​Love or loathe the colorful protests against the National Guard’s deployments into cities, the speech rights of all protesters are our rights. The right to insult, ridicule, offend, and provoke has been firmly established since President Thomas Jefferson let the Sedition Act – which outlawed “false, scandalous, and malicious” statements against the government, Congress and president – expire.
 
Now Fast Company reports that Sam O’Hara, a resident of Washington, D.C., claims he was “tightly handcuffed” and detained for 20 minutes after ignoring a demand by a National Guard member to stop playing the “Imperial March” theme associated with Darth Vader in Star Wars. O’Hara was playing the music while filming National Guard deployments in Washington, D.C., over the summer. Fast Company reports that O’Hara has received more than one million “likes” for his anti-Darth Vader TikTok posts.
 
The American Civil Liberties Union, which filed a lawsuit against the government for violating O’Hara’s First Amendment rights, told the magazine:
 
“Government conduct of this sort might have received legal sanction a long time ago in a galaxy far, far away. But in the here and now, the First Amendment bars government officials from restraining individuals from recording law enforcement or peacefully protesting, and the Fourth Amendment (along with the District’s prohibition on false arrest) bars groundless seizures.”
 
Michael Perloff, a senior staff attorney for the ACLU in Washington, told Fast Company: “The government doesn’t get to decide if your protest is funny, and government officials can’t punish you for making them the punch line.”
 
That’s true whether your allusion is to Darth Vader or the “Let’s Go Brandon” cry. “No government should be without critics,” Jefferson said. “If its intentions are good, then it has nothing to fear from criticism.”

​The history of American journalistic liberty begins about 350 years ago, in the era of the Massachusetts Bay Colony. When the British Crown gave the censorious Puritans a taste of their own medicine by ending their theocratic rule, printed dissent began to take root in the colony. Eventually, patriots like James Franklin and his younger brother, Benjamin, would push these ideas even further.

Massachusetts thus became the birthplace of America’s free press. No less than six anti-crown publications existed there on the eve of the Revolutionary War in 1775. At first, they were propelled by courage alone, but by 1791 a free press had become a foundation of the new republic. The Founders feared that without formal protections, freedom of the press wouldn’t mean much – and was therefore unlikely to last.

Which is why we're glad the inheritors of that rich tradition – the editorial board of The Boston Globe – recently pointed out a stinging historical irony: Massachusetts has failed to enshrine into law a fundamental journalistic right – the protection of confidential sources, the identity of whom prosecutors often demand. In fact, the board observes, a proposed press protection law hasn't even come to a floor vote in the state legislature for fifteen years. The Globe hopes this year will be different:

“The free press in a democratic society should not be expected to be a tool of the criminal justice system. It defies logic that prosecutors should feel the need to obtain reporters’ notes when they have vastly more power – via subpoenas and other means – to obtain information on their own.”

Libel and defamation laws will continue to protect us from shoddy journalism, they note to critics. Protecting confidential sources isn't simply a shield anyway – it's also an enabler of ethical reporting:

“Sound journalism requires that confidential information be verified in other ways – and when done properly, such reporting can reveal vital secrets about government, business, and other powerful institutions that the public has a right to know.”

Here's hoping Massachusetts remembers its proud history of press freedom and joins the 40 other states that have already protected confidential sources by statute. And wouldn't it be great if the federal government joined this little statutory party and passed the Protect Reporters from Exploitive State Spying (PRESS Act)?
​
Journalists have no protections in federal court from prosecutors seeking their notes and sources. If Massachusetts adopts a press shield, would Washington continue to remain far behind the states? Probably. But sometimes revolutions occur in small steps. Let the next step be in Massachusetts.

​The First Amendment has never been a license for Americans to protest whenever they want, however they want. Time, place, and manner restrictions still apply. For example, protesters cannot take over Main Street or a highway whenever they please. They can’t trespass on private property, be as loud as they want, violate capacity restrictions, or bang pots and pans and set off fireworks in the middle of the night.

Common-sense restrictions against such behavior do not deprive us of our constitutional right to free expression. Such restrictions, however, must be reasonable – designed to protect the public from unwarranted disruption, not from ideas. In Ward v. Rock Against Racism (1989), the U.S. Supreme Court held that restrictions must be content-neutral and narrowly tailored. The subject matter of a protest is never the point. Limitations must be specific, not thinly veiled attempts at harassment of disfavored groups or ideas.

Now Texas officials seem to want the scales tipped. In this era of overreach, it’s not surprising that a district court judge found the state went too far in its recent effort to limit expressive activity on university campuses. Remember the whole “middle of the night” issue we mentioned above? Well Texas decided to turn a legitimate concern about street disruption into a ban on “expressive activity” at “any time after dark” (10 p.m. to 8 a.m.) when it enacted S.B. 2972 this summer.

Federal Judge David Alan Ezra was unimpressed, issuing a temporary block of this law:

“The First Amendment does not have a bedtime of 10:00 p.m. The burden is on the government to prove that its actions are narrowly tailored to achieve a compelling governmental interest. It has not done so.”

Texas also went too far in failing to keep its restrictions on subject matter content-neutral. In fact, state leaders went full-tilt the other direction, explicitly banning “any speech or expressive conduct protected by the First Amendment” after 10 p.m.

“Texas’ law is so overbroad that any public university student chatting in the dorms past 10 p.m. would have been in violation,” plaintiff’s attorney Adam Steinbaugh told the Free Speech Center. “We’re thankful that the court stepped in and halted a speech ban that inevitably would’ve been weaponized to censor speech that administrators disagreed with.”

The law, wrote the editorial board of The Daily Texan at the University of Texas at Austin, “protects lawmakers, not students.”
​
In Texas, the stars at night are big and bright – and Texans have never been afraid of the dark, nor of speaking their minds. “I’m from Texas,” Willie Nelson once said, “and one of the reasons I like Texas is that no one is in control.”

​Sen. Mike Lee (R-UT) recently proposed a bill named after the slain conservative activist Charlie Kirk. It would restore a ban designed to prevent the domestic dissemination of government-sponsored propaganda.
 
What is the link between Kirk’s murder and government propaganda? Sen. Lee’s office cited a You.Gov poll that shows that one-quarter “of very liberal Americans find political violence justifiable – a startling revelation on the effects of extremist rhetoric from the ideological left.”
 
The statement continued: “Now, Americans are not only vulnerable to, but likely paying for their own propagandization.” It cited the now defunded National Public Radio and Public Broadcasting Corporation for “incredibly politically biased” content.
 
But the use of tax dollars to fund propaganda is not a strictly left-wing phenomenon. As the U.S. government approached the ongoing shutdown, the Department of Housing and Urban Development posted this bulletin on its landing page.

​Agree or disagree, public employees blaming the “radical left” is nothing like the National Weather Service warning that a hurricane is set to make landfall in the Carolinas at 2 a.m. These statements also seem to violate the Hatch Act, which prohibits government employees from engaging in political activities on government time.
 
What Is Propaganda?
 
The word comes from an office Pope Gregory XV established in 1622 within the Roman Catholic Church during the Counter-Reformation – the Congregatio de Propaganda Fide, or “Congregation for Propagating the Faith.” The missionary office gave modernity a new word that would, in time, take on darker meanings – referring to information that, even when true, is selectively presented to create inflammatory effects.
 
To be fair, the line between truth and propaganda is a thin one. But there are obvious extremes. The National Weather Service example is clearly public safety information. The White House under President Lyndon Johnson telling Congress and the American people that North Vietnam attacked U.S. naval forces on Aug. 4, 1964 (when it manifestly did not) was clearly propaganda. Much else lies in between.
 
So, then, Does the Lee Bill Make Sense?
 
Despite reservations, we believe it does. We endorse it.
 
Sen. Lee’s bill is a necessary effort to prevent government agencies from trying to shape the American people with their tax dollars. In a representative democracy, any shaping should be done the other way around.
 
Sen. Lee’s bill would do this by restoring the original intent of the Smith-Mundt Act, a law passed at the beginning of the Cold War in 1948. The United States was then standing up the Voice of America to broadcast U.S. government-produced news to the world as our truth to counter communist propaganda. Concerned that government-created editorial content could be turned inward, Smith-Mundt banned the U.S. government from influencing public opinion in at home.
 
In 2013, the domestic dissemination ban was repealed by a “modernization act.” The State Department and U.S. Agency for Global Media, which oversaw programming like that of the Voice of America, were permitted to release their content inside in the United States. Some argued the internet made the separation between domestic and foreign audiences all but impossible. The law still forbade “targeting” of Americans for the purposes of “propaganda.”
 
In this vein, we agree with Sen. Lee’s public defunding of NPR and PBS. Government-funded editorializing is never going to be seen as neutral and unbiased. And it always creates the opportunity for mischief, whether of the NPR variety (turning a blind eye to the Hunter Biden laptop story) or of housing officials using a federal website to attack “radical leftists.”
 
Our government must not create “news” or political content for Americans’ consumption. We don’t want our civil servants to issue political opinions – whether they blame the shutdown on left-wing, radical woke Marxists, or right-wing MAGA troglodytes.
 
We, the American people, are sometimes pointlessly divisive and sometimes civil and wise. But we can think for ourselves, thank you very much.

Maryland enacted in 2021 a commercial tax on revenues generated from digital advertising. Affected businesses immediately promised to designate this tax as a line-item on their customers’ bills. Maryland responded by amending the law to gag internet companies to prevent such declarations.

Multiple trade associations sued on First Amendment grounds, but those concerns were dismissed by a district court for lack of jurisdiction. In a reversal, the Court of Appeals for the Fourth Circuit unanimously waved a page from the American Revolution at the state’s lawyers and said: “Not so fast. Ever heard of the Stamp Act?”

A tax is one thing, but restricting how businesses communicate that tax to customers is something else entirely. The right to complain about taxes goes back to the Stamp Act, reasoned the Appeals Court, and it “remains a grand American political tradition.”

The court went straight to the heart of why the First Amendment applies: “As much today as 250 years ago, criticizing the government – for taxes or anything else – is important discourse in a democratic society.”

As it was, the law’s speech provision had the effect of making companies seem responsible for the price increase rather than the state government. This struck the court as inherently unfair: “The pass-through prevents companies from describing the tax in the one setting where the consumer is guaranteed to look: the invoice," the court’s opinion read. “Keeping out of hot water with voters is not among the interests that can justify a speech ban.”

For now, the tax itself remains in place. But now unshackled from legislative sleight of hand, we expect many companies will be updating their customer billing statements in the months ahead.

Perhaps they will include this Annapolis number: 410-841-3000,  labeled: “Maryland General Assembly Switchboard.” Now that would be a major exercise of free speech.

​When the U.S. Supreme Court recently heard Chiles v. Salazar, the justices were confronted with a deceptively simple question: Can a state dictate what licensed therapists may or may not say to their adolescent clients about sexuality and gender? At stake is the speech of every professional – including therapists who affirm same-sex attraction, as well as those who are willing to question it.

Also at stake is nothing less than the First Amendment’s bedrock promise that the government cannot punish expression based on viewpoint.
​
A Law That Bans One Side of a Conversation

Colorado’s law forbids therapists from engaging in any counseling with minors that aims to “change sexual orientation or gender identity,” including talk that seeks to reduce unwanted same-sex attraction or align gender identity with biological sex. Importantly, this law applies even to purely voluntary, conversational therapy – no drugs, no “aversion” techniques, just words between a willing patient and a counselor.

For therapist Kaley Chiles, that law means she is forced to remain quiet with minors who come to her seeking help to live in accordance with their religious or personal convictions about sexuality. She argues that this is unconstitutional censorship on voluntary speech about deeply contested moral, religious, and scientific questions.

Her lawyer, James Campbell, told the justices that if Colorado’s position stands, the state could “transform counselors into mouthpieces for the government.”

Campbell invoked the Court’s 2018 decision in NIFLA v. Becerra, which struck down a California law forcing pro-life pregnancy centers to advertise abortion services. There, the Court held that professional speech still receives First Amendment protection and warned against “censoring private conversations between professionals and their clients.”

The First Amendment in the Therapy Room

The Tenth Circuit had rejected Chiles’s claim, applying the lowest standard of review – rational basis – to Colorado’s speech restriction. That ruling, Campbell told the Court, “gutted” NIFLA. Under such lenient scrutiny, a state could silence any disfavored viewpoint in a counseling session, from advice about divorce to moral discussions about abortion or family life.

Several justices appeared troubled by that possibility. Justice Elena Kagan noted that if one therapist can tell a client “I’ll help you accept that you’re gay,” while another cannot say “I’ll help you change that” – “that seems like viewpoint discrimination.”

Justice Neil Gorsuch pressed Colorado’s lawyer further. He asked that if the state can ban therapy that seeks to align a person’s identity with their biological sex, could a different state ban therapy that affirms a patient’s gay orientation – and justify it under the same rational basis standard?

Colorado’s attorney, Shannon Stevenson, said yes.

That answer underscores the double danger of viewpoint discrimination. What Colorado does today in the name of progress, another state could do tomorrow in the name of tradition.

The federal government, appearing as a friend of the Court on Chiles’s side, made that exact point. Hashim Mooppan reminded the Court that in the 1970s, “it was the standard of care that being gay was a mental illness.” Under Colorado’s theory, a state back then could have outlawed counseling that affirmed a gay identity.

That hypothetical isn’t ancient history; it’s the mirror image of the current case. What one era’s experts deem dangerous, another calls affirming. The Constitution doesn’t trust the government to referee such debates.

Professional Speech Is Still Speech

Colorado’s defense, echoed by Justice Ketanji Brown Jackson, was that Chiles is acting as a medical professional, not a private speaker. Justice Jackson asked why a therapist’s conversation about sexuality should be treated differently from a doctor prescribing medication. Campbell answered: “Because this involves a conversation.”

That distinction matters. The First Amendment protects the exchange of ideas, even those occurring in professional settings. In NIFLA, the Court rejected the notion of a “professional speech doctrine” that would allow the state to regulate speech more freely simply because the speaker is licensed. As Justice Thomas wrote for the majority, “The First Amendment does not permit the government to impose content-based restrictions on speech without satisfying strict scrutiny.”

If Chiles were decided otherwise, it would signal that professional speech – including a therapist’s, a professor’s, or even a lawyer’s – enjoys only conditional protection, subject to the prevailing political winds.

The Slippery Slope of State-Approved Speech

Colorado insists its law protects minors from harm but it has not cited a single study showing harm from voluntary talk therapy of the kind Chiles offers. Nor did the state explore less restrictive alternatives, such as informed-consent requirements or professional guidelines. Instead, it chose to ban speech outright – a blunt instrument aimed not at harm, but at a disfavored idea.

And that is the essence of viewpoint discrimination – when the government’s concern is not the method of communication, but the message. The genius of the First Amendment is its neutrality. It protects speech we find uncomfortable precisely because we cannot predict which ideas will one day fall out of favor.

A Warning from the Court
​
When Justice Kagan and Justice Gorsuch – often ideological opposites – both voiced concern about viewpoint discrimination, it suggests that Chiles’s case may transcend culture-war lines. The Court’s challenge is not to decide who is right about gender or sexuality, but to reaffirm that the government cannot dictate the answer.

​The walkout over the Pentagon’s restrictive new press rules continues. On Tuesday, Fox locked arms with ABC, CBS, CNN, and NBC to declare in a joint statement:

“We join virtually every other news organization in declining to agree to the Pentagon’s new requirements, which would restrict journalists’ ability to keep the nation and the world informed of important national security issues. The policy is without precedent and threatens core journalistic protections. We will continue to cover the U.S. military as each of our organizations has done for many decades, upholding the principles of a free and independent press.”

As CNN’s Aaron Blake points out, Fox’s participation also represents a deeply symbolic rebuke of the former Fox News commentator: “This is Hegseth’s own former employer saying he’s undermining freedom of the press.”

It’s not like Secretary Hegseth was all that chatty anyway. As many outlets have reported, he has only given two briefings during his time in office:

“We're barely getting any information at all from the Pentagon,” wrote NPR’s Tom Bowman, a 28-year veteran of the Pentagon press pool, adding: “And there have been virtually no background briefings, which were common in the past whenever there has been military action anywhere in the world.”
​
Even the ever-acerbic Donald Rumsfeld, noted Bowman, gave press briefings twice a week. And, we might add, he was an actual wartime secretary.

​Et tu, Newsmax? 

We’ve held off writing about the Department of Defense’s restrictive new rules for Pentagon-beat reporters, waiting to see the results of intensive negotiations between the Department and journalists.

Now we know the results of those negotiations – by Monday afternoon, CNN, The Associated Press, The New York Times, The Washington Post, The Atlantic, and NPR said adios to the E-Ring. Even Newsmax – not known as a bastion of mainstream media critics of President Trump – rejected the First Amendment-killing terms of the Pentagon’s new policy for beat reporters.
​

• The original policy issued Sept. 18 would have required journalists to sign a pledge acknowledging that they had to secure the Pentagon’s permission before publishing any information, including unclassified reports.

 

• A new version issued on Oct. 6 clarified that journalists do not, in fact, have to submit their writings for Pentagon approval. But it did warn journalists against “solicitation” – a word normally used by police when arresting johns for prostitution.

 

• The policy read: “Solicitation may include direct communications with specific (Defense) personnel or general appeals, such as public advertisements or calls for tips encouraging (Defense) personnel or general appeals, such as public advertisements or calls for tips encouraging (Defense) employees to share non-public (Defense) information.”

This language essentially forbids journalists from asking what, from an official standpoint, are “wrong questions.” Angela Fu of Poynter reported:

“In essence, the new memo shifts from attacking journalists’ ability to publish the news to attacking their ability to gather it, experts say. From a press freedom standpoint, the dangers of the revised version are ‘clearly no better’ than the ones in the initial version, said PEN America journalism and disinformation director Tim Richardson.”

Worse, restricting unclassified and politically sensitive information amounts to… oh, what is that phrase? Oh yes, “prior restraint” – the cardinal crime against the First Amendment.
​
Now a wide spectrum of journalistic outfits will be turning in their credentials and reporting from outside the building. In response, Defense Secretary Pete Hegseth posted a goodbye emoji:

​We applaud these news organizations, left, right, and center, for standing up to a demand to only publish approved news. We further predict this will turn out not to be a bright move for Secretary Hegseth. These journalists will no longer be seen walking the halls and checking in with the Pentagon’s press offices to get the official scoop. Instead, they will work their stories with smartphones, using encrypted messaging apps to cultivate insiders willing to dish out stories the Pentagon would probably prefer to keep under wraps.
​
We cannot think of a better way to encourage the kind of bad press that leads to trouble. We’ll see who gets the final bye-bye.

​We’ve chronicled the decline of free speech in the European Union, with Germany leading the way.

In Germany, “public insults against politicians,” “spreading malicious gossip,” “inventing fake quotes,” and reposting purported lies online are now crimes. For ridiculing politicians, Germans are being investigated – one case was launched after a social media poster called a politician “fat.” Social media users have been fined, had their devices confiscated, and have even been sent to prison.

California Senate Bill 771 would have similarly restricted speech, this time with million-dollar fines on social media companies if their algorithms promote content that “aids or abets” threats of violence or intimidation. Under the terms of this bill, the state would fine social media companies $1 million per violation if a post is amplified by the platform’s algorithm, even if the content is lawful and fact-based.

The law was drafted to address “rising incidents of hate-motivated harms.” But harassing, assaulting, and harming people are already crimes. Under the Supreme Court’s Brandenburg v. Ohio standard, incitement to violence can also be prosecuted. This bill aims to further punish language that leads to “coercive harassment, particularly when directed at historically marginalized groups.” Section 1 of the bill notes, in one example, speech regulation is needed because anti-Islamic “bias events” rose by 62 percent in 2023.

And yet Oussama Mokeddem of the Council on American-Islamic Relations (CAIR) of California opposed the bill, saying: “This bill opens the door for bad actors to disproportionately pressure online corporations into silencing free speech to reduce their financial liability, with no protections for users against those mechanisms.”

A host of civil liberties groups objected that Senate Bill 771 was a recipe for government regulation of speech.

“In no way shape or form is that accurate,” responded Edward Howard, senior legal counsel for the Children’s Advocacy Institute at the University of San Diego School of Law, who had advised lawmakers in drafting the bill. He told Sacramento’s KCRA: “The First Amendment protects offensive, salacious, insensitive, horrifying, terrible things that people say. The bill is in fact about the right … of every single one of your viewers to be protected from threats of violence in response to his speech if those threats of violence would legitimately and reasonably place a regular old person in fear for their lives or being harmed.”

But Howard was far more precise in his interview than the bill’s language itself, which punishes but does not define “intimidation.” There is no lack of laws against threats of violence. If Gov. Newsom had signed SB 771 into law, it would have necessarily deployed armies of regulators and a range of activist groups armed with dictionaries in trying to discern the threats lurking in mere stinging criticism.

In his veto statement, Gov. Newsom said he shared concerns about the growth of discriminatory threats, violence and coercive harassment online, but found this bill “premature.” He thus kicked the can down the road. The governor wrote that “our first step should be to determine if, and to what extent, existing civil rights laws are sufficient to address violations perpetuated through algorithms. To the extent our laws prove inadequate, they should be bolstered at that time.”

What shape would such bolstering take? Bad ideas never die; they just get repackaged. Such a law in California, as in Germany, would pose global concerns. By regulating speech on world-spanning social media platforms, California would effectively regulate speech for everyone, everywhere.
​
The same technology that brings the world into dialogue can also bring the world under this or that regime’s censorship. Free speech is liberty, the price of which is eternal vigilance.

​Nine universities have received letters from the Trump administration asking them to sign a “Compact for Academic Excellence in Higher Education.” These institutions can receive extra funds in exchange for agreeing to freeze tuition for five years, enforce equality in admissions, adopt institutional neutrality on major issues, bring ideological diversity to hiring, limit international students, combat grade inflation, and bring about “transforming or abolishing institutional units that purposefully punish, belittle, and even spark violence against conservative ideas.”
 
Does the administration’s Compact protect or violate the First Amendment?
 
Marc Rowan, chief executive of Apollo Global Management, took to the pages of The New York Times to mount a vigorous defense of the Compact in the face of a university system that is “broken.”
 
We cannot disagree with his characterization. Rowan writes that the Compact dispenses honey to persuade universities to make common sense changes:
“These are not politically partisan requirements. It is eminently reasonable for the government to expect all this of schools before providing them with public funds.
 
“Critics have charged that the compact threatens free speech. It does no such thing. It places no constraints on individual speech, nor does it intrude on academic freedom. The compact does require schools not to punish, intimidate or incite violence against conservative ideas. Those are not speech restrictions. They are restrictions on the suppression of speech.”
 
Genevieve Lakier of the University of Chicago Law School takes an opposing view.
 
She writes in Divided Argument that the Compact violates the “unconstitutional conditions doctrine, which holds that the government may not condition access to government benefits on the recipient’s agreement to waive their constitutional rights, including the rights protected by the First Amendment.”
Lakier continues:
 
“The First Amendment rights that the Compact asks universities to forego are almost too numerous to mention, but they are many and they are blatant. Consider for example the requirement that universities maintain ‘an intellectually open campus environment, with a broad spectrum of ideological viewpoints present and no single ideology dominant’ … It is a matter of political judgment what constitutes an open and undistorted, as opposed to a closed and distorted, marketplace of ideas – and therefore, the kind of judgment that members of the democratic political community must make for themselves …”
 
Where does Protect The 1st stand? We admit it – we are conflicted.
 
The imposition of speech standards by government funding – even if it broadens the diversity of speech – is an intrusion of government into the speech rights of universities. What constitutes an open versus a distorted marketplace of ideas is an invitation to endless legal and political wrangling. We especially worry that the Compact’s intrusion could one day become a weapon that can be wielded for much more illiberal purposes.
 
At the same time, federal funding has already been used to micromanage higher education for decades now. Would it hurt to use that power for at least some of these purposes? We are beyond frustrated at institutions that are supposed to be safe havens for free inquiry but are instead killing grounds for dissent.
 
Like many things Trump, the execution may be overbroad and overdone, but the challenge itself might have a bracing effect forcing institutions to finally consider long-needed changes.

​Rumors have swirled on Capitol Hill that Sen. Ted Cruz (R-TX) is drafting legislation to let Americans – whether skeptics of the COVID-19 origin story or late-night talk show hosts – sue the government for monetary damages when they are censored.

Sen. Cruz has now confirmed that he is indeed crafting such a bill, one that would create new legal remedies for those silenced by government pressure. His bill would also restrict “jawboning” – the process by which officials pressure social media companies or news outlets to suppress disfavored views. The Senate Commerce, Science & Transportation Committee, which Cruz chairs, held a hearing Wednesday that explored government censorship and how to stop it.

• The first witness was famed legal scholar and Protect The 1st Senior Legal Advisor Eugene Volokh, who presented testimony explaining that “jawboning” can be defined benignly as an act of persuasion. It can also be:

“Government officials trying to coerce through the explicit or implicit threat of retaliation stemming from their position of authority, e.g., through the threat of enforcement or regulation. As a practical matter, the two meanings are closely intertwined, especially since it may be hard to tell whether there is an implicit ‘or else’ behind a request.”

Volokh raised the subtle issue of precisely defining what constitutes government coercion. Sen. Cruz emphasized the “or else” threats implicit in jawboning campaigns by powerful government agencies. On the other hand, Volokh asserted, no law should restrict the ability of government officials to communicate with journalists. For example, a White House press secretary should be allowed to tell journalists that they got a story wrong.

But Volokh made it clear – citing a strong line of legal precedent – that “a government official cannot do indirectly what she is barred from doing directly.” Quoting from the U.S. Supreme Court’s unanimous opinion in NRA v. Vullo, he said “a government official cannot coerce a private party to punish or suppress disfavored speech on her behalf.”

• Sean Davis, executive director of The Federalist, gave a vivid account of what it feels like to be on the receiving end of speech coercion. Davis described the State Department’s Global Engagement Center (GEC) and how it targeted domestic news outlets:

“Despite the fact that GEC was explicitly prohibited by both the U.S. Constitution via the First Amendment and by the very statute which created and authorized the agency from targeting domestic speech, it nonetheless sought to drive us out of business by funding, developing, and distributing technologies and tools to reduce our reach, by bullying advertisers into blacklisting us and many other conservative outlets, and by coercing Big Tech companies like Facebook, Twitter, and Google to throttle access to our content. In essence, our own government secretly and without any due process charged us with thought crimes, convicted us, and sentenced The Federalist to death.”

• Alex Berenson, journalist and author – whose reporting on COVID-19 was censored by Twitter – testified that social media companies did not want to censor users, but acted out of fear of the government. (The same dynamic is visible today when the Chairman of the Federal Communications Commission publicly hints at regulatory action against broadcasters who air views he dislikes.)

About his ordeal, Berenson reflected on the dilemma of social media companies: 

“They viewed having to sacrifice speech from some users as the price they had to pay to stay in the administration’s good graces. Every company faces this calculus, whether a Democrat or Republican is in the White House.”

No American should have to calculate that one’s protected speech might trigger censorship or a regulatory crackdown.

Eugene Volokh added a grace note with a personal reflection that underscored the stakes. Fifty years ago to this day, he said, his parents brought him out of the Soviet Union.
​
Volokh concluded simply, that he wanted to “thank the United States of America for letting me in.”

​It is a welcome development that more than 550 Hollywood celebrities have restarted the Committee for the First Amendment. But we also have some reservations about the focus of this group, which we will explain below.

The committee announced on Wednesday: “The federal government is once again engaged in a coordinated campaign to silence critics in the government, the media, the judiciary, academia, and the entertainment industry.”

This is not a controversial statement. It is not interpretation. It is nothing but a recap of recent headlines.

The current administration has used executive orders to target individuals and law firms for past speech. Government funding is now being conditioned on how well universities align with administration priorities. The regulatory power of the Federal Communications Commission has been wielded to force media into paying large settlements over specious defamation lawsuits.

The Committee for the First Amendment was originally formed in the Cold War era to protect the Hollywood Ten, liberals and, to be accurate, actual communists like screenwriter Dalton Trumbo, who were blacklisted and persecuted by the House Un-American Activities Committee during the Joseph McCarthy era. Jane Fonda, whose father Henry was a founding member, said: “I’m 87 years old. I’ve seen war, repression, protest, and backlash. I’ve been celebrated, and I’ve been branded an enemy of the state. But I can tell you this: this is the most frightening moment of my life.”

We are concerned too. So why aren’t we 100 percent thrilled about the rebirth of the Committee for the First Amendment?

Like the parable of the man who sees the splinter in the other man’s eye, but not the log in his own, many on the left – just like so many on the right – only see the violations of their partisan opponents. It is all those evil Republicans, or those evil Democrats (leading MAGA influencers to now pine for the prosecution of George Soros… for what, exactly? Spending money on speech, as he is permitted to do under Citizens United?)

We suggest that Mark Ruffalo, Kerry Washington, Viola Davis, Ben Stiller, Aaron Sorkin, Barbra Streisand, Billie Ellish, and the rest take stock of the truth that for some years now, both parties have tried hard to misuse government power to silence each other. Alphabet/Google has publicly admitted that it buckled to secret pressure from the Biden administration to deplatform conservatives. The State Department secretly used government funds to use an NGO to persuade advertisers to blacklist conservative and libertarian news outlets. White House aides, who wielded tremendous regulatory power, called Mark Zuckerberg to scream at him over Facebook posts they wanted removed.
​
The First Amendment is sinking, and the recent actions of the Trump administration have thrown it an anvil when it needs a life preserver. It is good to get angry about the violation of speech rights of those we agree with. But we won’t have the strength to rescue free speech until we are all just as angry about the violation of the speech rights of people we don’t like.

None of the 800 generals and admirals flown in from around the world could have missed Defense Secretary Pete Hegseth’s demand for greater readiness and fitness in America’s Armed Forces.
 
Clarity is a good thing. Fitness and a dedication to lethality in war are, in this broken world of ours, necessary.
 
But some questions remain on the table.
 
Some might wonder about the wisdom of banning “fat generals.” This would have excluded one of America’s greatest generals, Henry Knox, who dragged 60 tons of artillery on ox-drawn sleighs through heavy snow from Fort Ticonderoga to liberate Boston from the British. As many have pointed out, this standard would have excluded Lieutenant General Leslie Groves, who oversaw the development of the atomic bomb.
 
But we have a different question – will Secretary Hegseth’s ban on beards in the military include those for whom a hirsute appearance is a religious obligation?
 
The Council on American-Islamic Relations called on the Pentagon on Tuesday to clarify Hegseth’s order and affirm that the department would maintain the religious rights of all service members. CAIR said in a statement:
 
“The First Amendment guarantees military personnel the right to practice their faith – including the right of Muslim, Sikh and Jewish personnel to grow beards or cover their hair – as does established Pentagon policy.”
 
Over the last five years, Protect The 1st has joined the Becket Fund for Religious Liberty to protect Jewish, Muslim, and Sikh men in the U.S. military who want to keep their beards. One of them, Electrician’s Mate (Nuclear) 3rd Class Edmund Di Liscia, was a Hasidic Jew who said that his beard is “a religious commitment and an expression of obedience and fidelity to God.”
 
Similar views were heard from Mass Communications Specialist 3rd Class Leo Katsareas, a Muslim, and several Sikh men serving in the Marine Corps.
 
The Trump administration has compiled a strong and commendable record of defending religious liberty.  It established a Religious Liberty Commission in the Department of Justice to advise the White House on ways to protect religious freedom from government encroachment. Creating an exception to the grooming standards in the military for these men would be in keeping with the beliefs and actions of President Trump.

​Many Americans on the right are upset about a recent letter in which Alphabet/Google acknowledged that YouTube did, in fact, censor conservative speech at the behest of the Biden White House. Meanwhile, many Americans on the left are deeply alarmed by how Federal Communications Commission Chairman Brendan Carr inserted himself into the Jimmy Kimmel drama, threatening official retaliatory action if the late-night host stayed on the air.

Both sides are right about the other side, which means, of course, that both sides are in the wrong.

Yet somehow, the concept of a neutral principle that applies equally to everyone has become too hard for even highly educated policymakers to grasp. Wait, are you actually saying that free speech means that people who piss me off can say anything they want?

Yes, as hard as it is for some to grasp, that is what the First Amendment guarantees.

A way out of our current national free-speech debacle may, ironically, come from the universities, where the heckler’s veto has all too often prevailed. Universities are adopting the University of Chicago principles for free speech, which include this declaration:

“[I]t is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Although the University greatly values civility, and although members of the University community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussions about ideas, however offensive or disagreeable those ideas may be to some members of our community.”

Entire state university systems from North Carolina to Texas, as well as Princeton, Stanford, Harvard, Yale, and Johns Hopkins, have embraced the Chicago principles, more than 100 in all.

Now Harvey Silverglate, co-founder of the Foundation for Individual Rights and Expression (FIRE) makes a puckish suggestion in a wide-ranging interview with Tunku Varadarajan in The Wall Street Journal. Silverglate suggests a “Chicago statement for the nation,” declaring “it is not the proper role of the government to shield individuals” from statements and opinions they find objectionable.”
​
This is not likely to happen anytime soon, not with the censorship arms race now taking place in Washington, D.C., today. But it took only a few years for the Chicago principles to take hold in academia. Perhaps in a decade, could we see a similar declaration by our government?

​Netta Perkins, assistant basketball coach at the Paso Robles Unified School District in California, allegedly posted the following reaction to the assassination of Charlie Kirk: “God does not like ugly! Charlie Kirk reap wat u sow!” and “White on white crime let them sit in it!”
 
This post was, to put it mildly, a digital advertisement for ignorance and lack of empathy, not to mention poor grammar. The author might want to meditate on the phrase, “God does not like ugly.”
 
Some 145 Americans – including many teachers in high schools and universities – have been fired for posting statements similar to this one. But Perkins was not, and will not be, one of them.
 
The Paso Robles Unified School District announced:
 
“In some cases, you may see employees of private companies face immediate consequences for things they post online. Public schools, however, are public institutions and must follow constitutional protections such as the First Amendment.
 
“In practice, this means that even if a staff member or coach shares something online that many find upsetting, the District cannot legally take disciplinary action based on personal speech alone, unless it affects their ability to do their job or harms students.”
 
Some argue that a teacher should model character for students, especially in public fora. But once we start to evaluate every teacher’s public posts, millions of posts will suddenly become subject to angry, internal debates within school boards over one subjective judgment after another.
 
In a thoughtful piece, the editorial board of The San Luis Obispo Tribune explored the reasons why Perkins should not be fired for her post:
 
“Would we want it any other way? Would we really want to live in a nation where someone can be fired, or worse, for saying something critical of the party in power?”
 
The Tribune recounted the many examples of people on the right, as well as the left, who want to justify censorship because someone’s over-the-top rhetoric is likely to incite violence – while reserving the right to call their opponents “vermin” and “scum,” and, we would add, “fascists.”
 
The Tribune asked all sides to consider the “irony of silencing critics.”
 
“Charlie Kirk – the man whose legacy is being championed by all comers on the right – would have stood against such encroachment on this fundamental American right, because he was a fierce defender of free speech.
 
"You should be allowed to say outrageous things," he said shortly before his death …
 
“Those agitating for the firing – or just the muzzling – of political opponents like Coach Perkins or any of the 145 or so employees who were actually terminated may want to slow down and ask themselves this simple question.
 
“What would Charlie have done?”
 
Many on both sides should consider that the irony of silencing critics is really just another way of acknowledging that karma boomerangs. It is only a matter of time before the silencers become the silenced.