​For more than a decade, the Little Sisters of the Poor – a community of Catholic nuns who devote their lives to caring for the elderly poor – have been trapped in a never-ending nightmare of litigation. Their “crime”? After Congress enacted the Affordable Care Act (ACA), the Little Sisters declined to provide coverage for drugs like the week-after pill in their health plan because doing so would violate their core religious beliefs.
 
Pennsylvania Already Slapped Down by the Supreme Court

In 2017, the U.S. Department of Health and Human Services (HHS) issued a new rule with a broad religious exemption to the ACA’s contraceptive mandate. The government admitted it had broken the law when it previously tried to force faith-based nonprofits into compliance. That acknowledgment should have closed the book on this case.
 
Not satisfied to leave these nuns alone, Pennsylvania immediately sued the federal government to remove the Little Sisters’ exemption. Pennsylvania asked a federal judge to force the Little Sisters to comply with a federal mandate or face tens of millions of dollars in fines.
 
In 2019, after years of litigation, the Little Sisters asked the U.S. Supreme Court to protect them. In a 7-2 decision, the Little Sisters won. Justice Clarence Thomas, writing for the Court, captured the heart of the matter:
 
“For over 150 years, the Little Sisters have engaged in faithful service and sacrifice, motivated by a religious calling… But [since the enactment of the contraceptive mandate], they … have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs.”
 
The Supreme Court upheld the federal government’s authority to issue a religious exemption to the contraceptive mandate under the text of the ACA. It has yet to clarify how the Religious Freedom Restoration Act (RFRA), which prohibits government from substantially burdening religious exercise, would protect religious groups like the Little Sisters.
 
Pennsylvania Refuses to Throw in the Towel

Despite the Supreme Court’s rebuke, Pennsylvania – joined by more than a dozen states – kept pushing in lower courts to undo the Little Sisters’ protections. On Aug. 13, in a ruling against a Trump-era conscience rule, a federal district court in Philadelphia once again sided with Pennsylvania.
 
The Little Sisters are now again having to appeal to the Third Circuit. A case that should have ended years ago, central to protecting the free exercise rights of all Americans, thus continues on.
 
In the hands of state regulators, a narrow exemption for nuns caring for the elderly poor is apparently worthy of a multistate lawsuit. That alone speaks volumes.
 
The Stakes for Minority Faiths

Courts have long recognized a recurring problem – when judges and regulators do not understand a particular faith, they often undervalue the importance of its practices. That risk is highest for minority religions, which often lack resources, political power, and popular support. These communities depend heavily on statutory protections like RFRA, which is designed to operate:
​

• As a shield – allowing religious believers to defend themselves in court

 

• But also as a sword – empowering the government to proactively avoid violating conscience

If agencies are forbidden from issuing exemptions, religious minorities will be forced to wait until their beliefs are already compromised before seeking relief. By then, the harm is already done.
 
That is what makes the continuing campaign against the Little Sisters so troubling. Even after a decisive 7–2 Supreme Court victory, state governments continue trying to force a group of nuns to violate their vows or face crushing fines.
 
We expect that the Little Sisters will once again prevail. But this case serves as a warning about the fragility of religious liberty in the face of persistent official hostility from many states.

​The U.S. Supreme Court in 2021 struck down a California law requiring non-profits to disclose their donors to the state. This ruling was aligned with a landmark 1958 Court opinion that safeguarded the identities of private donors to the NAACP from an Alabama law also mandating disclosure.
 
In the Alabama case during the Jim Crow era, donors could have been exposed to harassment or far worse. In California, the state had a history of accidentally leaking the identities of donors to controversial causes. California today is not the Alabama of 1958, but donors in the Golden State have still been doxed, harassed, and fired.
 
The protections of anonymity – a practice in America as old as The Federalist Papers – is consistent with the implied First Amendment right to freedom of association. Curiously, however, these protections are limited under federal law. Under current law, some non-profits must hand over the identities of their largest donors to the IRS.
 
The Buckeye Institute – a public policy think tank in Ohio – went to federal court to successfully challenge this collection of sensitive, personal data by the IRS from Form 990 Schedule B. The district court found that the IRS donor disclosure requirement should be subjected to “exacting scrutiny” – a heightened level of review that courts apply in First Amendment cases. Now Buckeye is defending its victory against an appeal by the federal government before the Sixth Circuit Court of Appeals.
 
In its brief before the Sixth Circuit, Buckeye says it needs to protect donor anonymity because it:
 
“… criticizes the government … weighs in on topics that many people feel strongly about … which makes privacy critical for The Buckeye Institute and its supporters. Many donors (and potential donors) fear retribution from Buckeye’s opponents, and they’re reluctant to financially support The Buckeye Institute if doing so means the IRS has easy access to their personal information.”
 
Buckeye notes that shortly after its educational efforts successfully persuaded the Ohio legislature to reject Medicaid expansion under the Affordable Care Act several years ago, “the IRS’s Cincinnati office initiated a full-field audit of The Buckeye Institute.”
 
The protection of “exacting scrutiny,” upheld by the federal court, does not mean that the government cannot access donor information. The institute notes that “it is a high bar, but not insurmountable.” But exacting scrutiny is a level of protection that would guard against the kind of political persecution of speech that appears to have occurred with the IRS and Buckeye.
 
A supporting amicus brief from Advancing American Freedom, including several pages listing hundreds of supporting organizations, covers the deep principles at stake in this case. AAF’s amicus declares:
 
“Freedom of association is an American tradition and is enshrined in the First Amendment. The government cannot condition participation in benefit programs on sacrificing a constitutionally protected right without that condition facing heightened scrutiny. And the government cannot collect massive amounts of data about Americans merely for its own convenience.
 
“As former Attorney General William Barr observed about the Consolidated Audit Trail, and Securities and Exchange Commission data collection project, ‘If the government can collect this information just in case, that’s the big-brother surveillance state.’”
 
And surveillance, as we have seen time and again, almost always results in attempts to curb free speech.

What does the U.S. Supreme Court have to do to make its opinions stick?

In June, the State of Wisconsin was rebuked by a unanimous Court for expelling the local Catholic Charities Bureau from a statewide exemption available to all other religions. Now Wisconsin is trying to get around the Court’s ruling by expelling all religious charities from this program, while continuing to make it available to secular charities.

Here's the background: In June, Justices from Sonia Sotomayor to Clarence Thomas unanimously reversed the Wisconsin Supreme Court ruling that would have forced the Catholic Charities Bureau into the state unemployment system instead of being allowed, as other charities are, to pay into its own more efficient network.

Why were the Catholics singled out? The state court reasoned that because Catholic Charities serves people of all faiths and no faith, it is therefore not inherently a religious charity.
​

• At the time, PT1st noted that an expert witness, one Jesus of Galilee, said that whatever “you do for one of the least of these brothers and sisters of mine, you do for me.” Jesus did not say the needy might be outside the orbit of care, whether Samaritans or Greeks. Nor did he say that one must proselytize while providing food, clothing, or shelter.

 

• The Court found that Wisconsin’s discrimination violated Catholic Charities’ First Amendment rights. Justice Sotomayor, who wrote the Court’s unanimous opinion, called Wisconsin’s exclusion “denominational discrimination.” She wrote: “It is fundamental to our constitutional order that the government maintain ‘neutrality’ between religion and religion. There may be hard calls to make in policing that rule, but this is not one.”

Ouch.

You would think that after this humiliation, Wisconsin would get it right. But like many other states, from Maine to New York, when it comes to equitable treatment of religious organizations, Wisconsin came back with a novel way to get around the First Amendment of the U.S. Constitution. Wisconsin’s new theory is that it should now ban all religiously based charities from accessing the exemption.

There is just one problem with the state’s workaround. It would leave the exemption in effect for secular organizations, creating fresh violations of the First Amendment. So the state has gone from denominational discrimination to discrimination against all religions.

In our brief supporting Catholic Charities’ petition before the Supreme Court, we note:

“The miserly remedy requested by the State on remand calls to mind a poem by American poet and illustrator, Shel Silverstein. It reads: ‘Now I lay me down to sleep. I pray the Lord my soul to keep. And if I die before I wake, I pray the Lord my toys to break. So none of the other kids can use ‘em … Amen.”

​“I didn’t seek to be a media sensation,” 61-year-old Larry Bushart told local media after the retired Tennessee police officer spent 37 days in jail and was hit with a $2 million bond – all for reposting a meme on a Facebook thread.

At 11 p.m. on Sept. 21, officers came to Bushart’s Linden, Tennessee, home, handcuffed him, and locked him up for “threatening mass violence at a school.”
Did he?

Consider: Bushart’s post came after the assassination of Charlie Kirk and centered around a vigil in Perry County, Tennessee. The meme included a quote from then-candidate Donald Trump in the aftermath of a school shooting in Iowa, saying: “We have to get over it.”

When we checked candidate Trump’s remarks, we found that this quote was plucked from a longer and more sympathetic statement. But when it comes to taking something out of context, the Perry County Sheriff’s Department is unexcelled. You might find the shared meme highly offensive, or you might nod in agreement. But one thing it is not is a threat of mass violence at a school.

Nevertheless, the arrest affidavit for Bushart states that a “reasonable person would conclude [it] could lead to serious bodily injury, or death to multiple people.” Please tell us, where do we find these “reasonable people”? Probably only in the Perry County Sheriff’s office.

Meanwhile, in the more than five weeks Bushart spent in jail, he missed the birth of his granddaughter and lost a post-retirement job providing medical transportation. The charges against Bushart were finally dropped, but only after the case began to receive national notoriety.

“A free country does not dispatch police in the dead of night to pull people from their homes because a sheriff objects to their social media posts,” said Adam Steinbaugh of the Foundation for Individual Rights and Expression (FIRE), which is representing Bushart’s in his lawsuit to defend his rights.
​
As this case moves forward, these local authorities in Tennessee may well find their infringement on Bushart’s speech to be expensive. Consider that a raid on a small-town newspaper in Kansas recently resulted in a $3 million settlement.

​Can you remember a time when the survival of free speech in America – something we’ve long taken for granted – was suddenly a matter of national concern?
 
Consider what has emerged in the last year:

• The Biden Administration funded a foreign non-governmental organization that then mounted a secret effort to defund U.S. news outlets that had a libertarian or conservative stance.

 

• Charlie Kirk was murdered as he tried to hold a respectful debate on a college campus with people who disagreed with him.

 

• Brendan Carr, the Chairman of the Federal Communications Commission, urged the firing of a late-night talk-show host.

 

• The Trump administration issued executive orders punishing law firms by limiting their access to federal buildings and contracts, citing the political activities of former members of these firms.

We could go on. If you are a regular reader of this blog, you probably could as well. But there is good news – the American people are noticing what is going on in Washington – and they don’t like it.
 
The Foundation for Individual Rights and Expression conducts a quarterly survey that makes up its National Speech Index. It finds unprecedented levels of Americans concerned that the protection of free speech, the most basic of our liberties, is eroding.

• When asked in October if the right of people to freely express their views is heading in the right or wrong direction, 74 percent of respondents replied “wrong direction.” This is a 10-point jump from the previous July survey.

 

• People of all political persuasions are worried. Since July, Democrats who think the treatment of speech is heading in the right direction dropped from 17 percent to 11 percent; independents fell from 31 percent to 19 percent; and Republicans fell from 69 percent to 55 percent.

The survey also shows that while concern for free speech is rising, a substantial minority still doesn’t seem to understand or respect the basic principle of free speech.

• Almost a quarter of respondents believe a professor should be fired for saying, “Our colleges and universities are progressive indoctrination centers.”

 

• Fourteen percent would consider firing a professor who echoed the theme of the last successful presidential campaign, “We are going to make America great again.”

An NPR/PBS News/Marist poll in September found that 30 percent of American adults believe that Americans “may have to resort to violence to get the country back on track.”
 
Somehow, large numbers of Americans fail to appreciate that free speech means tolerating speech (and the politics) of people we intensely dislike. Recent events underscore this blind spot.
​

• Actor Jon Voight posted a statement over the weekend asking President Trump to “terminate” the mayoralty of New York Mayor-elect Zohran Mamdani to save us from this “communist fool.”

 

• The Washington Free Beacon reported on Monday that philanthropist George Soros has given $250,000 to the UK Center for Countering Digital Hate, which organizes boycotts of conservative speech.

These calls for censorship are morally wrong because they violate the inherent right of human beings to vote and speak as they wish, even if you think their ideas are disastrous. And the censors are endangering their own interests. A federal government powerful enough to overturn local elections and defund speech is powerful enough to turn on them.

​The rise of virulent, occasionally violent, antisemitism at the extremes of the political spectrum is testing the meaning and durability of the First Amendment.
 
High-Profile Antisemitism on the Right
Let’s start with Tucker Carlson’s recent softball promotion of antisemite and Hitler fan Nick Fuentes, as well as Carlson’s equally promotional interview with Darryl Cooper – who identified Winston Churchill, not Adolf Hitler, as the villain who started World War Two.
 
Victor Davis Hanson has incisively critiqued Carlson for conducting these interviews of two extremists “without cross-examination.” Carlson introduced Cooper as “the best and most honest popular historian in the United States,” though Cooper has no history books or academic articles to his name. When Cooper described the Holocaust as a botched humanitarian response rather than a deliberate act of mass murder, Carlson let that comment slide by without challenge.
Antisemitism on the Left
It was only months ago that left-wing antisemitism was testing the limits of a tolerant society. At UCLA, anti-Israel protesters enforced what they called “Jew-Free Zones.” At Columbia, Jewish students and faculty were physically and verbally harassed. It wasn’t until the Trump Administration dropped the hammer on these institutions of higher learning that administrators began to adequately protect students and faculty from attack.
 
So where does the law actually come down? Under the U.S. Supreme Court’s standard in Brandenburg v. Ohio (1969) speech that incites “imminent lawless action” is prohibited. “True threats” were later proscribed. Ideological thugs who spout true threats at Jews on college campuses are acting outside the law. Their harassment and threats could hardly be excused as mere “speech.”
 
Even speech that is protected by the First Amendment can be limited by reasonable time, place, and manner restrictions. Protesters can shout on the quad at 3 p.m., but at 3 a.m. they cannot bang on dorm room doors or awaken the campus with megaphones. Title VI of the Civil Rights Act prohibits speakers from denying members of one religion equal access to a college campus, as happened at UCLA.
 
So What About Carlson, Cooper, and Fuentes?
They are clearly spreading hate speech. As scholar Richard Weaver famously wrote, “ideas have consequences.” Nazi propagandist Julius Streicher – though he never personally killed anyone – was justly sentenced to death at the Nuremberg tribunal and hanged in 1946 for directly inciting the Holocaust. He espoused true threats and, indeed, violence that had a huge consequence – the deaths of millions.
 
As galling as it may be, however, Fuentes and Cooper so far cannot and should not be punished for their speech. Yes, Fuentes says he’s on “Team Hitler” and that “Hitler was right.” Yes, Cooper has managed to be something worse than a Holocaust denier – he’s a Holocaust rationalizer. Unlike Streicher, neither man is on record calling for violence. Also legal in many circumstances is the widespread chant of campus demonstrators, “from the river to the sea,” which could be taken to mean the replacement, if not the eradication, of Israel. Hate speech might flirt with violence, but the Supreme Court chose – wisely in our estimation – to reject the path of many European governments today that attempt to police speech.
 
Again, hate speech crosses the line only with “true threats” and calls for “imminent lawless action.” This is admittedly an unsatisfactory solution. Perhaps the line between a Fuentes and a Streicher, or many campus protesters and Hamas, is a thin one. But observing that line provides maximum room for freedom of speech for all of us. It prevents travesties like the arrest of a comedian in the UK for tasteless jokes. A government that asserts a right to scrutinize every uttered or posted word for hate is a government that will inevitably become a threat itself.
 
Is Carlson Facing Cancel Culture?
Just because speech is legal, however, does not mean its speaker has a right to be platformed by private parties or to not be criticized by others. Heritage President Kevin Roberts, in his heavily panned defense of Carlson’s interview with Fuentes, said: “I don’t participate in cancel culture.” This is a profound misunderstanding of what free speech is all about.
 
Carlson, Fuentes, and Cooper – the Three Stooges of Antisemitism – have as much right to speak as any other American. But the First Amendment also expresses a right to free association. Think about it – how free would the speech of any organization be if it had to sponsor speakers with views inimical to its own? It is not cancel culture if the Roman Catholic Church chooses not to sponsor an atheist. And it would not be cancel culture if Heritage drops its association with Tucker Carlson.
 
Though not a matter of law, a culture of free speech imposes on us the moral obligation to call out truly bad speech – and to name names.
 
Sen. Ted Cruz made this point before a Federalist Society convention:
“My colleagues, almost to a person, think what is happening is horrible, but a great many of them are frightened, because he [Tucker Carlson] has one hell of a big megaphone,” Cruz said.
“It’s easy right now to denounce Fuentes,” Cruz later said at the convention. “Are you willing to say Tucker’s name?”
 
Sen. Cruz reminds us that timid criticism of bad speech that avoids mentioning the source is insufficient. We have a moral obligation to confront really bad speech – and to name the speakers.
 
Princeton University scholar Robert George, who on Monday announced that he had resigned from the Heritage Foundation board, set out foundational principles on X that liberals, as well as conservatives, should adopt.
 
“… I believe that the conservative movement, though it can and should be a broad tent, simply cannot include or accommodate white supremacists or racists of any type, antisemites, eugenicists, or others whose ideologies are incompatible with belief in the inherent and equal dignity of all. As a conservative, I say that there is no place for such people in our movement …
 
“Is this a call for ‘cancelation’? No. It’s a reminder that we conservatives stand for something – or should stand for something. We have core principles that are not negotiable … I am – notoriously, for some of my fellow conservatives – committed to the principle of free speech for everybody, including people with whom I profoundly disagree on even the most important issues, indeed, including racists and other bigots. But defending their rights does not mean allying with them, welcoming them into our movement, or treating them as representing legitimate forms of conservatism.”
 
Dr. George’s hygienic standard for conservatism is a good guide for people on all sides of the political spectrum and for universities as well.

Enraged by The Marion County Record’s reporting on a public document about a restaurateur’s DUI, officers of the Marion, Kansas, police department and the local sheriff’s department raided the newspaper, and seized its computers, servers, and cellphones. Editor Eric Meyer had his home raided while his 98-year-old mother Joan – a former editor – watched the police ransack her home in great distress.
 
Joan Meyer died the next day.
 
Marion County has now agreed to pay a total of $3 million to the victims of this raid in 2023 and to Joan Meyer’s estate. The Marion County Sheriff’s Office, for its part in the raid, issued an apology as well as a check:
 
“This likely would not have happened if established law had been reviewed and applied prior to the execution of the warrants.”

The Freedom of the Press Foundation responded by saying:
 
“You think? Any police officer or judge with half an understanding of the First Amendment should’ve known better than to ask for or sign off on the raid on The Record and the home of owners Eric and Joan Meyer.
 
“But apparently, police don’t always read the law, and judges may need a refresher, too. Let’s break down the flashing red lights any judge or cop should heed before storming a newsroom.
 
“The First and Fourth Amendments strongly protect against searches of journalists and newsrooms.
 
“Under the Fourth Amendment, a search warrant must be supported by probable cause, which means a likelihood that contraband or evidence of a crime will be found at a particular place. The government must also specify the place to be searched and the thing to be seized.
 
“When a search warrant targets materials protected by the First Amendment — like notes, recordings, drafts, and materials used or created by journalists — the Fourth Amendment’s requirements must be scrupulously followed, the Supreme Court has said.
 
“This means that judges must be extra strict in applying the Fourth Amendment’s requirements when a search impacts First Amendment rights, which it will any time it involves a journalist or newsroom. What judges should never do is allow overly broad searches where police rifle through journalists’ desks and computer files willy-nilly in the hopes of turning up something ‘incriminating.’”
 
The Freedom of the Press Foundation also noted that Kansas, like most states, has a press shield law that would have required a court hearing before law enforcement could rifle through journalists’ confidential sources. The federal Privacy Protection Act of 1980 requires law enforcement to obtain a subpoena, not just a warrant, thereby giving The Record an additional opportunity to challenge the demand in court.
 
The Freedom of the Press Foundation concluded:
 
“Journalists also have a right to publish information given to them by a source, even if the source obtained it illegally, as long as the journalist didn’t participate in the illegality. That means that if a source gives a journalist a document or recording that the source stole, the journalist can’t be punished for publishing it.
 
“Because these things are not crimes, it also means that accessing publicly available information or publishing information that a source illegally obtained can’t be the basis for a raid on a newsroom or search of a journalist’s materials.
 
“Next time, think before you raid.”

​There’s actually nothing to read in tea leaves except, perhaps, whether they would make a good cup of tea. The same can often be said for oral arguments at the U.S. Supreme Court. Time and again, justices who pepper lawyers on one side with critical questions sometimes vote in their favor.
 
Still, Damon Landor, the petitioner in Landor v. Louisiana Dept. of Corrections, who sat through the oral argument of his case, has every reason to feel despondent over the hot bench questioning of his lawyer on Monday.
 
Landor is seeking damages for violations of his rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), which protects the religious rights of prisoners. This is important because it is a long-standing principle that where there’s a right, there must be a remedy (ubi jus ibi remedium). Many legal scholars argue that courts have a responsibility to impose remedies – in this case, personal damages for state prison guards.
 
That Landor has a sympathetic case has been recognized by all. A devout Rastafarian, Landor was in prison for a drug-related conviction. For most of his incarceration, Landor maintained long dreadlocks under the Nazarite vow, an important outward sign of his faith.
 
With only three weeks left before his release, Landor was transferred to the Ramond Laborde Correctional Center in Louisiana. At intake, he explained his beliefs, presented proof of past accommodations, and handed a guard a copy of the Fifth Circuit decision protecting Rastafarian inmates.
 
The guard threw it in the trash. When Landor offered to contact his lawyer to affirm the legal principle protecting his dedication to his religion, guards forcibly handcuffed him to a chair and shaved his head.
 
Justice Amy Coney Barrett seemed to speak for everyone when she said, “the facts of this case are egregious.” She echoed the Fifth Circuit Court of Appeals, which “emphatically” condemned “the treatment Landor endured.” But, as Justice Neil Gorsuch told Landor’s attorney, the federal appeals courts “are unanimously against you and have been for many, many, many years.”
 
The many “manys” are justified. Despite the sympathy of the Fifth Circuit, Landor lost, as he had done before in lower courts. “We can’t decide a case just based on these facts,” Barrett said.
 
She joined Justice Gorsuch and Justice Brett Kavanaugh in pressing Landor’s lawyer and the Trump administration about insufficient notice to states that their employees could pay heavy fines for violating RLUIPA’s federal religious protections. Citing the string of losses by Landor and others, Justice Barrett said, “It’s hard to see how it could be clear to the states [when] all of the law went the other way.”
 
Justice Kavanaugh weighed in: “The hard part, as I see it, for your case, for me, is that you need a clear statement” to alert state employees that they are personally at risk for violations.
 
Conservative justices – including Chief Justice John Roberts – displayed skepticism that RLUIPA, an express application of Congress’s spending power, could authorize damages against individual state officers if they had not participated in contract negotiations accepting federal funds. Liberal justices – who often part ways with that conservative majority on expanding protections of religious freedom – were more sympathetic to Landor.
 
“Generally speaking, if you’re a prison official, you know you’re working in a prison and you are bound by law to pay damages if you violate the law,” said Justice Sonia Sotomayor.
 
It remains to be seen which side will prevail. But when warm weather returns to Washington, we will know if Landor’s tough day in court was an omen or not.

​The public statements we post on social media are, by definition, available to all. Federal investigators often have good reason to access some of this information from social media, some of the time. How far that power goes is a line for the courts to draw.

However, that line – meaning the First Amendment – is clearly crossed when the government conducts mass surveillance of social media posts not because of a particular suspicion of bad behavior, but to make a case against targeted people.

Taylor Lorenz reports that Immigration and Customs Enforcement (ICE) is building out a massive social media surveillance program. It is searching posts and looking for “speech that, essentially, they feel they can deport people over. They can take lawful, legal speech and convert it into fresh leads for enforcement raids.”

Now add The Intercept’s disturbing report suggesting that ICE is so obsessed with its reputation that it wants to track any “negative” social media discourse directed toward it.

Such a program would scrape a user’s internet history and associations, then use facial recognition to create a dossier composed of a “photograph, partial legal name, partial date of birth, possible city, possible work affiliations, possible school or university affiliation, and any identified possible family members or associates.” Not to mention the possible infringements of the First Amendment. Such surveillance programs deter people from expressing certain ideas. This is precisely the kind of content-based restriction and viewpoint discrimination that courts often treat as presumptively unconstitutional.

Nor should we forget about the right to associate for expressive purposes. Without an utterly compelling justification, government actions cannot “burden association” (in this case, citizens sharing a discourse of critique against the government). Thinking of social media as an electronic sidewalk might help here, making the removal of anti-government apps akin to clearing sidewalks of speech the government doesn’t like.

To quote Taylor Lorenz again, all this amounts to a “mass, automated digital dragnet.” And few acts of surveillance are more anti-constitutional than warrantless dragnets. Dragnets are a symptom of policy enforcement inspired by animus to speech and activism. From a First Amendment perspective, this looks like retaliation. And the fact that social media seems to be increasingly used as the basis of crackdowns amounts to what Lorenz calls the gradual “militarization of our data.”

We live in an era in which our digital and physical selves have become indistinguishable. Government monitoring our social media and internet presence 24/7, then using it to profile us, enables government regulation of speech. Add ICE’s new capability to track us by our location histories, and we have a system not far from tapping phones or raiding homes.
​
Whether the government’s intrusion is analog or digital, it harms free speech.

​The Danish philosopher Søren Kierkegaard wrote about a fire that broke out backstage in a theater: “The clown came out to warn the public; they thought it was a joke and applauded. He repeated it; the acclaim was even greater. I think that's just how the world will come to an end: to general applause from wits who believe it's a joke.”

In our time, deepfake audio calls prompt people to wire their life savings to thieves, change their vote, or pay off sextortionists. One of the worst aspects of AI deepfake technology is that it can put actual authorities in the position of the frantic clown.

Denmark has had enough. The Danish culture minister, Jakob Engel-Schmidt, said: “Human beings can be run through the digital copy machine and be misused for all sorts of purposes and I’m not willing to accept that.”

Danish legislators are now supporting a measure to grant every citizen a right to control uses of their image, likeness, and voice, similar to “right of publicity” laws in many U.S. states that give Americans property rights to commercial uses of their identities. Under a proposal expected to soon pass Parliament, Danes will gain sweeping legal control over any digital recreation. This is important for Americans, because European law often sets standards in the global internet that adjust the policies of U.S. tech companies.

This Danish proposal, at first glance, might seem like overdue privacy armor against criminals, stalkers, propagandists, and hostile intelligence services. If Denmark passes this “right to your likeness,” as it appears poised to do, Danes will be able to demand takedowns and seek compensation. Platforms could face penalties for failing to comply.

But there’s a catch – a threat to free speech if Europeans and Americans are not careful in how such laws are drafted and enforced.

The Danish legislation does include carve-outs for “satire” and “parody,” meant to preserve comedy, creative expression, and political commentary. That is a good step. But these categories don’t explicitly protect other forms of speech. Such laws could easily be used to punish fair uses of AI, from commentary and criticism to historical fiction, docudramas, and much more.

If the parameters of an anti-deepfake law are too narrow, risk-averse platforms and creators will pull back. Algorithms will over-filter, even with exemptions. Studios and satirists will second-guess viral impressions, political cartoons, and docudramas depicting real people. Defamation law already chills speech. A sweeping likeness-ownership regime could freeze it solid.

When this issue came up in the U.S. Congress last year, the Motion Picture Association and civil liberties groups met with Members of Congress to craft a balanced approach. This approach, one with growing bipartisan support, would protect people from outrageous AI abuses – such as having one’s image and voice used for false endorsements, to perpetrate fraud, or for revenge porn – while fully protecting a wide range of AI uses in creative commentary, art, journalism, documentary work, and political speech.

No less important, Americans are learning that the best anti-AI filters are the ones we install in our brains.

Facebook is a great instructor, exposing us to one ridiculous scenario after another. Users are learning to ignore home security footage of rabbits gleefully jumping on backyard trampolines, or wolves and their cat friends ringing doorbells. As we get deeper into this age, we’re learning to relax our fingers and not share the ridiculous, the impossible, and the unlikely.
​
AI challenges our sense of reality. But it is also strengthening our patience and skepticism.

​The U.S. Supreme Court in 1952 slapped down President Harry S. Truman’s Executive Order 10340, which nationalized America’s steel factories to stabilize production during the Korean War. Justice Hugo Black wrote for the majority that “we cannot with faithfulness to our constitutional system hold that the Commander-in-Chief of the Armed Forces has the ultimate power as such to take possession of private property...”
 
Washington, D.C., today has a workaround to control business in a way that no Court opinion will likely overturn. Its approach is very simple – invest taxpayer money in a targeted company. This may be perfectly legal, but it is certainly dangerous. How free can a company remain when the most powerful monopolist of them all – Uncle Sam – sits on its board?
 
Make no mistake, Washington is making huge inroads into private businesses, and the list is growing. To cite one example, the White House has made deals with Nvidia and AMD to take a 15 percent cut from their revenues from computer chip sales in China. This is not regulatory oversight. It is revenue-sharing with the government.
 
Government also invests by leveraging its regulatory permission. The Trump administration took a “golden share” in U.S. Steel as a precondition for allowing Nippon Steel of Japan to acquire the company. The government’s golden share now gives Washington veto power over plant closures, factory idling, offshoring, moving the company’s headquarters from Pittsburgh, or even changing the company’s name.
 
With U.S. Steel, shares were “bought” in exchange for settling the administration’s claim against the company. Only the 800-pound gorilla of government could get away with threatening an acquisition, and then remove the threat and watch the value of its investment rise. This is not a market exchange. It is nationalization by another name.
 
Such government ownership of the means of production (sound familiar?) guarantees that business decisions will be politicized.
 
Would a defense contractor reliant on Washington’s goodwill feel pressured to purchase components from a company partially owned by the federal government? Would a company feel free to announce layoffs in a swing state, or subsidize an inefficient investment for political protection? Would a company that is partly government-owned turn to Washington to approve its business strategy?
 
Washington is not exactly shy about directing business strategies.
 
President Biden lectured snack companies about producing too few potato chips per bag and pressured social media companies to deplatform dissenting voices he accused of “killing people.” President Trump, meanwhile, personally lobbied Coca-Cola to replace high fructose corn syrup with cane sugar. When President Trump read media reports that Amazon was considering posting the added costs of tariffs to some of its products sold online, the president called Amazon CEO Jeff Bezos to complain. “Jeff Bezos was very nice,” President Trump told reporters. “He solved the problem very quickly.” As Washington continues mixing public power and private enterprise, expect more heavily regulated companies to be “very nice” in not speaking out about the price impact of tariffs.
 
As the state’s power increases, the ability of companies to speak freely will also shrink. Witness the whipsawing of General Motors CEO Mary Barra, who supported the first Trump administration’s legal actions in favor of fossil fuels, then endorsed President Biden’s mandate for an all-electric future, only to later donate $1 million and provide vehicles for the Trump Inauguration. Last week, GM announced a $1.6 billion write-off for its electric vehicle business as it switches back to gasoline-powered vehicles.
 
Whatever Mary Barra really thinks, she has an obligation to her company to parrot the currently approved line from whichever party is in power.
 
This marks a departure from historic norms. J.P. Morgan, Bernard Baruch, and Lee Iacocca gave presidents unvarnished technical and economic advice. But as Washington increases its ownership of business – amplified by regulatory gamesmanship like the whiplash inflicted on car companies – expect executives to sound less like independent business leaders and more like government mouthpieces.
 
A government that owns a business will not tolerate disagreement from it. Every share Washington buys comes with a little less freedom for everyone else. Perhaps Congress should consider passing a First Amendment Is Not for Sale Act.

The European Union’s Digital Services Act (DSA) doesn’t just have teeth – it has saber-toothed razors.
 
The law, in effect since 2023, imposes draconian content moderation efforts on (mostly American) social media companies, threatening U.S. firms with fines of up to 6 percent of their global revenues. Worldwide fines of this magnitude – again, of revenues, not profits – could easily wreck companies with even the highest valuations.
 
To assess what content is impermissible, the EU relies on “trusted flaggers” – people who recommend content worthy of removal – in other words, censorship. As a report from the House Judiciary Committee on the DSA shows, these European content moderation decisions can also be enforced worldwide.
 
House Democrats criticized the majority HJC report. These Democratic members quoted a European expert saying that trusted flaggers have “no magic delete button.” They assert that platforms themselves would still decide whether to remove the flagged content.
 
John David Rosenthal of Law & Liberty responds:
 
“Regrettably, it is obvious from these remarks that the Democratic members have not done their due diligence on the subject … the ‘trusted flaggers’ are not individuals but rather organizations that are supposed to have relevant expertise in certain areas of the law. 
 
“In some cases, they are prima facie uncontroversial even from an American perspective, since their areas of specialization involve laws that are largely identical on both sides of the Atlantic … (A full list of the 43 ‘trusted flaggers’ named thus far is available from the European Commission here.)
 
“It’s another matter when their area of expertise is speech crimes. Ironically, the expert source quoted by the Democratic members – ‘Trusted flaggers do not have a magic delete button’ – is Managing Director of precisely one such organization: Josephine Ballon of the German organization HateAid. 
 
“In June, the German government – more precisely, the German telecommunications regulator, the Bundesnetzagentur – named HateAid as a ‘trusted flagger.’
 
“The Bundesnetzagentur (or “Federal Network Agency”) serves as Germany’s national DSA implementing authority or ‘Digital Services Coordinator’ (DSC). Moreover, HateAid was not only appointed by the German government, it is also funded by it. According to data in the German government’s Lobby Registry, it received nearly €1.3 million in support from two different government ministries in 2024, for instance.
 
“If Americans would not regard ‘flagging’ of speech for removal by an organization that is appointed and funded by the American government as anything other than government censorship, why should they regard it as something else when the organization is funded and appointed by the German government?” ​

​New York Attorney General Letitia James appears to have been hoisted by her own petard… Wait a minute, what’s a petard?

The phrase comes from William Shakespeare’s Hamlet. A petard was a compressed pot of gunpowder, a kind of Reformation-era grenade. In modern English, this phrase means being blown up with your own weapon.

For President Trump’s most ardent defenders, James’ predicament – being charged by the Department of Justice for bank fraud and making false statements – is more than deeply ironic. For them, it is like a fine liquor to roll across one’s tongue and savor.

Consider: James ran for her office by making an explicit promise to get Donald Trump for… something.

Once elected, she brought a civil action against then-private citizen Donald Trump and the Trump Organization for exaggerating his wealth while seeking a commercial loan. The former and future president was fined $515 million, even though his lender – a former Deutsche bank executive – testified that Trump was a model borrower. An appeals court later slashed the amount of the fine.

“Today, justice has been served,” James said in reaction to her courtroom win. “This is a tremendous victory for this state, this nation, and for everyone who believes that we must all play by the same rules – even former presidents.”

Now James is facing federal charges for making false statements regarding her renting of a second home in Virginia. If convicted, James could face a fine of up to $1 million, and a possible (though unlikely) 30 years in prison.

James’ own words are being thrown in her face – “we must all play by the same rules.”

The satisfying taste of irony may turn bitter for James’ critics. Politico reports that the indictment omitted the fact that James’ Second Home Rider explicity mentioned “short-term rentals.”

This story follows on the heels of the president’s attempted firing of Federal Reserve Board Governor Lisa Cook “for cause” – now stayed by the courts – for allegedly claiming two properties as her primary residences. If she lied, she could have obtained better mortgage terms – not a good look for someone who regulates national interest rates.

As with the James case, however, the facts are murky. It is reported that Cook characterized one property as a “vacation home” in a loan estimate.

The administration’s mortgage police at the Federal Housing Finance Agency referred another bête noire, Sen. Adam Schiff (D-CA), to the Department of Justice on a mortgage issue.

What to make of all this?

The original sin in this train of abuses was Attorney General James’ pursuit of civil charges against a former president and political enemy whom she had promised voters to ruin in court. This was compounded by Manhattan District Attorney Alvin Bragg’s prosecution of Donald Trump for his hush-money payoff to porn star Stormy Daniels – spun by Bragg into 34 felony counts, including, somehow, violations of election law.

Now, on the theory that turnabout is fair play, the administration is targeting its former tormentors. Some of the cases – against former FBI Director James Comey and former National Security Advisor John Bolton – are complicated. For example, Comey was at best disingenuous in how he used the FBI to plant stories about Russian collusion from a source that he knew was dodgy. In both cases, however, these men have clearly been targeted out of animus. The scrupulous attention given to Bolton’s treatment of classified material, which prompted an FBI raid on his home, is clearly payback for writing a tell-all about the former advisor’s work in the first Trump White House.

Worse, the James-Cook-Schiff mortgage cases are not the result of a general crackdown. It appears that political appointees are selectively pulling mortgages of enemies for close examination.

On a human level, the instinct for payback is understandable. But if Republicans and Democrats keep targeting each other for prosecution, the U.S. political arena will come to resemble that of Moscow, where prosecutors are always ready to follow up on the promise of Stalin’s police chief, Lavrentiy Beria, who famously said: “Show me the man, and I’ll show you the crime.”

If selective prosecution is institutionalized, expect this weapon to be turned around once again against the people who now wield it.
​
Petards are being thrown, right and left. Keep it up, and everyone will be hoisted.

​Gabriel Olivier is an evangelical Christian who regularly preaches to passersby in a public park outside a public amphitheater in the city of Brandon, Mississippi. The city recognized Olivier’s right to speak, but told him he had to stay in a “protest area” far from people heading to the event center.
 
When Olivier approached pedestrians, he was confronted by police. When he explained to the local chief of police that he had a constitutional right to speak, he was arrested for his trouble and charged under a city ordinance. The U.S. Supreme Court will soon hear arguments on Olivier’s claim that the city ordinance violated his First and Fourteenth Amendment rights.
 
At its heart, this is classic forum law: Sidewalks, parks, and other public spaces have long been recognized as traditional fora for speech. But a procedural hurdle is at play as well: the question of whether Olivier should even get his day in court.
 
In Heck v. Humphrey, the Supreme Court held that when a plaintiff seeks restitution from state and local governments for violations of her constitutional rights, she must show that any related conviction or sentence related to that violation has been reversed, expunged, or declared invalid before suing. The Fifth Circuit held that Heck prevented Olivier from proceeding because he was convicted, pled nolo contendere, paid a fine, and chose to file a civil rights lawsuit rather than appeal his conviction.
 
Now the Supreme Court is set to determine if Olivier can bypass Heck and proceed to challenge the ordinance, or whether the procedural bar will remain, denying the merits question and leaving the city free to regulate speech.
 
If Olivier can get past this hurdle, he will have a strong case. The D.C. Circuit Court of Appeals, for example, has repeatedly upheld the rights of citizens to speak freely on the grounds of the U.S. Capitol, rejecting arguments that this is a “special type of enclave” immune from the guarantees of the First Amendment. Surely the prime section of a public park near an event center in Brandon, Mississippi, is subject to the same principle. Local governments often manage sidewalks, parks, plazas, and other public spaces that communities expect to remain open as fora for free speech. Consigning speakers away from intended listeners is not a reasonable restriction.
 
This case gives the High Court a chance to clarify the rules that allow citizens to challenge local restrictions on their constitutional rights. And, for a Court that has not been shy about protecting speech, it is a chance to recognize that in public parks, the roots of the First Amendment run deep.

​In this globalized world, you can enjoy Baskin-Robbins’ 31 flavors in Beijing. But if you are a Chinese online influencer, you had better not ignore the 31 behaviors that have just been banned by the People’s Republic of China.

The new regulations make it clear the state will no longer tolerate (as if it ever did) statements or content deemed “injurious to the reputation” of the Chinese Communist Party or socialism. Nor can Chinese netizens use AI to make deepfake satires ridiculing party or state leaders.

This is just the latest crackdown on speech in China. In 2018 the regime banned Winnie-the-Pooh when Beijing realized to its dismay that the jowly, chubby cartoon bear had become an online meme representing the quite-abundant frame of China’s dictator, Xi Jinping. Now, thanks to this latest round of speech restrictions, Chinese netizens will be shielded from AI images of the Beloved Leader kissing Putin on the lips or being dragged away under arrest.

A New Chinese Rule with an American Echo

Democracies can tolerate every manner of disrespect for our leaders. Lately, our leaders themselves have posted digital displays of disrespect toward each other (not to mention posts in supremely bad taste). With so many digital haymakers being tossed around, we can rest easy that the explicit restrictions of the Chinese government are unlikely to be adopted here.
But another section of Beijing’s new regulations gives us pause.

• The 18-point guideline issued by the Chinese government requires online influencers to have formal “qualifications” – such as the appropriate college degree – to be eligible to comment on law, finance, medicine, and education. Tracy Qu of The South China Morning Post reports that “live-streamers are also forbidden from showing an extravagant lifestyle, such as displaying luxury products and cash.”

Here at home, the U.S. government in recent years has pressured social media companies to deplatform “disinformation” – often just iconoclastic views – that later turn out to be correct. Witness how the consensus opinion that COVID-19 originated in a Wuhan, China, lab was a conspiracy theory – right up until both the directors of the FBI and the CIA told Congress that the virus was more likely than not of artificial origin.

A Bipartisan Appetite for Speech Regulation

• The Federal Trade Commission requires influencers to disclose any payments or free products they’ve received for an endorsement of a product. It is easy to imagine that Washington regulators will one day want to attach a requirement for professional expertise to comment on complicated topics.

 

• A bipartisan bill introduced in the last Congress by Sens. Elizabeth Warren and Lindsey Graham would create a new independent regulator with authority to work with the Department of Justice and the Federal Trade Commission to regulate the behavior of large, online social media platforms.

The intent is to guard Americans’ privacy, protect children, and strengthen national security. Yet it is easy to imagine that such a powerful internet regulatory agency would soon get Washington, D.C., back into the business of regulating content.
​
We can frown on China’s crackdown on influencers, but don’t be so smug as to think it can never happen here. Censorship usually arrives not in jackboots, but with a clipboard and a promise that it’s “for your safety.”