​At the Rose Bowl in Pasadena, California, we saw safety barriers stamped with the words, “Free Speech Zone.” Presumably, these portable safety barriers are used to cordon off protesters into designated areas.
 
While we understand the need for “time, manner, and place” restrictions on protests, the signage on these barriers is an abomination and a travesty. It amounts to an advertisement for ignorance. There are no “free speech zones” in America. Thanks to the First Amendment, the nation itself is one giant free speech zone.
 
Why is free speech so important? Why did the Founders make sure to put it at the very beginning of the Bill of Rights? How do Americans today benefit from this legacy of the 18th-century Enlightenment?
 
Greg Lukianoff, CEO and president of the Foundation for Individual Rights and Expression (FIRE), explains in a recent TED Talk the benefits that result from the “four truths” of free speech. Some of them run counter to today’s prevailing assumptions – beginning with the realization that, far from creating “safety issues,” free speech actually makes us safer. To find out why, listen to Lukianoff explain how free speech is this safety valve that keeps our society freer, fairer, and ultimately securer. In just 12 minutes, he explains to a 21st-century audience why this 18th-century principle is more essential to America than ever before.

​Does a Christian prayer on a stadium loudspeaker at the start of a football game amount to a government endorsement of religion, or does it fulfill the First Amendment’s guarantees of free speech and the free exercise of religion?

That’s the question that arose when two Christian schools made it to the state championships in Florida in 2015. The state’s high school athletic association, a government entity, barred the teams from conducting a joint prayer over the stadium loudspeaker.

Many would reflexively side with the athletic association. The government sets the venue for the event. The government controls the loudspeaker. Allowing any religion to pray over government-controlled equipment might, at first glance, appear to violate the clause of the First Amendment that forbids the official establishment of religion.

That was essentially the conclusion the Eleventh Circuit Court of Appeals supported last year. To mix sports metaphors, it may have seemed like a slam dunk. But the Eleventh’s decision was, in fact, a bad call.

In a petition asking the Supreme Court to hear the case, Protect The 1st wrote that the “Eleventh Circuit held that the First Amendment was not even implicated – on the dubious theory that the proposed prayer, and by extension anything else that had ever been said by private parties on the loudspeakers, was government speech.”

Worse, that “dangerous expansion of the already questionable government-speech doctrine flips the First Amendment on its head.”

Protect The 1st is now telling the Supreme Court that this case presents “a clean vehicle to resolve the conflict and confusion” about the difference between the government’s speech and the speech of private actors using public forums.

Consider what happened when the city of Boston allowed 284 diverse groups at various times to hoist their flags on a city-owned flagpole, except for one group seeking to fly a standard that included the Latin Cross. In that case, Shurtleff v. City of Boston (2022), Protect The 1st told the Court that when the government provides a public forum for all comers, it is not “government speech.” It is merely a government forum. To single out religious expression for exclusion in a public venue is to abridge freedom of religious expression. Period.

Justice Samuel Alito wrote then that “speech by a private individual or group cannot constitute government speech if the government does not attempt to control the message.” The same principle applies, whether with flagpoles or loudspeakers.

Protect The 1st told the Court that the state athletic association “would not itself have been speaking had it allowed a student to use the limited public forum it created to pray at the championship football game.” We added that expanding the government-speech doctrine to convert government-sponsored forums into tools for censoring some views – but not others – weakens the First Amendment.

Protect The 1st concluded by telling the Court that “a prayer to solemnize the forthcoming competition, thank God, and seek His help in ensuring a good game for players and fans alike offers a religious viewpoint. That viewpoint must be respected and permitted every bit as much as a speech thanking parents, teachers, and the school, or merely cheering, ‘Go team!’”
​
Many long-time Court observers believe the Justices will recognize the threat to free speech and expression in the Eleventh Circuit’s ruling and will, this fall, place this case on their docket.

​The historian Robert Paxton notes that governments of all stripes are susceptible to authoritarian trappings, especially when their narratives suggest “obsessive preoccupation with community decline.”

This happens when power elites – whether left, center, or right – become convinced of their correctness close ranks to maintain dominance. Before long, they begin acting “in ways quite contrary” to their professed beliefs – a pattern Vice President J.D. Vance condemned in a blistering critique of Europe’s entrenched interests in Munich in February).

All this makes a recent post by Jonathan Turley particularly resonant. “Free speech is in a free fall in Europe,” he observes. This dynamic helps explain why Germany’s tendency to censor speech continues to find new targets:

• A comment mocking a politician’s weight warranted a criminal inquiry

 

• An opposition newspaper editor was indicted and fined for posting a meme ridiculing the hypocrisy of a minister’s supposed support for free speech

 

• A Bavarian pensioner was convicted for posting satirical Nazi-era images on X, because he did not make his critique of a government minister sufficiently clear

 

• Annual police raids target so-called “digital arsonists.”

Germany’s current coalition politicians seem intent on furthering, as the examples above demonstrate, crackdowns on speech. Writing in the Wall Street Journal, Filipp Piatov excoriated this censorship:

“Germany’s establishment is fighting to reassert control over public discourse – especially online, where it’s losing ground. The main targets are social-media platforms and populist parties. The tools are censorship and criminal law.

“This isn’t really about fighting disinformation. It’s about regaining control, which they sense is slipping away.”

Alas, Germany is hardly alone in this regard. As we’ve written before – and undoubtedly will again – the European Union’s Digital Services Act threatens to censor the speech of Americans and other foreign citizens, making it the new price of simply doing business. Across the Channel, the increasingly restrictive United Kingdom seems locked in step with the EU.

There, the Online Safety Act is poised to wreak havoc on privacy, free speech, and even the safety of the children it purports to protect.
​
Jonathan Turley is rightfully leery of EU Commission President Ursula von der Leyen’s recent declaration of a Pax Europaea. If the current pattern of free speech violations holds, it signifies a larger abandonment of the shared values that helped build robust post-war democracies on both sides of the Atlantic.

​Is a drag show an expressive activity worthy of First Amendment protection?
 
On Monday, the U.S. Fifth Circuit Court of Appeals decided that it is. In a 2-1 ruling, the court blocked West Texas A&M University President Walter Wendler from preventing a student group from sponsoring a drag show at a campus event center.
 
President Wendler put forward multiple arguments defending his ban. The court’s majority opinion, written by Judge Leslie Southwick, dismantles Wendler’s arguments one by one. That opinion, paired with a strong dissent by Judge James Ho, makes an excellent primer on recent developments in First Amendment law.
 
“A Fool’s Drag Race”
The drag show was organized by Spectrum WT, a recognized student group, at this public university in Canyon, Texas, just south of Amarillo. Titled A Fool’s Drag Race, the show aimed to raise funds for a suicide prevention initiative among LGBT+ youth. Organizers promised to keep the show at a “PG-13” level.
 
Three Arguments Slapped Down
One of Wendler’s objections was that, to qualify for First Amendment protection, an event must present a particular and discernible point of view. Judge Southwick rejected this, citing a 1995 Supreme Court decision that held that “a narrow, succinctly articulable message is not a condition of constitutional protection.” Otherwise, the abstract paintings of Jackson Pollock, the atonality of the modernist composer Arnold Schöenberg, or Lewis Carroll’s whimsical Jabberwocky verse would be unprotected. (Judge Southwick, a George W. Bush appointee, noted archly that the First Amendment even protects “opaque judicial opinions.”)
 
In short, all expressive works are protected by the First Amendment – including, apparently, cross-eyed impersonations of Liza Minnelli singing “Cabaret.”
President Wendler also protested that drag shows do not “preserve a single thread of human dignity,” which comes from being “created in the image of God.” He objected that drag shows, like blackface, “stereotype women in cartoon-like extremes for the amusement of others and discriminate against womanhood.”
 
Some agree. Others disagree. Most simply laugh at the campy performances and lip-sync fails. Judge Southwick, however, observed: “Drag shows – with performers dancing and speaking to music on stage in clothing associated with the opposite gender – mark a deliberate and theatrical subversion of gender-based expectations and signify support for those who feel burdened by such expectations.”
 
Wendler also protested that the campus venue, Legacy Hall, “is not open to the general public.” This would place the event squarely under Supreme Court case law dealing with the right of universities to place restrictions on the use of school resources. But Judge Southwick noted that past uses of Legacy Hall include a local church group’s “Community Night of Worship and Prayer,” a congressional candidate’s forum, a local high school’s “Casino Night,” a dance, a local nonprofit’s benefit gala, a livestock show, and a religious retreat center’s dinner.
 
He concluded: “These past uses, or practices, do not support that West Texas A&M University has limited Legacy Hall to ‘public expression of particular kinds or by particular groups.’”
 
Overall, we largely agree with the majority’s ruling under current Supreme Court precedent. While universities may limit some expression to protect their educational mission, “a justification for selective exclusion from a designated public forum must be carefully scrutinized.”
 
But Bad Precedent Remains
On the other hand, Judge Ho’s dissent highlights a remaining threat to the First Amendment on campus. He wrote:
 
“But as anyone aware of current campus conditions nationwide can attest, the vision of the university as a First Amendment haven is woefully naïve – at least when it comes to views disfavored in certain circles.
 
“Just ask the Christian Legal Society. Members of the CLS chapter at the Hastings College of Law sought to exercise their First Amendment right to associate with fellow believers who share their Biblical views on marriage and sexuality … But university officials chose to expel CLS – and only CLS – from campus. And the Supreme Court sided with university officials over CLS.”
 
Judge Ho quotes the Supreme Court’s insistence from this 2010 case that the First Amendment must be analyzed differently “in light of the special characteristics of the school environment,” in which “judges lack the on-the-ground expertise and experience of school administrators.”
 
With his trademark bluntness, Judge Ho writes: “This is all bunk, of course.”
 
He blasted the Court’s opinion for its deference to “academic ‘experts’” who “advocate policies that violate our nation’s most cherished principles.” Judge Ho adds:
 
“CLS contradicts all these principles. But only the Supreme Court can overturn its own precedents. So until the Court itself overturns CLS, we’re bound to follow it.”
 
Judge Ho’s logic oddly aligns with the majority opinion. Judge Southwick chips away at precedent, while Judge Ho insists on rigorously applying it – though with the shoe now on the other ideological foot. Both suggest CLS is flawed and that viewpoint discrimination has no place in public universities.
 
One unfortunate result of this opinion – a real drag, if you will – is that this case will not give the Supreme Court a chance to revisit CLS. But given the state of America’s colleges and universities, there should be no shortage of cases to test that precedent.

​Does the First Amendment’s protection of free speech extend to non-citizens? To paraphrase Avril Lavigne’s old hit, it’s complicated.
 
In this era of rising immigration enforcement, the speech rights of legal visitors to the United States have suddenly become an acute issue. The latest test case comes from The Stanford Daily and two unnamed legal resident noncitizens and student journalists who are suing Secretary of State Marco Rubio and Secretary of Homeland Security Kristi Noem for what they see as the chilling effect administration policies are having on their freedom of expression.
 
“As an independent student paper whose mission is to represent the voices of the Stanford community, this fear of the government directly impacts the quality of our work,” the editors declared. Given that a foreign student could be arrested and expelled from this country and have his or her education terminated, that is a real and palpable fear.
 
The Foundation for Individual Rights and Expression (FIRE) is representing the student newspaper of Stanford University (here is the full complaint and this description of the lawsuit and its background). FIRE has also published a full-throated response to critics in defense of this lawsuit. It’s part civics lesson, part philosophical exposition, and well worth reading.
 
Given, however, that this suit is at the intersection of First Amendment rights and laws concerning foreign policy this case is, as we said, complicated.
 
The courts have periodically wrestled with the extent to which constitutional rights apply to non-citizens since the 1880s. Foreign visitors can certainly have their constitutional rights violated, as in the case of Tufts Ph.D. student Rümeysa Öztürk’s right to due process. After this student from Turkey added her name to an opinion-editorial that made moderate criticisms of Israel, Öztürk was arrested by a group of masked federal agents dressed in all black who whisked her off, for a time, to a detention facility in Louisiana.
 
Understandably, the young woman at first thought she was being kidnapped, not arrested.
 
Öztürk was later released by an international outcry (including from 27 Jewish groups, whose amicus brief accused the government of using antisemitism “as pretext for undermining core pillars of American democracy, the rule of law, and the fundamental rights of free speech and academic debate”).
 
Thanks to cases like this, overreach may end up being the Oxford English Dictionary’s Word of the Year for 2025. It’s happened in Öztürk’s case and elsewhere, and FIRE’s lawsuit suggests it may be happening again. Yet FIRE’s Stanford Daily case is less clear cut.
 
It’s complicated in part because the suit isn’t about a specific incident. Instead, the focus is the interpretation of two foreign policy provisions that have been in place for 60 years, since the passage of the Immigration and Nationality Act:

• One provision allows Secretary Rubio to deport noncitizens if he “personally determines” their speech “compromises a compelling foreign policy interest.”

 

• The other enables the secretary to revoke the visa of a noncitizen “at any time” for any reason.

FIRE’s lawsuit seems to be aiming for a declaration of unconstitutionality if the reason for deportation is clearly protected First Amendment speech. And therein lies another complication: Unlike citizens, non-citizens can be deported if their speech is deemed to fall into one of the categories historically unprotected by the First Amendment, such as incitement, true threats and obscenity.
 
Finally, protected categories of speech are simply less robust in reach when it comes to noncitizens:
​

• Immigration law can weaponize otherwise lawful speech against non-citizens, depending on whether the expression is interpreted as advocating for terrorism or anti-U.S. policies. Consider Secretary Rubio’s justification for arresting protestor Mahmoud Khalil, for posing “potentially serious adverse foreign policy consequences for the United States.”

 

• As the Freedom Forum points out, “The Constitution does not specify whether the First Amendment applies only to citizens. Rather, those who wrote it talked about ‘the people.’”

Columbia’s Knight First Amendment Institute offers an exhaustive analysis of these points. In sum, the law governing potential actions against resident aliens grants the government sweeping power. With such power comes the responsibility to use it with wisdom and restraint.

​Does The Washington Post truly mistake correlation for causation?
 
The Post recently offered a heart-rending profile of tearful teachers celebrating bittersweet memories as the John R. Davis Elementary School in Phoenix shut its doors for good. This sad moment was presented as an example of how school closures are “a response to enrollment declines as the state [Arizona] offers unprecedented taxpayer funding for alternatives to public school.”
 
In this recent feature piece, The Post linked the closure of one-third of schools in the Roosevelt Elementary School District in Phoenix, like Davis Elementary, to declining attendance caused by school choice. The piece specifically blamed the participation of students in the state’s school voucher program under its Empowerment Scholarship Accounts (ESAs) for shuttered public schools.
 
Thankfully, Brittany Bernstein of National Review dug into this story and found that of the 8,500 students who have left the district, only 102 went to a private school under the ESA. Where did the other 8,398 flee to?
 
“The rest have enrolled in public schools not operated by Roosevelt,” Bernstein writes. “It’s not hard to figure out why parents are pulling their kids out of Roosevelt schools en masse: Just 10 percent of students in the district scored proficient in math and just 17 percent scored proficient in reading on the 2024 state tests.”
 
As we’ve reported before, far from degrading public schools, school choice improves them. Randomized control trials of voucher programs found moderate evidence of improvement in academic achievement from private school vouchers – a welcome result given America’s persistently mediocre place in international school rankings. Moreover, out of 28 studies that explored the causal relationship between school choice and the performance of public schools, 25 found that school choice improves educational attainment in traditional school systems.
 
It is evidence-based results like these that show that competition benefits schools and elevates the student experience. That is why 18 states have embraced some form of universal school choice. The momentum behind this policy juggernaut is coming from parents who want to choose schools equal to their ambitions for their children, and respectful of the values they want to express across the generations. That is why Protect The 1st sees school choice as a quintessential First Amendment issue.
 
It is easy to see why parents love school choice. It is harder to understand why so much of the legacy media clings to old narratives based on shoddy evidence.

President Trump’s recent executive actions on workplace religious freedom and “debanking” are bold initiatives that reinforce our most important First Amendment freedoms.
 
Religion in the Federal Workspace

The U.S. Office of Personnel Management recently issued a detailed memorandum that builds on Trump’s earlier executive orders such as “Eradicating Anti‑Christian Bias” and establishing the Religious Liberty Commission.
 
The OPM memo affirms that federal employees are entitled to private expressions of faith equal to secular forms of expression, such as wearing religious jewelry or displaying items of faith on their desks. Expression, whether secular or religious, is still subject to reasonable, viewpoint-neutral restrictions of time, place, and manner. This seems to us in keeping with the Supreme Court’s logic in the 2022 case of the “praying coach,” Kennedy v. Bremerton School District.
 
More than anything, the OPM memo reflects the essence of the First Amendment, an essentially American commitment to protect people of all faiths and creeds.
 
Debanking

As we’ve reported, debanking was an informal use of regulatory and commercial power to silence politically disfavored groups defined as posing a “reputational risk” that justifies the closure of their accounts.
 
A blatant example of government using regulatory action to silence disfavored speech was in full view in the Supreme Court’s 2024 unanimous rebuke of New York state regulator Maria T. Vullo. She had twisted the arms of insurance companies and banks to blacklist the nation’s most prominent Second Amendment advocacy group.
 
We also covered the plight of the National Committee for Religious Freedom after it was summarily debanked by Chase Bank. Somehow, this faith-based institution dedicated to freedom, and founded by Sam Brownback, former governor, senator, and U.S. ambassador, was defined under the Orwellian category as being run by a reputationally dangerous “politically exposed” person.
 
President Trump’s executive order now stakes a firm position – no American should be denied banking services for constitutionally protected speech. His order directs regulators to stop using “reputational risk” as a justification for account closures, to investigate possible cases of unlawful debanking, and to reinstate previously affected customers. 
 
Removing reputational risk from financial oversight is a concrete step toward clarity and fairness. The Cato Institute further commends the executive order for its focus on investigation over interventions, which Nicholas Anthony judges reflect the prudence of a sound policy, allowing policy to be shaped by evidence.
 
These executive actions are strong and necessary pushbacks against cancel culture overreach through regulation. But both have ambiguities that need to be clarified, and potential pitfalls that must be addressed.
 
Supporting Faith Freedom, Not Proselytizing

The Free Speech Center at Middle Tennessee University reports it is unclear the extent to which OPM’s standards override Clinton‑era guidelines. Douglas Laycock, a legal scholar at the University of Texas Law School, told Bloomberg News that the “Clinton document was much more sensitive” to power dynamics between supervisors and employees. “The failure to caution supervisors about how their comments,” he said, “can easily be misunderstood (or correctly understood) as demanding compliance.”
 
Banks in a Bind
​
The debanking order, as welcome as it is, adds yet another regulatory wrinkle to the heavy-handed requirements of the Bank Secrecy Act. Financial institutions are required by current law to send secret “suspicious activity reports” to U.S. Treasury’s Financial Crimes Enforcement Network whenever a customer’s activities fall outside of narrow behavioral parameters. Although most of these reports turn out to have nothing to do with money laundering or terrorism, banks can still be required to debank a customer who inadvertently trips a low threshold of suspicion.
 
Thus, the cross purposes of the Bank Secrecy Act and the new executive order are likely to put financial institutions in an impossible “damned if you do, damned if you don’t” position.
 
We also have to ask if we want to deny banks any ability to legitimately exercise their right of freedom of association in rejecting accounts for groups that offer genuine reputational (and other) risks. Think of the North American Man-Boy Love Association, or the National Socialist White People’s Party. More prosaically, should a bank be liable for cancelling the account of a political group that has a history of overdrafts and financial irresponsibility?
 
Congress needs to follow up to fill in these gaps. Far from weakening the administration’s actions, legislation would bolster these protections in the face of inevitable legal challenges.
 
Credit goes to President Trump for getting the ball rolling on these two areas of discrimination. Lawmakers now have a duty to translate these executive priorities into clear, balanced laws that both avoid unintended consequences while cementing enduring, equitable protections for all Americans.

We’ve chronicled many attempts by state authorities to try to force religiously oriented private schools to knock the religion out of their curricula. Maine, for example, persists in defying the U.S. Supreme Court, which ruled that the state cannot exclude religious schools from a state-funded tuition program for simply being religious.

The expanding school choice movement is predicated on the belief that giving parents the choice of their school – whether a school with a religious character, or purely secular school dedicated to STEM or the arts – respects the pluralism of our society.

But parent-plaintiffs in North Carolina are flipping that script. They are suing a private school because their children were expelled after the parents led a protest over its supposedly “woke” curriculum.

Now the Roman Catholic Church, which has long gone to court to defend its right to maintain its traditional teachings, is going to court to support the right of this private school to maintain its non-traditional curriculum.

Here's a brief review of the case, which will be heard by the North Carolina Supreme Court in October:

• Unhappy with a leftward ideological shift after a new headmaster was installed at Charlotte Latin School, a private college preparatory academy, two parents started a protest movement at the school, engaging administrators and the board.

 

• Citing its “Partnership with Parents” agreement and determining that it had become impossible to have a productive working relationship with the parents in light of perceived attacks on the school’s mission, Charlotte Latin nullified the education contracts of the couple’s two children and severed ties.

 

• The parents sued the school, garnering support from 14 state and federal lawmakers, all North Carolina Republicans.

 

• The state’s Appeals Court ruled against the plaintiffs twice, first unanimously and then in a 2-1 split, affirming the trial judge’s original ruling. The parents had previously tried to bypass the Appeals Court but that move was rejected by the state Supreme Court because the petition deadline was missed.

 

• Meanwhile, the N.C. Association of Independent Schools and the Southern Association of Independent Schools filed an amicus brief with the Appeals Court on behalf of the school, writing:

 
“Private and independent schools should be permitted to shape their values and culture as they see fit. If some parents do not like the direction that they perceive a school to take, they should vote with their feet and seek a new school.”
 

• Last week, in anticipation of the state Supreme Court’s upcoming hearing, both associations filed an additional amicus brief. The Catholic Diocese of Charlotte did as well.

The diocesan brief is particularly noteworthy, going straight to heart of the matter in holding that private schools also have association rights under the First Amendment. The Diocese told the court:

“These contractual provisions are essential tools that allow religious schools to carry out their faith-based educational missions,” and enforcing them, “avoids entangling courts in religious questions and protects the constitutional autonomy of private religious schools under the Free Exercise and Establishment Clauses of the First Amendment to the U.S. Constitution.”

We couldn’t agree more. If parents are unhappy with the ideology of their children’s private school, then it’s time to find a new school (there are 96 others in the N.C. Association of Independent Schools beyond Charlotte Latin). But if we allow litigation to shape the curricula of private schools, there will be no end to the control of curricula.
​
The genius of the First Amendment is that it guarantees choice in a free market of ideas. Matching families to schools, not legal coercion, is what the school choice movement is about.

​Police in Allentown, Pennsylvania, have long drawn the scrutiny of civil libertarians over claims of excessive force and occasional brutality. Since 2015, the city has paid out more than $2 million in police misconduct claims.
 
Phil Rishel, a 25-year-old Allentown resident, is determined to drive home Allentown’s lack of training in the First Amendment for its police force. He has often filmed police to demonstrate the point that he has a constitutional right to do so. In one of his recent posts, in which Rishel filmed a police garage through widely spaced bars from a public sidewalk, an officer sternly told him that “filming is not a First Amendment right.”
Courts have long held the opposite – that a citizen’s right to film in public is a vital form of public oversight, as seen in the arrest of a citizen-journalist who dared to film a public hearing in Texas. (Here’s a good guide on your rights and suggestions on how to film the police from the ACLU.)
 
Rishel’s recent posts have blown up the internet in which he has an insulting interaction with a police officer in the garage. In that recent video, the officer loses his cool and drives his police car down the sidewalk toward Rishel, who gleefully films him. When the officer inadvertently bangs the side of his car against a sidewall, Rishel responds with profane insults about the officer’s intelligence.

​Rishel has beaten charges of “verbally abusing, harassing, and screaming obscenities on the public street.” Local courts have recognized that swearing and even flipping the middle finger amount to constitutionally protected speech. Now the Foundation for Individual Rights (FIRE) is backing Rishel in his First Amendment lawsuit to protect his right to film and criticize police activities.
 
As Rishel tells an officer in his video, “there is no purer form of protest than on a public sidewalk.”
 
Well put. But can the same be said for Rishel’s pointed insults? They almost certainly fall far short of the Supreme Court’s “fighting words” threshold for what would constitute an actionable offense.
 
One likely – and commendable – result of this incident will be enhanced First Amendment training for Allentown police. Still, we don’t feel like breaking out the champagne over this one. Yes, the U.S. Constitution protects Phil Rishel’s right to act like an insulting jerk who provokes police officers into overreacting. But provoking police officers in a very personal way – who are, after all, human – is not a good way to test the boundaries of the First Amendment.

Rep. Jim Jordan, Chairman of the House Judiciary Committee, followed up on his committee’s report on how Europe enforces censorship of Americans on U.S. platforms by taking his complaints to the censors themselves.

The Ohio Congressman led a bipartisan delegation to explain to regulators in Brussels, London, and Dublin exactly why Americans find European censorship of American social media platforms so disturbing.

“America innovates, China replicates, and Europe regulates,” complained a member of the delegation, Rep. Scott Fitzgerald (R-WI). In an interview in Brussels, Fitzgerald noted that “there are seven corporations that are currently listed as gatekeepers by the DSA (Digital Services Act) and six of the seven are American corporations” being punished for their speech.
Did this message land?

“Nothing we heard in Europe eased our concerns about the (EU’s) Digital Services Act, Digital Markets Act, or (the UK) Online Safety Act,” Jordan said. “These sweeping regulations create a serious chilling effect on free expression and threaten the First Amendment rights of American citizens and companies.”

Like so many media outlets, Spotify was caught in the crossfire between free speech and medical authority during the pandemic. Joe Rogan on his popular podcast interviewed a vaccine-skeptical doctor who asserted that the antiparasitic medication, Ivermectin, can cure COVID-19. Spotify also removed “War Room,” the Steve Bannon podcast for calling on President Trump to seize CDC Director Anthony Fauci and FBI Director Christopher Wray and put their “heads on spikes.”

In this investigation, we caution House investigators to always keep in mind that Spotify has a First Amendment right to ban Bannon, curtail Rogan, and play the treacly “Dr. Fauci Say” (“Doctor Fauci, save me, I’m going insane”!) 24 hours a day. The First Amendment allows Spotify to make its own editorial decisions regarding Ivermectin or anything else. It can only be dissuaded by the free market of its listeners if it should decide to dedicate itself 24/7 to ridiculing President Trump or former President Biden, the Bible, the Quran, or apple pie.

If it decided to pull Bannon for making a graphic and menacing statement, Spotify was well within its rights to do so. And when rocker Neil Young pulled his music from Spotify in protest of Rogan’s COVID coverage – agree or disagree – he was fully exercising his First Amendment right to free association. Or in this case, disassociation.

The First Amendment only restricts the government’s ability to abridge speech.

The House Judiciary Committee should, then, be commended for correctly targeting its investigation on how the Biden administration and the European Union may have used coercive state power to bludgeon Spotify into censoring itself for them. Such “jawboning” from powerful regulators can never be treated as mere suggestions. It is more like the Mafia’s protection racket shakedowns: You have a nice little media company there, shame if anything happened to it.

At the time Spotify took this action, Biden press secretary Jen Psaki praised it as a “positive step” while urging other social media platforms to do more. Now the House Judiciary Committee is asking Spotify to turn over any communications and judicial orders from the EU, the UK, and a host of other governments since 2020.
​
This is the right approach. We praise Chairman Jordan and his colleagues for taking their case directly to the sources of censorship. Meanwhile, as we recently pointed out, conservatives in the United States should not punish the targets of past official censorship and coercion by enacting a censorship regime of their own.

Conservatives, firmly in power, hold the whip hand over their long-standing tormentors, including those who for years privately censored their speech. The Trump administration is now exploring ways to use its regulatory power to punish Silicon Valley and social media companies for suppressing conservative voices on private platforms.

• But punishing people who refused to associate their platforms with conservative speech by using government to infringe on their speech and associational rights threatens to permanently degrade the First Amendment.

​

• Conservative regulators should also realize they are publicly toying with the very weapons that will almost certainly be used to silence them again, only in more effective ways, if another progressive president is elected.

Consider Federal Trade Commission Chairman Andrew Ferguson, who is threatening to use Section 5 of the FTC Act – which outlaws unfair or deceptive practices – to target social media companies for selective enforcement of their terms of service. Chairman Ferguson also contemplates using antitrust law to “prosecute any unlawful collusion between online platforms, and confront advertiser boycotts which threaten competition among those platforms.”
 
Ferguson told an audience in March: “I’m not looking for censorship qua censorship. I’m looking for exercises of market power that might reveal themselves in censorship.”
 
Conservatives, bruised by rough treatment at the hands of big social media companies, understandably exult in this role reversal. Discrimination against conservative speech clearly happened, from Facebook’s efforts to exclude the conservative Prager University from its digital audiences, to crackdowns on posts that asserted that COVID-19 originated in a lab in Wuhan, China (which the FBI and CIA now believe it probably did), to efforts by secret entities within the State Department to persuade advertisers to defund conservative and libertarian publications.
​
Are consumer-protection complaints about companies’ editorial judgments, which would put the government firmly into the business of managing speech, a legitimate approach to reform? Section 5 allows the government to go after a company selling an ointment that it falsely claims prevents COVID-19 infections. That would not be a “speech” issue. It would be fraud enforcement. But should the government be able to tell a private company it must post a conservative or a progressive political statement, or be in violation of the law?
 
Labeling such editorial choices as supposed “evidence” of collusion inevitably carries the risk of government manipulation of private speech.
 
It would in fact be a violation of the First Amendment for the government to tell private actors – whether a network news organization or a social media platform – what to say or not say. The U.S. Supreme Court held in Moody v. NetChoice that social media companies have a First Amendment right to select, order, and rank third-party posts as they see fit. Prosecuting content and its moderation under unfair or deceptive trade practices would install government as a national content manager and editor-in-chief.
 
This is worse than overkill. The essential problem of content management censorship was, after all, driven primarily by government. Meta’s Mark Zuckerberg told Joe Rogan that he received calls from White House staffers who screamed at him about Facebook’s content decisions. The FBI had 80 agents assigned to evaluating social media posts as possible disinformation. Agencies from the IRS, to the Department of Homeland Security, to the State Department, pressured platforms on their posts. All of them have enormous regulatory power over Silicon Valley, making their “jawboning” for editorial changes far stronger than polite suggestions. Changing the jawboner to the FTC is just a new version of this regulatory game of three-card Monte.
 
The application of laws about fair trade practices and antitrust enforcement to speech would be an abusive extension of Washington’s power. It is easy to imagine this power being misused in myriad ways. Conservatives above all need to keep in mind that the weapons used now to punish their progressive opponents will surely one day be in their opponent’s hands as well.
 
The better way forward is to renounce the tools of punishment and restore respect for the First Amendment. With a few social media platforms making up so much of the nation’s townhall, social media companies should live up to a civic – even a moral – obligation to not discriminate against the right or the left. But it is ultimately up to the public to enforce such standards with what they click and what they purchase.
 
If this sounds naïve, take stock of how companies are already listening and responding to public pressure. X pioneered the freeing of moderation from government control and developed “community notes” to crowdsource fact-checking. Meta is testing this crowdsource technique for Facebook, Instagram, and Threads. Meta also got rid of its notoriously biased “fact checkers.” Google is standing up to political demands by activist-employees. Such market-driven reforms are the way to go, not speech regulation from Washington regulators.
 
Conservatives would do well to remember Marcus Aurelius, who wrote that the “best revenge is to be unlike him who performed the injury.”

We’ve frequently noted the popularity of school choice among the vast majority of Democratic voters, and asked when blue state governors will sign up for a national movement that is sweeping the states. Eighteen states now have some form of universal school choice. Most are red states, though some on that map are purple.
 
Now Corey DeAngelis, long-time advocate for school choice, challenges Gov. Josh Shapiro (D-PA) and Gov. J.B. Pritzker (D-IL) to take the plunge. Both men supported school choice in their 2022 gubernatorial campaigns. Both had their hands tied by state legislatures in which the influence of the change-nothing leadership of the teachers’ union blocked school choice. DeAngelis writes in The Wall Street Journal:
 
“The federal tax-credit program bypasses this problem entirely, empowering these governors to expand school choice unilaterally. By opting in, they can deliver scholarships to help their constituents afford private school tuition – opportunities Messrs. Shapiro and Pritzker valued for their own children. And it takes no additional spending out of the state budget …

“Democratic governors who might wish to opt out face a political dilemma. Because the federal program allows donations from all states, residents of Pennsylvania and Illinois can still contribute to scholarship organizations and receive a dollar-for-dollar tax credit, even if their governors opt out of allowing residents to receive the scholarships. If Messrs. Shapiro and Pritzker opt out, they’ll not only deny their states’ families access to scholarships for private schools, but also send their residents’ tax dollars to other states like Texas or Florida while getting nothing in return. But if they opt in, they could inspire other blue-state governors to follow, expanding a nationwide movement for school choice.”

Strong bipartisan support among voters for school choice suggests that opting-in to donations would be a show of leadership by these governors, both of whom are believed to harbor presidential ambitions for 2028.

School choice is simply too popular among the American people to be treated as a partisan issue. Studies show that school choice, far from degrading public schools, provides competition that improves their performance. Millions of parents also support it for the same reason we do as a non-partisan First Amendment organization: By allowing parents to choose the best school for their children, they can express their values across generations, whether in faith-based schools, or secular schools devoted to the arts or sciences.
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What’s not to like?

​Sometimes it is good news that breaks late on a Friday. A federal court in Colorado just ruled in favor of Bella Health and Wellness, an independent, faith-based Catholic medical center that offers “life-affirming, dignified health care.”
 
Judge Daniel D. Domenico’s tight and well-reasoned opinion permanently enjoined Colorado authorities from taking any enforcement action against Bella Health for offering an abortion-reversing pill to women who are having second thoughts about a chemically induced abortion. Judge Domenico’s ruling upholds this clinic’s right be free from the unequal application of laws that substantially burden its religious exercise.
 
Whatever your take on the controversial issue of abortion, this is a First Amendment win for the free exercise of religion.
 
This case began when Colorado adopted a first-of-its-kind law restricting progesterone treatment, a popular method to reverse a chemical abortion.
 
According to Becket, the law firm that represents Bella Health, the Colorado law allows public-interest clinics to offer the hormone to women in any circumstance, except if the purpose is to reverse the effects of an abortion pill. Colorado held that if Bella continued to offer progesterone for women who seek to reverse an abortion, the healthcare provider would have faced up to $20,000 per violation and the loss of the medical licenses of its providers.
 
Judge Domenico found: “Overall, it is impossible to avoid the conclusion that Plaintiff’s use of progesterone is not being regulated neutrally – it is being singled out.”
 
He found that various other off-label uses of progesterone were allowed, even if they caused similar uncertainty regarding risk and efficiency. He further noted that singling out this one use for further restriction substantially burdened Bella Health’s free exercise of its religious beliefs, triggering strict scrutiny under the First Amendment.
 
Whatever one’s views on the controversial issues surrounding abortion, we should all be in favor of the neutral application of laws and medical standards, and against unnecessary or biased burdens on the free exercise of religion.
 
Judge Domenico reminds us that when government asserts that some unequal burden is “necessary,” the government must meet a high standard of proof of why that is so.