 The Massachusetts Supreme Judicial Court has revived a discredited legal standard to keep two statues honoring police officers and firefighters locked away in storage. The city of Quincy commissioned 10-foot statues of St. Michael, the patron saint of police officers, and St. Florian, the patron saint of firefighters, for its new public safety headquarters. The city says the statues honor the courage, service, and sacrifice of first responders. Though both saints have religious significance, they are also widely recognized as professional symbols, with the Florian Cross appearing on fire department badges across Massachusetts. Nevertheless, the state’s high court affirmed a preliminary injunction preventing the statues’ installation while a lawsuit proceeds. The court held that the plaintiffs are likely to prove that the statues violate Article 3 of the Massachusetts Declaration of Rights by implicitly favoring Catholicism over other faiths. To reach that conclusion, the court relied on a state precedent that incorporates factors from the U.S. Supreme Court’s notorious Lemon v. Kurtzman (1971) test. Lemon asked judges to examine a government action’s purpose and effect to determine if the action impermissibly “advanced” religion. As Protect The 1st explained in an amicus brief, the U.S. Supreme Court abandoned this test after decades of subjective and contradictory rulings. The Court determined that Lemon had “invited chaos” and replaced it with an approach grounded in history and tradition. The Massachusetts court acknowledged all this – and then marched backward. It insisted that Lemon’s factors remain useful under the state constitution, finding it significant that the statues are new, large, religiously recognizable, and unaccompanied by secular figures. It even treated local criticisms of the statues as evidence against them. That rewards opponents for generating the very “divisiveness” later cited as a constitutional defect – a heckler’s veto in judicial robes. The ruling is preliminary, and the case now returns to Superior Court. Quincy has pledged to continue fighting. It should. St. Michael and St. Florian are familiar symbols of the bravery and self-sacrifice expected of first responders. Religious liberty is not advanced by scrubbing every religiously resonant symbol from public life – especially through a test the nation’s highest court discarded as unworkable.  Florida Attorney General James Uthmeier recently sent a letter to the Florida Conference of Catholic Bishops arguing that Florida law “requires public and private schools to exempt students from vaccine requirements” when parents have religious objections. Stressing that he himself is Catholic, Uthmeier told the bishops that Catholic schools must “comply with Florida law and grant religious exemptions to school vaccine policies.” Failure to do so, the attorney general wrote, “could jeopardize eligibility for state educational scholarship programs.” Can Florida do that? Should Catholic schools offer students a religious exemption from vaccine requirements? The Florida law wisely respects the conscience and religious rights of students, some of whom reject vaccines because they have a remote connection to research using cell lines originating from fetuses aborted decades ago. There is little question that non-religious private schools can be required to allow these exemptions. The application of this standard to religious schools is, however, a trickier proposition. The Vatican – which is second to none in its vocal opposition to abortion – allows Catholics to receive vaccines. The Dicastery for the Doctrine of the Faith sees “no cooperation with evil” in using vaccines derived from these old cell lines, since receiving such vaccines does not cause or promote future abortions. Thus, no religious exemption can be said to exist under the standards set by the Holy See. Under Florida law, K-12 schools must administer vaccines against polio, measles, rubella, pertussis, mumps, diphtheria, and tetanus. Vaccines are in keeping with Church doctrine, which holds that “the morality of vaccination depends not only on the duty to protect one’s own health, but also on the duty to pursue the common good … especially to protect the weakest and most exposed.” Attorney General Uthmeier disputes this stance, quoting the Dicastery’s own note that also states that “practical reason makes evident that vaccination is not, as a rule, a moral obligation and that, therefore, it must be voluntary.” Does that settle the matter in the state’s favor? No. Protect The 1st recognizes that the Catholic Church in Florida has clearly vetted these statements by the Vatican and determined that the best policy for its schools is to require the vaccines. “It is not remotely the role of a government official, even a Catholic one, to tell the bishops what to teach or how to run the church’s apostolates,” Rick Garnett, a Notre Dame law professor, told the National Catholic Reporter. It is certainly not the business of the state to don scarlet-and-ermine vestments and use government coercion to police the internal theological and pedagogical thinking of the Roman Catholic Church and its schools. State intervention in matters of belief, though well-intentioned, is a clear violation of the First Amendment’s guarantee of the free exercise of religion. Perhaps the Florida Conference of Catholic Bishops should reconsider its stand and allow those families that want to seek an exemption to get one. But the bishops cannot be compelled to do so. If taken too far, this disagreement could put at risk the education of thousands of students who receive state vouchers to attend Catholic schools. The attorney general may want to find a way to make his point about exemptions without forcing the Church to go to court to defend its right to set its doctrines.  The phrase “word salad” originated as a diagnostic term used by European psychiatrists in the late 19th century to describe jumbled, incoherent speech patterns as Wortsalat in German and salade de mots in French. It has since become a staple of American pop culture, a way to lampoon celebrities who speak gibberish. It has often been applied to former Vice President Kamala Harris, prompting no shortage of satire. It is perhaps, then, no surprise that Santiago Slabodsky, director of Hofstra University’s Jewish Studies program, took it personally when political science professor Richard Himelfarb described Slabodsky’s presentation of two new courses as a rambling “word salad.” Slabodsky filed a harassment complaint, alleging that the phrase discriminated against him on the basis of his “accent, native language, and Latino identity.” Rather than dismiss this attempt to convert ordinary academic criticism into discriminatory harassment, Hofstra opened an investigation. Himelfarb then sought the assistance of the Foundation for Individual Rights and Expression (FIRE) to help him with his case. Slabodsky responded with a second complaint, accusing Himelfarb of “public retaliation” for defending himself in the media and turning to an outside organization for help. Thus, Hofstra’s logic becomes circular: A professor faces investigation for criticizing a proposal, then faces another investigation for criticizing the investigation. Slabodsky is no stranger to provocative academic discussion. His courses have included “Postcolonialism,” “Rabbinic and Subaltern Thinking,” and “Globalizing Religion(s): Genealogies of Evil.” Surely someone who teaches such challenging subjects understands that academic inquiry cannot flourish when criticism – even if it is a bit harsh – is recast as harassment. Himelfarb reportedly agreed to apologize for causing offense. But an apology does not transform speech protected by academic freedom into punishable misconduct. Nor does a professor surrender the right to seek outside help simply because a university would prefer to conduct its proceedings behind closed doors. The second complaint claims that Himelfarb’s public defense caused “reputational harm.” But as FIRE’s Graham Piro told The College Fix, investigating Himelfarb for defending himself sends a chilling message: “If you try to defend your rights, you risk further punishment.” Universities should protect faculty members’ ability to debate curriculum, criticize proposals, and challenge their colleagues. Not every sharp remark is wise or courteous. But academic freedom would mean very little if it covered only criticism expressed in terms agreeable to its subject. Hofstra should toss both complaints into the same bowl – and throw out these jumbled proceedings. Can Florida Use Its State Pension Fund to Investigate How The New York Times Covers the News?8/22/2026
 Conservatives loudly – and as it turned out, correctly – complained that the Biden Administration was shadow-banning and deplatforming them through secret “jawboning” of major social media platforms. Meta CEO Mark Zuckerberg last year described in vivid terms to Joe Rogan how White House staffers would scream at him over the phone, demanding that satirical posts about liberals be taken down. Why on earth, then, are conservatives exploring novel ways for the government to abuse its power to censor content and challenge the First Amendment rights of news organizations? Do they care about the Constitution? And do they lack the imagination to see how these regulatory powers will eventually be employed against them? Federal Trade Commission Chairman Andrew Ferguson is one of these pioneers of censorship. He threatened to use Section 5 of the FTC Act, which outlaws deceptive practices, to target social media companies for content decisions as a matter of “consumer protection.” He also targeted Apple News, threatening it over the way it aggregates stories. For his part, Brendan Carr, chairman of the Federal Communications Commission, has threatened to pull broadcast licenses and to take other retaliatory actions against media companies for their editorial decisions. Florida Attorney General James Uthmeier is now entering the fray by using the financial interests of the state pension fund to justify a detailed examination of a newspaper’s editorial decisions. The state attorney general is demanding that The New York Times turn over extensive internal documents about its editorial decisions and practices. His 28-page letter seeks evidence of “editorial malpractice.” The examples Uthmeier cites include recent stories about Israel’s allegedly lurid maltreatment of Palestinian prisoners and the paper’s “downplaying” of the Nazi tattoo worn by former U.S. Senate candidate Graham Platner. General Uthmeier bases his demand on a slender justification: protecting the returns on Florida’s pension-fund investment. The state’s pension fund owns 160,000 shares of Times stock, worth more than $12 million. Uthmeier states that his concern is financial – looking out for the welfare of Florida pensioners by preventing The Times from making editorial blunders that could result in reputational damage and a massive libel judgment. But Uthmeier’s action runs the risk of mirroring left-wing shareholder activism that successfully imposed DEI and woke policies on some of America’s leading companies. His approach could erode the First Amendment rights of all Americans. Does The New York Times have a liberal bias? Do one-legged ducks swim in a circle? One reason The Times is a liberal publication is that it has a mostly liberal following. And the devotion of its readers punctures a sizable hole in Florida’s financial case. Two weeks ago, The Times reported that it had added 280,000 digital subscribers in the last quarter, for a total digital readership of 13.35 million. Add to that 550,000 print subscribers. The Gray Lady’s total revenue increased 11.2 percent for the three months ending in June. Its operating profit of $155.3 million was up 16.1 percent. Numbers like these undermine Florida’s concern about protecting the assets of its pensioners from a financial disaster at The New York Times. We believe that if this demand is pressed in a lawsuit, it is unlikely that any court in America would force The Times to reveal its internal editorial deliberations for scrutiny by a government official. In fact, legal action might put Florida at risk of violating its own anti-SLAPP law, which prohibits meritless lawsuits filed to chill speech. Since the prevailing party on an anti-SLAPP claim may be awarded reasonable attorney’s fees and costs, such a lawsuit might have the ironic effect of financially harming Florida instead of humbling The New York Times. But if, by some chance, this strategy should work, don’t be surprised when blue-state officials demand that profitable conservative outlets like Fox News and The Daily Wire also submit to government inspection. That’s just one of many consequences of an anti-constitutional arms race. What Is Inside Disney’s Lawsuit Against the FCC?Quote: “Government Censorship Is Deeply Un-American”8/19/2026
 FCC Chairman, Brendan Carr | PHOTO CREDIT: Internet Education Foundation/FLICKR The 46-page federal complaint of the Walt Disney Company, ABC, and eight ABC television stations against the Federal Communications Commission is both tightly grounded in fact and eloquently indignant. It takes a bold stand in defense of First Amendment rights against the FCC’s attempt to use broadcast licenses to punish constitutionally protected speech, opening with a blunt declaration: “Government censorship is deeply un-American.” The lawsuit challenges an extraordinary April 27 FCC order requiring eight ABC stations to submit license-renewal applications years ahead of schedule. The stations’ licenses ordinarily would expire between December 2028 and August 2031. Nevertheless, the FCC gave them just 30 days to complete applications that, according to Disney, typically require months to prepare. Disney’s lawsuit tells the court that the FCC had not demanded an early renewal application in more than half a century – and had never simultaneously ordered early applications from several commonly owned stations affiliated with one network. The FCC has questioned whether ABC’s The View should continue to qualify as a “bona fide news interview” program exempt from federal equal-opportunity requirements for political candidates. The agency granted the program that status in 2002. After Texas U.S. Senate candidate James Talarico appeared on the show in February, however, the FCC ordered an ABC station to petition for a new ruling on the exemption. The commission then demanded internal communications among the show’s booking staff, producers, executive producer, and co-hosts. Disney says no candidate for public office has appeared on The View since the inquiry began – not because ABC changed its editorial standards, but because it must now weigh whether booking a candidate could jeopardize its stations’ licenses. This is what regulatory intimidation looks like. The government does not have to issue an explicit censorship order. It can achieve much the same result by leaving the threat of a costly proceeding – and the possible loss of licenses – pending against a broadcaster. The filing notes: “The value of a sword of Damocles is that it hangs – not that it drops.” Disney also connects the early-renewal order to administration criticism of ABC programming, including comments by late-night host Jimmy Kimmel. The complaint notes that FCC Chairman Brendan Carr warned ABC that the government could proceed “the easy way or the hard way” and later told the network: “If you didn’t take us seriously, now you should.” Chairman Carr counters that broadcasters receive free access to valuable public airwaves and therefore have a duty to operate in the public interest. That principle, however, does not license the FCC to define the public interest according to whether government officials approve of a network’s political coverage. You may not like The View or Jimmy Kimmel. We don’t. We also doubt that Republican Sens. Ted Cruz (R-TX) and John Kennedy (R-LA) spend time in front of the television chuckling at the digs thrown at Republicans by Whoopi Goldberg or Kimmel. That did not keep these conservative senators from publicly warning their fellow conservatives about the dangers of the FCC’s use of regulatory power against broadcasters. Or consider how a bipartisan group of former FCC officials characterized the government’s message: “carry speech we don’t like at your peril.” Disney asks the court to halt the early-renewal proceedings and declare them unconstitutional retaliation. The court should do so. Whatever one thinks of The View, Jimmy Kimmel, or ABC News, federal regulators cannot use broadcast licenses to discipline media companies for displeasing the government.  Religious schools are anticipating an influx of students early next year, supported by scholarships funded by the Education Freedom Tax Credit. Whether they will actually be eligible to receive these students, however, is an open question in Vermont, Colorado, and likely other states. This question will likely be answered not through a direct legal challenge, but in a pending U.S. Supreme Court case involving an unrelated state program in Colorado. That case is St. Mary Catholic Parish v. Roy, for which the U.S. Supreme Court has set oral argument on Nov. 3. St. Mary’s asks whether Colorado may require Catholic preschools to surrender faith-based admissions policies as a condition of participating in the state’s universal preschool program. What does this have to do with the Education Freedom Tax Credit? A brief filed by 43 members of Congress explains that the Court’s ruling in St. Mary’s could decide whether states may similarly exclude religious schools from the new federal Education Freedom Tax Credit program. While these are different programs, the underlying principles – freedom of religion and the right to free association – are the same. Here’s the background: Colorado’s program provides funding for families to send their children to participating public or private preschools. The state requires schools to offer families an equal opportunity to enroll, regardless of sexual orientation or gender identity. St. Mary and St. Bernadette Catholic preschools maintain that those conditions conflict with Catholic teachings on marriage, sexuality, and biological sex. Colorado, in turn, demands the schools to comply with rules the schools say violate their Catholic teachings. When the case went before the Tenth Circuit, the court sided with the state against the Church. The congressional brief holds that Colorado is accomplishing indirectly what the Constitution forbids it to do directly – excluding religious schools from a generally available public benefit because they follow their faith. The brief was signed by eight senators, led by Sen. James Lankford, and 35 House members, led by Rep. Tim Walberg. They contend that allowing Colorado’s policy to stand would give other states “a playbook to discriminate against religious organizations while doling out federal educational benefits.” That concern is especially pressing because the Education Freedom Tax Credit takes effect Jan. 1, just eight weeks after the Court hears the St. Mary’s case. The program offers taxpayers a federal tax credit of up to $1,700 for donations to scholarship-granting organizations. Families may use the resulting scholarships for expenses at public, private secular, or private religious schools. States must opt in and submit lists of approved scholarship organizations. This process gives state officials an opening to impose additional eligibility requirements that could ice out many religious schools. As EFTC Credit reports, Vermont has already enacted nondiscrimination conditions governing organizations that participate in the federal program. Colorado lawmakers have considered similar legislation. Supreme Court precedents hold that states generally cannot bar religious institutions from public-benefit programs simply because they are religious or use funds for religious education. The question now is whether states may achieve much the same result through conditions framed as neutral nondiscrimination rules. You may disagree with the stringent standards set by the parishes in Colorado, but we should all agree that the First Amendment’s guarantee of the free exercise of religion – and the associational rights of those who share the same beliefs – serves us all, whether your association is with a church, a political party, or the National LGBTQ+ Chamber of Commerce. The First Amendment protects more than the right to hold religious beliefs in private. It also protects religious institutions from government efforts to make them conform as the price of equal participation in public life. In similar ways, it protects the right of every American to believe as we choose. And in that way, it protects us all.  Former Governor Glenn Youngkin of Virginia. CREDIT: Gage Skidmore/FLICKR Former Virginia Gov. Glenn Youngkin has launched a new policy organization, Empowering America’s Parents, that will promote school choice and urge every governor to participate in the federal Education Freedom Tax Credit. This new organization plans a multimillion-dollar campaign aimed at voters in states whose governors have yet to embrace the program, which takes effect Jan. 1, 2027. To date, 20 states have not signed up for these privately funded scholarships, even though participating in the program will not take a dollar away from public-school budgets. “Bottom line, every Governor in America should opt-in to the Education Freedom Tax Credit,” Youngkin said. “If they blow this opportunity, they’ll be leaving kids behind in their state while children in other states get the benefit.” The program offers taxpayers a federal tax credit of up to $1,700 for donations to nonprofit organizations that provide K-12 scholarships. These scholarships can help families pay for private-school tuition, tutoring, educational materials, disability services, and other approved expenses. But students can benefit only if their governor opts in. Thirty governors have now done so. As Protect The 1st recently noted, Democratic Govs. Kathy Hochul of New York and Jared Polis of Colorado have joined Republican governors in accepting the program. We’ve also done our share to encourage our followers to contact governors – ranging from Gavin Newsom of California to Wes Moore of Maryland and Josh Shapiro of Pennsylvania – to sign up for the Education Freedom Tax Credit. Others may follow. Education Week reports that Democratic Govs. Josh Green of Hawaii, Michelle Lujan Grisham of New Mexico, and Tina Kotek of Oregon may be reconsidering earlier decisions not to participate. School choice need not be a partisan issue. Parents across the political spectrum want the freedom to choose an education that reflects their children’s needs and their families’ values – whether that means sending their children to a religious academy, an arts-focused school, or a science-focused school; obtaining specialized services or receiving supplemental help while attending public school. Protect The 1st sees this choice as fundamental to a First Amendment society, in which educational pluralism, grounded in strong state standards, promotes a citizenry that makes the most of our right to free speech. The Education Freedom Tax Credit, created by the Educational Choice for Children Act, gives families resources to exercise that freedom, without taking a dime from state or local public school budgets. Youngkin’s new organization will educate governors about this program and ensure they cannot quietly deny their constituents this opportunity.  For more than half a century, the Securities and Exchange Commission offered people accused of violating securities laws a coercive choice: Fight the federal government at enormous expense, or settle and surrender the right to tell your side of the story. That practice finally ended in May, when the SEC rescinded Rule 202.5(e), commonly known as its “gag rule.” Make no mistake – withdrawing the gag rule is a victory for the First Amendment. But unless the courts or Congress act, another SEC majority could easily reinstate this rule. How the Gag Order Worked Since 1972, the SEC had refused to settle an enforcement action imposing a sanction unless the defendant agreed to never contest the agency’s allegations publicly. Defendants were usually permitted to say that they “neither admit nor deny” the accusations. But they could not claim innocence, dispute the SEC’s account, or even create the impression that the agency’s allegations lacked a factual basis. The restriction was permanent. As Thomas J. Powell, the lead petitioner in a constitutional challenge to the rule, writes in The Wall Street Journal: “In 2021 the SEC settled a proceeding involving a firm I led. The commission never proved the allegations underlying its findings. Its lawyers drafted the order without a hearing and without contested adjudication, inside the agency’s own forum, where the SEC served as accuser and judge …” “While the SEC remained free to publish allegations against those it accused of violating securities regulations, even when no court had tested those allegations, the rule compelled settling respondents to stay silent about their own cases.” The rule also required settling defendants to withdraw court filings to the extent those filings denied the SEC’s allegations. If a defendant later violated the gag order, the agency reserved the right to ask a court to vacate the settlement and return the case to active litigation. Chairman Paul Atkins’ Course Correction Calling such an agreement “voluntary” ignored the realities of federal enforcement. Individuals and businesses often settle not because they accept the government’s account, but because they cannot afford years of litigation against an agency backed by federal resources. The government should not be allowed to use that imbalance to extract a lifetime waiver of First Amendment rights. Facing Powell’s Supreme Court petition and 16 supporting friend-of-the-court briefs, the SEC abruptly rescinded the rule. Protect The 1st commends Chairman Paul Atkins, who correctly declared that “speech critical of the government is an important part of the American tradition.” The SEC also promised not to enforce gag provisions contained in earlier settlements. The Power to Gag Has Been Shelved, Not Repealed Any celebration should, however, come with a caution. The Supreme Court subsequently declined to hear Powell v. SEC, never ruling on whether the gag rule violated the First Amendment. And because the SEC repealed the rule administratively, a future commission could restore it administratively. Chairman Atkins and the SEC deserve credit for ending an indefensible policy. But constitutional rights should not depend on who happens to chair a federal agency. Congress should prohibit the SEC – and every federal agency – from conditioning settlement on a promise never to criticize the government or dispute unproven allegations.  The persecution of nuns and their charities is becoming an ugly hallmark of blue-state bigotry. For 14 years, the Little Sisters of the Poor have been dragged through the courts for refusing to violate their religious conscience. They twice prevailed before the U.S. Supreme Court, yet Pennsylvania and New Jersey are continuing a lawsuit whose purpose and effect would be to eliminate the federal religious exemption that exempts the nuns from complying with a contraceptive mandate. In New York, the Sisters of Life had to go to court after the state demanded information from pregnancy centers that would have revealed their donors’ identities and sensitive personal information of women who sought help from their program. Now it’s the turn of the Dominican Sisters of Hawthorne. These nuns have spent more than a century providing free care to poor people dying from cancer. New York nevertheless seeks to make their continued service contingent on compliance with state directives concerning gender identity, pronouns, room assignments, bathrooms, and staff training. The sisters argue that these mandates violate the tenets of their faith and their First Amendment rights. In a sharply written Wall Street Journal column, John J. Miller traces the order’s origins to Rose Hawthorne, daughter of Nathaniel Hawthorne. Rose was inspired in part by a passage in which her father described overcoming his initial reluctance to embrace a desperately poor child. She called this passage “the greatest my father ever wrote.” Miller then brings the story into the present: “Rather than thanking the sisters for their kindness to the dying poor, the letters demanded obedience to the state’s rules on gender identity.” These are not, however, nuns on the run. They are standing firm in defending their religious freedom, though at great cost. Why do state bureaucrats double-down on persecuting these brave nuns (of all people)? Because, Miller writes, if progressive government “can make nuns abandon their religious principles and kneel to the state, then it can force anybody to submit.” Miller’s account is worth reading in full. It raises a question that should not be ideological or partisan: Why must people who devote their lives to serving the poor repeatedly go to court simply to preserve the faith that inspires their service? A pluralistic country should have room for differing views on contraception, abortion, sexuality, and gender. It should have no room for government officials who try to force religious orders to violate their traditional beliefs, which are also held by millions of American Catholics, or for state bureaucrats who attempt to rewrite canon law. Sen. Kennedy to the FCC: “You’re Getting into the Foothills of Violating the First Amendment”8/10/2026
 US Senator John Kennedy Federal Communications Commission Chairman Brendan Carr insists that his agency is not targeting the speech of President Trump’s critics. But Chairman Carr’s answers in a wide-ranging Politico interview do little to dispel that concern. Politico’s White House Bureau Chief Dasha Burns pressed Carr on whether President Trump should be able to direct the FCC to investigate a broadcaster. The FCC chairman avoided the constitutional heart of the question. “Every decision we make is going to be based on the fact and the record and the law,” he replied. That exchange set the tenor of the interview. Burns asked Carr pointed questions, and Carr retreated behind recitations of law and regulation. We wish the FCC chairman had stated unequivocally that no regulator may use the FCC’s powers to punish broadcasters for unfavorable coverage, political satire, or opinions the regulator dislikes. Instead, Carr portrayed the controversy as part of a needed “course correction” by legacy media. He pointed to broadcasters’ obligation to serve the “public interest” and the need for “trusted news outlets” – as if those standards were properly defined by the government. After all, who decides what constitutes the proper course correction? Or what “trusted” means? Is it Chairman Carr? President Trump? And how will Republicans like it when these emerging powers are exercised against them by the next Democratic president? The danger of government regulation of speech was illustrated last week by Sen. John Kennedy (R-LA), who grilled FCC General Counsel Adam Candeub during a Senate hearing. “Explain to me like you’re talking to a 10th grader,” Kennedy said. “What business is it of the FCC if a television network criticizes a political figure?” Candeub initially declined to answer. Kennedy persisted: “I mean, this stuff scares me ... I don’t like some of the stuff that is said on television, but what business is it of the FCC? Educate me.” Candeub invoked the FCC’s statutory authority to regulate broadcasters in the “public interest.” “And who decides what the public interest is?” Kennedy asked. “It is the judgment of the FCC following precedent and following the law,” Candeub replied. Kennedy warned Candeub: “Y’all be careful. You are getting into the foothills of violating the First Amendment.” The warning is especially apt given the FCC’s actions under Carr. The agency has scrutinized ABC station licenses years ahead of their normal renewal schedule. It has also questioned whether The View qualifies for the statutory exemption from equal-time requirements for bona fide news interviews. Carr says the FCC has not prejudged the outcomes. But an investigation can itself become punishment when the regulator controls licenses essential to a broadcaster’s business. Prolonged scrutiny encourages editors and executives to soften coverage to avoid provoking Washington. Conservatives have every reason to resent media bias and feel iced out of the mainstream media. Look at the lineup of Stephen Colbert, Jimmy Fallon and Jimmy Kimmel – it can sometimes feel like a hate group aimed at Republicans. But the remedy for one-sided speech is more speech – as Greg Gutfeld demonstrates nightly on Fox by attracting a million more viewers than any of his late-night competitors. The FCC may enforce neutral laws, neutrally. It should quit hiking in the foothills of violating the First Amendment.  Religious organizations seeking official recognition on college campuses – and the same access to facilities as secular groups – are sometimes denied recognition. The reason? Administrators have told student religious groups that they must open their leadership to people of all beliefs or no beliefs – otherwise, they would be guilty of discrimination. One such group at the University of Colorado-Colorado Springs, Ratio Christi, was told in 2019 that they had to leave their leadership positions open to all, regardless of their beliefs. “It would be absurd for the university to require the vegan student group to appoint a meat-lover as its president,” observes Travis Barham, senior counsel at the Alliance Defending Freedom. “Likewise, the University of Colorado shouldn’t force Christian students to let atheists or other non-Christians to lead their Bible studies in order to become a registered club.” Some universities, like Tufts, have reversed their positions. Ratio Christi reached a settlement with the University of Colorado after filing a lawsuit. But many universities continue to bar religious groups from becoming recognized student organizations. This might soon change thanks to the passage of a bill by the House Committee on Education and the Workforce. The committee recently approved the Equal Campus Access Act, legislation that would require public colleges and universities to afford religious student organizations the same rights, benefits, and privileges they provide to other campus groups. Institutions that discriminate against religious organizations could lose access to federal funding. The bill, introduced by Chairman Tim Walberg (R-MI), would protect religious organizations’ access to official recognition, campus facilities, and other benefits available to student groups. Crucially, these protections would apply regardless of an organization’s religious beliefs, practices, speech, leadership requirements, or standards of conduct. “That protection is necessary because freedom of association means more than permitting students to gather in the same room,” said Bob Goodlatte, former House Judiciary Committee Chairman and Protect the First Senior Policy Advisor. “It includes the ability of an organization to preserve its identity and pursue its mission by selecting leaders who share its fundamental beliefs.” A university would never insist that College Democrats select a Republican as their president or require an environmental organization to accept a climate-change skeptic as its spokesperson. Religious organizations deserve the same freedom to choose leaders who can faithfully represent their principles. Sen. James Lankford (R-OK), who introduced the Senate version with Sen. Tim Scott (R-SC), framed the issue in appropriately constitutional terms: “Freedom of religion, speech, and association are Constitutionally protected rights in every place in America, including America’s campuses. This bill makes clear that public colleges must grant religious student organizations the same rights as every other student group.” The bill would codify a 2020 federal rule requiring the withdrawal of federal support from public colleges and universities that deny religious student organizations the rights available to comparable secular groups. It is backed by 47 organizations representing Christians, Jews, Muslims, the Church of Jesus Christ of Latter-day Saints, as well as First Amendment organizations. Public universities should encourage a vigorous diversity of beliefs, not force religious students to surrender the defining characteristics of their organizations as the price of participating in campus life. The committee has acted. The full House and Senate should follow.  Sometimes an opposing party makes your argument for you. In Suncor Energy v. Boulder County, the City and County of Boulder are seeking damages from Suncor and ExxonMobil for the alleged local effects of global climate change. At the certiorari stage, Boulder presented the lawsuit principally as a conventional application of state tort law, invoking nuisance, unjust enrichment, trespass, and civil conspiracy. Protect The 1st’s amicus brief urged the U.S. Supreme Court to look past those labels. We explained that Boulder’s theory of liability turns substantially on speech – specifically, claims that the companies misled the public about fossil fuels, emissions, and climate change – despite the complexities of this issue. Boulder has now filed its merits brief. Right at the outset, it confirms what we said all along. The brief characterizes the lawsuit as one seeking damages “for deceptive marketing and sales (rather than emissions).” It later alleges that the companies, “through their advertising,” misled the public about climate change and the role of fossil fuels. Its table of contents even devotes a section to arguing that “the deception claims are not preempted.” To be precise, Boulder’s statutory consumer-protection claims were dismissed without prejudice and are not before the Supreme Court. But its surviving tort theories still rely heavily on the same allegation: The companies caused harm by communicating a deceptive message. That is inescapably about speech. A similar lawsuit brought by Honolulu, which failed before the Court, shows how far such theories can reach. Plaintiffs there sought to depose hundreds of third-party witnesses, including alleged “climate-denial leaders and authors of climate disinformation,” public-relations strategists, scientists and academics, media organizations, think tanks, and interest groups. Such sweeping discovery targets not just commercial advertising, but public commentary and expressive associations engaged in scientific and political debate. Misleading commercial speech can, of course, be regulated. But government plaintiffs cannot evade First Amendment scrutiny merely by declaring contested speech about a controversial issue as indisputably false and then packaging that speech as nuisance, trespass, and unjust enrichment. Courts must distinguish provably deceptive commercial claims from protected participation in public debates. Agree or disagree with what the companies said, Boulder has now made it clear that the case turns substantially on just that.  Federal prosecutors have charged an Atlanta man with a felony after his privacy-protected cellphone erased its contents while Customs and Border Protection agents were attempting to search it. This case raises an alarming question: Can the border-search exception become a gateway for examining an American citizen’s political associations? According to The Independent, Samuel Tunick was returning from the Dominican Republic in January 2025 when federal agents detained him at Hartsfield-Jackson Atlanta International Airport and seized his phone. Tunick had been associated with Defend the Atlanta Forest, an environmental movement that opposed construction of Atlanta’s police and fire training facility, commonly called “Cop City.” His attorney alleges that the government’s real purpose was to investigate Tunick’s connections to that movement. Agents reportedly told Tunick that they wanted to inspect his phone for child sexual-abuse material. His attorney calls that explanation a pretext for a “fishing expedition” into his client’s political associations. Tunick repeatedly requested a lawyer, according to his defense, but agents refused. He eventually supplied a passcode. When an agent entered it, the phone’s screen went blank and the device apparently restarted. Tunick used GrapheneOS, a privacy-oriented operating system that allows a user to create a “duress” passcode capable of wiping all data from a phone. Prosecutors allege that Tunick deliberately supplied such a code to prevent the government from seizing information. He has been charged under a federal law that prohibits destroying property to prevent its lawful seizure. To be sure, the government has a legitimate interest in preventing the destruction of evidence. Privacy software does not grant anyone a license to obstruct a lawful investigation. But that principle rests on the central question in this case: Was the government’s proposed search lawful in the first place? Or was this case more like someone pouring the water out of a water bottle before going through the TSA inspection line? Remember, the justification for warrantless border searches is to prevent contraband – such as illicit drugs, weapons, invasive pests, or diseased biological agents – from coming into the country. Any other purpose should require a warrant. But Tunick had not wiped the data from his phone to prevent the execution of a warrant for law-enforcement purposes. The government enjoys broad search authority at international borders and their functional equivalents, including airports. But a modern smartphone is not a suitcase. It can reveal years of communications, photographs, location histories, reading habits, religious interests, and political relationships. As the Project for Privacy and Surveillance Accountability warned, Americans returning home are often pressured to unlock their devices without a warrant. Courts remain divided over what level of suspicion, if any, the government needs to conduct a forensic examination of a traveler’s digital life. Tunick’s case adds a serious First Amendment dimension. If agents used allegations of contraband as a pretext to map his connections to a protest movement, the search threatened not just his privacy but also his freedoms of speech and association. The government must not be allowed to use the border as a constitutional dead zone where political networks can be examined at will. Tunick has asked a federal court in Atlanta to suppress the statements and evidence obtained during his detention. The judge is not expected to rule before late October. Many groups will focus on the obvious – and necessary – implications of this case for the Fourth Amendment. We’ll keep an eye on this case for another reason – it has the potential to be a landmark win for the First Amendment as well as for personal privacy.  FIU students protesting the school's working arrangements with ICE are facing disciplinary charges for expressing themselves 'indoors.' PHOTO CREDIT: Handout / FIU ICEbreakers We’ve long been critical of the brutal suppression of speech on college campuses, from the shouting down of a federal appellate judge at Stanford Law School to a Yale University noise riot that shut down a panel on – irony alert – censorship and free speech. Institutions of higher learning are awakening to the need to end their tolerance of the heckler’s veto, often accompanied by coarse language and physical threats. But if the facts reported by WLRN public radio are accurate, Florida International University is punishing students not for disrupting an event, but simply for expressing a disfavored message. In March, seven FIU students reportedly entered a “fireside chat” hosted by university president Jeanette M. Nuñez. The students wore shirts reading “ICE OFF FIU” to protest the university’s working arrangements with U.S. Immigration and Customs Enforcement. The students stood in silence for a moment and quickly left. WLRN reports that FIU brought disciplinary charges against the students under a policy prohibiting “expressive conduct” indoors. The university maintains that the rule protects its operations from disruption. Yet Jehnny Rivera, executive director of FIU’s Office of University Protocol, Ceremonies and Events, reportedly told an investigating officer that the protest did not disrupt the event or other university operations. If that is true, it is difficult to see what legitimate interest FIU’s punishment serves. The First Amendment protects expression that is controversial and unwelcome. At a public university, officials should not convert a rule against disruption into a general prohibition on silent political expression inside campus buildings. The students’ assigned punishment raises an additional concern. According to WLRN, FIU ordered them to record “original” and “thoughtful” videos explaining which university policies they had violated. The university can require the students to redo those videos until administrators find them satisfactory. That sounds less like education than compelled contrition – the sort of thing one expects at a Maoist struggle session, not as a disciplinary measure at a university. The First Amendment generally protects Americans not only against being silenced, but also against being forced by the government to deliver a message they do not believe. Universities can impose reasonable, viewpoint-neutral rules governing the time, place, and manner of demonstrations. They should punish protesters who shout down speakers, block access, threaten others, or materially interfere with an event. But seven students silently displaying a message and then leaving do not constitute, on the reported facts, such a case. FIU should drop the disciplinary charges – and remember that a public university should be a marketplace of ideas, not a school for compelled conformity. |
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