The Little Sisters of the Poor is a Catholic charity operated by nuns who care for the elderly poor. For 14 years now, they’ve had to undergo the legal version of the Stations of the Cross, dragged from courtroom to courtroom for refusing to violate their religious conscience. The latest attack on their mission by the states of Pennsylvania and New Jersey is utterly gratuitous – and flies in the face of two clear victories by the Little Sisters before the U.S. Supreme Court upholding their right to the free expression of religion.

Now these states are tripling down with a fresh attack to force the Little Sisters to violate their religious conscience.

“At bottom, the case asks whether religious claimants can decide for themselves that complying with a government program to avoid ruinous fines would violate their religious beliefs, thereby imposing a substantial burden under the Religious Freedom Restoration Act (RFRA),” Protect The 1st told the Third Circuit Court of Appeals in Philadelphia.

The ordeal of the Little Sisters began when the federal Department of Health and Human Services issued a mandate under the Affordable Care Act requiring employers to provide contraceptives – including some that can cause abortions – in their insurance programs. In 2016, the U.S. Supreme Court upheld the right of the Little Sisters to receive a religious exemption from this mandate.

Not content to leave them alone, the states sued to force the Little Sisters to force these nuns to provide contraceptives and abortifacients, or face tens of millions of dollars in fines. Once again, in a 7-2 decision, the Supreme Court shielded the Little Sisters of the Poor.

Now the Javerts of Pennsylvania and New Jersey are back with a new theory. They want this charity to be subject to a provision in federal guidelines to “self-certify” so that the government can provide payments to beneficiaries for contraceptive services separate from their health plan.
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The federal government, however, issued a rule designating the self-certification procedure as optional, while allowing religious employers with complicity-based objections to opt out of this requirement. This did not stop a federal court from finding in favor of the states.

These states insist on making the Little Sisters complicit in providing contraceptives. They are doing so by insisting on the enforcement of a federal provision that the federal government itself only enforces as “optional.”

The majority of Americans – including many Roman Catholics – have no issue of conscience with contraceptives. But the belief of the Little Sisters of the Poor is in keeping with Catholic doctrine and is a closely held tenet of their faith.

In our amicus brief, we tell the Third Circuit:

“The lower court’s rejection of the Little Sisters’ religious belief is particularly troubling … compliance with the government program at issue here would make them complicit in an activity their religion forbids.”

We see this as potentially harming religious minorities with religious views and practices outside of the mainstream.

“Those minorities face unique challenges to the right to practice their religions. Those challenges run the gamut from overt hostility from the prevailing religious majority to claims that minority beliefs are just ‘strange, even silly.’ If courts can reject claims that religious beliefs are violated by a particular government action, then that protection is lost.”

With Hanukkah ending on Monday, and a celebration of the birth of Jesus of Nazareth coming on Thursday, Protect The 1st would like to take a moment to ask you to exercise your First Amendment rights by speaking out against antisemitism whenever you encounter it.

We know that this is not your typical holiday message, but then the same can be said for the slaughter of Jewish families celebrating the Festival of Lights on Bondi Beach in Australia.

Words have consequences. Words that demonize people, whatever their race, religion, or partisan leanings, paves the way for violence. Sensible words are in short supply in some quarters of late.  

Some of the top-listed podcasters and online influencers have hosted antisemites, politely asking question about question: Did Hitler really start World War Two, or was it Winston Churchill, who habitually overspent and was indebted to Jewish bankers? One of the top podcasters on Spotify, with millions of listeners, has said the Jewish religion is pedophilic and centered around child sacrifice. She also claims, with no proof, that Israel’s Mossad was behind the assassination of Charlie Kirk.

Others, from another ideological direction, criticize Israel’s military response to the October 7, 2023, massacre without bothering to take even a moment to recognize what a horrendous, inhumane and utterly disgusting attack Hamas launched on Israel that day. Worse, some have demonized Jewish students and faculty on campuses, harassing them and cutting off their access to common facilities like the campus library.

One influencer, Ben Shapiro, is speaking out by speaking truth. “Conspiracy is not courage,” Shapiro says. “It is laziness with a microphone.” He is calling for “courage and clarity,” to “refuse to indulge the lie, even when it is popular.”

Some hide behind the pretense that failing to host these views would amount to censorship and cancel culture. The First Amendment does not obligate anyone to air views that are unhinged and aimed at harming our fellow Americans.

Spotify, are you listening?
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In this holy season, we want to celebrate the First Amendment and use it to embrace our fellow Americans of all faiths. Christian, Muslim, Jew and all others should hold fast to President Washington’s message in 1790 to the Hebrew Congregation in Newport, Rhode Island – a vision of American in which “every one shall sit in safety under his own vine and figtree, and there shall be none to make him afraid.”

Sen. Ted Cruz (R-TX) set off a political firestorm in September when he warned that a public campaign by Federal Communications Commission Chairman Brendan Carr to pressure ABC into firing late-night host Jimmy Kimmel was “dangerous as hell.” Cruz said Carr’s warning to ABC – “we can do this the easy way or the hard way” – sounded less like a regulator than a mob boss, invoking the classic mafioso line: “Nice bar you have here – shame if something happened to it.”
 
The Kimmel controversy revived a perennial concern about government power over speech: when does regulation cross the line into coercion?
 
When Carr appeared last week before the Senate Commerce Committee, however, Sen. Cruz dialed down the rhetoric and sharpened the analysis, making two interesting observations. First, the senator surveyed Democrats’ long record of abusing the First Amendment. Second, he identified the legal authority that makes such abuse possible – the New Deal-era law that created the FCC also empowered the agency to police broadcast licensees to ensure they serve the “public interest” through diversity of views and community service.
 
“I think you would agree that the FCC’s public interest standard has been weaponized against conservatives in the past,” Cruz said to Carr. The senator from Texas cited efforts by Democratic senators in 2018 to prevent the conservative Sinclair media company from making a major acquisition. He noted that in 2023, left-wing groups sought to stop a renewal of the license of a Fox-owned broadcast station over complaints about its 2020 election coverage.
 
Carr agreed that there were times in which the agency, “rather than follow FCC precedent, broke from it and did so in a weaponized way.” This paved the way for Cruz to then examine the behavior of the FCC under Carr.
 
About Kimmel, Cruz said:
 
“ABC and its affiliates would have been fully within their rights to fire him or simply to no longer air his program, that was their choice. But what government cannot do is force private entities to take actions that the government cannot take directly. Government officials threatening adverse consequences for disfavored content is an unconstitutional coercion that chills free speech …
 
“Democrat or Republican, we cannot have the government arbitrating truth or opinion … Mr. Chairman, my question is this: so long as there is a public interest standard, shouldn’t it be understood to encompass robust First Amendment protections to ensure that the FCC cannot use it to chill speech?”
Protect The 1st welcomes Sen. Cruz’s principled stand for restoring the law to its limited, constitutional aims – rather than allowing it to be used for partisan management of news and opinion. But we would go one step further. The “public interest” duty itself has outlived whatever justification it once had.
 
That standard may have made sense in an era when a handful of broadcasters controlled scarce spectrum and dominated local markets. It makes little sense today, in a media environment defined by abundance – streaming video, cable networks, podcasts, and the internet – all of which operate free from FCC content supervision.
 
Experience has now shown that the public interest standard is less a neutral safeguard than a loaded weapon – one that both parties have repeatedly been tempted to wield against disfavored speech. A rule that invites political abuse, chills expression, and places government officials in the role of speech arbiter cannot be reconciled with the First Amendment.
 
Given that history, it is truly in the public interest to retire the public interest standard.

​Not since 1970, when the Weather Underground emerged from the University of Michigan to unleash a wave of bombings – and the nation witnessed the massacre of students at Kent State – has the American campus seemed so prone to ideological violence. What impact is violence having on students’ attitudes toward free speech?

The Foundation for Individual Rights and Expression (FIRE) sponsored a nationwide survey of 2,028 undergraduates in October, in the aftermath of the assassination of Charlie Kirk at Utah Valley University (UVU). Some 204 UVU students were included in this survey.

The College Pulse Poll commissioned by FIRE found:

• Half of students say that they are less comfortable attending or hosting controversial public events on their campus.

 

• Forty-five percent are less comfortable expressing their views on controversial topics in class after the murder of Charlie Kirk; 43 percent are less comfortable doing so in common campus spaces, and 48 percent on social media.

 

• Roughly one in five students say they are now less comfortable attending class.

And these results were compiled before a gunman killed two students – at this writing, for reasons unknown – on the Brown University campus on Dec. 13.

Calm Surface, Roiling Emotions

The poll shows that UVU students appear more sensitive to speech rights than their peers, a sensibility born of trauma. The UVU campus, FIRE reports, “appears calm,” but “the survey data tells a more complicated story.”

• Seventy-four percent of students nationally say that the state of free expression in the United States is heading in the wrong direction. By contrast, 86 percent of UVU students believe the environment for free speech is deteriorating.

Confusing Words with Violence

One of the most provocative findings of the national survey is that nine out of ten students agree or partially agree that words can be “violence.” This prompted J.D. Tuccille in Reason to write: “Of all the stupid ideas that have emerged in recent years, there may be none worse than the insistence that unwelcome words are the same as violence.”

We would add some nuances. First, we doubt that all undergraduates immediately grasped the First Amendment implications of this question. Second, it deserves to be said that some speech can inflict wounds and leave lasting scars, much like physical violence. Imagine a drunken father berating his six-year-old daughter in the coarsest, most brutal language imaginable. That’s verbal violence that could lead to a court terminating parental rights.

But we take Tuccille’s point.

Imagine college students triggered into terrified paralysis by a speaker who argues that 19th-century colonialism brought some benefits to the peoples of Africa and Asia, or a professor denouncing Gen. George Washington for ordering massacres of Iroquois villagers during the American Revolution. College students who expect to practice critical thinking need to entertain such challenging thoughts.

“Telling young people who haven’t been raised to be resilient and to deal with the certainty of encountering debate, disagreement, and rude or hateful expressions in an intellectually and ideologically diverse world plays into problems with anxiety and depression,” Tuccille writes. “It teaches that the world is more dangerous than it actually is rather than a place that requires a certain degree of toughness. Worse, if words are violence, it implies that responding ‘in kind’ is justified.”

Is Some Speech So Heinous that Violence Is Justified?

Regarding Tuccille’s last point, perhaps the most interesting result of the survey is that before Kirk’s murder, 81 percent of UVU students responded that using violence to stop a campus speech was “never” acceptable. Now, 94 percent of UVU students believe violence is never acceptable. (We wonder, however, what the remaining 6 percent failed to notice.)
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The FIRE poll shows that exposure to actual violence – including the impossible-to-unsee silencing of a man who only sought open debate – is making the vast majority of students appreciate the difference between violent acts and provocative speech.

​States from Maine to Colorado keep defying court rulings by crafting new and disingenuous ways to exclude religious charities and schools from enjoying the same access to state benefits as secular organizations. And they keep getting slammed by the courts. And they keep asking to get slammed again.
 
To paraphrase the old John Mellencamp song – sometimes the law doesn’t feel like it should, so judges are there to “make it hurt so good.” This year’s award for top legal masochist has to go to Wisconsin Attorney General Josh Kaul.
 
Kaul had gone all the way to the U.S. Supreme Court to argue that the Catholic Charities Bureau of Wisconsin didn’t deserve a religious exemption from the state’s unemployment tax law. The reason? Because Catholic Charities serves the poor and the elderly of all faiths, without discriminating by religion or trying to proselytize its beneficiaries. Kaul thus deemed the Catholic Charities Bureau as being insufficiently religious. In June, Kaul was squashed by a 9-0 Supreme Court opinion.
 
“It is fundamental to our constitutional order that the government maintain ‘neutrality’ between religion and religion,” Justice Sonia Sotomayor wrote for the Court. “There may be hard calls to make in policing that rule, but this is not one.”
 
So credit Kaul for at least forging a moment of unity between the liberals and conservatives on the Court.
 
Then Kaul came back with a new theory. He argued that these exemptions should be taken away from all religious charities. In other words, he wanted Wisconsin to go from discriminating against one religion to discriminating against all religions. Protect The 1st joined many groups in filing briefs in support of Catholic Charities.
 
On Monday, the Wisconsin Supreme Court hit Kaul with a terse order to obey the Supreme Court decision. Perhaps they had taken in the advice we gave the court in our brief, writing:
 
“By repealing a valuable statutory exemption for an entire class of religious organizations while keeping the exemptions in place for secular organizations, the State’s proffered remedy invites the Court to violate the Constitution in new ways and to flout U.S. Supreme Court precedent in this and related contexts. This Court should decline that perilous invitation.”
 
Don’t be surprised, however, if Kaul or Wisconsin legislators come back with yet another legal scheme or legislation that continues to push the campaign to punish Catholic Charities. Why these persistent efforts? We don’t pretend to know. Anti-religious bias? Because Roman Catholics hold traditional views on abortion and sexuality? Or do politicians like Kaul have such a blinkered view of the First Amendment that blatant discrimination goes unseen?
 
“It turns out that penalizing charities is not a winning legal strategy,” said Eric Rassbach, vice president and senior counsel at Becket, which represented Catholic Charities.
 
But we must admit that there is a kind of logic behind these persistent efforts by the states, whether Kaul’s or Pennsylvania’s continued bullying of the Little Sisters of the Poor. These would-be pruners of the First Amendment only need to get lucky once – to win in an appellate court, with the precedent holding after an exhausted Supreme Court finally finds no room in its docket.
 
For that reason, the defenders of freedom of belief must be just as persistent. Whether you are religious or not, when it comes to the First Amendment we must all keep the faith.

​The Bill of Rights was ratified on this day in 1791 — with the very first of the 10 Amendments stating that Congress “shall make no law” restricting the freedom of speech, the exercise of religion, the press, the right to peaceably assemble, and the right to petition the government for a redress of grievances. 
 
These principles were later extended to government at all levels, protecting Americans’ right to criticize, protest, and register our views with the government.
 
James Madison initially opposed the idea of a Bill of Rights, worrying that rights not explicitly listed would be treated as non-existent by the government. His friend and mentor Thomas Jefferson wrote to him: “Half a loaf is better than no bread. If we cannot secure our rights, let us secure what we can.”
 
In the First Amendment, we secured a lot.
 
Our freedoms are best seen when we compare the vibrant, noisy, robust speech at home with that abroad. Around much of the world, writers, directors, dissidents, artists, journalists, and millions of ordinary people are silenced because there is no legal bar to keep their rulers from persecuting them for their speech. Consider the plight of Jimmy Lai, former publisher of Hong Kong's Apple Daily, found “guilty” by the regime and sentenced to a likely life sentence in prison for merely criticizing those in power.
 
Let us be grateful that James Madison, when he was a Member of the House, changed his mind, authored and sponsored the Bill of Rights. It has shaped our nation and protects us to this day. 
 
The First Amendment’s observance of eternal rights revitalizes America every day and has the power to reshape the world — from China, to Russia, to Cuba, to every society, for every human being.

​Mark Twain once said, “It ain’t the parts of the Bible that I can’t understand that bother me, it’s the parts that I do understand.”

Whether you’re religious or not, you have to admit he had a point. If the Bible were made into a movie, parts of it would have to be rated NC-17 for violence. The same could be said for some quotes from the Quran. Or consider Hinduism’s Bhagavad Gita, in which Krishna prepares Arjuna to wage a bloody battle, inspiring the prince to ride forth in his chariot, shooting arrows and slashing with his sword.

The response of the faithful is that context is everything. Some of these passages are best understood as history, some as religious parable, some as spiritual metaphor – representing the battles we fight within ourselves.

For many contemporary critics of religion, however, things only get worse when someone preaches religious teachings on sexual morality and marriage. All the orthodox forms of the great world religions hold standards of morality that would draw the ire of a modern HR department.

You might cherish or deplore these religious views, but should those who espouse them be prosecuted for hate speech?

The governing Liberal Party in Canada thinks so.

It is backing a move in Parliament to remove an exemption for religious speech under that country’s “hate speech law.” The current criminal code in Canada includes the following exemption that politicians wish to expunge: “If, in good faith, the person expressed or attempted to establish by argument an opinion on a religious subject or an opinion based on a belief on a religious text.”

It is this exemption that the Liberals and their partner in government, Bloc Québécois, are seeking to strike from the law.

In the United States, under the First Amendment – which guarantees both free speech and the free exercise of religion – Americans can debate their views on religion without fear of prosecution. Any attempt to dictate either speech or theology is forbidden, even when others find the speech or belief offensive.

The efforts of Canadian politicians to criminalize religious speech are a recipe for an endless culture war between the government and Catholics, evangelicals, Muslims, and Hindus. The very idea of forbidding the advocacy of traditional religious standards highlights the danger of having a “hate speech” code in the first place.  
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Thank you, James Madison.

The Pentagon is no longer content to manage information. According to a lawsuit filed by The New York Times, it now wants to control the press itself.
 
In a sweeping First Amendment challenge, The New York Times and national security reporter Julian E. Barnes have sued the Department of War over a new press-access policy that would allow Pentagon officials to revoke journalists’ credentials for publishing stories the government disfavors – even when those stories rely on unclassified information obtained entirely outside of the Pentagon complex.
 
At the center of this case is a new rule for PFACs – Pentagon Facility Alternate Credentials – the badges that have allowed reporters to move around the building and cover briefings, hallway encounters, and day-to-day operations for nearly 80 years. From World War II to 9/11 to Iraq and Afghanistan, that access has been essential to independent reporting on the military.
 
Under the new rule, Pentagon officials can immediately suspend and ultimately revoke a journalist’s PFAC if they conclude the reporter has “solicited,” received, or published “unauthorized” information – even if the information is unclassified and the newsgathering happened entirely outside the building.
 
Such punishments would have clearly aimed to prevent The Washington Post’s scoop that a secondary missile strike killed survivors on a presumed drug-smuggling vessel. This is a revelation so disturbing that some leaders of the Republican-controlled House and Senate are demanding public disclosure of an unedited video of the boat strike.
 
Would the public and Congress be better off not knowing about these strikes? That sort of “unauthorized” – read: embarrassing – journalism appears to be precisely what this policy is designed to deter.
 
Even routine acts of reporting are swept into the danger zone. Asking questions of Defense Department employees, or publicly posting a call for tips on social media, can be deemed “solicitation” and used as grounds for revoking a reporter’s credentials.
 
Worse still, this policy authorizes officials to pull access for vaguely defined “unprofessional conduct that might serve to disrupt Pentagon operations.” The Times says this gives Pentagon leadership “unbridled discretion” to punish disfavored reporters and outlets – exactly the sort of standardless power courts have repeatedly said violates both the First and Fifth Amendments.
 
The Pentagon compounded the crackdown on the media by demanding that reporters sign an “acknowledgment” stating they had read and “understood” the policy. Journalists from nearly every major news organization refused, warning that signing would legitimize a system that punishes routine newsgathering. As a result, they turned in their PFACs and lost day-to-day access to the building.
 
The New York Times, perhaps predictably, criticized the Pentagon’s inclusion of the “next generation of the Pentagon press corps” – which includes, commendably, new and wider media. But, as The Times notes, it also includes influencers friendly to the administration. The lawsuit argues that this is not a neutral security policy, but a viewpoint-based press-access regime.
 
If the policy takes hold, The Times warns, the longstanding adversarial tension between press and government will collapse. It will be replaced by a system in which only approved narratives are permitted, forbidding stories like the missile strike on survivors of a sunken boat, conducted in the name of the American people.
 
That would not be press oversight. That would be press censorship.

​The U.S. Supreme Court spent two hours on Monday debating whether President Trump lawfully fired Rebecca Slaughter, a Democratic member of the Federal Trade Commission. At stake is whether the FTC remains an “independent” agency or becomes fully subject to a “unitary executive.”

Given that Section 5 of the FTC Act empowers commissioners to investigate companies for “unfair or deceptive acts or practices,” including commercial speech, this case holds significant but contradictory First Amendment implications. But first, some background.

Precedent Is “a Dried Husk”

Several Justices questioned a New Deal-era precedent called Humphrey’s Executor, which prevents a president from firing a commissioner except for cause.

• Chief Justice John Roberts told Slaughter’s lawyer that the precedent “is just a dried husk of whatever people used to think it was.”

 

• Justice Neil Gorsuch added it was “poorly reasoned” and asserted that there is “no such thing in our constitutional order as a fourth branch of government that’s quasi-judicial and quasi-legislative.”

Remarks like these led many court watchers to predict that Slaughter is unlikely to reclaim her seat when the Court rules next year.

Who Makes the Laws?

Justice Elena Kagan offered perhaps the most consequential line of the day. Under the unitary executive theory, she said, the president has “control over everything, including over much of the lawmaking that happens in this country.”

Lawmaking?

That candid acknowledgement spotlights the central constitutional tension in this case: the FTC engages in “lawmaking,” despite not being part of the only body charged with writing laws – Congress. This plays into Justice’s Gorsuch’s critique that FTC is a hybrid that exists outside of the Constitution’s delegation of powers. That reality may well prompt the Court’s conservative majority to overturn Humphrey’s Executor and place FTC under presidential control.

Congress designed the FTC, with its five commissioners drawn from both parties – three from the majority party – to inspire constructive debate from opposing sides. With one Republican member resigned, a Democrat not contesting his firing, and Slaughter fired, the FTC currently has only two commissioners, both Republicans. The Justices must now consider whether this original congressional bipartisan design can be wholly discarded.

The separation of powers issues created by the growth of agencies and the modern executive branch require not only holding the president accountable for executive functions, but also rolling back the excessive delegation of legislative power to the executive. A unitary executive that amasses control of both executive and legislative functions is no solution. It is a lopsided response to half the problem – leaving the system even more unbalanced.

Regulating Speech: Risks Under Both Models

But how would overruling Humphrey’s Executive affect the First Amendment? Unfortunately, the risks to free expression run in both directions.

Earlier this year, FTC Chairman Andrew Ferguson launched an investigation into social media censorship. The FTC declared that “censorship by technology platforms is not just un-American, it is illegal.” We’ve often criticized major social media platforms for censoring conservative views. But the law is clear: the First Amendment only forbids government censorship, not private content moderation. Companies can filter, curate, or label content however they want – whether that means putting funny mustaches on every image of President Trump or adding Vulcan ears on Gov. Gavin Newsom.

The FTC does have the power to crack down on fraudulent claims that magic vitamins cure cancer. But it is a profound overreach for government to police a media company simply because regulators want more liberal or conservative content.

As for “un-American,” the Federal Communications Commission – which has some merger authority over media companies – threatened ABC if it did not fire talk show host Jimmy Kimmel. “We can do this the easy way or the hard way,” FCC Chairman Brendan Carr said, prompting Sen. Ted Cruz (R-TX) to compare his threat to that of a Mafioso.

At least under a unitary executive, an administration can be held publicly accountable, as Sen. Cruz demonstrated. Independent agencies, by contrast, can wield vast power with no democratic check. One of the early congressional architects of the FTC promised the agency would take “business matters out of politics.” President Biden’s Chair Lina Khan rejected that view, declaring that “all decisions are political.”

In truth, the FTC’s deliberations have always been influenced by politics. But the recent heightened politicization of the FTC points to a subtler risk created when Congress delegated its lawmaking powers to an independent agency within the executive branch.

A Constitutional Contradiction with No Easy Fix

The best solution might be to scrap the entire model and rebuild it from the ground up. But no one expects the Supreme Court or the Congress to do that.
​
For now, the task falls to the rest of us to call out free speech violations whether they arise from a presidentially controlled FTC or one run by independent ideologues insulated from democratic accountability.

​The University of Alabama shut down two student run-magazines – one for women, one for Black students. Why? The university holds that these publications’ targeting of readers among its 43,000 students constitutes unlawful discrimination on the basis of race and sex.

The theory suggests that the university is acting to protect Crimson Tide men who are writhing in pain from their exclusion from Alice, “the University of Alabama’s fashion and lifestyle magazine.” The same can be said for all the white, Asian, and Latino students who are in agony over their exclusion from Nineteen Fifty-Six, a publication dedicated to “Black culture, Black excellence, and Black student experiences.”

In other words, the university is singling out these publications for directing content to women and African-American students, which sounds a lot like – and is – viewpoint discrimination. “You cannot have a more blatant First Amendment violation here,” Mike Hiestand, senior legal counsel for the Student Press Law Center, told the student-run The Crimson White.

We would add that it would be hard to have a more profoundly stupid violation, either. This ranks up there with the decision by the U.S. Naval Academy to protect its non-Black students by removing Maya Angelou’s autobiography, I Know Why the Caged Bird Sings from its library.

Why is this happening? Universities have an understandable desire to stay on the right side of the Trump administration’s crackdown on diversity, equity, and inclusion initiatives. To be fair, DEI ideology and administrative departments had become domineering presences in campus culture and speech, threatening academic careers over faux pas and linguistic misdemeanors. A correction was certainly needed, but we are now veering into overcorrection.

The University of Alabama is acting on its interpretation of a July 29 memo from Attorney General Pam Bondi. That memo included “non-binding suggestions” to help institutions that receive federal funds avoid “unlawful proxies” and “ostensibly neutral criteria that function as substitutes for explicit considerations of race, sex, or other protected characteristics.”

Somehow, that has become a directive to avoid any channelization of communication or free association between Black Americans (12 percent of both the U.S. and the University of Alabama population), and women (51 percent of the U.S. population and 56.5 percent of that university’s population). Taken literally, any lawful interest magazine would have to cater to everyone, of all races, both genders, of all backgrounds, faiths, and national origins. Maybe Fencepost magazine, courtesy of the American Fence Association, fits the bill. (Although some might find its “modern wood designs that keep us coming back” a tad bit risqué.)

The bottom line is that the university’s actions constitute blatant viewpoint discrimination – one of the clearest violations of the First Amendment imaginable.

We draw this conclusion from the U.S. Supreme Court in Rosenberger v. Rector, which slammed the University of Virginia in 1995 for denying standing to a Christian-based student publication. The Court majority’s abiding concern was viewpoint discrimination, not that somehow non-Christians would be discriminated against by the publication’s existence.

A society based on free speech is one that respects pluralism – Christians, Muslims, Jews, atheists, women, men, gays and non-binary folk, fashionistas, sci-fi geeks, and football fanatics. An effort to enforce an artificial homogeneity is not anti-discriminatory. It is just a new form of discrimination: viewpoint discrimination.
​
We would not be surprised if between the time we post this piece and you read it the university will have listened to its lawyers and reversed these twin cancellations rather than face these students in court. As Nick Saban said, it’s never okay to lose a game.

The Fourth Circuit Court of Appeals this week upheld the lengthy prison sentence of a Virginia man for knowingly training a customer who intended to create a weapon to kill federal agents. (Hat tip: Eugene Volokh.)

This case reflects a twist in First Amendment law. The Supreme Court established in Brandenburg v. Ohio (1969) that while one cannot be prosecuted for “hate speech,” one can be prosecuted for inciting “imminent lawless action.” But what if the bad intentions are in the mind not of the speaker, but in the mind of the listener?

The defendant in this case, Christopher Arthur, provided training to “help the average person to be able to defend themselves” against “tyrannical government of our own or an invading tyrannical government.” His online manuals included such handy topics as how to create “Fatal Funnels, Wartime Tactics” and “Improvised Explosives.”

As frightening as this sounds, such speech could be lawful if the intent is to defend oneself in a Red Dawn scenario in which communists (or cartels, or aliens, or a future dictator, etc.) conquer the United States. But Arthur became a target of FBI investigation after one of his customers, Joshua Blessed, was found to have had 14 live pipe bombs in his home identical to those in Arthur’s manual. Blessed also started a shootout with law enforcement, firing at least 29 shots, which ended with him being riddled with bullets.

The FBI investigation of Arthur relied on a confidential informant, codenamed “Buckshot,” who told Arthur that he wanted to kill federal ATF agents. From this, the Fourth Circuit majority concluded that the speech was “integral to criminal conduct.” It was “tantamount to aiding and abetting a crime.”

We cannot disagree. Providing the means to create, in Arthur’s words, “a freaking death box” in which to lure and kill federal agents should not be shielded by the First Amendment.

But a dissent from Judge Roger Gregory (p. 32) reminds us that even in the most clear-cut cases, ambiguities exist that could be twisted out of recognition in future cases. Judge Gregory imagines the following scenario.

“Consider, for instance, [a] university professor … who is scheduled to give a lecture on the physics of combustion, or even simply on the topic of potential energy, which surely constitutes ‘part’ of information about explosives. If the professor had reason to believe a listener would weaponize his information – perhaps a potential attendee sent a letter outlining malicious intentions, or an audience member wore a T-shirt suggesting an affinity for violence – then the professor could conceivably be prosecuted” under a federal statute.

“The same could be said for a publisher of an instructional manual for safe use of explosives in construction and demolition. If the publisher received prior notice of a potential reader’s inclination to weaponize the manual’s information, the publisher would be at risk of prosecution … In both examples, protected and socially valuable speech is stilted because of the possibility that a rogue audience member would misuse the information provided, even if the speaker did not intend such misuse …”

This scenario doesn’t appear to apply to Arthur’s case, who received a candid idea of what his customer intended.
​
But Judge Gregory raises an important point. Today’s reasonable inferences have a way of being stretched to unreasonable extremes tomorrow. Holding speakers criminally responsible for a listener’s intentions risks turning protected instruction into prosecutable speech. That’s a standard the courts – and Congress – should watch with caution.

​Jon Richelieu-Booth, 50, an IT consultant from West Yorkshire, returned home from a trip to Florida with a few harmless souvenirs that included snapshots taken by friends of him shooting what appeared to be semi-automatic shotguns.
 
Richelieu-Booth posted the images on LinkedIn with some routine notes about his work and travel.
 
In the United States, where firing guns on private property is legal, such a post would attract little attention beyond a few “likes.” But this is the UK, where an Irish comedian was arrested this summer for a tasteless joke. So it didn’t take long for West Yorkshire police to show up at Richelieu-Booth’s home. The officers declined to examine evidence that the pictures were taken in Florida; perhaps the semi-tropical foliage and algae-scummed pond in the background were proof enough.
 
Under the UK’s increasingly Orwellian speech laws, however, well enough is rarely left alone.
 
The police returned a few weeks later to arrest Richelieu-Booth. He was held overnight before being released on bail. His phones and digital devices were confiscated, effectively destroying his business and livelihood and launching what he described as “13 weeks of hell.” Officers visited Richelieu-Booth at home three more times before the Crown Prosecutor Service ultimately dropped all charges.
 
“And this is why we have the first and second amendments in America,” Elon Musk posted on X.
 
Reform Party UK leader Nigel Farage has urged Americans to be vigilant lest the speech police take root here. Once again, we should be grateful for our Constitution’s protections against state overreach.

​The late Justice Ruth Bader Ginsberg once said, “It is hard not to have a big year at the Supreme Court.” Is that still true? What if the Supreme Court dropped an opinion and it made no sound?
 
The High Court has repeatedly come down on the side of assuring equal treatment for religious people – from protecting the right of religious schools to participate in “universal” state scholarship programs, to the right to personal religious expression, to the right of religious charities to participate in publicly funded programs.
 
And yet many states – from Maine to Colorado – keep coming back with regulations and state rulings contrary to those of the Supreme Court. Novel legal theories are being advanced, such as the ongoing attempt by Pennsylvania to switch from discriminating against Catholic participation in a charitable exemption – a policy previously knocked down by the Supreme Court – to discriminating against all religions in favor of secular charities.
 
Maine’s attempt to use clever legal tweaks after Carson v. Makin (2024) – in which the Court held that a state antidiscrimination law meant that religious schools could not be excluded from a state tuition program for private schools – threatens to revive the nullification-style legal approach of the Confederacy.
 
What, then, is behind this determination by some states to defy the clear principles set down by the Supreme Court by continuing to try to exclude religious charities and organizations from equal participation in public programs?
 
It’s easy to just say “politics.” But to fully understand this political dynamic, we must look first at the widening gulf between voters of blue and red states on questions of belief.
 
According to the Pew Research Religious Landscape Study, 78 percent of Americans identified as Christian in 2007, with another 5 percent adhering to Judaism, Islam, or another religion. In 2024, 62 percent of Americans identified as Christian, with a slight bump up to 7 percent for other religions.
 
The decline in Christian observance has not been geographically uniform. It is concentrating in the blue polarity of the color spectrum.
 
For example, 77 percent of adults in South Carolina and Mississippi identify as Christian. Bright red South Dakota is 79 percent Christian. But in blue Colorado, the percent of state residents identifying as Christian dropped from 67 percent in 2007 to 52 percent last year. Maine saw a precipitous drop from 72 percent to 51 percent.
 
Pennsylvania’s Christian identification fell from 82 percent to 62 percent. Similar declines can be seen in blue states, from Massachusetts and New York to California. Many of these states are close to minority status for the nation’s largest religion. Oregon is already there, only 43 percent Christian.
 
The First Amendment, of course, protects any and all religion, including conversion to other religions and to no religion at all. But this widening gap between the states is concerning because it coincides with a growing politicization of a principle that, up until now, has been considered sacred by Americans of all beliefs – the free exercise of religion (including the right not to be religious).
 
The Freedom from Religion Foundation (FFRF) poses as a neutral force to keep church and state separate. But in many domains, from charity to education, strict secularism is not neutral, as seen in Pennsylvania’s attempt to elevate secular charities over religions ones. (The mirror image of such thinking would be efforts by red state politicians who want to place explicitly religious, usually Protestant, content in public classrooms.) Cracking down on the speech of either secularism or religion violates the spirit and the letter of the First Amendment.
 
Yet, with growing non-religious populations in blue states, FFRF is having success in channeling political and legal action against the equitable treatment of religious speech and activities. We hope more lawmakers will come to see that this goes against the philosophy of the signers of the Constitution – many Protestants, two Catholics, and several deists who doubted Biblical miracles and the divinity of Jesus.
 
What the founders understood, we need to understand today: Government can – and must – respect the role of religious people and organizations without being religious itself.

​Wouldn’t it be nice to just get those stupid people who keep advocating for stupid things to just shut up – and if they won’t stop, to get them fired so they will be too busy trying to keep their homes that they will have no time to keep advocating for stupid things!
 
That rant, in a nutshell, characterizes the philosophical depth of the growing practice by leaders at the national and the local level to punish speech by misusing the powers of their office. This is apparently a communicable disease, one that has infected leaders in both parties and Americans across the ideological spectrum.
 
At the national level, President Trump signed executive orders punishing law firms – restricting their access to government contracts and federal buildings (presumably, including federal courthouses) – due to the past political activities of former law firm members. We’ve seen Federal Communications Commission Chairman Brendan Carr misuse his ability to approve corporate mergers to force a multimillion-dollar settlement over a specious legal claim and to try to get a late-night TV host fired.
 
But Democrats play this game as well. At the national level, the Biden administration nurtured a breathtakingly large scheme of political censorship. Efforts ranged from deploying FBI agents to secretly jawbone social media companies into deplatforming disfavored speech, to providing taxpayer funds to an NGO to bully advertisers into boycotting conservative and libertarian news outlets.
 
Enter Bob Mendes, progressive politician and former Nashville city council member. (Hat tip to Eugene Volokh.)
 
The law firm of Baker Donelson serves as Nashville’s outside counsel. Mendes warned that the firm might well lose this account if it allowed one of its lawyers, James DeLanis, to continue to chair the election committee to certify a referendum that opposed a property tax increase. City officials pressured the law firm to keep the referendum off the ballot and to curb DeLanis’s efforts. As a result of official threats, DeLanis was fired by Baker Donelson.
 
Now Sixth Circuit Court of Appeals Judge Jeffrey Sutton, joined by Judge Julia Smith Gibbons, has issued an opinion on the misuse of official power to curb the First Amendment. Two major findings leap out from this ruling.
 
First, private firms can fire people for speech. Under the First Amendment, a business has associational rights. Thus, the judges found: “Baker Donelson, for better or worse, sought to protect its client base, not to punish DeLanis for his speech.” The court also found that the law firm is eligible for qualified immunity in this case, limiting its liability.
 
Second, public officials can be held liable for misusing their powers to curb speech. The court found that “Mendes spearheaded an effort to defeat the citizen tax referendum at issue. He ‘berated’ DeLanis at a Commission meeting for orchestrating ‘pre-baked, political theater.’” The court continues: “When a public official warns a law firm that the city may pull business from it due to the public-office actions of one of its lawyers, that suffices to deter a person ‘of ordinary firmness’ from exercising his First Amendment rights in that office …”
 
The Sixth Circuit reminds us of the limits of official power and the breadth of the First Amendment. This opinion should be required reading for any elected or appointed official.