​The U.S. Supreme Court heard oral arguments Friday in TikTok v. Garland, setting the table for a quick ruling – or potentially even an administrative stay, although the Court has already denied such relief once – on the question of whether the government can force China’s ByteDance to divest its holdings in the popular social media platform.
 
Based on the line of questioning from the Justices, the Court seemed inclined to uphold the ban on national security grounds. Chief Justice John Roberts said that the law is “not a burden” on the speech rights of TikTok or its users. Rather, it targets “a foreign adversary … gathering all this information about the 170 million people who use TikTok.”
 
Justice Brett Kavanaugh expressed similar concerns over the future implications of allowing a foreign-owned corporation to gather data about platform users, information that could be used in the future “to turn people, to blackmail people – people who a generation from now will be working in the FBI or the CIA or in the State Department.”
 
Justice Elena Kagan questioned whether speech rights are relevant at all, noting that: “The law is only targeted at this foreign corporation, which doesn’t have First Amendment rights.” Justice Ketanji Brown Jackson seemed to agree, at one point suggesting the platform was “wrong” to rely on ByteDance’s putative speech rights. Freedom of association, Justice Jackson suggested, may be the more plausible legal basis for TikTok’s case.
 
It's never wise to predict where the Supreme Court will land based on questioning during oral arguments. Justices tend to lean into the devil’s advocate role, coming up with difficult questions and often esoteric extrapolations based on the fact patterns at play. Justices Amy Coney Barrett and Neil Gorsuch did just that, with the latter wondering if requiring warning labels about the dangers of foreign data manipulation would suffice to fill the role of “counter-speech” often cited as the best remedy for bad speech.
 
But this particular exercise felt a little more straightforward – possibly due to the abbreviated timeline in which the Justices must render a decision. The divestiture deadline for ByteDance is Jan. 19th – one day before Donald Trump’s inauguration.
 
The once-and-future president, for his part, has asked the Court to hit pause until after he takes office. According to a brief filed on his behalf, he seeks “a negotiated resolution that could prevent a nationwide shutdown of TikTok, thus preserving the First Amendment rights of tens of millions of Americans, while also addressing the government’s security concerns.” Many civil liberties organizations have expressed concern over the forced divestiture of a media platform. It is undeniably a drastic action. Yet the U.S. Court of Appeals for the District of Columbia found that the measure is the result of intense legislative debate in the service of the most compelling of government interests – national security.
 
It’s hard to argue with the national security assessments of Congress, and the high Court is historically loath to do so.
 
True, the Supreme Court might do what the incoming president wants and issue a stay, sidestepping the danger of a sweeping, potentially problematic precedent. Josh Blackman, in a post published on the Volokh Conspiracy, believes that is exactly what the Court will do, particularly given the law’s tight deadline.
 
Or the Justices might, as National Review’s Dan McLaughlin writes, rule narrowly on the national security issue. Taking a position on the connected issue on “covert manipulation” of TikTok’s newsfeed is a sticky wicket with serious implications for domestic platforms, too.
 
In any event, we likely won’t have to wait long to know the Court’s decision – and begin to parse its implications.

Mark Zuckerberg, Meta's CEO, announced the company will adopt X standards that reduce the number and grounds on restrictions on speakers and their speech. This new policy will be in effect across Facebook, Instagram, and Meta platforms. Meta will also end its third-party fact-checking program to focus more intently on removing content that is criminal or fraudulent.
 
Jonathan Turley, George Washington University law professor and author of The Indispensable Right: Free Speech in an Age of Rage, writes in RealClearPolitics:
 
“Around the world, free speech is in a free fall. Speech crimes and censorship have become the norm in the West. A new industry of ‘disinformation’ experts has commoditized censorship, making millions in the targeting and silencing of others. An anti-free speech culture has taken root in government, higher education, and the media … 
 
“For the free speech community, it [Zuckerberg’s announcement] was like the United States entering World War II to support Great Britain. Where [Elon] Musk stopped the progress of the global anti-free speech movement, Zuckerberg could actually help us regain ground around the world.”

​On Tuesday, the First Circuit Court of Appeals heard opening arguments in St. Dominic v. Makin, a case that challenges Maine’s renewed attempt to circumvent the U.S. Supreme Court’s ruling in Carson v. Makin. That 2022 opinion should have settled the question of the participation of religious schools in secular programs. It prohibited the exclusion of religious schools from Maine’s tuition assistance program “on the basis of their religious exercise.” But now, Maine has chosen, as we have said before, to go full Confederate in nullifying the authority of the U.S. Supreme Court.
 
Here's the backstory: Maine has a tuition assistance program that for many years allowed parents to use government funds to send their children to the schools of their choice – whether religious or secular. Then, in 1981, the state began excluding religious institutions based on the conclusion that allowing such use violated the Establishment Clause. In Zelman v. Simmons-Harris in 2002, the Supreme Court found that this constitutional interpretation was incorrect.
 
Maine then adopted a new strategy, continuing its exclusionary policy towards religious schools based on the sectarian “use” to which any governments funds might go. Twenty years later, the Court ruled again, concluding that “the prohibition on status-based discrimination under the Free Exercise Clause is not a permission to engage in use-based discrimination.”
 
True to form, Maine pivoted again, this time amending the Maine Human Rights Act (MHRA) to explicitly condition the receipt of state funds by religious institutions on compliance with state non-discrimination policies. The new law’s effect is to ensure that a religious school cannot accept tuition assistance if its beliefs and practices conflict with the state’s take on gender issues like traditional marriage.
 
Under the new law, a religious school cannot express preference in admissions for students of that same religion – a condition that applies to Christian, Muslim, and Jewish schools. They must hire teachers whose views or lifestyles are inconsistent with school beliefs. And they must permit countervailing speech within school walls under a new “religious expression” rule that would require an allowance for “dissenting religious views” – even if those views completely undermine the school’s mission.
 
To borrow a quote from the Becket Fund, which represents the plaintiffs, this is a “poison pill” that continues the tuition exclusion in a different guise. Moreover, it’s an obstinate and cynical ploy that displays contempt for both the high Court and for the rule of law.
 
Maine’s maneuvering has real, harmful impacts on people like appellants Keith and Valori Radonis, who want only to send their children to a school that upholds their beliefs. As we’ve written about many times over, educating your children is among the most fundamental and consequential expressions of speech. Maine’s new policy puts the state squarely between families in need and their free exercise of religion and those beliefs.
 
As Becket explains in its opening brief, the new provisions are patently and quite obviously unconstitutional. First, they violate Carson “by simply re-enacting the same exclusionary practices in a different code section.” They “entangle Maine officials in judging the internal religious practices of religious schools ...” And they “violate the Free Speech Clause because they compel religious schools to speak in ways that are contrary to their beliefs and force them to include speakers who reject the schools’ core commitments.”
 
After Maine moved its exclusion policy to a different code section, one law professor wrote a piece in the New York Times entitled, “There’s a Way to Outmaneuver the Supreme Court, and Maine Has Found It.” Now, the state finds itself back in the principal’s office on the same issue with likely the same result. The First Circuit should find for the plaintiffs, upholding the First Amendment and the rule of law.

​On Jan. 10 the U.S. Supreme Court will hear oral arguments in TikTok v. Garland to decide whether the First Amendment requires the Court to block the law requiring the social media platform to undergo a forced sale by its Chinese owner, ByteDance, or be shuttered.
 
Many civil liberties organizations have come to TikTok’s defense in recent months, making the point that if the government can silence one social media platform, it can close any media outlet, newspaper, website, or TV channel. And they are right that forcing a private media company to sell or go out of business is a drastic action usually associated with authoritarian rule.
 
President-elect Trump filed an amicus brief with the Court asking the Justices to stay the legislative deadline that falls on Jan. 19, one day before his inauguration. The incoming president wants to be free to negotiate a solution for TikTok that will not require the blunderbuss of a forced sale or closure. His brief seeks “a negotiated resolution that could prevent a nationwide shutdown of TikTok, thus preserving the First Amendment rights of tens of millions of Americans, while also addressing the government’s security concerns.”
 
The president-elect’s brief also contained a nod to the real danger in TikTok’s accumulation of the personal data of its 170 million American users, including 67 percent of U.S. teens. A year-long, bipartisan investigation in the House concluded that TikTok is being used by Beijing to spy on American citizens. The Senate agreed by voting for a bipartisan aid bill that included the “ban-or-sale” measure.
 
The U.S. Court of Appeals for the District of Columbia upheld the law as constitutional, concluding that the measure satisfied strict scrutiny due to the national security necessity of preventing China from secretly collecting the data of United States citizens (and covertly manipulating content, too). As one TikTok official said in a leaked communication, “Everything is seen by China.”
 
As we reported, TikTok also surveils journalists like Emily Baker-White from Forbes. Want a good way to chill speech in America? How about permitting an adversarial nation to spy on reporters and their sources? 
 
With such facts in mind, Judge Douglas Ginsburg, who wrote for the court, declared that the law does not violate the speech rights of users. Nor does it necessarily even curb disfavored speech. Judge Ginsburg wrote:
 
“Content on the platform could in principle remain unchanged after divestiture and people in the United States would remain free to read and share as much [People’s Republic of China] propaganda (or any other content) as they desire on TikTok or any other platform of their choosing.”
 
In short, the lower court has held that the First Amendment should not apply to the corporate subsidiary of a hostile foreign adversary. The D.C. Circuit suggests that since the measure is the narrowly tailored result of considered legislative processes in furtherance of a compelling government interest, it can be allowed.

The court understands that the government could never ban a media outlet for its content. But could it ban an online website that distributes foreign spyware on the computers of its readers? That’s not so far off from what so many have concluded is happening here. Yet forcing the sale or closure of a media outlet is an extreme measure for any democracy to take.
 
The Court will have much to consider. Stay tuned.

​On Thursday, the U.S. Court of Appeals for the Sixth Circuit delivered a stinging rebuke to those who believe social media companies should be treated as common carriers. One of those true believers is Tim Wu, former Biden administration advisor and widely regarded as a thought leader of progressive policy. Wu wrote:
 
“Since its activation, the First Amendment has presupposed an information-poor world, and it focuses near-exclusively on the protection of speakers from government, as if they were rare and delicate butterflies threatened by one terrible monster.”
 
Wu’s quote, in which the monster is the government, comes from a 2018 Michigan Law Review piece entitled “Is the First Amendment Obsolete?” In The New York Times more recently, Wu protests that “liberal as well as conservative judges and justices have extended the First Amendment to protect nearly everything that can be called ‘speech,’ regardless of its value or whether the speaker is a human or a corporation.”
 
The implication here, of course, is that we need smart regulators who can spot the difference between speech that has value, and that which should be discarded. Wu also seems to suggest that corporations – collections of humans that can range from ExxonMobil to the ACLU – shouldn’t have First Amendment rights at all.
 
More than anything, Wu’s conceit is that we should live under a noocracy (rule by the supposed wise, as attested to by their Ivy League degrees). Wu advocates reducing large social media companies to common carrier status, to be regulated by the government.
 
This is all relevant today because it was Wu who coined the term “net neutrality,” a set of rules adopted by the Federal Communications Commission to force all internet service providers to give all content in their pipeline the same priority. The Sixth Circuit in Cincinnati bought none of this when it struck down the FCC’s net neutrality rules.
 
The court’s reasoning was prosaic. Under Loper Bright, a recent Supreme Court opinion that limits (Chevron) deference to government agencies, such sweeping rule-making by the FCC would require authorization by Congress. Transforming social media companies into common carriers to be regulated like railroads or airlines is an act that must be rooted in a statute. Congress has passed no law authorizing common carrier status for social media companies or net neutrality.
 
But issues of grand principle were also protected by the Sixth Circuit. First, the court protected the financial model that incentivizes investors to fund companies like Verizon or Comcast to build out and maintain the national networks of fiber optic cable. Without this incentive, there would be no internet to regulate.
 
Second, and most important, if internet companies become common carriers, then the way in which they handle content can also be regulated. The FCC’s rules would have put speech itself in the hands of regulators. And then the one terrible monster truly would be destroying the butterflies.
 
Protect The 1st salutes the Sixth Circuit for a wise decision that protects speech from those who believe they know which speakers have “value” and which ones don’t.

​Texas is politically poised this year to become the last big red state to adopt a statewide public school choice program. Vince Bielski of RealClear Investigations surveyed the school choice movement in the aftermath of this development and reports that it is now ready to push into blue-state territory.
 
Gov. Josh Shapiro of Pennsylvania is the Democrat most likely to break open the first cracks in the blue wall public teachers unions have erected against school choice. After being compelled to line-item veto a voucher proposal for low-income children, Gov. Shapiro called school choice “unfinished business.” Bielski reports:
 
“The fate of another voucher program [in Pennsylvania] may depend on whether a few Democrats are willing to break with House leadership and risk political payback, according to a veteran of Pennsylvania battles … ‘Governor Shapiro has a chance to deliver on his promise to expand educational opportunity for underserved children,’ said Tommy Schultz, CEO of the advocacy group American Federation for Children. ‘It will require bold leadership to bring House leadership to the table and get it done.’”
 
Opponents of school choice charge that vouchers for private schools will lead to two separate school systems, leading to the defunding of public schools. However, Bielski reports that such programs “have been restricted mainly to lower-income parents who may be dissatisfied with lax discipline and lackluster instruction – problems exacerbated by the pandemic – at their public schools. All told, private choice programs enroll only about 2% of all K-12 students.”
 
That number shows there is both room for competition to inspire improvement among public schools, and much more room for private school choice in states both red and blue.

Protect The 1st kicked off January with House passage of the Protect Reporters from Exploitative State Spying (PRESS) Act, which would establish a federal journalistic privilege to safeguard confidential news sources in legal proceedings, while offering reasonable exceptions for extreme situations.
 
This is not the first time the House has passed the PRESS Act. And it is not the first time the Senate has ignored the strong bipartisan support for shielding journalists and their sources from government intrusion. False concerns about the PRESS Act were raised at the 11th hour. When the 119th Congress gavels in on Jan. 3, it will mark another opportunity for advocates to push this commonsense legislation – which already exists in some form in 49 states – over the finish line. Protect The 1st will be advocating in public and on the Hill, supporting the PRESS Act every step of the way.
 
We saw movement on school choice, with the Educational Choice for Children Act favorably clearing the House Ways and Means Committee. It’s the furthest a school choice measure has ever made it in Congress. If passed, the bill would provide tax credits for charitable donations to Scholarship Granting Organizations (SGOs) that support needy children, paving the way for millions of families to access better educational opportunities that align with their intergenerational, First Amendment-protected expression of their values and needs.
 
Federal progress on school choice mirrors the national, bipartisan movement. Since the pandemic, 12 states have passed some form of universal school choice, with Alabama and Louisiana joining the ranks this year. South Carolina, Tennessee, and Texas are edging closer to adopting similar measures. With support for school choice at an all-time high – 76 percent of voters according to RealClear Opinion Research – we’re likely to see the issue gain even greater prominence in 2025.
 
In 2022, Protect The 1st ranked 6th in the nation for filing amicus briefs in the U.S. Supreme Court. In 2024, we kept up the momentum, commenting on or filing briefs in many critical First Amendment cases across the country.
 
In January, one such case was decided in favor of religious liberty: Young Israel of Tampa v. Hillsborough Area Regional Transit Authority (HART). The 11th Circuit found that HART’s policy prohibiting ads that “promote a religious faith or religious organization” was vague, reasoning that “HART’s policy, even if viewpoint neutral, is unreasonable due to a lack of objective and workable standards.”
 
In February, our Senior Legal Advisor Eugene Volokh filed a brief in X Corp. v. Bonta, opposing a California law that forced social media companies to disclose their content moderation practices. Volokh said the law’s “intent is to strongarm social media companies to restrict certain viewpoints – to combine law and public pressure to do something about how platforms treat those particular viewpoints, and not other viewpoints.” The Ninth Circuit accepted the reasoning in our brief, ruling that the California bill was “not narrowly tailored to serve the State’s purported goal of requiring social media companies to be transparent about their policies and practices.”
 
In May, we also filed an amicus brief before the U.S. Supreme Court in a pivotal case challenging Michigan’s Blaine Amendment, which prohibits state aid to private, religiously affiliated schools. Although the Supreme Court denied certiorari, we will continue to affirm the importance of educational choice and religious freedom, ensuring that all families have the right to educate their children in a manner consistent with their beliefs. In the meantime, Congress should kill state Blaine amendments – remnants of 19th century anti-Catholic sentiment – by enshrining recent Supreme Court precedents, Espinoza v. Montana and Carson v. Makin, into federal law.
 
We had more success on the issue of equal access to public funding in Loffman v. California Department of Education. The Ninth Circuit found that a California prohibition on distributing special education funds to religious schools violated the First Amendment.
 
The Supreme Court stayed busy this year, ruling on several critical First Amendment cases. Murthy v. Missouri could have been a major turning point in setting limits on government “jawboning” to pressure private actors like social media companies to restrict speech. Unfortunately, in this instance the Court punted, finding an insufficient connection between government action and the ultimate deplatforming decisions at issue.
 
On the other hand, the Court came through in a big way with NRA v. Vullo, where it found that a New York insurance regulator improperly coerced Lloyd’s of London to sever ties with that Second Amendment advocacy group. 
 
Debanking or otherwise deplatforming individuals or groups because of their beliefs remains a major threat to free speech; something we covered extensively this year. We also covered donor doxing, an increasingly common tactic in states that intimidate donors supporting a particular cause. As Chief Justice Roberts wrote in a 2021 repudiation of such a law in California, “compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on free­dom of association as [other] forms of governmental action.”
 
2025 promises to be a busy year in protecting speech, religious expression, and other freedoms guaranteed by the First Amendment. We couldn’t do all that we do without you!

​The State Department’s Global Engagement Center (GEC) that steered advertisers away from conservative American publications has shuttered after being stripped of its funds by Congress.
 
In its heyday, with a $61 million budget and 120 employees, GEC oversaw a $330,000 grant from affiliated entities to the UK-based Global Disinformation Index (GDI). It also made direct grants to GDI. This organization then distributed blacklists to ad companies with the intent of defunding websites that put out what it regards as “disinformation.” GDI also identified the ten “riskiest” news outlets – The American Spectator, Newsmax, the Federalist, the American Conservative, One America News, the Blaze, the Daily Wire, RealClearPolitics, Reason, and the New York Post.
 
A GDI insider told The Washington Examiner that publications on the “riskiest” list were probably also on an “exclusion” list sent to corporate advertisers.
 
GEC’s determinations were a black box. All we know is that a host of federal agencies – from the CIA to the FBI, DHS, and the Pentagon – through GEC provided Twitter, Facebook, and Google with guidance on what content they should depost or hide. The requests were so frequent, The New York Post reports, social media companies developed systems to respond to these content moderation requests, often by complying.
 
The idea of a government agency secretly sanctioning U.S. journalism outlets on the basis of their coverage makes President Nixon’s “enemies list” seem benign by comparison. Beyond setting the First Amendment on fire, this effort also betrays the conceit that only a precious set of intelligence analysts can discern the truth. Thus, the GEC suppressed speakers who held that the COVID-19 virus had leaked from a lab in Wuhan, China, only to have the director of the FBI affirm in Congressional testimony that the bureau now believes that this was the likeliest cause of the pandemic.
 
Investigative journalists, foremost among them Matt Taibbi, reported many similar instances of the federal government’s efforts to censor news outlets.
 
Protect The 1st has no problem with an official effort to identify the propaganda of foreign terrorists and hostile regimes so long as officials are willing to make their case publicly. But secret efforts to kill U.S. publications, whether they are as careful and buttoned-down as Reason, as wide-ranging and balanced as RealClearPolitics, or unashamedly right-leaning as Newsmax, is not the business of our government. Protect The 1st would be just as alarmed if the State Department tried to shut down Mother Jones, the Nation, or the Daily Kos.
 
The Global Engagement Center was un-American in conception and operation. Nothing like this should be allowed to happen again.

One reason why Donald Trump won his second presidential term – against the expectations of notable mainstream commentators and respected pollsters – is that a small, independent group of influencers and online conservative news outlets went around the mainstream media to keep Americans informed of the candidate’s policy responses to the failures of the Biden Administration.
 
The 2024 election announced the arrival of the small, independent journalistic outfit, from Breitbart on the right to the streaming Young Turks show on the left. These independent voices have their slant on the news and their biases about candidates, but they have been effective in challenging the monolith of reporting from mainstream news organizations.
 
Protecting this ecosystem of independent, pluralistic voices is one reason why soon-to-be President Trump should support the Protect Reporters from Exploitive State Spying (PRESS) Act.
 
Without reporters relying on whistleblowers, we might never have learned about many recent scandals, ranging from the Fast and Furious gun-walking scandal under the Obama Administration to the IRS targeting of conservative non-profits under the direction of Lois Lerner, to the FBI’s highly politicized secret surveillance of Carter Page and the Trump campaign, to the truth behind the Hunter Biden laptop scandal. In each instance, brave whistleblowers came forward to set the record straight, often as sources for independent journalists.
 
“If you cannot offer a source a promise of confidentiality as a journalist, your toolbox is empty,” celebrated investigative journalist Catherine Herridge told members of a House Judiciary subcommittee. “No whistleblower is coming forward, no government official with evidence of misconduct or corruption. And what that means is that it interrupts the free flow of information to the public ...”
 
Herridge is currently fighting for her freedom in the face of a contempt charge regarding an investigative piece she did for Fox News concerning the possible penetration of U.S. higher education by Chinese intelligence. During the Obama administration, government lawyers also issued a search warrant for the emails of Fox News journalist James Rosen. Such aggressive legal tactics threaten to shut down the media’s ability to hold the federal government accountable.
 
It is for reasons like these that Republicans supported the PRESS Act, which this year passed the House with the sponsorship of Republican Rep. Kevin Kiley (R-CA) and the enthusiastic support of conservatives such as House Judiciary Chairman Jim Jordan (R-OH), as well as with the bipartisan support of many House Democrats. The PRESS Act also has the support of Sens. Lindsey Graham (R-SC) and Mike Lee (R-UT).
 
Catherine Herridge can rely on the generosity of Fox News for supporting her defense in facing down contempt charges. But few independent outlets have such deep pockets. A federal prosecutor seeking their sources would force a blogger or small outlet to immediately decide whether to rat out whistleblowers or spend every last dollar of their savings mounting a defense in court and still possibly go to prison.
 
President-elect Trump, supporting the PRESS Act in this Congress or the next would be a way for you to stand by the small, independent, online journalists and commentators who got your campaign appeals to the American people. To oppose the PRESS Act would be to score a goal for those who want to use this power to silence these voices. 

​“Can we finally say and admit to ourselves that the First Amendment is not this noble principle? It is mostly a … tool, and mostly what it's going to be used to do is to crush the people who are trying to advocate for equality, and it's going to be used to protect the people who are trying to preserve the status quo."
 
So posits celebrated academic and author Mary Anne Franks in a recent interview about her new book, Fearless Speech: Breaking Free From the First Amendment.
 
Franks’ latest effort attempts to draw a distinction between what she dubs “reckless speech … which endangers vulnerable groups” … and “fearless speech … which seeks to advance equality and democracy.” The obvious implication is that we should stop protecting the former and elevate the latter. But who decides what’s reckless and what’s fearless?
 
We’ve written about Franks before when she proposed a rewrite of the First Amendment that would omit the Freedom of the Press clause in order to resolve conflicts between rights “in accordance with the principle of equality and dignity of all persons.” And it’s with this vague prescription that her argument not only fails but leads to the short road to tyranny.
 
This should be obvious for someone who teaches “civil rights law” at a respected law school. This should, in fact, be obvious to anyone who has cracked a book about world history. If you open the door to subjective interpretations of speech that violates someone’s “dignity,” then you inevitably end up with a weaponized First Amendment that could be used to punish comics, satirists, journalists, musicians, and any other speaker whose views offend someone’s sense of dignity. Maybe such censorship will net some bigots, too, but then you’re always going to catch a few fish when you spread dynamite around the lake.
 
Franks’ interpretation of the First Amendment is explicitly rooted in grievance – a belief that America is fundamentally unjust and that our systems of governance protect “racial patriarchy.” (For an in-depth look at what Franks leaves out in her polemical take on American history, Prof. Jacob Mchangama has a great book review in Reason.) Franks’ worldview comes with an automatic list of protected speakers and another list of speakers at risk of violating the law. This framing trashes any idea of the law being viewpoint neutral.
 
And so what happens if an election flips the governing philosophy, as has just happened in November? Is Franks ready for the day when she is defined as part of the illicit governing patriarchy and her speech is forbidden? If Franks had her way, what is and is not permitted would reverse with every election or change in the composition of the Supreme Court – because my fearless speech and your undemocratic speech are subjective and easily weaponized as convenient excuses to persecute each other.
 
Almost every American can agree there is objectively bad speech, like much of the speech of the Ku Klux Klan or neo-Nazis. But such speech doesn’t go away if it is repressed by law. Censorship inevitably leads to black-market samizdat. Once underground, such speech acquires the allure of the illicit and the magnetism of the forbidden.
 
Franks dismisses reverence for the Constitution as “fundamentalist.” This is an odd word choice for a principle that has protected atheists, communists, dissenters, and writers of erotic literature. We are richer today for being able to decide whether or not to read Anaïs Nin, Allen Ginsberg, and Angela Davis. Would society be better off today if someone decided to strike the works of C.S. Lewis, William F. Buckley, and Victor Davis Hanson?
 
The genius of the First Amendment lies in its simplicity and neutrality. The First Amendment offers the same protection for all while permitting reasonable exceptions. For example, the First Amendment couldn’t protect talk show provocateur Alex Jones from handing over his fortune and livelihood after a jury found that he had defamed the grieving parents of children murdered in the Sandy Hook school massacre. And while the First Amendment may shield the occasional extremist, it also ensures that powerful organizations and groups cannot silence men and women of conscience who criticize them.
 
Franks’ ideas are unserious to the point of childishness. (There, saved you an Amazon purchase. Try this one instead.) She seems willing to delegate complex adjudications of social conflicts to people she regards as the smartest and best intentioned. No one – but no one – should be trusted with that kind of power. That’s what the Founders felt in their bones when they wrote:
 
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
 
Many Americans have died for those words. We should not casually toss them aside.

​“He said his notion of the perfect place to live would be where the religions of the children of Abraham all tolerate each other and where, in the peace of that tolerance, and in the shade and fragrance of orange trees, we could all sit and talk about philosophy and poetry.”
- María Rosa Menocal
 
As we celebrate the holidays, Americans demonstrate how our First Amendment guarantees peaceful, pluralistic religious observances in this season. On December 25th this year, Americans are not just celebrating Christmas day, but also the beginning of Hanukkah. Earlier this month, Buddhists celebrated Bodhi Day, which commemorates the day Buddha attained enlightenment. Wiccans recently celebrated Yule, marking the beginning of winter and the promise of longer days.
 
In many nations, such diverse religious expression remains an impossibility – practically if not legally. Last week, Pew Research Group released its annual report on global religious restrictions. Afghanistan, Egypt, India, Iraq, and Pakistan scored poorly on Pew’s two primary metrics – social hostilities and government restrictions.
 
Also at the vanguard of religious intolerance is – or was – Syria, which, Pew writes, “continued to target opponents – most of them Sunni Muslims” that the now-overthrown Bashar al-Assad dictatorship associated with extremism. Religious persecution is common in societies fragmented by a “rich history of religious and ethnic diversity.” Syria is roughly 70 percent Sunni and 13 percent Shia (10 percent of whom are Alawites), with substantial Kurdish, Christian, and Druze minorities.
 
The 14 years of Syrian civil war that killed half-a-million people only intensified the cruelty and bigotry of Assad’s religious persecution. But that war is over, and Assad is now reduced to begging Vladimir Putin for a nice apartment in Moscow. While entertaining no naivete about the optimism-dashing nature of the Middle East, we should at least hope that the new boss might not be intolerant like the old one.
 
Hayat Tahrir al-Sham (HTS) is the rebel militia now running the show in Syria. They are considered a terrorist group by the State Department, but the Biden administration is reportedly considering reassessing that designation. HTS leader Ahmad al-Sharaa has emphasized a culture of tolerance under the new regime, declaring in one statement that “diversity is a strength.” In Syria’s Idlib region, where HTS has ruled for some time, Sharaa has permitted women to eschew the veil and to attend universities. In Aleppo, the group stated the city “is a meeting place of civilization with cultural and religious diversity for all Syrians.” And Sharaa has specifically forbade harassment of Kurds and Christians, who have thus far under HTS been able to peacefully observe holidays in Syria’s Idlib region.
 
Skepticism is certainly warranted. Sharaa is a former al-Qaeda and ISIS affiliate, and HTS certainly does not lack from its share of radical fundamentalists. Sharaa has also called for widespread involvement of the Syrian people in drafting a new constitution. One can hope for now, at least, that Sharaa’s statements are sincere, and that Syrians can craft a new nation that respects rather than represses people of different beliefs. After so many years of conflict, Syrians certainly deserve it.
 
But could such a thing happen? Perhaps. After all, it has happened before.
 
The late Yale University scholar María Rosa Menocal described how, after the Muslims conquered the southern Iberian Peninsula, they ruled Muslims, Christians, and Jews in the country they called al-Andalus. This medieval society cultivated for what at the time was a limited culture of religious tolerance, requiring Christians and Jews to pay a special tax but allowing them to practice their faith freely. In the wake of war and conquest, that’s a pretty decent result (save for the tax on minority religions). Could we see an even better dream come true in Syria?
 
It is easy to be cynical in the wake of the Afghani Taliban’s betrayal of its solemn promises for a liberalized regime in Kabul. But there is perhaps enough goodwill in the absence of the hideous Assad, and perhaps enough plasticity in the moment, for U.S. diplomacy to engage the new regime to consider genuine respect for religious pluralism. As Syrians draft their constitution, we hope they can draw inspiration from the guarantee of religious freedom in our U.S. Constitution. And as Muslims, perhaps they can draw inspiration from the orange-scented Islamic memory of al-Andalus.
 
It may be a long shot, but it is surely worth a try in the form of high-level engagement by the United States.

Protect The 1st has followed the Catholic Charities v. Wisconsin litigation for more than two years. After many ups and downs in a case that asks what constitutes an activity deemed sufficiently religious to merit a state religious exemption, the U.S. Supreme Court has agreed to rule on the controversy.
 
Courts in Wisconsin have found that the Catholic Charities Bureau of Wisconsin does not qualify for a state religious exemption and must therefore contribute to the state’s unemployment system, instead of to a church-run system. Wisconsin courts base this conclusion on the flawed reasoning that Catholic Charities – which has provided aid to the disabled, the elderly, and the poor for over one hundred years – is not operated primarily for religious purposes because it provides services to people of all faiths.
 
Never mind the fact that, quoting the Becket Fund, “[the] requirement to serve everyone in need comes directly from Catholic social teaching and advances the Church’s religious mission through the corporal works of mercy.”
 
No activity violates the Establishment Clause more than one in which the government decides which religious practices qualify as religious, and hence protected, and which do not. Moreover, it’s simply bad policy to punish a group that offers free in-home health care, housing, and childcare services to people in need.
 
Then there’s the floodgates ramifications; if it does indeed become the job of government to decide which religious practices are religious, then we well and truly have cast the Constitution to the wind. The Catholics suffer now, but many other religious groups may soon find themselves at the pointy end of a bureaucratic spear.
 
Becket Fund senior counsel Eric Rassbach perhaps puts it best:
 
“Wisconsin is trying to make sure no good deed goes unpunished. Penalizing Catholic Charities for serving Catholics and non-Catholics alike is ridiculous and wrong. We are confident the Supreme Court will reject the Wisconsin Supreme Court’s absurd ruling.”
 
For more on the Catholic Charities case, you can read their certiorari petition here. Stay tuned for updates from Protect The 1st.

A recent piece in the Duluth News Tribune argues that the Protect Reporters from Exploitive State Spying (PRESS) Act would effectively grant reporters special Brahman status, making them “immune to investigations by federal law enforcement, including grand juries” and allowing them “to withhold vital evidence of crimes, government corruption, and wrongdoings.”
 
This argument is wrong on all counts.
 
On the contrary, the PRESS Act is a necessary bulwark against egregious government snooping and surveillance, as well as increasingly weaponized judicial (and extrajudicial) harassment that undermines the sanctity of constitutionally protected newsgathering efforts.
 
The PRESS Act has two major components. First, it would prohibit federal authorities from spying on journalists through collection of their phone and email records. Second, it would impose strict limitations on when the government can require a reporter to give up their sources.
 
The bill makes clear that “[n]othing in this act shall be construed to … prevent the federal government from pursuing an investigation of a journalist or organization that is
… suspected of committing a crime ...” Further, it contains specifically enumerated exemptions for information necessary to prevent imminent violence or acts of terrorism.
 
The article’s author suggests that the PRESS Act would somehow grant reporters greater First Amendment protections than other Americans. He fails to recognize the many other situations in which communications are legally recognized as privileged – such as those between husband and wife, patient and therapist, or attorney and client.
 
Enshrining such a right for journalists and their sources is a logical policy prescription designed to protect newsgathering, which is our primary means of directing the disinfecting rays of sunlight towards government corruption and malfeasance. Such a shield is in harmony with the aims of our Founders, who made sure the First Amendment had pride of place in the Bill of Rights.
 
Forty-nine states and the District of Columbia already have some version of a press shield law. Why, then, is a federal law needed? Look no further than a congressional report on the PRESS Act, which documents numerous instances of improper attacks against journalists by recent presidential administrations. On at least a dozen occasions since 1990, journalists have been threatened with jail or other harsh punishments for refusing to reveal their sources.
 
Attorney General Merrick Garland announced in 2022 that the Department of Justice would no longer paw through reporters’ phone records in the event of leaks – but it’s an exception that very much proves the rule. Government abuse has gone too far – and could go much further in the future.
 
Consider Catherine Herridge, the courageous former Fox News reporter who is facing jail time and potential fines of $800/day for refusing to give up her sources. Her stories embarrassed the government but also highlighted some very real potential national security risks surrounding a school with ties to the Chinese Communist Party. We’re better off for having this information, and she shouldn’t be punished for doing her job.
 
One factor often lost amidst all this debate about the PRESS Act – the government can absolutely still punish leakers. The Obama administration harassed reporter James Risen of the New York Times for years after he wrote about a U.S.-backed espionage effort in Iran. Despite Risen’s refusal to give up his source, the government eventually found the leaker and threw him in jail anyway.
 
Government surveillance and intimidation of reporters threatens to chill constitutionally protected newsgathering efforts by spooking sources and discouraging journalists on shoestring budgets. We need the PRESS Act to protect against increasing constitutionally illiterate and illegal acts by government officials against reporters.
 
The PRESS Act has sailed through the U.S. House of Representatives twice. We urge the members of the Senate to likewise pass the PRESS Act.
 
And if that doesn’t happen this year – we urge President-elect Donald Trump to support passage of the PRESS Act in the 118th Congress. The PRESS Act is a natural for President-elect Trump’s support.

​We recently covered the plight of Sam Brownback – former Kansas governor, U.S. Senator, and ambassador – who learned that the Chase Bank account for the non-profit he heads, the National Committee for Religious Freedom, had been closed with no explanation. In a lengthy back-and-forth with Chase Bank, Brownback learned that he had been defined in regulatory filings as a “politically exposed person.”
 
Allysia Finley in The Wall Street Journal explains the mechanisms behind these actions. She covers the widespread and growing practice of federal agencies’ use of the Bank Secrecy Act to surveil and punish the speech of law-abiding but politically disfavored groups through “debanking.”
 
These Orwellian acts don’t originate with the banks. The banks themselves face penalties that can go into the billions of dollars if they fail to close an account for a customer who is the target of numerous “Suspicious Activity Reports” (SARs), which flag them as “high risk.” Last year, banks filed 4.6 million SARS. Who knows how many customers were debanked as a result? 
 
Victims include former First Lady Melania Trump, and groups targeted by some in government such as firearms dealers, payday lenders, and pawn shops. Now the provision has blocked the Blockchain Association, a trade group for the cryptocurrency industry. Barney Frank, a former Chair of the House Financial Services Committee, says that the FDIC seizes banks “to send a message to get people away from crypto.”
 
Think about that for a moment. The banks were forced not to go after crypto accounts, some of which admittedly could be sketchy, but to go after a trade association (“the collective voice of the crypto industry”) that exercises its First Amendment right to petition the government to argue for pro-crypto legislation.
 
Unraveling the practice of silencing people and organizations by snapping their accounts shut should be high on the list for reform by the incoming Trump administration and the next Congress.

​You don’t have to be in the bag for one party or another to see that media outlets are taking on the partisan tone of newspapers reminiscent of the vitriol of the early American Republic. CNN and Fox News are at the far latitudes of different hemispheres and Newsmax and MSNBC are the North and South poles.
 
Roland Fryer, a Harvard University professor of economics, in Monday’s Wall Street Journal writes that the economic incentives of a fragmented media environment make it unlikely that we will see a return to objective journalism any time soon. “My hunch is that it will get worse before it gets better,” Fryer wrote. “I am skeptical that there is enough demand for objectivity and believe there are powerful economic forces pushing media outlets to give audiences the red meat they desire.”
 
All answers to this conundrum have so far failed. For example, some promote subsidized journalism as a way to ensure clear-eyed objectivity. But a close reading of subsidized ventures invariably reveals they skew to the left- or right-leaning predilections of their billionaire donors. We should remember that one reason early American newspapers were so biased is that they often received lucrative printing contracts when their favored political party won an election.
 
Out of frustration some hold up the heavy-handed speech codes of Canada, the United Kingdom, and the European Union as a way forward. But, as we saw in the censorship of the Covid “lab-leak theory” – now held by the FBI as probably true – no one is smart enough to declare what is disinformation and what is mere information that belongs in the national debate.
 
Some look to President-elect Trump’s successful lawsuit against ABC for anchor George Stephanopoulos’ inaccurate statement that Donald Trump had been held “liable for rape by a jury.” ABC’s admission of error resulted in a $15 million settlement by the news organization to the Trump presidential library. This defamation case is cheered by some on the right as a sign that media bias can be addressed by aggressive application of libel law. This outcome certainly offers a new precedent that widens the boundaries of a public figure’s ability to win a defamation suit. Yet the statement in question was a limited misstatement of fact from a professional news organization, placing it arguably within the boundaries for public figures set by the U.S. Supreme Court in New York Times v. Sullivan.
 
Most media bias, right or left, is not like that. Bias is less about how a story is reported, and more about which stories are selected. Thus CNN focuses on anonymous reports of Defense nominee Peter Hegseth’s alleged peccadillos, while Fox News focuses on heinous crimes committed by illegal aliens.
 
So if subsidized journalism, anti-“disinformation” campaigns by a consortium of government and media, and libel law will not guarantee objective journalism, what can we do?
 
We should begin by accepting there is no getting around the need to respect that the First Amendment gives media outlets the right to report in a biased fashion if they so choose. Even biased reporting fulfills the right of readers, watchers, and listeners to receive available reporting that aligns with their own biases. This is decidedly suboptimal. But if the alternative is to put some government functionary or faceless executive, or trial lawyer in charge of determining truth for everyone, we will be even worse off.
 
Fryer is right that media outlets pander to their audiences. The only way we’ve found to achieve balance is to skim The New York Times and Breitbart, CNN and Fox News, and then use our brains to read between the lines.

​Marc Andreessen, inventor of the first internet web browser and leading Silicon Valley tech venture capitalist, is quoted in a piece by Michael Barone in RealClearPolitics, taken from an interview with Free Press founder Bari Weiss.
 
“My concern is that the censorship and political control of AI is a thousand times more dangerous than censorship and political control of social media – maybe a million times more dangerous. The thing with AI is, I think AI is going to be the control layer for everything in the future – how the health care system works, how the education system works, how the government works. So that if AI is woke, biased, censored, politically controlled, you are in a hyper-Orwellian, China-style, social credit system nightmare.”

​James G. Blaine is little remembered today, but in post-Civil War America he bestrode the American political landscape like a colossus. A U.S. Senator, Speaker of the House, Secretary of State, and Republican nominee for President, Blaine (derided by Democrats as the “continental liar from the State of Maine”) was one of those figures – like Daniel Webster or Henry Clay – who were more significant than many presidents.
 
Blaine’s legacy lives on as eponymous “Blaine Amendments” – language in state constitutions that prohibits public funding for schools run by religious organizations. These are the children of Blaine’s proposed but failed U.S. constitutional amendment crafted when many Americans panicked about Irish and Italian immigrants, corrupting America with their “Romanism.” The blatantly anti-Catholic purpose of Blaine’s proposal came at a time when most public schools had an overtly Protestant bent.
 
Blaine amendments are now in the constitutions of 37 states. They remain consequential, denying equal access to public funding for schools run by the Catholic Church and other religious organizations that meet state-mandated standards in English, science, math, and other core subjects.
 
This is problematic for South Carolina, which recently passed the Education Savings Trust Fund Act, which would have allowed low-income families to use state-provided scholarships for private school tuition. But the South Carolina Constitution prohibits using public funds for the “direct benefit” of private educational institutions. The South Carolina Supreme Court was forced to strike down this school voucher program, dealing a harsh blow to families seeking educational freedom.
 
That decision has left families scrambling to find alternatives after their financial support was cut off mid-school year. David Warner, a South Carolina father, described the ruling as “a kick in the stomach,” knowing he now has to tell his son in sixth grade he can no longer afford the school he loves.
 
Sen. Tim Scott (R-SC), a vocal advocate for school choice, has called school choice the “civil rights issue of our time.” His words resonate with many South Carolina families who view school choice not just as an educational policy, but as a step toward opportunity and empowerment. For many, the local public school might not provide an environment for their children that allows for the transmission of their values. Many public schools are often not even safe.
 
The Protect The 1st Foundation in our amicus brief explained the civil rights principles at stake in this program before the South Carolina Supreme Court. Our brief told the court that the scholarship program “promotes the exercise of First Amendment-protected religious and speech rights by enabling families who could not otherwise afford to do so to choose among a wide variety of schools and find those that align with their own varied beliefs and values …
 
“It is no surprise, then,” Protect The 1st explained, “that the data show that school choice programs like the one challenged here lead to higher graduation rates, better test scores, and greater civic engagement – not only for students who receive scholarships through the program, but also for students who choose to remain in public schools.”
 
If this sounds improbable, consider the research of Alexander William Salter, an economics professor at Texas Tech University. Salter reports that out of 28 studies that explore the link between school choice and district-school outcomes, “25 found that school choice improves educational attainment in traditional school systems. In terms of social-scientific validity, that’s a slam-dunk.”
 
For now, the South Carolina court’s decision closes the door on a program that gave 5,000 students a chance to explore other educational opportunities. Yet, while the court acknowledged there is public demand for school choice, it also pointed out that any change must come from amending the state constitution.
 
South Carolina has amended its constitution 100 times since 1974, including twice in 2022. But even if the Palmetto State removes its Blaine Amendment and opens the way forward for needy children to get a quality education, there will be 36 other states in which quality schools that meet state standards are officially discriminated against.
 
Congress can resolve this matter by overriding Blaine Amendments, enshrining recent U.S. Supreme Court opinions (Espinoza v. Montana and Carson v. Makin) into national law. That ought to be issue one for Speaker Mike Johnson, the new Senate Majority Leader John Thune, and Education Secretary nominee Linda McMahon.

​A recent federal court ruling in New Jersey finds, once again, in favor of the free exercise of religion, inspiring us to ask the question: Why are state and local governments so perversely keen to ignore the Constitution and governing precedents?
 
Morris County, New Jersey – like many jurisdictions – runs a historic preservation grant program. For 14 years (2003 – 2017), buildings of a religious nature were eligible for funding.
 
Then, in 2018, the New Jersey Supreme Court found in Freedom from Religion Foundation v. Morris County Bd. of Chosen Freeholders that the state constitution’s Religious Aid Clause “bars the use of taxpayer funds to repair and restore churches.”
 
At the same time, the court held that the rule did not violate the Free Exercise Clause of the Constitution because, in their estimation, the then-recent case of Trinity Lutheran Church of Columbia, Inc. v. Comer distinguished between religious status and religious use. In other words, the court said that government funding could go to a religious organization so long as the recipient was not using the money for religious purposes.
 
Since then, Supreme Court precedent has evolved quite a bit. In Espinoza v. Montana Department of Revenue and Carson v. Makin, the Court flatly found that “a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.”
 
That didn’t stop Morris County from denying Mendham Methodist Church and Zion Lutheran Church Long Valley historic preservation grants. Now, after the two churches brought suit, a federal court has ruled in their favor, citing (unsurprisingly) Espinoza and Carson.
 
In the opinion by Judge Evelyn Padin, which invokes similar controversies in other states, she eloquently makes the point that:
 
“Recent Supreme Court precedent, therefore, characterizes many states’ disentanglement of government and religion as a Faustian bargain: to gain public benefits, you must forgo your faith. But the bargain depends on the bargainer. So, too, could the calculus read: to benefit from the results of public funding, you must endorse a faith to which you do not belong.”
 
That faith, it is implied, may be of the secular variety. But Espinoza and Carson make this whole calculus surprisingly clear. You cannot discriminate or withhold public funds based on an organization’s religious character.
 
The only question that remains – will some states and local governments now follow the law?

​What is art?
 
Is D.H. Lawrence’s 1928 novel, Lady Chatterley’s Lover, art? The U.S. Post Office didn’t think so, restricting uncensored versions of it until 1959. Are Jackson Pollock’s messy canvases art, or splattered paint? What about Police Academy 5?
 
Britannica defines art succinctly as “a visual object or experience consciously created through an expression of skill or imagination.” This is an appropriately broad definition, one that leads to the logical conclusion that any restriction on art would be a restriction on speech, forbidden by the First Amendment.
 
Acclaimed art historian and BBC star Sister Wendy Beckett reminds us that as patrons, we are co-creators of the art we view. Sister Beckett said that we should “advance toward a work of art in the loneliness of our own truth. Each of us encounters the work alone, and how much we receive from it is wholly the effect of our will to accept this responsibility.”
 
Which brings us to the pastry and mountain mural painted by high school students in Conway, New Hampshire, above Leavitt’s Country Bakery. It will never be mistaken for Michelangelo’s Sistine Chapel, or even the wall art of your average Italian restaurant in Hackensack, New Jersey. But the mural’s assortment of doughnuts, muffins, and scones in front of a rising sun do a passable job of imitating the contours of the nearby White Mountains.
 
The rub is that the citizens of that town overwhelmingly voted to restrict the size of billboards and signs. Leavitt Country Bakery’s mural is four times larger than the municipal ordinance allows, though we note that it inoffensively fits snugly within the boundaries of that establishment’s roof.
 
When the city ordered Sean Young, the bakery’s owner, to take down the mural, he took them to court for violating his First Amendment rights. Will the city’s attorneys be able to poke holes in his argument? Sprinkle it with doubt? Or will the judge’s eyes glaze over and lead to an outright rejection of Young’s claim?
 
A suggestion: Perhaps the citizens of Conway should set up a fund to fly Sister Wendy Beckett to New Hampshire and let her decide which side she would support as an expert witness. And give her a free doughnut.

​Freedom of speech, of course, comes immediately to mind. Then there is the other one, and the one after that, and then those other two… maybe the right to free home food delivery during the college playoffs?
 
If you cannot remember them all, you’ve got lots of company. Consider Justice Amy Coney Barrett. On the high bench for four years, she has already made her mark as an incisive and independent thinker on the U.S. Supreme Court. Yet Barrett could only name four of the rights protected under the First Amendment while under the pressure of her nomination testimony. When asked to enumerate them by then-Sen. Ben Sasse, Barrett got a puzzled look on her face and asked, “What else am I missing?”
 
Of course, this this was just a momentary lapse on the part of someone whose early career included clerking for Justice Antonin Scalia. Four out of five is for most people a pretty good score. The Annenberg Public Policy Center performed a survey in September that revealed that only one-third of Americans could name a majority of three of the five rights. Only 7 percent could name all five.
 
So what are the five specific rights guaranteed under the First Amendment? And what are the percentages of Americans in Annenberg’s poll who got them right?

• Freedom of speech (74 percent)
  
  
• Freedom of religion (39 percent)
  ​
  
• Freedom of the press (29 percent)
  

 

• Right to assembly (27 percent)

 

• Right to petition the government (11 percent)

 
In her hearing, which one did then-Judge Barrett suffer a temporary memory lapse about? The last one, the right to petition the government for a redress of grievances.
 
Annenberg’s poll also shows that less than two-thirds of Americans can name all three branches of government. These are, of course, igneous, metamorphic, and sedimentary. No wait, Moe, Larry, and Curly? The good, the bad, and the ugly maybe? Thank goodness for Wikipedia. Even better, let’s restore a solid civics education to American high schools. If virtually every American child can learn all the cartoon characters on Bluey, we can instill the basics of our constitutional order.

​The U.S. Supreme Court is set to consider reviewing Apache Stronghold v. United States on Friday. This is the last chance that the Apache have of preventing the utter destruction of land that to them is what Mount Sinai is for Jews and the Vatican is for Roman Catholics.
 
The federal government recognized in 1852 what anthropologists and historians confirm: that a section of the Tonto National Forest, known as Oak Flat, has for centuries been the place where the Apache go to worship the Creator. That is why the government recognized the right of the Apache to worship at Oak Flat in a treaty ever since.
 
As a result of a midnight deal in Congress, however, that land is being switched out with other public land elsewhere to which the Apache have no connection. A foreign mining company is set to dig a copper mine at Oak Flat that will be the length of the National Mall and as deep as two Washington Monuments.
 
Luke Goodrich of the Becket Law Firm told the Ninth Circuit Court of Appeals that the destruction of a people’s religious site would certainly qualify as a substantial burden under any meaning of the Religious Freedom Reformation Act. After the first of two denials by that court to grant relief to the Apache, Judge Marsha Berzon in a fiery dissent called that ruling “absurd,” “illogical,” “disingenuous,” and “incoherent.”
 
Ample precedent by this Court – from Little Sisters of the Poor to Hobby Lobby – ought to support the Court’s interest in this case. The current directive on Oak Flat threatens to impose one of the most drastic, and cruelest, burdens on religious practice in modern American history. That is why Protect The 1st has been joined by groups as diverse as the Jewish Coalition for Religious Liberty, The Church of Jesus Christ of Latter-Day Saints, and the Sikh Coalition in informing the courts of the danger of a negative ruling. We know that once the digging occurs, it will degrade the religious rights of all Americans.
 
Protect The 1st urges the Court to take up this important religious liberty case.

​A new Maryland law regulating how energy companies describe their products as “green” or “renewable” raises significant First Amendment concerns. By restricting the language that companies can use to market their services, the law forces businesses to align with the state’s dictated views on sustainability. This case, now playing out in federal court, underscores the tension between government regulation and the constitutional right to free speech, even in the realm of commercial activity.
 
Green Mountain Energy and the Retail Energy Advancement League (REAL) argue that this law crosses constitutional boundaries by going beyond regulating misleading claims. It forbids the use of “green energy” for the resale of “renewable energy credits.” By dictating the context for terms like “green” and “renewable,” Maryland is attempting to enforce its own perspective on sustainability with a legal mandate. The state offers no evidence that the companies’ descriptions of their products are deceptive. Instead, it seeks to impose its definitions, effectively punishing businesses for expressing a viewpoint that doesn’t align with Maryland’s preferred narrative.
 
The state’s defense rests on the argument that this is "commercial speech," which has many exceptions from the broad protections of the First Amendment. Courts have long held that commercial speech can be regulated for truthfulness and safety. But applying that standard here is flawed reasoning. Commercial speech does not lose its constitutional safeguards simply because it involves business interests. Courts have repeatedly ruled that truthful and non-misleading commercial speech is protected. Maryland's law doesn’t regulate false advertising: it imposes civil penalties for truthful speech that doesn’t align with the state’s ideological preferences. This sets a dangerous precedent for governmental overreach.
 
Consumers benefit from robust, diverse speech in the marketplace. Allowing companies like Green Mountain to share their perspective on what constitutes “green” energy fosters healthy competition and transparency. If Maryland’s law stands, it sends a chilling message that the government can censor private speech to promote its policy agenda. The First Amendment exists to prevent precisely this kind of state overreach.
 
This case highlights a growing trend where governments seek to weaponize regulations to silence voices they don’t agree with. The Maryland law must be struck down to uphold the First Amendment's principles and ensure that businesses retain their right to speak freely.

​Of all the things Americans expressed thanks for last Thursday, Protect The 1st is so grateful for the First Amendment that we adopted it as our namesake. The First Amendment in the Bill of Rights is a simple guarantee of our constitutional right to speak freely, enshrined in our written constitution. It provides a bulwark against the encroaching tide of censorship that has eroded free expression in other countries.
 
The importance of a written guarantee of free speech is demonstrated in the alarming decline of free speech in Anglophone countries, long seen as bastions of liberty, that lack such a constitutional guarantee. Recent examples from the United Kingdom, Canada, and Australia underscore the importance of this uniquely American right.
​
The United Kingdom, the birthplace and champion of free speech, has increasingly succumbed to policing and punishing speech deemed offensive. Its 1986 Public Order Act made it a criminal offense to use “threatening, abusive, or insulting” words that might cause someone “harassment, alarm, or distress.” While the law’s language seems aimed at curbing harm, it effectively outlawed the mere act of offending someone. This led to absurd prosecutions, such as a man arrested for calling a police horse “gay” and a teenager detained for labeling Scientology a cult. These cases illustrate how the power to define “insult” can be wielded arbitrarily, stifling legitimate expression.
 
More recently, the UK has seen the rise of "non-crime hate incidents," where individuals are investigated for actions or speech perceived as offensive but not criminal. These incidents are recorded by the police and can affect individuals’ records, impacting their job prospects and social standing. For example, Essex Police investigated journalist Allison Pearson in 2024 over a year-old social media post allegedly inciting racial hatred. Although no charges were filed, the investigation drew backlash and raised concerns about the chilling effect of such probes on free expression.
 
Peaceful personal actions have also come under scrutiny. In 2024, Army veteran Adam Smith-Connor was convicted for silently praying outside an abortion clinic in Bournemouth. Despite the deeply personal nature of his prayer, he was ordered to pay significant prosecution costs. Similarly, Isabel Vaughan-Spruce was arrested in 2022 for silently praying near an abortion clinic in Birmingham, allegedly violating a local “buffer zone” order. Although she was later acquitted, her case sparked widespread concern over the criminalization of private thought and peaceful expression.
 
Canada, too, has seen troubling encroachments on free speech. The country’s human rights commissions have famously prosecuted individuals for “hate speech” under laws that are broad and subjective. One high-profile example involved comedian Mike Ward, who faced years of legal battles and was fined for making a joke about a disabled public figure. Such cases illustrate how speech, particularly humor (admittedly offensive) and dissenting opinions, can be punished when legal protections are weak or absent. The mere existence of these tribunals demonstrates a willingness to prioritize “dignity” over free expression, a choice that would be untenable under the First Amendment.

In Australia, free speech has also come under threat. In 2019, that country’s High Court upheld the dismissal of a public servant who criticized government policies anonymously on social media. The court ruled that such comments breached the Australian Public Service Code of Conduct, highlighting the limited protections for free speech, especially for government employees.
 
These examples from countries that share the common law tradition reveal a stark contrast. Britian gave us foundational texts like John Milton’s Areopagitica, a powerful argument for the liberty of unlicensed printing. Canada, with its Charter of Rights and Freedoms, has nevertheless allowed subjective interpretations of “hate speech” to override open debate. Australia, lacking a constitutional free speech guarantee, has seen judicial decisions that limit public discourse. By comparison, the United States’ written Constitution, fortified by a judiciary that has generally stood firm in defense of free speech, has proven to be a fortress against these trends.
 
Americans benefit from a legal framework that assumes offensive speech is not a bug but a feature of free expression. The U.S. Supreme Court has consistently upheld this principle, most notably in cases like Brandenburg v. Ohio, which protects even inflammatory speech unless it incites imminent lawless action. This robust protection enables a marketplace of ideas where good and bad arguments alike are subject to public scrutiny, not state suppression.
 
The comedian Rowan Atkinson of Mr. Bean fame has eloquently defended free speech, calling it “the most precious thing in life.” He warned that outlawing insult empowers orthodoxy to silence dissent and argued that “more speech” is the strongest weapon against hateful ideas. As we eat the last of our Thanksgiving leftovers, let us give thanks for the First Amendment, which guards the liberty to speak, argue, and dissent without fear. It is a fortress that protects us all.

​The decision by the Texas State Board of Education to offer the optional Bluebonnet curriculum, rich in Christian imagery and tropes, is a kind of Rorschach test. Those more sensitive to the “no establishment” clause of the First Amendment see it as foisting one religion on an increasingly diverse population of students. Those who relish the “free exercise” clause see it as exposing all children to common cultural touchstones in what was until recently an overwhelmingly Christian nation.
 
Religion has undeniably shaped American society, from the Puritans’ foundational settlements to the Great Awakening’s moral fervor and the influence of Presbyterianism on the structure of the U.S. Constitution. In the 19th and 20th centuries, churches played key roles in the abolitionist and civil rights movements. Including the lore of these movements in history classes enriches students’ understanding of the nation’s development and diverse social fabric.
 
“In my view, these stories are on the education side and are establishing cultural literacy,” said Will Hickman, a Republican who sits on the Texas Board of Education told The Texas Tribune. He has a point. Common phrases like “pearls before swine,” “turn the other cheek,” and “salt of the earth,” are sayings of Jesus that have become cultural bywords in ordinary American conversation.
 
More difficult questions arise when religious content goes beyond lessons about history and literature. One Bluebonnet lesson about fairness, for example, includes the story of The Good Samaritan, Jesus’ parable about helping people across barriers of background and religion. That story too is an important part of American moral culture.  But some Jewish, Muslim, Sikh, and Hindu parents might see such moral parables not as helping everyone share a common culture, but as an effort by conservative Christians to keep Christianity at the center of American identity. It’s the kind of issue that deserves to be discussed among all concerned stakeholders, at the local level, with people on all sides doing their best to understand others’ concerns and to develop approaches that are as inclusive as possible and that avoid unnecessary offense to their neighbors’ sensibilities. 
 
Wherever one comes down in that debate, one inclusive, and therefore laudable, approach to religious expression is to expand school choice, which Texas is ready to embrace.
 
Following the recent election, the Texas legislature now has a majority prepared to implement a universal school voucher program for the nation’s second most populous state. Such a program would give parents the freedom to select schools that align with their values, whether they seek religious or secular instruction. Gov. Greg Abbott is championing this initiative, recognizing the growing demand for educational options.
 
The foundation for this shift was laid by the U.S. Supreme Court’s 2022 decision in Carson v. Makin. The Court ruled that if a state offers funding to private secular schools, it cannot exclude religious schools. This principle ensures families can choose schools – religious or secular – that best meet their needs. In Texas, vouchers will allow children to attend quality private schools as long as they meet state standards in core subjects like science, civics, and math.
 
Religious schools, unlike public institutions, can easily integrate faith-based teachings into their curricula. Without generating internal controversy, for example, they may display and teach such things as the Ten Commandments as part of their broader mission. Far from undermining pluralism, this model respects it, allowing families to pursue education aligned with their beliefs while maintaining accountability to state standards in key subjects.
 
This seems to us the better way to respect both diversity and the maximum freedom of expression under the First Amendment, and in so doing allowing parents to share their values – religious or not – across generations.

​President-elect Donald Trump’s nominee for Chairman of the Federal Communications Commission promises he will “smash the censorship cartel.” A current FCC commissioner, Brendan Carr is a seasoned policymaker and scholar of communication law. He is an unabashed promoter of the free market, promising to reduce regulation and “refill America’s spectrum pipeline” to “unleash economic prosperity.”
 
Carr authored the FCC section of Project 2025, which encapsulates what the FCC’s policy efforts are likely to encompass in the coming years. Relevant to the First Amendment is Carr’s approach to Section 230. This is the law that grants social media companies immunity from liability for content produced by third parties, while acknowledging the companies’ right to moderate their sites.
 
Carr believes Section 230 has been expanded and abused to censor conservative and other speech, concluding it “is hard to imagine another industry in which a greater gap exists between power and accountability.” That’s why, in his view, the “FCC should issue an order that interprets Section 230 in a way that eliminates the expansive, non-textual immunities that courts have read into the statute.”
 
Specifically, Carr suggests that the “FCC can clarify that Section 230(c)(1) does not apply broadly to every decision that a platform makes. Rather its protections apply only when a platform does not remove information provided by someone else. In contrast, the FCC should clarify that the more limited Section 230(c)(2) protections apply to any covered platform’s decision to restrict access to material provided by someone else.”
 
What this means, in effect, will be much less immunity for platforms under Section 230(c)(1), broadly interpreted by courts to apply to both distribution and takedown decisions – even though Section 230(c)(2) speaks more directly to the latter. Carr’s proposal is a direct shot at the kind of censorship decisions that have so enflamed conservative circles in recent years, and it means platforms could have substantially less legal protection in such future cases. At the same time, basic publishing and editorial functions (even a hands-off editorial approach), as well as removal of lewd or violent material would likely remain covered under this framework. (For more on the distinction between Section 230(c)(1) and Section 230(c)(2)), we recommend this Congressional Research Service report.)
 
Carr’s writings make frequent appeals to Congress to reform and update the laws governing the internet, eager to work with Congress to harmonize his regulatory approach with the law. Given the role of courts in interpreting rules against the statutes they are based upon, it is hard, however, to predict what this new framework will look like.
 
There’s certainly a scenario where litigation against tech platforms could snowball in a way that harms innovation, consumer experience, and the overall speech climate. Moreover, the First Amendment upholds the right of social media companies to moderate their content. Courts should not allow any rule that compromises their rights. Still, Carr’s effort to carve out more respect for speech by reinterpreting Section 230 is a lighter touch than many legislative proposals.
 
Carr suggests placing transparency rules on big social media platforms – specifically, requiring “platforms to provide greater specificity regarding their terms of service.” We would prefer social media companies to voluntarily take up these rules. Platforms’ moderation decisions should take place in the open, providing clarity to consumers and furthering free expression and association on the handful of sites that have become the nation’s townhall.
 
Carr also advocates for returning “to Internet users the power to control their online experiences,” perhaps through choosing “their own content filters and fact checkers, if any.” At the same time, he concedes that such policies could be seen by some as intruding “on the First Amendment rights of corporations to exclude content from their private platforms.” Carr should heed his reservation. Protect The 1st wholeheartedly supports the speech rights of private companies and opposes external impositions on this fundamental right.
 
Regarding national security, Carr wholeheartedly supports a ban on TikTok, espousing that it provides “Beijing with an opportunity to run a foreign influence campaign by determining the news and information that the app feeds to millions of Americans.” We support the law that requires divestment by China’s ByteDance. With a sale to a U.S. owner, there would be no need for a blanket ban on TikTok that infringes on the speech and associational rights of Americans.
 
Lastly, Carr seeks to re-emphasize the establishment of wireless connectivity for all Americans by freeing up more spectrum and streamlining the permitting process for wireless builds. According to the FCC, 24 million Americans still lack high-speed Internet as of 2024, and that’s 24 million Americans who are less able to exercise their speech rights than their fellow countrymen.
 
Overall, Carr’s focus is to modernize the FCC and promote prosperity by turning to a “pro-growth agenda” over the heavy hand of regulatory decree. “The FCC is a New Deal-era agency,” Carr writes. “Its history of regulation tends to reflect the view that the federal government should impose heavy-handed regulation rather than relying on competition and market forces to produce optimal outcomes.”
 
In short, Brendan Carr promises to be a bold leader at the FCC who aims to break policy logjams. Protect The 1st looks forward to evaluating his proposals when they are fleshed out in January.