech have often relied on the ability to communicate without fear of retaliation or public exposure.
 
Americans generally do not have to justify in advance why they wish to speak, organize, advocate, or associate with others. Requiring telecom providers to collect statements about intended use risks creating vague standards that could chill lawful speech or discourage controversial but constitutionally protected expression.
 
As Ken Macon wrote for Reclaim the Net, the FCC’s proposal could create “an identity-verification regime covering one of the last semi-anonymous communication tools available to ordinary Americans.” While the government plainly has authority to target fraud, scams, and abusive robocalling practices, regulations should be carefully tailored so that they do not burden lawful anonymous speech protected by the First Amendment.
 
The challenge is finding the right balance. Americans deserve meaningful protection from robocalls and phone scams. Regulators should aggressively pursue fraudsters and deceptive telemarketers. But efforts to stop bad actors should avoid creating broad rules that sweep in lawful communications or require citizens to disclose and justify their intended speech activities in advance.
 
We can combat robocalls without undermining longstanding American principles protecting anonymous expression and freedom of association.

​Imagine playing a game of Texas Hold ‘Em with a fortune in the pot and seats for 49 other players. Obviously, you won’t be the only winner. But even if you have to split the pot, you will come out way ahead. After all, someone else fronted your stake.

So you have nothing to lose and only millions to gain.

You take in a deep breath to calm yourself and keep your face blank and free of any tells as you slowly look down at your cards. You have a Royal Flush! And then … you decide, what the heck … it’s no longer worth the bother.

And so you fold.

Who does that? Exactly no one – in poker. But in politics, 21 states are demurring from the offer of free money to fund educational scholarships for K-12 educational expenses and tuition for private schools.

Like the perverse poker player, these states are ignoring or declining the opportunity to accept their shares of nearly $23 billion in federal charitable educational donations that will be available between 2027 and 2029. Forgoing these funds is especially nonsensical given that contributions made by taxpayers in non-participating states will only go to fund scholarships in other states.

Worse, if these holdouts do not accept these funds, the result will be more than 4.1 million lost scholarship opportunities.

To make this decision even easier, these funds do not come at the expense of state and local public-school budgets. They come from the Educational Choice for Children Act, which established a federal tax credit of $1,700 per taxpayer for contributions to Scholarship Granting Organizations that give scholarships to qualified families. But to be eligible, a state must affirmatively opt in.

Some Democrats in blue states are saying “yes” to this opportunity.

• Last week, New York Gov. Kathy Hochul looked at the more than $2.3 billion her state is set to receive from 2027 to 2029 and made her decision to say “yes.”

 

• Late last year, Gov. Jared Polis of Colorado also looked at the hundreds of millions of dollars available to his state and said “yes.”

But the governors of many states are holding back. In Illinois, 64 percent of primary voters in the March election, in a nonbinding ballot question, overwhelmingly endorsed participation in this program. That clearly indicates that this program is popular among Democrats. Why, then, is Gov. J.B. Pritzker not responding to this popular call? Why, for that matter, is Gov. Gavin Newsom of California refusing to accept $5 billion in scholarships in the next few years for California school children?

Politicians may be conflicted by special interests and ideological opposition. Parents are not conflicted. Parents of households that earn up to 300 percent of the regional median income will value the chance to pay tuition for better choices in failing school districts. They will also value the chance to use the money for educational materials like textbooks, as well as test prep and after-school programs that benefit public school children.

No less important, families will be able to enjoy the benefits of a First Amendment society, extending their interests and values across the generations by choosing a science-based school, a religious academy, an arts-focused school, or by enhancing a public-school education.
​
Laying out these winning cards should be a no brainer.

If you live in New York State and want to congratulate Gov. Kathy Hochul for accepting ECCA scholarships to benefit New York families, email her here.

If you live in Colorado and want to congratulate Gov. Jared Polis for accepting ECCA scholarships to benefit Colorado families, email him here.

​Two years ago, the U.S. Supreme Court handed down one of the most consequential administrative-law decisions in decades: Loper Bright Enterprises v. Raimondo. The Court dismantled the Chevron doctrine, under which federal agencies could stretch vague statutes into blank checks for regulatory power. The message from the Court was unmistakable: agencies are not mini-legislatures, and courts must independently determine the limits of agency authority.

This was widely seen as a blow against government bureaucrats expanding their power to enact progressive policies. It is far from clear, however, whether courts will now rely on Loper Bright to rein in the expansion of agency power by so-called conservatives.

As Ed Whelan reports in National Review, judges on the D.C. Circuit are now probing whether the Federal Communications Commission is attempting to evade meaningful judicial review. This case centers on whether the FCC under Loper Bright can manipulate procedural timing and administrative maneuvering to shield its actions on a merger from court scrutiny. Similar – but far more urgent – questions should be tested on another, more fundamental issue:

When will the courts finally rein in the FCC and FTC for abusing the First Amendment? And will Loper Bright help them do it?

These questions arise because these agencies are increasingly acting as though “public interest” regulation includes the power to intimidate, pressure, and discipline disfavored speech.

Consider the FCC’s escalating flirtation with speech regulation. FCC Chairman Brendan Carr’s threats over ABC’s broadcast licenses have been invoked to try to force late-night host Jimmy Kimmel off the air. Sen. Ted Cruz aptly compared Carr’s rhetoric to a mob threat from Goodfellas: “Nice bar you have here. It’d be a shame if something happened to it.” 

The FCC has no lawful authority to police “bias,” ideological tone, or political content. The First Amendment does not empower bureaucrats to decide whether broadcasters are too liberal, too conservative, too vulgar, too partisan, or too offensive. Indeed, the whole point of the First Amendment is to deny government officials that authority.

And yet the FCC increasingly behaves as though broadcast licenses are contingent on political obedience.

The FTC under Chairman Andrew Ferguson has been moving in a similarly dangerous direction. As we previously reported, the FTC is attempting to weaponize consumer-protection laws against news organizations and media-rating firms whose viewpoints or editorial decisions offend those in power. The FTC’s theory appears to be that editorial judgments can somehow become “deceptive practices” subject to federal oversight.

That is exactly the kind of expansion of agency authority – with no statutory justification – that Loper Bright sought to restrict.

The danger of speech regulation transcends party. Republicans may enjoy seeing pressure applied to progressive media figures today. Democrats may applaud investigations into conservative outlets tomorrow. But once government acquires the habit of regulating speech indirectly through licensing threats, merger leverage, investigations, or administrative harassment, everyone’s freedoms become contingent on who currently controls the bureaucracy.

Fortunately, courts can use the standards of Loper Bright to stop the creation of a permanent administrative state increasingly detached from constitutional limits. This precedent can end the use of the phrase “public interest” as a magical incantation that authorizes speech control.

The FCC was not created to supervise political dialogue. The FTC was not established to referee journalism. Neither agency possesses constitutional authority to pressure Americans into acceptable speech. Nor should courts permit agencies to evade review through procedural gamesmanship, as the D.C. Circuit now appears increasingly skeptical of permitting. 
​
The judiciary has begun reclaiming its role in policing administrative overreach. But reclaiming that role means more than narrowing Chevron deference. It requires judges willing to tell Brendan Carr and Andrew Ferguson that the First Amendment means what it says.

​Oak Flat in Arizona has been a sacred site for Apache people for centuries – a place of worship, ceremony, and spiritual connection with the Creator. Now the federal government has transferred the land to Resolution Copper, the foreign-held Rio Tinto-BHP mining venture that will turn the site into a crater nearly two miles wide and as deep as two Washington Monuments stacked end to end.

That destruction would permanently prevent Apache believers from practicing their religion at a place that is essentially their Vatican, their “Wailing Wall.”

Protect The 1st last week filed an amicus brief urging the federal Ninth Circuit to rehear this case en banc (before eleven of its judges), demonstrating that the court’s earlier decision in Apache Stronghold v. United States fundamentally misread federal religious-liberty law. That decision also failed to resolve contradictory understandings of the law within different rulings of that same en banc panel. 

Our brief explains how the court effectively held two irreconcilable ideas at once:

• First, that the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA) should be interpreted consistently; and

 

• Second – “substantial burden” on religion – means something entirely different depending on which of these two statutes applies. 

That legal contradiction matters because RFRA and RLUIPA are considered “sister statutes” enacted precisely to provide broad protection for religious exercise against government interference. The U.S. Supreme Court has repeatedly said these laws should be interpreted broadly in favor of religious exercise. And if RFRA cannot protect against the complete destruction of a sacred site central to Apache worship, then one must ask: What exactly can it protect?

The Ninth Circuit previously insisted that – in the land-use context – a “substantial burden” exists only when the government coerces believers into violating their faith or discriminates among religions. Our filing points to two recent Supreme Court decisions that further undermine this reasoning.

• In Mahmoud v. Taylor, the Supreme Court held that parents challenging mandatory exposure of their children to school materials conflicting with their religious beliefs were likely to succeed under the Free Exercise Clause – even absent direct coercion.

 

• Likewise, in Mirabelli v. Bonta, the Court sided with parents objecting to California school policies involving gender identity and parental notification, again recognizing a significant burden on religious exercise without requiring outright coercion. 

If parents can establish a substantial burden because school policies threaten to undermine religious teachings, surely Apache worshippers can establish a substantial burden when, as Justice Neil Gorsuch wrote in a dissent, “the government’s plan” will permanently destroy the Apache’s historical place of worship.

Again, if that is not enough to describe a burden on the free exercise of religion, it is hard to imagine what would be. Most important of all, the impact of this case defines the rights of all minority religions.

If the government can knowingly destroy a sacred Native American religious site while claiming no “substantial burden” exists, then all religious-liberty protections become hollow promises – especially for minority faiths lacking political power.

Protect The 1st believes religious liberty is indivisible. The rights of all Americans are strengthened when courts protect the faith practices of minority communities, including Native Americans whose sacred places have too often been treated as expendable.
​
Our brief concludes with an undeniable fact – the Ninth Circuit’s decision is “at war with Supreme Court precedent, at war with the text of RFRA, and at war with itself.” 
The court should grant rehearing en banc and give the Apache people – and their First Amendment rights – the protection these American citizens deserve.

Jacob Mchangama and Jeff Kosseff, authors of The Future of Free Speech, have a colorful piece in The Volokh Conspiracy about a foundational free speech case that you probably have never heard of – Near v. Minnesota – but without which America might have taken a dark turn.

The case involves a Minneapolis writer and editor, Jay Near, who published The Saturday Press in the 1930s. This publication was dedicated to muckraking – and it spewed muck by the gallons. For starters, it was intensely antisemitic, conflating the crimes of a local Jewish gangster – believed to have ordered the shooting of Near’s co-editor – with all Jews: “If the people of Jewish faith in Minneapolis wish to avoid criticism of these vermin whom I rightly call ‘Jews’ they can easily do so BY THEMSELVES CLEANING HOUSE.” Near also asserted that 90 percent of crimes were perpetrated by Jews.

If the local Jewish community was alarmed, local officials were livid, angered by Near’s accusations that they were in cahoots with gangsters. The chief of police worked with a state attorney to use a state law to shut down The Saturday Press. They based their case on a statute that made it a crime to publish “a malicious, scandalous and defamatory newspaper, magazine or other periodical.”

When the case landed before the Minnesota Supreme Court, the judges upheld the law: “It was never the intention of the Constitution to afford protection to a publication devoted to scandal and defamation.” But the U.S. Supreme Court reversed the state court and struck down the state statute as unconstitutional in 1931. Chief Justice Charles Evans Hughes found that the Minnesota law amounted to prior restraint, which he called “the essence of censorship.”

But the Court’s ruling was close, a 5-4 decision.

Mchangama and Kosseff note that if “one more justice” had sided against Chief Justice Hughes, “governments across the nation would have been free to shut down publications they deemed sufficiently ‘scandalous.’”

That narrow victory for the First Amendment made all the difference. Near v. Minnesota became so foundational that it was cited by the Court in its 1971 opinion rejecting prior restraint in the publication of the Pentagon Papers.

This case is worth keeping in mind today. Antisemitic rhetoric and conspiracy theories are once again in vogue, spread across the internet by the likes of Tucker Carlson and Candace Owens. The means to stop these speakers cold – through deplatforming and other forms of cancellation – are much more sophisticated and powerful than the clumsy legal efforts of Depression-era law enforcement.
​
The temptation to shut up vile speech with these means is strong. But such censorship is self-defeating. It amplifies the speech it would curtail. It endows the Jay Nears of the world with the glamor of martyrdom, while encouraging the spread of their message through alternate channels. The maxim of Justice Louis Brandeis remains as true as ever: “Sunlight is the best disinfectant.”

The closest thing the United States has to a monarchy is the American courtroom.

The berobed judge enters with great solemnity while the bailiff says, “All rise.” The judge sits elevated above all others and is addressed as “Your Honor.” The courtroom is separated from the observing hoi polloi by a thick, wooden bar. The whole setup smacks of a medieval court.
But it isn’t. The procedure, the statements of law put forward by counsel, the jury, and traditions and procedural restraints render it a very democratic institution. The judge has the last word in the courtroom, but he or she is subject to reversal on appeal.

How absurd, then, would it be for a judge to don a different set of robes, the papal vestments of of the Roman Catholic Church, to sit figuratively on the Throne of St. Peter – making tedious distinctions in theology and setting church policy.

Yet that will happen if the U.S. Supreme Court does not grant a review in United States Conference of Catholic Bishops v. O’Connell. This case borders on the satirical but carries serious constitutional weight: Can a federal court sit in judgment over what a priest says from the pulpit – and how the Roman Catholic Church spends and invests its religious offerings?

The case began when a Rhode Island parishioner claimed he was misled about the use of “Peter’s Pence,” a collection made since the 7th century to support charitable activities and evangelism overseen by the Holy See. The plaintiff seeks damages – and more strikingly, an order requiring courts to oversee how the Church describes and administers this offering. 

The U.S. District Court of Appeals in Washington, D.C., should have immediately recognized this as a First Amendment claim concerning the free exercise of religion. Instead, that court allowed the case to proceed without first examining its impact on vital First Amendment rights.

Asking Judges to Wield the Staff of St. Peter

The lawsuit alleges fraud and unjust enrichment, arguing that some of the donations were placed in investment funds that, in turn, were invested in luxury properties and even a Hollywood movie. For those with a passing familiarity with charitable operations, the investment of funds is a standard practice – one that enables compounding returns, to the benefit of the poor. (If you have any doubt that making good investments is a sound practice for a Christian, we refer you to the ultimate authority on that question.)

The fraud claim is that the plaintiff’s priest did not enumerate the investment allocation from the pulpit when appealing for donations.

If courts are allowed to proceed on this case without giving primary consideration to its First Amendment implications, they will put judges in the position of parsing sermons, evaluating religious communications, and second-guessing how a global church allocates charitable funds. 

That is precisely the kind of entanglement the First Amendment was designed to prevent. The “church autonomy” doctrine – rooted in centuries of precedent – bars government from interfering in a religious institution’s internal governance, doctrine, and teaching. 

A Slippery Slope for All Faiths

The stakes extend well beyond the Catholic Church. If courts can adjudicate claims based on what was said during worship services, every synagogue, mosque, and church could face discovery demands over sermons, internal communications, and religious decision-making.

Allowing courts to referee disputes over how a church explains or uses offerings would mark a dramatic expansion of government power into religious life. Today it is Peter’s Pence. Tomorrow it could be tithes, zakat, or any faith-based giving. Indeed, the plaintiff seeks to represent a nationwide class of donors – potentially drawing courts into reviewing religious speech across thousands of congregations. 

That prospect is not just burdensome; it is constitutionally suspect. The Supreme Court has long warned that “the very process of inquiry” into religious matters can violate the First Amendment. If religious groups must endure years of litigation before asserting their constitutional rights, the protection itself becomes hollow. 
​
The Supreme Court should take this opportunity to declare: Churches govern their own spiritual affairs, and the state must stay out. When it comes to robes, judges should stick to basic black.

The Justice Department has succeeded in persuading a grand jury to indict former FBI director James Comey for posting an image of seashells arranged to read “86 47” on his Instagram account.

The 47 part is a clear reference to Donald Trump, the 47th (and once 45th) president. According to the New Deal era columnist Walter Winchell, “86” was a slang term that originated with soda jerks to mean that a soda fountain was out of something and thus should be “86ed” from the menu. Over time, it has come to mean “get rid of” people as well – as in, “it’s time to 86 that rowdy customer.”

Merriam-Webster’s dictionary notes that the term has been used occasionally to mean “kill,” but “we do not enter this sense, due to its relative recency and sparseness of use.” Even if the word “kill” itself is ambiguous – as in “kill that story” or “kill that light.”

These linguistic nuances did not dissuade the Justice Department from charging Comey with two felony counts: one count of making threats to kill or harm the president and a second count of transmitting that threat publicly.

Two full days before a gunman stormed the White House correspondents’ dinner, Jimmy Kimmel recorded a joke about Melania Trump outliving her husband because she has that “expectant widow glow” – based solely on the fact that she is 24 years younger than her husband. It was not a joke about assassination given that Kimmel is a comedian, not a prophet, with no ability to know what would happen.

And yet Federal Communications Commission Chairman Brendan Carr is threatening the broadcast licenses of ABC affiliates for running Kimmel’s joke.

What is not fair is to twist language into criminal meanings and intent where none was intended. “I didn’t realize some folks associate those numbers with violence,” Comey said later. “It never occurred to me, but I oppose violence of any kind, so I took the post down.”

Actually, we’d say that no one in their right mind would associate Comey’s seashells with violence.

Moreover, even a joke that was actually about assassination – as long as it was not a direct incitement to violence – would likely be protected speech under the U.S. Supreme Court’s Brandenburg v. Ohio standard. That Court opinion protects even inflammatory speech so long as it does not call for imminent lawless action.

We agree with the observation that the coarsening of American discourse is dangerous. But using criminal law and heavy-handed regulation to persecute critics of an administration is a short path to a banana republic. And those who stretch the law should be wary of how their speech may one day be criminalized when the other party is in power.
​
Our advice to this administration is to 86 this indictment and deep-six the regulatory threats.

​The U.S. Supreme Court unanimously ruled Wednesday that New Jersey cannot dodge federal court review while demanding confidential donor information from a network of pro-life pregnancy centers. In a forceful Court opinion written by Justice Neil Gorsuch, the Court reaffirmed a foundational First Amendment principle – government demands for donor lists can chill speech and associational rights long before penalties are imposed. 

The case, First Choice Women’s Resource Centers v. Platkin, arose after former New Jersey Attorney General Matthew Platkin subpoenaed donor records and internal documents from First Choice, a faith-based network of crisis pregnancy centers. The organization argued that forcing disclosure of its supporters would intimidate donors and suppress its First Amendment advocacy.

Lower courts dismissed the lawsuit as “premature,” reasoning that New Jersey had not yet formally enforced the subpoena in court. The Court rejected that argument outright.

Justice Gorsuch wrote: “An official demand for private donor information is enough to discourage reasonable individuals from associating with a group.” He added that it is likewise “enough to discourage groups from expressing dissident views.” 

That language cuts to the heart of the First Amendment. The constitutional injury does not suddenly appear the moment the government raids an office to seize files or imposes fines. The chill begins when citizens realize the state may expose their names, affiliations, and beliefs to hostile officials or public retaliation.

Justice Gorsuch also warned about the broader danger of compelled disclosure, leading to even more heavy-handed sanctions: “A government that chooses to make private donor information public may make the damage worse.” 

In this age of doxing, that concern is hardly theoretical. Americans across the political spectrum have seen donors, activists, religious believers, and advocacy groups targeted, threatened, and fired, otherwise harassed after their identities became public. The Court has long recognized this danger, dating back to NAACP v. Alabama (1958), the landmark civil rights-era case protecting membership lists from state officials seeking to intimidate civil rights supporters.

What makes this ruling especially notable is its unanimity. All nine justices agreed that organizations do not have to wait helplessly for the government to complete enforcement proceedings before seeking protection for their First Amendment rights. 

The implications extend far beyond abortion politics. Civil liberties groups that sharply disagree with the mission of crisis pregnancy centers nevertheless supported First Choice’s ability to challenge the subpoena because the precedent threatened advocacy organizations of every ideological stripe.

The ACLU itself warned that broad donor subpoenas “put all advocacy at risk.” 

That unusual coalition underscores an important truth – once government acquires unchecked power to expose supporters of disfavored causes, no political or religious activity will remain safe for long.

This case is also part of a larger national debate over the use of state power to pressure or punish disfavored viewpoints. Whether the target is a religious charity, a political advocacy group, a gun-rights organization, a pro-choice organization in a red state, or a civil liberties nonprofit, compelled disclosure can become a potent tool of intimidation.

The Court came down with a hard slam:

“Since the 1950s, this Court has confronted one official demand after another like the [New Jersey] Attorney General’s. Over and over again, we have held those demands burden the exercise of First Amendment rights. Disputing none of the precedents but seeking ways around them, the Attorney General has offered a variety of arguments. Some are old, some are new, but none succeed.”
​
The Court’s opinion sends a clear message that the First Amendment protects not only the right to speak, but also the right to privately support causes without fear that the government will force citizens onto a public enemies list.