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

​A letter sent on Monday to the House Judiciary Committee by Meta CEO Mark Zuckerberg should put to rest whether “jawboning” by the government of highly regulated social media companies on their content moderation is taken as mere suggestions, or as something much more.
 
Zuckerberg wrote to the committee Chairman Jim Jordan:
 
“Officials from the Biden Administration, including the White House, repeatedly pressured our teams for months to censor certain COVID-19 content, including humor and satire, and expressed a lot of frustration with our teams when we didn’t agree. Ultimately, it was our decision whether or not to take content down, and we own our decisions, including COVID-19-related changes we made to our enforcement in the wake of this pressure. I believe the government pressure was wrong, and I regret that we were not more outspoken about it. I also think we made some choices that, with the benefit of hindsight and new information, we wouldn’t make today. Like I said to our teams at the time, I feel strongly that we should not compromise our content standards due to pressure from any Administration in either direction – and we’re ready to push back if something like this happens again.”
 
Zuckerberg also addressed the Hunter-Biden laptop story in the lead up to the 2020 election. He writes that the FBI warned Meta that this story was Russian disinformation. So when Meta saw a New York Post story reporting on the allegations, “we sent that story to fact-checkers for review and temporarily demoted it while waiting for a reply.”
 
“It’s since been made clear that the reporting was not Russian disinformation, and in retrospect, we shouldn’t have demoted the story. We’ve changed our policies and processes to make sure this doesn’t happen again … for instance, we no longer temporarily demote things in the U.S. while waiting for fact-checkers.”
 
As Protect The 1st has said before, government jawboning of highly regulated companies on content moderation cannot help but veer toward censorship. If government agents want to identify a post as dangerous or as foreign disinformation, let them do so publicly.

​How far can a judge go in imposing speech-related restrictions on a convicted person? That’s the question in U.S. v. Goodwyn, a case that tests the boundaries of judicial authority and the First Amendment.
 
In this instance, Daniel Goodwyn, who was present in the January 6, 2021, attack on the Capitol, found himself subjected to stringent computer monitoring as a condition of his supervised release. This condition was imposed despite his relatively minor offense – being inside the Capitol for only 36 seconds without engaging in the mob’s violence or destruction. A federal judge imposed the condition that software would be installed on Goodwyn’s computer to monitor it for any signs that he is engaging in “disinformation,” or that (being defended by Tucker Carlson on his show) Goodwyn should use digital sites for fundraising on the off chance he might invest funds in future crimes or try to rehabilitate himself on “extremist media.”
 
This situation demands careful reflection on the role of the judiciary in regulating speech, especially speech that is politically charged. The First Amendment guarantees freedom of expression, including the right to espouse unpopular or even controversial (and yes, outright stupid) views. PT1st Senior Legal Advisor Eugene Volokh notes that the imposition of conditions that monitor and restrict speech based on its content raises serious constitutional concerns. Volokh emphasizes that while the judiciary has the authority to impose conditions on those under supervised release, these conditions must be narrowly tailored and must not infringe upon fundamental freedoms.
 
Parallels between Goodwyn’s case and the U.S. v. Burroughs case (2010) further illustrate how far the court overreached. In Burroughs, a federal court rejected a computer monitoring condition for a far more serious offense than Goodwyn’s, one involving sexual crimes against a minor. The D.C. Court of Appeals in that case reasoned that the mere potential for future criminal conduct over the internet did not justify such a broad restriction. If monitoring was deemed excessive in a case involving serious and ongoing criminal behavior, how can we justify a similar condition for an individual convicted of a non-violent, one-time offense like Goodwyn’s?
 
The First Amendment jurisprudence sets a high bar for restricting speech, even when that speech is false or advocates for controversial ideas. The court’s broad prohibition against spreading “disinformation” about January 6th appears to run afoul of these precedents. As Volokh notes, the language of the political arena is often harsh and imprecise, but that is precisely the type of speech the First Amendment is designed to protect.
 
While the events of January 6th deserve appropriate legal responses, we must ensure that these responses do not encroach on the fundamental freedoms that define our nation. The judiciary has a responsibility to balance the need for public safety with the need to protect constitutional rights. In U.S. v. Goodwyn, this balance seems to have tipped too far in favor of restriction. We look forward to further developments in this case.

​New Hampshire Gov. Chris Sununu (R) recently signed a new law that protects free speech on that state’s public campuses. HB 1305 declares all outdoor portions of public college and university campuses to be open to expressive activity, while allowing administrators to impose reasonable time, place, and manner restrictions.
 
This is in keeping with the Supreme Court opinion in Ward v. Rock Against Racism (1989) that allows the government to impose such restrictions. Critically, the Court majority also held that such restrictions must be content-neutral and narrowly tailored.
 
New Hampshire is hardly the epicenter of the campus speech wars. The Foundation for Individual Rights and Expression (FIRE) rates the University of New Hampshire as one of the best campuses in the country for respecting speech. Perhaps that is why lawmakers took notice when students at the University of New Hampshire Franklin Pierce School of Law started a “Free Exercise Coalition” only to receive pushback from the Student Board Association in granting it official recognition as a school club. The group says it is “an open member coalition of religious students and their allies, all with a passion to see America’s foundational religious freedoms be restored and respected.”
 
The Student Board Association blocked recognition of the Free Exercise Coalition – as well as the student Christian Legal Society – for being discriminatory by holding traditional beliefs about sex and marriage. A faculty advisor for the coalition reportedly withdrew his name, making the group’s application to receive official recognition incomplete. It took considerable lobbying, with the backing of the First Liberty Institute, for the Free Exercise Coalition to be officially recognized.
 
Now, thanks to Gov. Sununu’s signature, the Supreme Court’s standard is codified into New Hampshire law. The new law also prevents harassment – “expression that is so severe, pervasive, and subjectively and objectively offensive, that a student is effectively denied equal access to educational opportunities or benefits.” In other words, it allows campuses to crack down on those who would exercise a heckler’s veto by creating an unsafe environment.
 
On New Hampshire’s public campuses, advocating hate and violence against individuals is now prohibited. Administrators must counter any antisemitic event that targets Jewish faculty and students, as has happened at Columbia and UCLA with “Jew Free Zones.” Restricting those who would shut down speech and students’ freedom of movement is fully in the spirit of the First Amendment.

​We’ve already heard a lot of rowdy speech from the two vice-presidential candidates, Democratic Minnesota Gov. Tim Walz and Republican U.S. Sen. J.D. Vance. Would they be as generous in applying the First Amendment to others as they do to themselves?
 
Tim Walz, who, despite correct opinions regarding the tragedy of Warren Zevon being left out of the Rock and Roll Hall of Fame, hasn’t been as on the money when it comes to which types of speech are protected and which are not. In 2022, Walz said on MSNBC:
 
“There's no guarantee to free speech on misinformation or hate speech, and especially around our democracy. Tell the truth, where the voting places are, who can vote, who's able to be there….”
 
As PT1st senior legal advisor Eugene Volokh points out in Reason: “Walz was quite wrong in saying that ‘There's no guarantee to free speech’ as to ‘hate speech.’ The Supreme Court has made clear that there is no ‘hate speech’ exception to the First Amendment (and see here for more details). The First Amendment generally protects the views that the government would label ‘hateful’ as much as it protects other views.”
 
Legal treatment of misinformation is more complicated. In United States v. Alvarez, the Supreme Court held that lies “about philosophy, religion, history, the social sciences, the arts, and the like” are largely constitutionally protected. Libel, generally, is not – though, in a defamation case, a public official can only succeed in their claim if they can show that a false statement was published with “actual malice” – in other words, “with knowledge that it was false or with reckless disregard of whether it was false or not.” Categories of intentional misinformation that are patently not protected include lying to government investigators and fraudulent charitable fundraising.
 
Walz may be on firmer ground when it comes to lies about the mechanics of voting – when, where, and how to vote. Thirteen states already ban such statements. As Volokh writes, “[I]f limited to the context that Walz seemed to have been describing – in the Court's words, ‘messages intended to mislead voters about voting requirements and procedures’ – Walz may well be correct.”
 
On freedom of religion, Walz’s record as governor is concerning. During the pandemic lockdowns, the governor imposed particularly harsh restrictions on religious gatherings, limiting places of worship to a maximum of ten congregants, while allowing retailers to open up at 50 percent capacity. An ensuing lawsuit, which Walz lost, resulted in an agreement granting religious institutions parity with secular businesses.
 
Walz also signed a law prohibiting colleges and universities that require a statement of faith from participating in a state program allowing high school students to earn college credits. As the bill’s sponsor conceded, the legislation was intended in part to coerce religious educational institutions into admitting students regardless of their beliefs – diluting their freedom of association. That controversy is currently being litigated in court. Little wonder the Catholic League declared that “Tim Walz is no friend of religious liberty.”
 
The Knights of Columbus might agree – at least as pertains to the broader ticket. In 2018, during the federal judicial nomination hearing for Brian Buescher, then-Sen. Kamala Harris criticized the organization for its “extremist” (read: traditional) views on social issues. Harris also sponsored the “Do No Harm” Act, which would have required health care workers to perform abortions in violation of their religious beliefs. 
 
Regarding Vance, the former Silicon Valley investor is hostile to the speech rights of private tech companies (who certainly enjoy the same First Amendment protections as any other person or group). In March, the senator filed an amicus brief in support of the State of Ohio’s lawsuit against Google, which seeks to regulate the company as a common carrier. In his brief, Vance argues Google’s claim that it creates bespoke, curated search results that directly conflict with its past claims of neutrality. Sen. Vance writes:
 
“[Google’s] functions are essentially the same as any communications network: it connects people by transmitting their words and exchanging their messages. It functions just like an old telephone switchboard, but rather than connect people with cables and electromagnetic circuits, Google uses indices created through data analysis. As such, common carrier regulation is appropriate under Ohio law.”
 
Vance’s argument creeps in the direction of Texas and Florida laws that seek to regulate social media companies’ internal curation policies. Both laws were found wanting by the Supreme Court. The Court in a strongly worded remand on both laws wrote:
 
“[I]t is no job for government to decide what counts as the right balance of private expression – to ‘un-bias’ what it thinks is biased, rather than to leave such judgments to speakers and their audiences.”
 
Yet Vance also attempts to “un-bias” social media platforms, leaving little to no room for independent curatorial judgment.

On the plus side, Vance has cosponsored numerous bills aimed at curtailing government censorship, including the “Free Speech Protection Act,” which prohibits government officials from “directing online platforms to censor any speech that is protected by the First Amendment.” He also sponsored the PRESERVE Online Speech Act, which would force social media companies to disclose government communications urging the censoring or deplatforming of users.
 
As the election season progresses, we can hope for more clarity on the candidates’ positions regarding our First Amendment freedoms. It is already clear, however, that both candidates are far from purists when it comes to protecting other people’s speech.

​The European Union’s Digital Services Act is an object lesson in how laws that purport to prevent the spread of “misinformation” and “disinformation” are destined to turn regulators into little tyrants.
 
Thierry Breton, European Commissioner for the Internal Market, is threatening Elon Musk and his social media company X with legal consequences if he airs his interview with former President Donald Trump. In a letter to Musk, Breton wrote that X must see to it that “all proportionate and effective mitigation measures are put in place regarding the amplification of harmful content in connection with relevant events, including live streaming, which, if unaddressed, might increase the risk profile of X and generate detrimental effects on civic discourse and public security.”
 
In other words – don’t let Europeans hear the unfiltered words of a former U.S. president and major party nominee, or the EU will sanction your business.
 
This is so breathtakingly – unselfconsciously – Orwellian that it almost reads as parody.
 
Yes, much of what Donald Trump says – about the size of the crowds being drawn by his opponent, Vice President Harris, suggesting that AI was used to make them seem larger – could be fairly characterized as misinformation or disinformation. Or just plain silly. The so-called “missile gap” that dominated the U.S. election in 1960 was also patently untrue. Today, claims made by the vice president that the U.S.-Mexico border is closed and secure could be characterized in the same light. So undoubtedly could statements made by French President Emmanuel Macron or German Chancellor Olaf Scholz. Indeed, politicians of all political stripes and national origins stretch or distort the facts so regularly that fact-checking politicians (and, in turn, the fact-checkers) has become an ever-increasing part of journalism and an important part of the public debate.
 
It must not become the business of regulators to make their own determination of what is true or not true in a political campaign and then censor statements made by candidates. We cannot allow government to cut up democratic debate into little sanitized snippets where bureaucrats and politicians in positions of power get to create their own narrative and punish anyone who strays from the orthodoxy.
 
Let Thierry Breton be a lesson to all the scolds in this country who want to give Washington similar powers. They would rob the voters of their ability to make up their own minds and substitute a sanitized, government-approved narrative that the public could challenge only at its peril. That would be a truly “detrimental effect on civil discourse.”

​Aristotle wrote that anybody can get angry. The hard task is to “be angry with the right person, and to the right degree, and at the right time, and for the right purpose.”
 
We don’t know if Judge Mark Scarsi of the U.S. District Court for the Central District of California is a student of Aristotle. But when he issued a preliminary injunction on Tuesday ordering UCLA to not allow parts of its campus to be off-limits to Jewish students, his order came out hot. Judge Scarsi wrote:
 
“In the year 2024, in the United States of America, in the State of California, in the City of Los Angeles, Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith. This fact is so unimaginable and so abhorrent to our constitutional guarantee of religious freedom that it bears repeating. Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith.”
 
The plaintiffs in the case are Jewish students who have a religious belief about the importance of the State of Israel. Several students, under threat of violence, were barred from the path to UCLA’s Powell Library. Others could not access the university’s  Royce Quad because to do so they would either have to denounce their faith or meet those who promised violence.
 
As the judge notes, UCLA does not dispute these facts. Instead, it argues that it has no responsibility to protect the religious freedom of its Jewish students because the exclusion was engineered by a third party, in this case student and off-campus protesters angry about the tragedy in Gaza.
 
Judge Scarsi responds: “But under constitutional principles, UCLA may not allow services to some students when UCLA knows that other students are excluded on religious grounds, regardless of who engineered the exclusion.”
 
A preliminary injunction is usually a tell about where a court is going. In this case, it is more like a bullhorn.

​Many free speech advocates were disappointed by the U.S. Supreme Court’s opinion Murthy v. Missouri, which could have defined the limits of government “jawboning,” or informal coercion of social media platforms’ content management. The opinion turned out, instead, to be a procedural kicking of the can down the road. True to form, the FBI followed up on this opening by announcing it will continue to highlight misinformation and disinformation for social media companies during the election season. The good news is that the FBI is now at least committed to keeping the public somewhat informed about government communications with private tech companies.
 
Murthy v. Missouri involved well-supported allegations of covert efforts by the government to influence social media content moderation during the Covid-19 pandemic. Under pressure from federal and state actors, social media companies engaged in widespread censorship of disfavored opinions, including those of medical professionals commenting within their areas of expertise.
 
As we wrote of that opinion, “When pressure to moderate speech is exerted behind the scenes – as it was by 80 FBI agents secretly advising platforms what to remove – that can only be called censorship.” Yet the Supreme Court ultimately declined to rule on the merits of the case, finding that the plaintiffs’ grievances against the government were too attenuated to constitute standing. With the 2024 presidential election on the horizon – and with it the likelihood of disinformation efforts by U.S. adversaries abroad – the issue of government jawboning and content moderation is back in a big way.
 
According to a recent memo issued by the Department of Justice, the FBI “will resume regular meetings in the coming weeks with social media companies to brief and discuss potential [Foreign Malign Influence or FMI] threats involving the companies' platforms.” The government promises to develop new policies to “ensure that the public is aware that DOJ’s sharing of information with social media companies about potential FMI threats to national security, including election interference, is undertaken pursuant to carefully calibrated protocols that protect First Amendment rights.”
 
The plan also calls for an explicit promise that the FBI will tell social media companies that it is offering an advisory opinion. It will not, we are told, compel them to act.
 
The FBI’s specific plans for keeping Americans informed of its efforts are anemic, but a sign of progress. The plan references making new standard operating procedures public and accessible online, as well as creating a new website to “collect and highlight in a single location relevant resources, guidance, and other materials …” We’ll have to wait and see just how comprehensive such a repository can be against the backdrop of national security.
 
Still, the FBI is at least moving in the direction of transparency. We’ve long held that transparency has always been the missing link in the government's approach to its communications with social media platforms. We won’t rest until misinformation or disinformation is identified publicly, rather than through the quiet direction of social media platforms. Flagging posts on the FBI’s open website would respect the public's intelligence, the principle of free expression, while showcasing how democracy works. The government's role should be clear and open, fostering an environment where informed decisions are made before the public.
 
Ideally, content moderation decisions might look something like context annotations that offer some degree of explanation for why a particular post might be flagged or removed. That way, Americans can see for themselves why a decision was made – and whether it related to an actual Foreign Malign Influence effort versus a fringe or disfavored opinion put forth by someone’s eccentric uncle.
 
None of this reduces the need for the Supreme Court – or Congress – to establish a rule by which we can all live when it comes to communications between the government and tech platforms on content. In the meantime, we can only hope that the controversy sparked by recent litigation will eventually lead to actual transparency.

​A recent case in Castle Rock, Colorado, tests the boundaries of government’s ability to limit the free exercise of religion, which seems to be a pastime for Colorado officials. This time official restrictions test the role of religious exercise in the novel context of zoning regulations.
 
Since 2019, the local Rock Church has provided shelter to homeless residents of Castle Rock. It offers them the use of RVs on its property for temporary housing. Since that time, town officials have repeatedly attempted to block those efforts, citing zoning restrictions.
 
In January, following unsuccessful attempts at negotiation, the Rock Church brought suit against Castle Rock in federal court, alleging First Amendment violations. It also alleges violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA), which prohibits governments from imposing land use rules that substantially burden religious exercise.
 
The Rock Church says that sheltering the homeless and feeding the hungry is a religious mandate specifically required by the Bible. They argue that Castle Rock’s repeated intervention to enforce the church grounds’ designation as a “Planned Development” zone – which, the town argues, does not permit the use of RVs for temporary housing – substantially burdens the free exercise of their religion.
 
A federal court has now preliminarily enjoined the town from enforcing its land use laws against the church and its temporary shelter ministry.
 
While the preliminary injunction is a positive first step, it remains to be seen how far the court will finally rule in this case. RLUIPA bars enforcement of a “land use regulation in a manner that imposes a substantial burden on the religious exercise of … a religious assembly or institution, unless the government demonstrates” it is “in furtherance of a compelling governmental interest” and “the least restrictive means of furthering that compelling governmental interest.” That is a very tough standard for the government to meet.
 
This strict scrutiny standard of constitutional law holds that laws that place burdens on constitutional rights are presumptively invalid unless the government can prove their enforcement to be vital. The government must also show that no other less burdensome means of achieving their aims exists. RLUIPA offers a standard of legal review that provides an ingrained level of defensive protection for our rights.
 
To ensure that the town did not try to question the beliefs and practices of the church, U.S. District Judge Daniel Domenico wrote in his opinion:
 
“To the extent there is a dispute about whether the Church’s stated beliefs actually require it to provide shelter on its own property, there is no reason to second-guess the Church at this point, regardless of how idiosyncratic or mistaken the Town may find its beliefs to be … To hold otherwise would invite the sort of ‘trolling through a person’s … religious beliefs’ and ‘governmental monitoring or second-guessing’ of ‘religious beliefs and practices’ that … is forbidden by the First Amendment.”
 
Judge Domenico also found that Castle Rock articulated no specific, compelling governmental interest in preventing the on-site sheltering of homeless people on Rock Church land. The RVs are parked on large lots at considerable distance from residential areas. Even local officials agree there have been no safety concerns or incidents to date.
 
Although this is just a preliminary injunction, the Rock Church will, for the time being, be able to resume efforts to house the homeless. Religious expression through charity and action is surely the kind of religious expression Congress had in mind when it passed RLUIPA.

​Sam Brownback – the former U.S. Senator, Kansas governor, and ambassador – describes the day in May 2022 when Chase Bank refused to allow him to make a deposit on behalf of the nonprofit organization he now leads, the National Committee for Religious Freedom. He was told that account had been cancelled.  
 
When Brownback asked why, he was only told that the decision was made by “corporate.” Two weeks later, Brownback and his nonprofit received a formal notification from Chase that the account had been formally closed. Brownback then undertook a prolonged attempt to persuade Chase to explain its decision. He received multiple answers. At one point the bank asked Brownback to disclose all of his committee’s donors.
 
“You don’t require that of other people,” he replied to a bank official. “We’re not going to do that.”
 
A few months later, Sam Brownback was told that something about this organization had crossed the bank’s tripwires indicating a possible domestic threat of terrorism. Brownback himself was, he was told, defined as “a politically exposed person,” a legal term in international finance that could involve a government official connected to corruption, money-laundering, and terrorism financing.
 
Brownback’s experience is one of the most prominent cases in a disturbing trend in financial services: “debanking” law-abiding organizations that strike some people as too ideological, too controversial, or in someone’s eyes “hateful.” These actions seem to emerge from an overwrought emphasis on the “reputational risk” of serving groups ideologically disfavored by Fortune 500 C-Suites. The list of debanked organizations runs the gamut from conservative activist groups to traditional Christians to companies that extract oil and gas, make guns and ammunition, and run private prisons.
 
Why is this happening? Banks, large and small, and other financial institutions are being jawboned by NGOs about the reputational and other risks of serving controversial groups and businesses. Some of the jawboning comes from the government.
 
Sen. Tim Scott, (R-SC) in a letter earlier this year to U.S. Treasury Secretary Janet Yellen, wrote about Treasury sending guidance to financial institutions “instructing them to search and filter Americans’ transaction-level financial data using specific keywords, search terms, and particular merchant category codes.” These keywords include common political slogans, the legal purchase of firearms (making “Dick’s Sporting Goods” one such term), as well as “the purchase of books (including religious texts) and subscriptions to other media containing extremist views.”
 
“Bank executives hear a lot of noise in their left ear,” Sen. Kevin Cramer (R-ND), who sits on the Senate Banking, Housing and Urban Affairs Committee, told a recent Federalist Society discussion. “Conservatives are not good at making noise.”
 
Regardless of your personal views about conservative ideas or traditional morality, demonizing and isolating the traditional beliefs of virtually every major world religion seems more like a First Amendment violation than a smart way to filter out people who are truly dangerous. Little wonder that Brownback says these decisions feel like they are being made “to suffocate people of faith.”
 
What can be done in response? Sen. Cramer is gathering a large number of cosponsors for his Fair Access to Banking Act, which forbids discrimination on the basis of “subjective political reasons, bias, or prejudices.” Cramer also suggests that an effective response is to make noise in the other ear of bank executives.
 
Brownback is doing just that. He says he is working overtime to persuade smaller organizations, often embarrassed and frightened at being debanked, to find comfort in numbers by joining other debanking victims in public. The more groups that come forward, the more banks and other financial institutions will have to give up on using access to the financial system as a way to bully ideologically disfavored groups.
 
Consider the group of debanked organizations that sued to force Chase to allow a vote on a shareholder proposition in 2023 against ideological debanking. That move did the trick. Soon after, WePay, which processes payments for Chase, removed its “social risk” policy which applied “hate” and “intolerance” standards against Christian and conservative organizations. J.P. Morgan pledged to provide “financial services for individuals and industries across geographies – regardless of political, social, or religious viewpoints.”
 
The threat against disfavored groups mirrors a recent case of direct government bullying, National Rifle Association v. Vullo, that was resolved by the U.S. Supreme Court. In that case, a government regulator in New York strongarmed financial and insurance companies to debank the Second Amendment advocacy organization. The Supreme Court ruled against the government regulator. Perhaps the justices will get the chance to declare that it is no more acceptable for big financial institutions to band together to exclude, and thereby financially harm, groups whose viewpoints they dislike.
 
You don’t have to be a conservative or an evangelical Christian to be offended by this institutional effort to bully nonprofits over speech. As liberal Justice Sonya Sotomayor wrote in the Vullo decision:
 
“At the heart of the First Amendment’s Free Speech Clause is the recognition that viewpoint discrimination is uniquely harmful to a free and democratic society.”
 
That principle logically applies as much to private banking decisions as to governmental discrimination.

​We begin this piece with a trigger warning. You might want to shut the door and draw the blinds. Steel yourself to read something distressing: Bruce Gilley, a Portland State University professor, was blocked from a Twitter account owned by his employer because he – we warned you – posted: “All men are created equal.”
 
This was his response to an “interrupt racism” thread of the university’s Division of Equity and Inclusion in 2022. Gilley sued over the university’s decision to remove him from its twitter thread. The university lost a motion to dismiss. On Tuesday, federal Judge Marco Hernandez slapped the university with a temporary injunction from “hiding, muting, or deleting posts by @Bruce Gilley on the @UOEquity X account.” The judge’s action is based on a substantial likelihood that Gilley would prevail on the merits.
 
Gilley was deposted because the account’s university administrators found his messages, somehow, constituted racism. Gilley is, to be fair, provocative in his lashing critiques of post-colonial ideology and DEI imperatives. (By the way, universities once delighted in academics who provoked debate, and “provocative” was considered a compliment.)
 
The university clearly violated its own social media guidelines for employees, the first of which is:
 
“As a public university that values freedom of speech and a robust exchange of ideas, you should err on the side of letting people have their say when commenting on social media properties. When appropriate, engage with commenters and repliers, even if it’s just to like or reply to their comments or to acknowledge their criticism. Don’t delete comments or block users because they are critical or because you disagree with their sentiment or viewpoint.”
 
The university’s social media guidelines do allow the removal of comments if they are “violent, obscene, profane, hateful, or racist or otherwise use offensive or inappropriate language.”
 
Gilley successfully argued that the First Amendment would protect even actual hateful and racist speech. Judge Hernandez issued the temporary injunction holding that the university cannot depost Gilley’s messages because they are found to be “hateful,” “racist,” “otherwise offensive,” or “out of context.” The judge’s use of quotes is clearly aimed at the slippery standards the university’s DEI office applied to Gilley’s views – and this injunction only applies to Gilley. It would be a mistake to extrapolate from this that even a public university, which must show maximal respect for the First Amendment, is prevented from issuing a viewpoint neutral policy of excluding racial slurs.
 
The root issue here is not just about the law. It is an intellectual one, the inability of so many today to use common sense to distinguish between messages that are clearly racist and those that can only be construed as racist by inference or mind-reading. There’s no judicial fix for that one, only better education.