A report released last week by the House Judiciary Committee adds detail to our report about how the European Union’s 2022 Digital Services Act allows Europeans to control and censor Americans’ speech at home and around the world.
 
The committee subpoenaed nine major technology companies to produce communications with foreign censors around the world. Analyzing the responses, the committee gained insight into the EU’s censorship goals from its requests for social media companies to identify “misleading or deceptive content,” “disinformation, “actual or foreseeable negative effects on civil discourse and electoral processes,” “hate speech,” and (this one’s a gobsmacker) “information which is not illegal.”
 
These vague and subjective standards reflect German rules that have criminalized insults to German politicians. They also fall in line with the actions of former EU Commissioner for Internal Markets Thierry Breton who wanted to sanction X for broadcasting a live interview with Donald Trump during the 2024 campaign. Social media companies – almost all of them American companies – now have their content subjected to continuous scrutiny by government-designated “trusted flaggers.”

• The committee reports: “In practice, these ‘trusted flaggers’ are uniformly pro-censorship, and in many cases, they are government-funded, meaning that these so-called ‘trusted’ flaggers are incentivized to censor speech critical of politicians or the current regime.”

The Digital Services Act threatens these American social media companies with up to 6 percent of their global revenue per violation. The law, however, offers a safe harbor for U.S. companies if they adopt the EU’s ‘codes of conduct’ on a global basis. These gentle suggestions to sign up are backed with threats as subtle as Al Capone wielding a baseball bat.

• When X dropped the Code of Conduct on Disinformation in May 2023, because it does not generally use third-party fact-checkers, the EU in October opened an investigation of X’s Community Notes program. “Now,” the committee reports, “the Commission reportedly plans to fine X more than $1 billion for non-compliance with the DSA.”

 
As European censorship filters down into American speech, defensible speech – some of it banal, some of it edgy – is effectively criminalized.

• In 2023, the French National Police sprang into action when an American sarcastically responded to a mass stabbing attack: “I certainly hope this little dust-up in #Annecy doesn’t hurt this poor Syrian asylum seeker’s chance of becoming a Frenchman.”

 

• In 2024 a Polish flagger targeted a TikTok post that simply said, “electric cars are neither ecological nor an economical solution.”

 

• In 2024 a tweet that factually noted that a Syrian family in Germany is reported to have committed 110 criminal offenses was judged by the German government to be a violation of the criminal code.

The committee’s conclusion is blunt: “Taken together, the evidence is clear: the Digital Services Act requires the world’s largest social media platform to engage in censorship of core political discourse in Europe, the United States, and around the world.”
 
With the announcement of a new trade deal between the United States and the European Union, the way should now be clear for the Trump administration to take up the EU’s censorship as the next big issue in our bilateral relations.

​In any democracy, the justice system and the Fourth Estate are bound to clash. When they do, the clash often reveals much more about the status of constitutional freedoms than the details of a given case. Case in point, a headline from July 22 on Bloomberg Law: “Journalist’s Wiretap Prosecution Exposes First Amendment Risks.”

Here's the backstory behind a case fraught with First Amendment implications, one Protect The 1st has followed since 2022.

• Journalist Tim Burke obtained deleted clips from Tucker Carlson’s controversial interview with Kanye West when Carlson was still with Fox News. Burke then shared those with Vice and Media Matters for America, which published them. This was embarrassing to Carlson, who framed the interview as showing Kanye West – now Ye – to be an iconoclast worth listening to. The deleted portions were, to put it in strictly scientific terms, absolutely bonkers.

 

• Fox apparently invited this embarrassment by uploading the outtakes to a public online site and neither securing nor encrypting them. But that didn’t stop the Justice Department from raiding Burke’s Tampa home and seizing his electronic devices.

 

• Now the case against Burke is proceeding in a federal court in Florida. It represents, warns Bloomberg’s Holly Barker, an invitation for prosecutorial abuse, potentially turning what doesn’t even seem to rise to the level of misdemeanor molehills into felony mountains. The prosecutors’ “felonizer” here is an expansive over-interpretation of the Wiretap Act, which DOJ appears to be using to turn possible Computer Fraud and Abuse Act infractions into far more serious violations – 14 of them, to be exact.

At the heart of the case is the relevance of the First Amendment in the digital age – and, to a lesser extent, what constitutes a journalist in the modern sense and perhaps even the meaning of what is “public.” For the moment at least, the court is taking the case and these constitutional questions seriously, seeing it as the high-level referendum on freedom that it is.
Judge Kathryn Kimball Mizelle acknowledged: “Burke’s arguments raise novel questions with potential wide-reaching impact.”

An ACLU-led coalition, the Reporters Committee for Freedom of the Press, and the Electronic Privacy Information Center have all filed amicus briefs outlining what’s at stake in this case.
​
Protect The 1st believes that making use of materials left in open view – whether posted online or put out on a public sidewalk – is in no sense a wiretap. Worse, the FBI raid on Burke’s home was overkill that deserves to be slapped down. We hope Judge Mizelle will stand for a free press and rule against this attempt by prosecutors to narrow the First Amendment.

​President Trump last week issued several executive orders that command AI developers to refrain from building in “ideological biases or social agendas” in their artificial intelligence services. The orders deploy the federal government’s procurement power to enforce ideological neutrality on AI Large Language Models (LLMs).
 
The president’s concern is understandable. Google’s AI image-generator Gemini, in an effort to provide racial and gender balance, portrayed both the American founders and Nazi soldiers as Black, the Pope as female, and National Hockey League players as women.
 
What was going on here?
 
“Well, it turned out that Google was aware that Gemini’s data, which draws from the entire internet, was flawed,” said Bobby Allyn, an NPR technology correspondent. “It perpetuated stereotypes. There are more images of male doctors than female doctors. There are more photos of white CEOs than executives of color. So every time someone asked for an image, Google placed secret code into the request that basically said, make the images more diverse.”
 
What had begun as a commendable tweak turned into a monstrous distortion of reality. Conservatives note that LLMs are also apt to give progressive answers on controversial social issues. One conservative reported that ChatGPT refused to create an argument for how fossil fuels enhance human civilization. It was willing to write poems extolling former President Biden but not one about President Trump.
 
On the other hand, when we asked ChatGPT about the 1619 Project, which asserts that America’s true founding began with the importation of slaves and not the Declaration of Independence in 1776, it answered: “The claim that America's ‘real founding’ was in 1619 is a provocative reinterpretation, not a universally accepted historical fact.” We would score that as a solid and unbiased answer.
 
So what is going on with the more biased answers? LLMs compose responses extracted from terabytes of public and copyrighted material vacuumed up from the internet. It is all too easy to forget that humans originate AI’s raw material. It necessarily absorbs the biases of society, of the right as well as the left. The old saying about computer programming – “garbage in, garbage out” – should apply to the contents of the human brain as well.
 
We also do not preclude the built-in biases the president’s executive order aims at. Whether ChatGPT or X, the design parameters often reflect the views of their creators.
 
Though the president’s executive orders aim at a real problem, his approach has two flaws. The first is that when the government uses its purchasing power to manage speech, it is clearly encroaching on First Amendment territory. Over the years, government influence over AI could bend this technology in one political direction or another.
 
This points to the second problem – that language is slippery. The 20th century philosopher Ludwig Wittgenstein warned against the “bewitchment of our intelligence” by language. Words are simply too malleable and subject to interpretation to codify under an order. What are the boundaries of “woke”? Where does the ideological hobbyhorses of the DEI movement end and a simple dedication to racial fairness begin?
 
These are real questions that no government regulation could or should answer. Only time, criticism, free markets, and free speech can do that.

Congress last week rescinded $1.1 billion earmarked for the Corporation for Public Broadcasting (CPB) – a move that severs federal support for National Public Radio (NPR) and its member stations.
Weeks before, in a lawsuit before a federal court, NPR claimed that an executive order by President Trump to cut off its funding was “textbook retaliation and viewpoint-based discrimination in violation of the First Amendment.” Does this view fairly characterize the subsequent vote of a conservative Congress to silence a media organization widely seen as left-leaning?
We say no. Protect The 1st firmly supports the congressional cut-off. Why we think so, however, has nothing to do with the prevailing partisan narratives of Washington, either of the left or the right.
 
Conservatives argue that NPR’s left-leaning reporting and the self-parodying ideological pronouncements of its president and chief executive officer, Katherine Maher, justify the cut-off. Among NPR’s top Washington-based editors, 87 are registered Democrats and exactly none are Republicans. This latter fact was revealed by NPR journalist Uri Berliner, who was pressured to leave after he issued a public essay in which he accused NPR’s bias of costing it the public’s trust.
 
During the 2020 election, NPR haughtily dismissed the Hunter Biden laptop story (one editor declared “we don’t want to waste our time on stories that are not really stories”). When NPR found itself on the chopping block before a Republican Congress, Maher apologized, “NPR acknowledges we were mistaken in failing to cover the Hunter Biden laptop story more aggressively and sooner.”
 
All true. These are the viewpoints that had conservatives sharpening their axes. But we are unmoved by these concerns. We have a different, deeper problem with NPR: Regulating editorial viewpoints necessarily involves the federal government in the regulation of speech. We would also object if NPR had trimmed its sails to the prevailing wind and became an echo chamber of conservative media and the Heritage Foundation. Maher’s editorial pliability on the Hunter Biden laptop story demonstrates this potential for government influence over news coverage.
 
Our stand is simple: Government should not be in the business of subsidizing viewpoints. The law requires NPR to practice “objectivity and balance in all programs or series of programs of a controversial nature.” But objectivity and balance are subjective judgments that can never be well defined by a statute and regulated by law.
 
Defenders of NPR note that only 2 percent of NPR’s budget came directly from CBP and taxpayer dollars. As Sen. Ted Cruz (R-TX) demonstrated, these taxpayer funds were intermingled with funds from “left-wing non-profits looking to advance their own narratives in the press.” We add that “mega-donors,” be they left-wing, right-wing, or libertarian, have every right under the First Amendment to subsidize any speech they wish. The problem arises when American taxpayers are compelled to enrich those subsidies. Mingling the funds of private donors with the funds of the federal government is not a healthy elixir.
 
Unlike many, we take no joy in this moment. We hope that smart NPR content like Radiolab and news service to rural and underserved communities will continue. But we also see government-subsidized speech as inherently problematic. A government forbidden by the First Amendment from abridging the freedom of the press should also be forbidden from subsidizing the news – because official sponsorship of the news is the flip side of censorship.

​In a move that is drawing widespread condemnation and ignited a press freedom firestorm, Paramount has agreed to pay $16 million to settle President Trump’s lawsuit over CBS’s editing of a “60 Minutes” segment. The settlement, which includes legal fees and a donation to Trump’s future presidential library, appears less like a legal resolution and more like a political payoff designed to grease the wheels of a corporate merger.
 
Seth Stern of The Freedom of the Press Foundation (FPF), slammed the settlement as “a thinly veiled effort to launder bribes through the court system.” FPF is preparing a shareholder derivative lawsuit against Paramount’s leadership for what it sees as a betrayal of journalistic integrity and a violation of fiduciary duty.
 
Let's be clear: This lawsuit, based on a Texas statute “outlawing false, misleading, or deceptive acts or practices” in business is beyond a legal stretch. CBS aired edited clips from an interview with Vice President Harris – standard practice in broadcast journalism – with no evidence of factual inaccuracies.
 
The lawsuit claims that CBS hid the former vice president’s propensity for answering questions with nonsensical “word salad” answers – a breathtaking assertion of legal control over editorial decisions that are clearly subjective. If this standard were widely adopted, all manner of news and editorial content would become subject to adjudication.
 
The settlement only makes sense when you look at the bigger picture. Shari Redstone, who chairs Paramount, stands to gain if the company’s merger with Skydance Media goes through. Trump’s lawsuit, and his Federal Communication Commissioner’s opening of a “news distortion complaint” of CBS, created the leverage. Paying $16 million to settle this lawsuit starts to look less like a legal decision and more like a calculated move to secure the deal.
 
Seth Stern’s warning is especially apt: “Corporations that own news outlets should not be in the business of settling baseless lawsuits that clearly violate the First Amendment.” As Stern notes, this doesn’t just damage CBS’s credibility, it makes every newsroom in America more vulnerable to future intimidation.
 
To be sure, CBS has its journalistic flaws. Since the days of Dan Rather, some of CBS’s reporting has been comically biased against Republicans. But editorial bias is not, and must never be, a matter for governmental scrutiny or political reprisal. The First Amendment is not a quality control mechanism for press content. It is an absolute – “Congress shall make no law” abridging freedom of the press. It is a firewall between the state and the newsroom.
 
Conservatives should be especially wary of this precedent. If a sitting president can sue a media company over edits backed by the implied threat of merger obstruction, what stops officials in the next administration from doing the same to Fox News? Or your favorite influencer who gets under their skin?
 
This case should alarm anyone who values an independent press, even if they disagree with the views generated by such independence. When an administration uses the threat of regulatory power to extract money and editorial concessions from a news organization, it’s not just CBS on trial. If this strategy proves successful, every newsroom becomes a target, and every critical story a liability. And that’s flatly incompatible with the First Amendment.

​Jeff Davis County in Texas is almost the size of Delaware. Home to the Davis Mountains, it is a place of stark beauty and small towns.
 
Covering this vast region is The Big Bend Times, “news for the Trans-Pecos,” a website with strong social media reach, amassing 285,000 followers on Facebook. It carries news about local jobs, business openings and closings, economic development, and local feature stories. It currently features a poignant and frightening account from a county politician about how he and his family barely escaped the recent floods in Central Texas.
 
With content like this, it is easy to see why regional public radio and other news outlets often turn to The Big Bend Times and its independent publisher, David Flash, for stories and leads. The Big Bend Times helps many far-flung communities keep up with developments in this vast region, including the public meetings of local officials.
 
Carlos Nogueras Ramos in the Texas Tribune reports on an incident at one such meeting held by Jeff Davis County commissioners on June 27. Flash set up a camera and then moved around the room, taking photos of the commissioners meeting from various angles. He had previously been banned from coming within 300 feet of county officials, employees, and buildings over “claims of harassment and terroristic threats.” Flash denies that he harassed or threatened anyone, unless you count news coverage of public figures as such.
 
In this incident, the sheriff warned Flash that his movements were distracting the commissioners. Ramos reports that after Flash tried to take a photo of a deputy sheriff, she handcuffed and forcibly removed him. Flash was later hit with a charge of “disorderly conduct.”
 
In many ways, Flash’s case is reminiscent of that of another Texas citizen-journalist, Priscilla Villarreal of Laredo, who was arrested for “misuse of official information”’ – reporting police information about a fatal traffic accident. While undergoing the booking process, Villareal reported that she was subjected to jeers and ridicule by the police, many of whom did not consider this citizen-journalist with a Facebook news site to be a “real” journalist.
Officials question whether Flash should also be treated as a journalist. Although he has a journalism degree, Flash’s LinkedIn page shows him serving as the sales and marketing director for a steam cleaning company. But his status as the publisher of a news site should render that question moot.
 
More important than his status as a journalist, however, is Flash’s status as a citizen, freely exercising his rights under the First Amendment. Texas law, like those of most states, allows any citizen to record any open meeting.
 
To be fair, there are signs in Ramos’ account that Flash may have distracted the hearing with his pacing around. Public commissions in Texas do have the right to impose reasonable rules of decorum in hearings. But his treatment was surely an overreaction.
 
So what might one conclude from this case?
 
First, local officials in Texas (and elsewhere) need to do a better job of acquainting themselves with the First Amendment. There is no reason for officeholders to get flustered, panicked, and angry when they are confronted by a journalist. Second, Flash’s management of a news site should dispel any questions about his status as a journalist protected by the First Amendment’s guarantee of a free press. Third, there is perhaps too much focus on the “journalist” part of “citizen-journalist.”
 
You have the right to ask your public officials questions, and to memorialize their public meetings with a camera, whether you consider yourself a member of the press or not.
 
Perhaps the most important part of the moniker “citizen-journalist” is “citizen.”

In recent years, we’ve chronicled the rising tide of states – 18 now, with recent legislative victories in Texas and New Hampshire – that have embraced universal school choice.

But what about parents who live the other 32 states? Thanks to decisive action in Congress (yes, you read that correctly), the ability of parents to choose high-quality private schools, whether religiously based schools, STEM-oriented or arts-centered, will gradually increase.

Congress – with the leadership of Rep. Adrian Smith, chairman of the subcommittee of jurisdiction on Ways & Means in the House, and Sen. Bill Cassidy in the Senate – passed the Educational Choice for Children Act (ECCA) just before the July 4th holiday. This bill made available a 100-percent federal income tax credit of $1,700 for donors. This credit is available to donors in all 50 states to support scholarship-granting organizations that allow parents to send their children to a high-quality private school.

There are several aspects of this new law that will transform the American educational landscape from the national level, as governors are doing in the states.

• This tax credit is permanent. It would take a future act of Congress to undo it, something that once granted would be politically difficult to achieve.

 

• It will only take future amendments to the law to increase the tax credit and to broaden the base of donors to include businesses and other well-resourced groups.

 

• The law does limit scholarships to students who live in states in which the governor or designated agency under state law decides to opt-in to the program. But nothing keeps donors living in an “opt-out” state from donating to scholarship organizations around the country.

 

• Even in states in which politicians have been hostile to school choice it will be difficult for governors to turn down free money from the federal government to support private schools options in-state.

We again quote a recent Chicago Tribune editorial, where politicians have long been resistant to competition in education:

“Opponents of school choice believe that education is a zero-sum game, and that private schools are a threat to the public system. We believe the opposite – that a thriving private and charter system and a strong traditional public system create an educational ecosystem that can serve everyone’s needs. There are things private schools can do that public ones can’t, and the same is very much true in reverse.

“School choice remains popular in Illinois, with a clear majority of residents supporting the concept.”

With polls showing overwhelming support for school choice among Democrats, Republicans, and Independents, expect to see intense pressure from parents to allow these scholarships in every state.

Another big win came with the passage and signing into law of the Student Empowerment Act, which expands 529 plans – a tax-advantaged investment account designed to encourage saving for future education expenses, such as college or K-12 tuition – to help families save for public, private, religious, and homeschool students and families.

• This bill – passed with the leadership of Sen. Ted Cruz and Rep. Kevin Hern – will allow parents to transfer any unused funds in a 529 account from leftover college expenses to, for example, the private religious elementary school of grandchildren.

These two measures, coupled with the rising tide of states that have embraced universal school choice, show that the school choice movement – and its support for First Amendment values – is not only here to stay, but to grow as well.

• Both the ECCA and the Student Empowerment Act give religious schools the same access to these programs as any other kind of private school.

​
With victories in the states and in Washington D.C., the national success of the school choice movement now appears to only be a matter of time.

A lawsuit filed by the National Religious Broadcasters and two Texas churches resulted in a ruling last week from the IRS in a joint motion that lifts a long-standing ban on religious leaders discussing political issues before their congregations. The new rule even allows pastors, priests, rabbis and imams to explicitly endorse candidates from the pulpit.

Overall, Protect The 1st welcomes any liberation of Americans’ right to speak from IRS regulation. Remember that little phrase in the First Amendment: “Congress shall make no law”? We would welcome it if this new rule opened a larger debate about the regulation of speech through the tax code.

But first, there will be much to clarify about this rule that reduces the reach of the 1954 Johnson Amendment ban on political speeches in churches. This law was authored by Sen. Lyndon Johnson, who was smarting from conservative opposition from Texas churches to his re-election. The IRS now holds:

“When a house of worship in good faith speaks to its congregation, through its customary channels of communication on matters of faith in connection with religious services, concerning electoral politics viewed through the lens of religious faith, it neither ‘participate[s]’ nor ‘intervene[s]’ in a ‘political campaign,’ within the ordinary meaning of those words. To ‘participate’ in a political campaign is ‘to take part’ in the political campaign, and to ‘intervene’ in a political campaign is ‘to interfere with the outcome or course’ of the political campaign.

“Bona fide communications internal to a house of worship, between the house of worship and its congregation, in connection with religious services, do neither of those things, any more than does a family discussion concerning candidates. Thus, communications from a house of worship to its congregation in connection with religious services through its usual channels of communication on matters of faith do not run afoul of the Johnson Amendment as properly interpreted.”

Religious leaders can thus endorse a candidate without any requirement to give an opposing candidate equal time. The clause concerning “customary channels in communications on matters of faith” includes church bulletins and other religious materials. Presumably, this also includes the websites of houses of worship, though this was not made clear.

There are, however, open questions in this new IRS policy. Among them are:

• Many worship services are live-streamed or broadcast. Lakewood Church in Houston, for example, draws 10 million viewers a week. Will the IRS make a further distinction between endorsements to congregants during an in-person service and streamed or televised events? What if some services start to look more like campaign rallies than a “family discussion”?

 

• The IRS ruling does not include non-religious non-profits. Will the Trump Administration take the next step and broaden restraints on the speech of these nonprofits?

 

• Why should the IRS stop with this one ruling? Why should the charitable 501(c) 3 version of, say, the Sierra Club or a gun rights organization be restricted in its right to speak on political issues, reserving those rights only for its “C-4” version? Is it equitable to give houses of worship speech rights typically associated with a C-4, but not a charity, nonprofit NGO or academic organization?

 

• The IRS ruling echoes language from the Johnson Amendment about “interference” in political campaigns. While it is understandable that the IRS would directly address the statutory definition of that law, the conflation of speech and political participation with “interference” is unfortunate. This is an inappropriate term for the free exercise of the most basic rights in the U.S. Constitution. 

​
This new rule should be welcome by all free speech advocates. But its most salutary effect may be to spark a larger debate about the whole system of speech regulation through the tax code.

Päivi Maria Räsänen is the former Minister of the Interior of Finland, former chairwoman of the Christian Democrat Party, and in perennial danger of being sent to prison in her country because she dares to espouse traditional views about sexuality and abortion.
 
You might agree with Räsänen or loathe her views, but if she were an American, the First Amendment would afford her absolute protection from state prosecutors who want to imprison her for “hate speech.” And yet she remains in danger of going to prison in Finland for calmly and politely espousing traditional Biblically based views. She has long been a target for prosecution under Finnish law, which five U.S. senators in 2022 called a “secular blasphemy law” because it targets Orthodox Jews and Muslims, as well as traditional Christians.
 
So far, you might be thinking, okay, that’s a bad precedent for free speech in Northern Europe. Now what’s on Netflix tonight?
 
But you should care. You might not be all that invested in opposing the speech censorship regime in Europe, but that censorship regime is now preparing to try to regulate your speech here in the United States.
 
This is happening because at the start of this month, the European Union’s Digital Services Act’s (DSA) voluntary Code of Practice on Disinformation transformed into an actual law that stamps out disapproved state speech. The threat this law, designed to “protect democracy” and promote “safety,” poses to speech in America was laid out by Thomas O’Reilly in National Review. He sets out Europe’s new requirements and their consequences that should concern any speech-loving American, regardless of your beliefs.
 

• Large social media platforms are required to remove ill-defined “illegal content” that is out of compliance not only with the regulations of Brussels, but also the laws of member states. This could be tricky. In Finland, making a traditional religious criticism of same-sex relations can be treated as a crime. In Hungary, the government tried to outlaw a peaceful LGBTQ march. Speech in Europe might easily become a game of Twister.

 

• In a move reminiscent of the now defunct system of Facebook “fact-checkers,” European speech will be subject to the approval of what O’Reilly describes as “EU-approved nongovernmental organizations and ‘trusted flaggers,’ which will identify content for removal.”

 

• Platforms that fail to remove content quickly enough will be subject to fines of up to 6 percent of global revenues. Even for a Big Tech social media company – most of which are U.S. companies – enough such fines could result in a financial death penalty. Why should Europe be able to fine the global revenues of American companies?

O’Reilly writes:

• “Alarmingly, the DSA does not matter for freedom of expression just in Europe – it threatens to censor the speech of Americans, too. There is the possibility that platforms will set their global content-moderation policies to EU standards, which would regulate online speech across the whole world in line with the regulation. The EU’s General Data Protection Regulation exported EU data privacy standards worldwide and, in a similar way, the Digital Services Act could impose European speech controls beyond the continent.”

O’Reilly adds that the extraterritorial impact of the DSA “is that it applies to any platform accessed within the EU, regardless of where it is based. Online American speech could be geo-blocked within the EU if it is judged to be ‘disinformation’ or ‘hateful’ …”

• Rep. Jim Jordan, Chairman of the House Judiciary Committee, sent a letter to the European Commission in January noting that “because many social media platforms generally maintain one set of content moderation policies that they apply globally, restrictive censorship laws like the DSA may set de facto global censorship standards … Indeed, the establishment of a global censorship law appears to be the DSA’s very purpose.”

​
If this strikes you as science-fiction, consider the action of a high European Union official Thierry Breton, who last year threatened social media company X with severe legal consequences if it did not pull down a post. And what was the offending post? It was Elon Musk’s interview with then-presidential candidate Donald Trump.
 
Whatever your views about Donald Trump, it was a mind-blowing act of censorship to try to use state power to “protect” Europeans from an interview with a man who was a major party nominee in the United States and at the threshold of the presidency. That is representative of the hall of mirrors that European law has become, in which consumers are protected from exposure to world leaders and traditional views held by the Pope… all coming soon, to the American social media platform app in the digital device in your hand.

The Federalist Society’s recent Freedom of Thought Conference featured a panel on varied conservative perspectives about censorship in the digital age, with both the more liberal and more populist conservative panelists congenial to greater control over speech. This left it up to Protect The 1st Policy Director Erik Jaffe to make “an old school textualist” defense of robust First Amendment protection of free speech, regardless of the technology or medium. While others called for more government control of algorithms, Jaffe expressed deep wariness of expanding government influence over speech-related technologies.
 
Stanford’s Jud Campbell emphasized the Founders’ views of speech as tied not only to natural law, but also to “the public good.” Jaffe challenged the notion of a general public-good exception to the First Amendment, and contended that the constitutional text, not original applications or anticipated outcomes, must govern today. He warned that interpreting rights based on past state practices or public morality risks “gutting the First Amendment.”
 
The panel debate became animated over the nature of algorithms and how much responsibility their designers have for their results. Jaffe argued these software codes, and the rules they apply when promoting content, are “not anything different [from traditional speech and editorial judgments] except in speed.” They are fundamentally tools that execute human editorial choices, and the constitutional rules limiting or imposing liability for those choices should be the same whether the choices are executed in digital or analog form.
 
John Ehrett, Chief of Staff and Attorney Advisor to FTC Commissioner Mark Meador, pointed to companies’ conflicting legal positions, which call algorithms black boxes in liability cases, yet editorial speech when they make First Amendment defenses. “I don’t see how you can have this both ways,” Ehrett said. Jaffe saw no dichotomy – when a social media company designs an algorithm to treat speech in a certain way, that company is simply “making an editorial choice.” While a particular individual may not be able to follow the interaction of various rules for each and every choice, he observed that algorithm-driven programs are no more of a black box than the human brain.
 
Jaffe was equally blunt in opposing the idea that platforms like Facebook or TikTok constitute the “modern public square.” He argued that attempts to treat private companies as public utilities are “always abused” and rejected the premise that when platforms reach a certain degree of popularity, they become public property. “If you want to make a platform a ‘public’ space, go take it under the takings clause,” he said. “Pay the billions of dollars and run it yourself.”
 
On Section 230, there was some agreement that reform is possible, but Jaffe was alone in emphasizing the practical risk of overcorrection. He warned that removing liability protections could lead platforms to suppress lawful content out of fear: “Everybody and their mother starts suing Facebook,” he said. “Facebook starts saying, ‘well, sorry, none of you can speak on our platform now.’”
 
The panel also addressed the growing concern over government efforts to influence content moderation by private platforms, a practice often described as “jawboning.”
 
Jaffe concluded this is a threat that is not receding, just taking new political forms. “The Biden administration was more subtle about the threats,” he said. “The current administration is not subtle at all … they’re beating people to death with the jawbone of an ass.”
 
Jaffe said claims that behind-the-scenes pressure effectively turns private companies into government agents raises serious constitutional concerns. This practice also creates troubling interactions with the so-called government-speech doctrine, which can wrongly insulate heavy-handed government censorship from First Amendment scrutiny. While panelists generally agreed that coercion is troubling, Jaffe went further, calling for enforceable remedies. He endorsed legislative proposals to allow lawsuits – called Bivens claims and §1983-like actions – against federal officials who violate the First Amendment by pressuring platforms to suppress speech.
 
Jaffe closed with a warning against paternalism. While some panelists called for new legislative frameworks to balance expression with social harms, Jaffe pushed back hard. “The First Amendment has an assumption underlying it that people are not sheep,” he said. “The danger of treating them like sheep is too great.”
 
Watch the full panel here: 

​When the U.S. Supreme Court declined to hear the case of Kari MacRae, a Massachusetts teacher fired over social media posts made before she was hired, Justice Clarence Thomas took to his pen. He issued a scorching rebuke of lower courts, particularly the First Circuit, calling them out for botching the application the First Amendment in public employee speech cases.
 
“This case is the latest in a trend of lower court decisions that have misapplied our First Amendment precedents in cases involving controversial political speech,” Thomas wrote, warning that if left unchecked, government employers will increasingly restrict “disfavored or unpopular speech in the name of preventing disruption.”
 
Thomas didn’t dissent from the Court’s decision to deny certiorari, recognizing that this case may not have been the best vehicle to revisit the legal test known as the Pickering-Garcetti framework. Under that standard, public employees have First Amendment protection when speaking as private citizens on matters of public concern, unless their speech unduly disrupts the government’s ability to function as an employer. But as Thomas emphasized, that balance cannot be twisted to give the government a free pass to punish speech it merely dislikes, especially when expressed outside the workplace and before employment even begins.
 
“It undermines core First Amendment values to allow a government employer to adopt an institutional viewpoint on the issues of the day and then, when faced with a dissenting employee, portray this disagreement as evidence of disruption,” Thomas wrote. He found the First Circuit’s reasoning “deeply flawed” for dismissing MacRae’s speech because of its supposedly “mocking, derogatory, and disparaging manner.”
 
Quoting Snyder v. Phelps, Thomas reminded his colleagues that “speech on matters of public concern is at the heart of the First Amendment’s protection.” If the Supreme Court could protect vile funeral protests by the Westboro Baptist Church, “I do not see how the First Circuit could discount the First Amendment value of MacRae’s comparatively mild posts.”
 
MacRae’s memes, which included critiques of gender ideology and calls for colorblind policies, may have been controversial to some. They also reflected positions shared by a substantial portion of the public. For the First Circuit to reduce the weight of her First Amendment interest based on tone, or to treat pre-employment political speech as grounds for termination, sets a dangerous precedent.
 
The Court may have passed on this case, but Thomas’s warning is clear: Without a course correction, the First Amendment rights of millions of government employees and future applicants will hang by a thread.

Should the Roman Catholic sacrament of confession be turned into a form of law enforcement surveillance?
 
That is exactly what a new Washington State law does, requiring Roman Catholic priests to report any knowledge of child abuse that emerges during confession.
 
The author of this law, state Sen. Noel Frame, said she could not “stomach any argument about religious freedom being more important than preventing … abuse,” that it was “traumatizing to have colleagues … tell me to my face that religious freedom is more important than protecting children,” and “you never put somebody’s conscience above the protection of a child.”
 
An eloquent brief before a federal court in Tacoma, Washington, from Catholic bishops makes both a passionate and practical case demonstrating why Sen. Frame’s argument and this new law is wrong-headed. It harms both the First Amendment’s guarantee of the free exercise of religion while taking away the prime means the Church has of disciplining and stopping child abusers.
 
As a law intended to protect children, it scores an own goal. Here are a few choice excerpts from the bishops’ brief.
 
The Washington State law presents priests with a “Hobson’s choice” between eternal damnation and criminal prosecution.
 
“A priest who directly violates the sacramental seal incurs a latae sententiae excommunication – i.e., automatic excommunication – thereby risking eternal damnation. Accordingly, the historical record is replete with examples of Catholic priests choosing death as martyrs rather than succumbing to government demands that they violate the sacramental seal.”
 
It overturns a principle recognized in American law for more than 200 years.
 
The new law “runs directly counter to longstanding caselaw recognizing the confessional seal as part of the Catholic Church’s autonomy protected by the First Amendment. For example, in People v. Philips, one of the earliest-known religious freedom cases in the United States, the Court of General Sessions of New York City refused to force a Catholic priest to testify in a criminal case about what he heard in the Sacrament of Confession …
 
“As that court observed, ‘The sinner will not confess, nor will the priest receive his confession, if the veil of secrecy is removed.’”
 
The new law violates the First Amendment’s free exercise clause by replacing church governance with government regulation.
 
“The Sacrament of Confession and the meting out of penance is one of the means by which the Catholic Church disciplines its members. By requiring that Catholic priests disclose what they hear in confession, Washington is directly intruding upon, and chilling, that form of discipline.”
 
It singles out priests while exempting lawyers, law school clinics, and others.
 
In addition to lawyers, the new law exempts parents, domestic partners, and family members. It simply targets priests.
 
Above all, the new law will hurt, not help, the reporting of child abuse and rescue of children from dangerous situations.
 
“Moreover, when the priests in each diocese, including all Plaintiffs, hear confessions involving sins of child abuse or neglect, they could counsel the penitent to self-report and obtain the necessary temporal intervention and help.
 
“And priests in each diocese, including all Plaintiffs, who suspect based on what is disclosed during confession that the penitent is suffering from abuse or neglect, the penitent has engaged in abuse or neglect, or some third party has engaged in abuse or neglect, could invite the penitent for counseling outside of the Sacrament of Confession and, if the penitent agrees to that counsel, the priest must report any information learned in that counseling session required to be reported by diocesan policies …”
 
When the law requires priests to report child abusers to the police, no child abuser will confess. And without a confession, no priest can impose discipline by requiring the penitent to go to counseling and to turn himself into the police. It is the Washington State law that removes those tools to protect children that should make one sick to the stomach.

Protect The 1st applauded the Senate’s passage of landmark school choice legislation with tax credits as part of the president’s “Big Beautiful Bill.”
 
“A seemingly small provision in the budget reconciliation bill passed by the Senate will uplift American school children and promote the future health of our nation,” said Bob Goodlatte, former Chairman of the House Judiciary Committee and Senior Policy Advisor for Protect The 1st. “With support from the House, for the first time in American history the right of parents to choose the best school for their children will be supported by a federal tax credit.
 
“This day is a great achievement by Sen. Majority Leader John Thune, Senate Finance Chairman Mike Crapo, supported by the longtime leadership of Sen. Bill Cassidy and Sen. Tim Scott,” Goodlatte said. “Their leadership, along with Sen. Ted Cruz, made the day.”
 
Gene Schaerr, Protect The 1st general counsel, said: “The measure is the mustard seed that is sure to grow into a sheltering tree. With 19 states having passed some form of universal school choice, this national bill will facilitate private school scholarships that will elevate the lives of American students and their families for decades to come.
 
“These scholarships will allow children from low-income households to have access to quality education previously reserved for well-to-do families,” Schaerr said. “And it will allow families to exercise their First Amendment rights by selecting the quality religious or secular school of their choice.”
 
Goodlatte added: “The House, having passed this once, now has the happy duty of advancing the measure in its current form and getting it to President Trump’s desk.”

​When Arizona’s Proposition 211 forced the disclosure of nonprofit donors, it trampled on a bedrock principle of American liberty: the right to speak, associate, and advocate without government surveillance or coercion. The Buckeye Institute, an Ohio-based think tank focused on free-market policy and constitutional liberties, is now urging the Arizona Supreme Court in a powerful amicus brief to strike down this law as a threat to free association and free speech under both the U.S. and Arizona constitutions.
 
The Buckeye brief echoes concerns we’ve raised before: public disclosure of nonprofit donors invites harassment, threats, and even violence. Buckeye’s evidence isn’t abstract. It includes firebombings of offices, armed raids, and death threats, all targeting people for their beliefs or the organizations they support.
 
Technology only worsens the problem. With a few clicks, bad actors can compile and weaponize personal data against donors, publishing maps to their homes, attacking their families online, or pressuring employers into firing them. Witness the recent murder of a pro-choice state legislator and her husband in their Minnesota home. The Buckeye brief cites doxing sites targeting Tesla owners, threats against donors to Canadian truckers’ protests, and the public outing of supporters of one California proposition who lost jobs and faced violence.
 
Buckeye itself became a target after opposing Medicaid expansion in Ohio. The IRS, already embroiled in a scandal over political targeting, launched a field audit shortly after Buckeye’s advocacy succeeded. Donors, fearing retaliation, began giving anonymously or stopped donating altogether.
 
The Buckeye brief also includes historical notes, touching on “Publius, Cato, and Common Sense … just three of dozens of pseudonyms the Founding Fathers used to communicate and publish during the Revolutionary War.”
 
“The Founders’ ability to organize, associate, and speak anonymously was fundamental to the public acceptance and ratification of the Constitution and the Bill of Rights and likely remained at the forefront of their minds when drafting the First Amendment,” Buckeye declares. It quotes a constitutional scholar: “The bottom line is that it is highly probable that the United States would not exist without anonymous speech.”
 
Yet a lower court “suggests that organizations must all but endure a serious act of violence before availing themselves of judicial intervention.” Buckeye rightly argues that Proposition 211 is not only dangerous but unconstitutional at the state level. Arizona's Constitution provides even stronger protections for free speech and association than the First Amendment. And since Alabama v. NAACP, the U.S. Supreme Court has repeatedly recognized that donor disclosure chills protected speech and deters lawful participation in civic life, especially when governments collect this information without a narrowly tailored need.
 
The Arizona Court of Appeals wrongly dismissed these dangers as speculative. But Buckeye’s brief to that state’s Supreme Court leaves no doubt – violence and harassment are real, widespread, and predictable. A government should not wait for a tragedy before upholding Americans’ constitutional rights.