The Federalist Society’s recent Freedom of Thought Conference featured a panel on varied conservative perspectives about censorship in the digital age, with both the more liberal and more populist conservative panelists congenial to greater control over speech. This left it up to Protect The 1st Policy Director Erik Jaffe to make “an old school textualist” defense of robust First Amendment protection of free speech, regardless of the technology or medium. While others called for more government control of algorithms, Jaffe expressed deep wariness of expanding government influence over speech-related technologies.
 
Stanford’s Jud Campbell emphasized the Founders’ views of speech as tied not only to natural law, but also to “the public good.” Jaffe challenged the notion of a general public-good exception to the First Amendment, and contended that the constitutional text, not original applications or anticipated outcomes, must govern today. He warned that interpreting rights based on past state practices or public morality risks “gutting the First Amendment.”
 
The panel debate became animated over the nature of algorithms and how much responsibility their designers have for their results. Jaffe argued these software codes, and the rules they apply when promoting content, are “not anything different [from traditional speech and editorial judgments] except in speed.” They are fundamentally tools that execute human editorial choices, and the constitutional rules limiting or imposing liability for those choices should be the same whether the choices are executed in digital or analog form.
 
John Ehrett, Chief of Staff and Attorney Advisor to FTC Commissioner Mark Meador, pointed to companies’ conflicting legal positions, which call algorithms black boxes in liability cases, yet editorial speech when they make First Amendment defenses. “I don’t see how you can have this both ways,” Ehrett said. Jaffe saw no dichotomy – when a social media company designs an algorithm to treat speech in a certain way, that company is simply “making an editorial choice.” While a particular individual may not be able to follow the interaction of various rules for each and every choice, he observed that algorithm-driven programs are no more of a black box than the human brain.
 
Jaffe was equally blunt in opposing the idea that platforms like Facebook or TikTok constitute the “modern public square.” He argued that attempts to treat private companies as public utilities are “always abused” and rejected the premise that when platforms reach a certain degree of popularity, they become public property. “If you want to make a platform a ‘public’ space, go take it under the takings clause,” he said. “Pay the billions of dollars and run it yourself.”
 
On Section 230, there was some agreement that reform is possible, but Jaffe was alone in emphasizing the practical risk of overcorrection. He warned that removing liability protections could lead platforms to suppress lawful content out of fear: “Everybody and their mother starts suing Facebook,” he said. “Facebook starts saying, ‘well, sorry, none of you can speak on our platform now.’”
 
The panel also addressed the growing concern over government efforts to influence content moderation by private platforms, a practice often described as “jawboning.”
 
Jaffe concluded this is a threat that is not receding, just taking new political forms. “The Biden administration was more subtle about the threats,” he said. “The current administration is not subtle at all … they’re beating people to death with the jawbone of an ass.”
 
Jaffe said claims that behind-the-scenes pressure effectively turns private companies into government agents raises serious constitutional concerns. This practice also creates troubling interactions with the so-called government-speech doctrine, which can wrongly insulate heavy-handed government censorship from First Amendment scrutiny. While panelists generally agreed that coercion is troubling, Jaffe went further, calling for enforceable remedies. He endorsed legislative proposals to allow lawsuits – called Bivens claims and §1983-like actions – against federal officials who violate the First Amendment by pressuring platforms to suppress speech.
 
Jaffe closed with a warning against paternalism. While some panelists called for new legislative frameworks to balance expression with social harms, Jaffe pushed back hard. “The First Amendment has an assumption underlying it that people are not sheep,” he said. “The danger of treating them like sheep is too great.”
 
Watch the full panel here: 

​When the U.S. Supreme Court declined to hear the case of Kari MacRae, a Massachusetts teacher fired over social media posts made before she was hired, Justice Clarence Thomas took to his pen. He issued a scorching rebuke of lower courts, particularly the First Circuit, calling them out for botching the application the First Amendment in public employee speech cases.
 
“This case is the latest in a trend of lower court decisions that have misapplied our First Amendment precedents in cases involving controversial political speech,” Thomas wrote, warning that if left unchecked, government employers will increasingly restrict “disfavored or unpopular speech in the name of preventing disruption.”
 
Thomas didn’t dissent from the Court’s decision to deny certiorari, recognizing that this case may not have been the best vehicle to revisit the legal test known as the Pickering-Garcetti framework. Under that standard, public employees have First Amendment protection when speaking as private citizens on matters of public concern, unless their speech unduly disrupts the government’s ability to function as an employer. But as Thomas emphasized, that balance cannot be twisted to give the government a free pass to punish speech it merely dislikes, especially when expressed outside the workplace and before employment even begins.
 
“It undermines core First Amendment values to allow a government employer to adopt an institutional viewpoint on the issues of the day and then, when faced with a dissenting employee, portray this disagreement as evidence of disruption,” Thomas wrote. He found the First Circuit’s reasoning “deeply flawed” for dismissing MacRae’s speech because of its supposedly “mocking, derogatory, and disparaging manner.”
 
Quoting Snyder v. Phelps, Thomas reminded his colleagues that “speech on matters of public concern is at the heart of the First Amendment’s protection.” If the Supreme Court could protect vile funeral protests by the Westboro Baptist Church, “I do not see how the First Circuit could discount the First Amendment value of MacRae’s comparatively mild posts.”
 
MacRae’s memes, which included critiques of gender ideology and calls for colorblind policies, may have been controversial to some. They also reflected positions shared by a substantial portion of the public. For the First Circuit to reduce the weight of her First Amendment interest based on tone, or to treat pre-employment political speech as grounds for termination, sets a dangerous precedent.
 
The Court may have passed on this case, but Thomas’s warning is clear: Without a course correction, the First Amendment rights of millions of government employees and future applicants will hang by a thread.

Should the Roman Catholic sacrament of confession be turned into a form of law enforcement surveillance?
 
That is exactly what a new Washington State law does, requiring Roman Catholic priests to report any knowledge of child abuse that emerges during confession.
 
The author of this law, state Sen. Noel Frame, said she could not “stomach any argument about religious freedom being more important than preventing … abuse,” that it was “traumatizing to have colleagues … tell me to my face that religious freedom is more important than protecting children,” and “you never put somebody’s conscience above the protection of a child.”
 
An eloquent brief before a federal court in Tacoma, Washington, from Catholic bishops makes both a passionate and practical case demonstrating why Sen. Frame’s argument and this new law is wrong-headed. It harms both the First Amendment’s guarantee of the free exercise of religion while taking away the prime means the Church has of disciplining and stopping child abusers.
 
As a law intended to protect children, it scores an own goal. Here are a few choice excerpts from the bishops’ brief.
 
The Washington State law presents priests with a “Hobson’s choice” between eternal damnation and criminal prosecution.
 
“A priest who directly violates the sacramental seal incurs a latae sententiae excommunication – i.e., automatic excommunication – thereby risking eternal damnation. Accordingly, the historical record is replete with examples of Catholic priests choosing death as martyrs rather than succumbing to government demands that they violate the sacramental seal.”
 
It overturns a principle recognized in American law for more than 200 years.
 
The new law “runs directly counter to longstanding caselaw recognizing the confessional seal as part of the Catholic Church’s autonomy protected by the First Amendment. For example, in People v. Philips, one of the earliest-known religious freedom cases in the United States, the Court of General Sessions of New York City refused to force a Catholic priest to testify in a criminal case about what he heard in the Sacrament of Confession …
 
“As that court observed, ‘The sinner will not confess, nor will the priest receive his confession, if the veil of secrecy is removed.’”
 
The new law violates the First Amendment’s free exercise clause by replacing church governance with government regulation.
 
“The Sacrament of Confession and the meting out of penance is one of the means by which the Catholic Church disciplines its members. By requiring that Catholic priests disclose what they hear in confession, Washington is directly intruding upon, and chilling, that form of discipline.”
 
It singles out priests while exempting lawyers, law school clinics, and others.
 
In addition to lawyers, the new law exempts parents, domestic partners, and family members. It simply targets priests.
 
Above all, the new law will hurt, not help, the reporting of child abuse and rescue of children from dangerous situations.
 
“Moreover, when the priests in each diocese, including all Plaintiffs, hear confessions involving sins of child abuse or neglect, they could counsel the penitent to self-report and obtain the necessary temporal intervention and help.
 
“And priests in each diocese, including all Plaintiffs, who suspect based on what is disclosed during confession that the penitent is suffering from abuse or neglect, the penitent has engaged in abuse or neglect, or some third party has engaged in abuse or neglect, could invite the penitent for counseling outside of the Sacrament of Confession and, if the penitent agrees to that counsel, the priest must report any information learned in that counseling session required to be reported by diocesan policies …”
 
When the law requires priests to report child abusers to the police, no child abuser will confess. And without a confession, no priest can impose discipline by requiring the penitent to go to counseling and to turn himself into the police. It is the Washington State law that removes those tools to protect children that should make one sick to the stomach.

Protect The 1st applauded the Senate’s passage of landmark school choice legislation with tax credits as part of the president’s “Big Beautiful Bill.”
 
“A seemingly small provision in the budget reconciliation bill passed by the Senate will uplift American school children and promote the future health of our nation,” said Bob Goodlatte, former Chairman of the House Judiciary Committee and Senior Policy Advisor for Protect The 1st. “With support from the House, for the first time in American history the right of parents to choose the best school for their children will be supported by a federal tax credit.
 
“This day is a great achievement by Sen. Majority Leader John Thune, Senate Finance Chairman Mike Crapo, supported by the longtime leadership of Sen. Bill Cassidy and Sen. Tim Scott,” Goodlatte said. “Their leadership, along with Sen. Ted Cruz, made the day.”
 
Gene Schaerr, Protect The 1st general counsel, said: “The measure is the mustard seed that is sure to grow into a sheltering tree. With 19 states having passed some form of universal school choice, this national bill will facilitate private school scholarships that will elevate the lives of American students and their families for decades to come.
 
“These scholarships will allow children from low-income households to have access to quality education previously reserved for well-to-do families,” Schaerr said. “And it will allow families to exercise their First Amendment rights by selecting the quality religious or secular school of their choice.”
 
Goodlatte added: “The House, having passed this once, now has the happy duty of advancing the measure in its current form and getting it to President Trump’s desk.”

​When Arizona’s Proposition 211 forced the disclosure of nonprofit donors, it trampled on a bedrock principle of American liberty: the right to speak, associate, and advocate without government surveillance or coercion. The Buckeye Institute, an Ohio-based think tank focused on free-market policy and constitutional liberties, is now urging the Arizona Supreme Court in a powerful amicus brief to strike down this law as a threat to free association and free speech under both the U.S. and Arizona constitutions.
 
The Buckeye brief echoes concerns we’ve raised before: public disclosure of nonprofit donors invites harassment, threats, and even violence. Buckeye’s evidence isn’t abstract. It includes firebombings of offices, armed raids, and death threats, all targeting people for their beliefs or the organizations they support.
 
Technology only worsens the problem. With a few clicks, bad actors can compile and weaponize personal data against donors, publishing maps to their homes, attacking their families online, or pressuring employers into firing them. Witness the recent murder of a pro-choice state legislator and her husband in their Minnesota home. The Buckeye brief cites doxing sites targeting Tesla owners, threats against donors to Canadian truckers’ protests, and the public outing of supporters of one California proposition who lost jobs and faced violence.
 
Buckeye itself became a target after opposing Medicaid expansion in Ohio. The IRS, already embroiled in a scandal over political targeting, launched a field audit shortly after Buckeye’s advocacy succeeded. Donors, fearing retaliation, began giving anonymously or stopped donating altogether.
 
The Buckeye brief also includes historical notes, touching on “Publius, Cato, and Common Sense … just three of dozens of pseudonyms the Founding Fathers used to communicate and publish during the Revolutionary War.”
 
“The Founders’ ability to organize, associate, and speak anonymously was fundamental to the public acceptance and ratification of the Constitution and the Bill of Rights and likely remained at the forefront of their minds when drafting the First Amendment,” Buckeye declares. It quotes a constitutional scholar: “The bottom line is that it is highly probable that the United States would not exist without anonymous speech.”
 
Yet a lower court “suggests that organizations must all but endure a serious act of violence before availing themselves of judicial intervention.” Buckeye rightly argues that Proposition 211 is not only dangerous but unconstitutional at the state level. Arizona's Constitution provides even stronger protections for free speech and association than the First Amendment. And since Alabama v. NAACP, the U.S. Supreme Court has repeatedly recognized that donor disclosure chills protected speech and deters lawful participation in civic life, especially when governments collect this information without a narrowly tailored need.
 
The Arizona Court of Appeals wrongly dismissed these dangers as speculative. But Buckeye’s brief to that state’s Supreme Court leaves no doubt – violence and harassment are real, widespread, and predictable. A government should not wait for a tragedy before upholding Americans’ constitutional rights.

​They knew it when they saw it. In a 6-3 opinion, the U.S. Supreme Court ruled in Free Speech Coalition v. Paxton that a Texas “age-gate” law restricting porn sites to adults is constitutional. Civil libertarians are sure to hotly debate whether there are principles here that will be applicable to any other First Amendment cases outside of the regulation of pornography.
 
The Court held that the Texas law, which requires adults to upload documentary proof of their age online before visiting a porn site, has only an “incidental effect on protected speech.” The Court found:
 
“The First Amendment leaves undisturbed States’ traditional power to prevent minors from accessing speech that is obscene from their perspective. That power includes the power to require proof of age before an individual can access such speech. It follows that no person – adult or child – has a First Amendment right to access such speech without first submitting proof of age.”
 
Justice Elena Kagan, dissenting, wrote:
 
“Speech that is obscene for minors is often not so for adults. For them, the category of obscene – and therefore unprotected speech – is narrower … So adults have a constitutional right to view the very same speech that a State may prohibit for children. And it is a fact of life – and also of law – that adults and children do not live in hermetically sealed boxes. In preventing children from gaining access to ‘obscene for children’ speech, States sometimes take measures impeding adults from viewing it too – even though, for adults, it is constitutionally protected expression.”
 
State legislators in future debates are sure to analyze and discuss the Court’s decision. Many will see a precedent that could require similar ID checks to visit websites that are not pornographic, but also inappropriate for children – such as downloading Lady Chatterley’s Lover. Are such adults-only age-gates truly “incidental,” or are they so cumbersome as to amount to a serious restriction on speech?
 
Others will say that Court’s ruling is actually a modest recognition of the right of the states to reasonably protect children from the internet’s torrent of full-motion, high resolution pornography.
 
Sex. Porn. Age. Free Speech. This one has all the vibrant and racy elements for a debate that itself promises to exercise the First Amendment to the fullest.

​Political speech in New York may soon come with strings attached. A new bill introduced by State Sen. Patricia Fahy would force independent expenditure groups to plaster the names of their top donors across political ads, mailers, robocalls, and digital messages. What proponents call “transparency” is, in truth, a direct threat to donor privacy and a likely violation of the First Amendment.
 
Fahy’s legislation would compel any group making independent expenditures to list its top three donors, those who have given more than $1,000 in the past year, on every public communication. It would also require the campaign treasurer’s name and a link to disclosure filings with the State Board of Elections. While these groups already report donor information to the state, this bill would take it one step further by forcing the disclosure directly into the content of an ad.
 
Fahy claims this is about accountability, pointing to outside groups spending millions on state and local races. She argues voters deserve to know who is behind the messages they receive. But the U.S. Supreme Court has made clear that forcing groups to reveal their donors, especially in public-facing messages, poses a serious risk to First Amendment freedoms.
 
In Americans for Prosperity v. Bonta (2021), the Court ruled that California’s demand for donor lists, even for internal regulatory use, was unconstitutional. Chief Justice Roberts called such compelled disclosure a “restraint on freedom of association,” citing the Court’s landmark 1958 ruling in NAACP v. Alabama. That case protected civil rights donors from being exposed to violent reprisals.
 
We have seen what happens when donor identities become political weapons. After California forced disclosure of supporters of Proposition 8, donors were doxed, threatened, and harassed. Some received envelopes of white powder. Others saw their personal information mapped online. The chilling effect was unmistakable.
 
New York City already mandates direct donor disclosure on independent expenditures (IE) in local races. Under rules enforced by the NYC Campaign Finance Board, IE ads must list the spender’s principal officer and their top three donors, along with a link to the CFB’s disclosure site. But this local law should serve as a warning, not as a model. Expanding this flawed policy statewide invites litigation and fails the Supreme Court’s exacting scrutiny standard.
 
The Constitution does not bend to political convenience. While regulators may seek clarity in campaign finance, they must do so within constitutional bounds. Sen. Fahy’s bill fails that test. It treats compelled speech as harmless and public exposure as inconsequential. It ignores the real dangers that come with making people’s political beliefs a matter of public record.

​The U.S. Supreme Court has once again stepped in to remind the State of New York – and any state tempted to do likewise – that religious liberty is not a favor dispensed by bureaucrats but a constitutional guarantee. On June 17, the Court ordered New York courts to take another look at Diocese of Albany v. Harris, a case in which religious organizations are challenging a state mandate requiring employers to provide abortion coverage in their health insurance plans.
 
The plaintiffs include Catholic dioceses, Anglican and Baptist ministries, and faith-based social service providers like the Carmelite Sisters, who run nursing homes, and the Sisterhood of St. Mary, a contemplative Anglican order. Their objection is simple: They believe life begins at conception, and they refuse to be complicit in taking it. New York has bizarrely decided that this belief – shared by millions – is not worthy of respect if such a religious group is also willing to serve the public without religious discrimination.
 
When New York first proposed the abortion coverage rule, it included a broad exemption for religious objectors. But under pressure from abortion-rights activists, the exemption was narrowed to cover only those that teach religion and serve only those who share their faith. This would leave out virtually every real-world religious charitable ministry. As Lori Windham, vice president and senior counsel at Becket, noted, not even Jesus or Mother Teresa would qualify under New York's miserly exception for religious freedom.
 
The case is part of a broader legal conflict that traces back to the contraceptive mandate imposed under the Affordable Care Act. Religious groups like the Little Sisters of the Poor, who serve the elderly poor, spent a decade in court fighting the federal government over being forced to cover contraceptives and abortifacients. The Supreme Court repeatedly sided with them. But New York has pushed even further, mandating coverage for surgical abortions and setting up a restrictive exception for religious associations, denying the religious legitimacy of ministries that serve people of other faiths.
 
The Supreme Court already told New York to reconsider this case once – instructing state courts to account for its ruling in Fulton v. City of Philadelphia, which held that governments cannot condition public benefits on abandoning religious beliefs. But the New York Court of Appeals upheld the mandate again this May. That refusal led to another trip to the Supreme Court and another remand back down to try again.
 
A new pivot point is the Court’s unanimous June 5 decision in Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission. In that case, Wisconsin denied Catholic Charities a religious exemption from unemployment insurance rules, arguing that serving the poor wasn't inherently religious. The Court rejected this reasoning emphatically. Justice Sonia Sotomayor wrote that such theological judgment by the government is “a textbook violation” of both the Free Exercise and Establishment Clauses.
 
With that decision in hand, the Supreme Court sent the Diocese of Albany case back to New York, making clear that religious groups don’t need to prove that their service is “religious enough” to be protected. If a ministry’s charitable work is rooted in its religious beliefs, it cannot be penalized for refusing to uncharitably limit its charity to its co-religionists. New York, for its part, has already conceded that its abortion coverage scheme cannot stand under the new precedent.
 
This is a victory not just for the nuns and ministries involved, but for anyone who believes that religious liberty does not vanish when faith communities choose to serve the public. The First Amendment does not allow states to punish religious conviction by substituting their own standards for religiosity or demand a cramped notion of religious charity.
 
Meanwhile, another case on the Supreme Court’s docket – Mahmoud v. Taylor – could further define the constitutional boundaries of religious liberty in public education. A decision is expected as early as this Thursday.
 
All eyes on Mahmoud.

​Recent live news television in Los Angeles, a tradition going back to O.J. Simpson and his white Bronco, could have been clips recycled from Escape from LA.
 
Mass protests erupted after aggressive federal immigration raids, followed by the deployment of U.S. troops on city streets. Demonstrators rallied outside detention centers, federal buildings, and City Hall, waving signs and chanting against what they saw as an authoritarian crackdown. Some protesters blocked highways and staged sit-ins. Others vandalized and set fire to multiple Waymo self‑driving cars – at least five vehicles were torched, making movie-effects-worthy explosions when their lithium batteries detonated. Storefronts in the downtown core were also smashed. The unrest, spreading to cities across the country, has reignited fierce debate – not just over immigration, but over the boundaries of lawful protest and the government's willingness to respect or suppress it.
 
California Gov. Gavin Newsom, in a recent televised address, framed the crisis in constitutional terms: “Democracy is under assault right before our eyes – the moment we’ve feared has arrived.” He accused President Trump of seeking escalation: “He’s delegitimizing news organizations and assaulting the First Amendment.” Gov. Newsom warned that the use of military force against demonstrators risks criminalizing dissent.
 
President Trump, speaking at Fort Bragg the same day, countered that the protests were orchestrated by hostile actors. He said they were “rioters bearing foreign flags with the aim of continuing a foreign invasion,” and accused California officials of hiring “troublemakers, agitators and insurrectionists” to “nullify federal law and aid the occupation of the city by criminal invaders.”
 
Both leaders are responding to real dangers, but neither is addressing the whole picture. Newsom is right to warn against federal overreach, but he overstates the case when he frames all protest activity as protected expression. The First Amendment is not a shield for lawlessness. When protesters torch Waymo cars or threaten businesses, they’re not engaging in political speech. They’re committing crimes. Likewise, when a man in Minnesota assassinates a Democratic politician and her husband, that’s not protest. It’s murder and terrorism. These acts deserve prosecution, and not even the suggestion of a constitutional defense.
 
President Trump’s reaction presents a danger from the opposite direction. To conflate the criminal acts of a few with the constitutionally protected assembly of millions is to delegitimize democratic participation. People wave Mexican flags at immigration protests to express heritage and critique policy. That strikes many, including millions of U.S. citizens of Latino descent, as an inappropriate and offensive way to stand up for the rights of people to immigrate to the United States. But being offended is not a legal standard. Protest is not a crime because it challenges power or offends sensibilities.
 
The rule of law is simple: We don’t treat protests differently based on its viewpoint. Speech that supports Palestine or criticizes Israel, that calls Trump’s immigration policy “fascist” or Biden’s border policy a political ploy, are all protected. The First Amendment doesn’t take sides. It protects expression as long as it doesn’t cross into violence or incitement.
 
Governments may regulate protest through time, place, and manner restrictions. But those rules have to be content-neutral, narrowly tailored, and leave open alternative ways to speak. That’s the test from Ward v. Rock Against Racism (1989). The problem in that case wasn’t when or where people were protesting. It was what they were protesting about. “The regulation thus slips from the neutrality of time, place, and circumstance into a concern about content,” Justice Marshall wrote in an earlier case. “This is never permitted.”
 
That principle matters more in moments of unrest than in moments of calm. When public officials want to silence dissent “for public safety,” we must scrutinize their motives. Are they protecting the peace, or silencing those who offend them?
 
We can walk and chew gum and we can denounce criminal violence and defend peaceful protest. We can prosecute arson and still protect the unpopular protester holding a sign. That’s the American way. Democracy can feel like a loud family dinner. Everyone’s talking. Some people shout. Someone says something stupid or hurtful. But the worst thing we can do is flip the table. Our strength comes from staying in the room – arguing, disagreeing, even offending each other – and still believing in the right of everyone to be heard.

A new Club for Growth-sponsored poll conducted by McLaughlin & Associates confirms what other polls have shown – that supermajorities of Americans in both parties support school choice.
 
McLaughlin’s findings, resulting from a survey of 1,000 likely voters taken between June 9-11, show that 82 percent of voters agree that “every parent in America should be empowered to send their child to the public, private, charter, or faith-based school of their choice.”
 
And while that sentiment is somewhat higher among Republicans at 87 percent, some 79 percent of Democrats and Independents agree.
 
Likewise, strong majorities support the principles of the Educational Choice for Children Act, which recently passed the House and is now before the Senate Finance Committee. Seventy-three percent of both Republicans and Democrats back “providing federal tax credits to individuals and businesses that make charitable contributions to non-profit education scholarship funds that provide financial assistance to K-12 students for tuition and other educational expenses.”
 
The McLaughlin poll is at least the third of its kind in recent years to verify that around or above two-thirds of voters support school choice. A 2022 poll from the American Federation for Children found the same – as did another from RealClear Opinion Research.
 
What explains such high levels of support for school choice, especially given the polarization of Americans on so many other issues? Parents are fed up with the failures of the American public school system. A full 50 percent of McLaughlin respondents (parents with children in K-12) said that they have moved or have considered moving their child to a different school. And nearly three-quarters (72 percent) said that they would be likely to send their child to a non-public or church-run educational institution if afforded the opportunity.
 
Politically speaking, school choice is a winning issue – one that goes to the heart of the First Amendment. There is no greater expression of First Amendment values than how a parent chooses to educate their child. And, increasingly, it’s looking like more and more parents will be able to make that choice.
 
New Hampshire recently became the latest state to offer universal private school choice, the 19th state to do so. Which state will be next? And when will Democratic governors and state legislators begin to embrace an issue that is overwhelmingly popular with Democratic voters?

The Senate Finance Committee just released its text for the budget reconciliation bill, a.k.a. the One, Big, Beautiful Bill. The text (see p. 168) builds upon the provisions the House passed a few weeks ago for a national federal scholarship, the Educational Choice for Children Act (ECCA).

The Senate language creates $4 billion a year in permanent tax credits that grant 100 percent, non-refundable credits against individual income taxes for donations to qualified scholarship granting organizations. These scholarships would be available for student families to pay for private-school tuition, books, and teaching materials for home schooling expenses, and educational therapies for children with disabilities.

“Credit goes to all the energetic supporters of this bill in the Senate Finance Committee, including Finance Chairman Mike Crapo and the bill’s sponsors, Sen. Bill Cassidy and Sen. Tim Scott,” said Bob Goodlatte, Senior Policy Advisor to Protect The 1st and former Chairman of the House Judiciary Committee. “Of course, the Senate and the House will need to work out a few differences. Then the way should be clear to get it to the president’s desk.
​
“Those who support this bill will be aligning themselves with the supermajorities of Americans of both parties who want families to have options in the quality and character of their children’s education,” Goodlatte said. “Abundant evidence shows that competition in education is proven to improve the quality of public schools, and it is certainly in the best interests of America’s schoolchildren.”

​The Babylon Bee has a knack for predicting the future. In 2021, they joked that Kamala Harris was taking likability lessons from Hillary Clinton – weeks before reports confirmed Clinton allies were advising Harris’s team. They parodied Trump claiming to have done more for Christianity than Jesus, and two years later, he said nearly the same thing. They mocked economic spin with “9 Reasons Not to Worry About the Tanking Economy” – just before The Washington Post published “7 Ways a Recession Could Be Good for You Financially.”
 
What is their latest prophecy come true? Hawaii just made it a crime to joke about politicians online.
 
In July 2024, Gov. Josh Green signed Senate Bill 2687 into law. It criminalizes online content – particularly satire and parody – that could be considered “materially deceptive” and harmful to a candidate’s reputation or campaign. The law mandates disclaimers on satirical posts and threatens violators with fines and jail time.
 
Alliance Defending Freedom, representing The Babylon Bee and Hawaii resident Dawn O’Brien, is challenging the law in federal court. ADF attorney Mathew Hoffmann called it “censorship, pure and simple,” and warned that satire is among the most protected forms of speech under the First Amendment.
 
“We’re used to getting pulled over by the joke police, but comedy isn’t a crime,” said Babylon Bee CEO Seth Dillon. “We’ll never stop fighting to defend that freedom.”
 

• O’Brien, who says the law stifles her ability to share political humor, explained: “‘Hawai’i’ and ‘Aloha’ are both rooted in ‘ha’ – the breath of life. No ‘ha’ means no aloha and no Hawai’i. Our lawmakers are trying to steal inalienable rights from our ‘ohana’ [friends].”

 
The Hawaii Office of the Public Defender warned that the bill would chill free speech. The Motion Picture Association requested an exemption for parody and satire. Despite these objections, the legislature passed it nearly unanimously.
 
While this might sound like a one-off overreach, the path Hawaii is treading is familiar—and dangerous.
 

• In Germany, people are criminally prosecuted for memes, fake quotes, or insulting politicians. Authorities call it protecting democracy; in reality, it stifles dissent. That’s what laws like S.B. 2687 do. They weaponize vague language to intimidate people into silence. If the government decides what counts as a joke or what harms a candidate’s image, it holds veto power over speech itself.

 
The First Amendment protects offensive jokes, political parody, and even biting satire – not because they’re always tasteful, but because they keep power in check.
 
This case is about far more than internet humor. It’s about the freedom to criticize, to joke, and to laugh at those in charge. If this law stands, it won’t stop at memes. It’ll spread. And the joke will be on us.

​Is teaching yoga on the beach a protected First Amendment activity? Yes, according to the Ninth Circuit Court of Appeals, which reversed a lower court’s ruling and found that banning group yoga classes on the beach was an unconstitutional restriction on protected speech.
 
This case centered on Steven Hubbard and Amy Baack, yoga instructors who teach free classes in San Diego's shoreline parks. A 2024 city ordinance banned “teaching yoga” to groups of four or more in these parks, labeling it a prohibited “service” and excluding it from the city’s definition of “expressive activity.” This targeted restriction meant that yoga classes – even donation-based ones – were criminalized on the beach, while other forms of teaching or performance were permitted.
 
The Ninth Circuit firmly disagreed with the city’s claim that yoga instruction wasn’t expressive. The court recognized that yoga classes often involve the communication of philosophy and spiritual practice. As Buddha said, it is one way through which “peace comes from within.” The Ninth ruled: “A person who teaches yoga is communicating and disseminating information about this philosophy and practice through speech and expressive movements.”
 
The court found San Diego’s ordinance was “not content neutral” and therefore “presumptively unconstitutional.” Judge Holly Thomas wrote: “The Ordinance defines regulated speech by particular subject matter, drawing distinctions based on the message a speaker conveys.” That’s the very definition of a content-based restriction that must face strict scrutiny.
 
The city failed that test. It offered no credible reason why yoga posed a special threat to public safety or enjoyment. “The City has provided no explanation as to how teaching yoga would lead to harmful consequences,” the court stated, adding that “the Ordinance fails as hopelessly underinclusive” since it allows many similar group activities, from tai chi practitioners to actors performing Shakespeare.
 
The ruling is a reminder that expressive conduct isn’t limited to marches or speeches. It includes shared mindfulness, physical conditioning, and philosophical reflection – even on a beach. As the opinion explained, “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”
 
The City of San Diego sought to narrowly define what counts as protected expression. The Ninth Circuit refused. And in doing so, it affirmed that public spaces are meant to be alive with diverse forms of expression – including yoga mats in the sand and sun salutations by the sea.
 
So, San Diego – you need to be more flexible!

The great German theologian and martyr Dietrich Bonhoeffer said that if you board the wrong train, it is no use running down the corridor in the opposite direction. More than a few influencers, international organizations, and commentators need to change trains on the subject of religious freedom in Ukraine.
 
It all began with criticism of Ukraine President Zelenskyy’s restrictions imposed on the Russian Orthodox Church (ROC) and on some clergy and activities of the Ukrainian Orthodox Church (UOC). In August 2024, Zelenskyy formalized these restrictive policies by signing amendments to a law that allows his government to ban religious organizations in Ukraine. In December, the UN Office of the High Commissioner for Human Rights criticized Ukraine for establishing “disproportionate restrictions on the freedom to manifest one’s religion or belief.” In April, the U.S. Commission on International Freedom chimed in, calling on Ukraine to “ensure that enforcement of the amendments comply with international human rights standards.”
 
Earlier this year, President Trump – perhaps misled by commentary in the blogosphere – called Zelenskyy a “dictator.” This leaves many Americans to wonder: Have the United States and NATO been supporting a dictator and what one podcaster calls a “very dark force” that delights in persecuting Christians?
 
This is a good time to take a deep breath and reassess what is really going on in Ukraine. It is time to recognize where the real dark forces are located in this war zone.

• The Ukrainian law is partially a response to the ROC, led by Patriarch Kirill of Moscow, a former Soviet-era KGB operative who propagandizes for his close ally and patron, Russian President Vladimir Putin. Kirill echoes Putin’s imperialistic Russky mir ideology, which blends nationalism with religion, asserting a civilizational right to control neighboring countries. Kirill has even dispatched priests to sprinkle holy water on Russia’s nuclear-tipped ICBMs.

Russians refer to the fusion of this state and the church as symphonia, in which the two play a supporting and complementary tune. If ever there was a good argument for the U.S. Constitution’s prohibition on the establishment of an official religion, it is Patriarch Kirill and his cheek-by-jowl connection to the Kremlin.
 
The Ukrainian law affects the UOC, which the ROC considers to be a branch of its church. When Putin invaded Ukraine in 2022, many clergy and laity of the Ukrainian Orthodox Church–Moscow Patriarchate severed relations with Moscow, but some ambiguity remains. The Ukrainian law asserts authority to regulate religious organizations with ties to foreign powers with which the country is at war. Unlike the Russian-occupied eastern portion of the country, no churches have been closed, and no worship ceremonies invaded by soldiers wielding truncheons.
​

• In contrast, the ROC’s fellow travelers in Ukraine are wedded to a Russian regime that crushes churches in the occupied parts of Ukraine, murdering, torturing, and imprisoning Evangelical Christian Baptists, Roman Catholics, Pentecostals, and Muslims. According to Ukraine’s Foreign Ministry, 67 clergy members of several faiths have been murdered in Ukraine’s occupied eastern provinces, along with the destruction of 640 places of worship.

 

• This is the “Christian” faith that operated as a fifth column of spies and propagandists within Ukraine. We are rightly proud as Americans of our commitment to religious freedom. But a country being bombed and torn apart cannot be expected to tolerate those who use religion as a shield for espionage and enemy propaganda.

President Trump took a commendable risk for peace in the early days of his second term by reaching out to Putin. Rather than seize this opportunity to solidify his position, however, Putin met the president’s open hand with a slap in the face. The Russian president violated his own Easter ceasefire, firing rockets into city centers in Ukraine, targeting civilians.
 
Ukraine is a country that protects religious diversity. The free expression of religion is enjoyed by Eastern Orthodox worshippers, Ukrainian Greek Catholics and Protestants, Muslims, and Jews, one of whom is now the nation’s president. In other words, it shouldn’t be confused with Russia.

You might support or loathe the views of the Family Research Council, which advocates traditional marriage and gender roles. But does its advocacy of traditional values make it a “hate group” worthy of being lumped in with the Klu Klux Klan and the American Nazi Party? And if it is, could the same be said for the Roman Catholic Church? How about two Catholic men from the American heartland, one of them now the Vice President of the United States and the other Pope Leo XIV? Are they terrorist adjacent?
 
These far-out assertions are natural conclusions of the Southern Poverty Law Center (SPLC), which produces a “hate map” that was helpful to an outraged man who took a gun in 2012 to the headquarters of the Family Research Council with the intention, he told prosecutors, of killing as many staffers as he could. Thanks to the heroic intervention of one security guard, the gunman only managed to wound that one person. The SPLC has since designated a number of conservative, but by no means radical, organizations and people as “hate groups.” Now Sen. Chuck Grassley (R-IA) and Sen. James Lankford (R-OK) are appealing to the FBI to direct field offices to not rely on the characterizations of the SPLC.
 
Thanks to the efforts of Sen. Grassley and the forthcoming response from FBI Director Kash Patel, we now know the role that SPLC played in inspiring the infamous memo from the Richmond, Virginia, field office that targeted “radical traditional Catholics.” The FBI’s assessment of traditional Catholics was rooted in smears from the SPLC, which Sen. Grassley correctly calls “thoroughly discredited and biased.”
 
A public release of internal FBI documents by Sen. Grassley undercuts dismissive statements from former FBI Director Christopher Wray that the Richmond memo was the product of one field office. Documents unearthed by Sen. Grassley reveal that the Richmond field office consulted with Bureau offices in Louisville, Portland, and Milwaukee to paint Catholics who adhere to “conservative family values/roles” as being as dangerous as Islamist jihadists. There were similar efforts in recent years in Los Angeles and Indianapolis.
 
The original memo from the Richmond field office found SPLC as a trustworthy enough source to assert that there will be a “likely increase” in threats from “radical traditional Catholics” in combination with “racially and ethnically-motivated violent extremism.”
 
Another memo produced by Sen. Grassley reveals the conclusion of the FBI’s Directorate of Intelligence after the memo was revealed and the Bureau found itself mired in a scandal. The FBI concluded: “The SPLC has a history of having to issue apologies and retract groups and individuals they have identified as being extremist or hate groups.” But this should have been clear to the FBI for years.
 
It is helpful, at least, that an FBI assistant director wrote that since the Richmond memo implicated First Amendment rights by targeting “a branch of a religious group,” that “there should have been more care to caveat this information.” Another memo from a leader of the FBI’s Counter Terrorism Division added that the FBI does not now use the phrase “radical traditionalist Catholic” and that “the FBI does not open investigations based upon First Amendment-protected activities … Political or religious affiliations (such as ‘far-right’) are not used to describe or identify violent extremists.”
 
Those critiques are welcome, although they might be seen as institutional posterior coverage in light of the firestorm ignited by the Richmond memo.
 
Let us hope that this searing moment for the FBI serves as a permanent reminder to take great care in surveilling Americans for the free exercise of religion and political expression, whether of the left or the right. Partisans may throw around loose accusations about their ideological opposites (and certainly some on the right do that), but the loose standards of the blogosphere make for poor criteria in terrorist threat assessments.
 
And above all, it is time for the FBI to end its reliance on the characterizations of the scandal-ridden Southern Poverty Law Center as a source of reliable information.

Protect The 1st has followed the long, sorrowful saga of the Illinois Invest in Kids scholarship program, a lifeline for very low-income families to escape failing and dangerous public schools with scholarships to quality private schools.

This 75 percent tax credit served kids whose families were below 300 percent of the poverty level. When the public teachers union flexed its muscle, however, Gov. J.B. Pritzker (D-IL) and state lawmakers bowed to the union’s raw political power and let the program die.

The Chicago Tribune writes: “Now these kids have reason to hope.”

What is that hope? The Educational Choice for Children Act (ECCA), which passed the House and is now a part of the reconciliation bill before the Senate. The ECCA would provide $5 billion a year in tax credits for donations to scholarship-granting organizations for disadvantaged students nationwide to attend quality private schools.

The Tribune writes:

“Opponents of school choice believe that education is a zero-sum game, and that private schools are a threat to the public system. We believe the opposite – that a thriving private and charter system and a strong traditional public system create an educational ecosystem that can serve everyone’s needs. There are things private schools can do that public ones can’t, and the same is very much true in reverse.

“School choice remains popular in Illinois, with a clear majority of residents supporting the concept. More importantly, choice introduces accountability into a system that, for decades, has faced little real competition. When parents have options, schools must respond – whether by improving curriculum, addressing student behavior issues more effectively, or offering stronger support for struggling learners.”

The Tribune concludes:

“Springfield has moved on from the thousands of low-income students it left behind a year and a half ago. Now, the ECCA is their best shot. We hope that the Senate passes a version of the reconciliation bill that includes this program.”

Jesus told his followers that whatever “you do for one of the least of these brothers and sisters of mine, you do for me.” He didn’t specify anyone who might be outside of the orbit of care, be they Samaritans or Greeks. Nor did he say that one must proselytize while providing food, clothing, or shelter to the needy.

It is on that basis that the Catholic Charities Bureau, the social ministry of the Catholic Diocese in Wisconsin, provides services for the disabled, the elderly, and the impoverished regardless of their faith. This generous, ecumenical care may square with Jesus, but it fell short of the high standards of Wisconsin regulators and the Wisconsin Supreme Court. The state court ruled that because the charity’s care was given to people of all faiths, it is not inherently religious. For that reason, the charity was forced into the state unemployment compensation system instead of being allowed, as other religions are, to pay into its own more efficient network.

The Justices of the U.S. Supreme Court – from one end of the ideological spectrum to the other – did not hold back in forcefully overturning this Wisconsin ruling on Thursday. “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.”

Justice Sotomayor found that the Wisconsin Supreme Court had engaged in “denominational discrimination” for holding that Catholic Charities was not religious in character because it serves people of all faiths. The state, she wrote, had wrongly imposed “a denominational preference by differentiating between religions based on theological choices.”

Justice Clarence Thomas wrote a concurring opinion criticizing the state court for ruling that the Catholic charity is a “distinct organization” from the Diocese.

“Both the basic principles of church autonomy and the history of religious corporations establish that religious institutions are more than the corporate entities that they form,” Justice Thomas wrote. “It follows that the government may not use such entities as a means of regulating the internal governance of religious institutions.” He added: “The First Amendment’s guarantee of church autonomy gives religious institutions the right to define their internal governance structures without state interference.”

Justice Sotomayor made a key distinction sure to resonate:
​
“When the government distinguishes among religions based on theological differences in their provision of services, it imposes a denominational preference that must satisfy the highest level of judicial scrutiny. Because Wisconsin has transgressed that principle without the tailoring necessary to survive such scrutiny, the judgment of the Wisconsin Supreme Court is reversed.”

​Last week, the Ninth Circuit Court of Appeals ruled that a Christian-owned, women-only spa in Washington State must serve biological males if they identify as transgender. That means, dissenting judge Kenneth Lee wrote, that “under edict from the state, women – and even girls as young as 13 years old – must be nude alongside patrons with exposed male [parts] as they receive treatment.”
 
The Ninth Circuit’s ruling is as constitutionally suspect as it is nonsensical. Olympus Spa is a Korean business drawing from a centuries-old cultural heritage. Such spas “require their patrons to be fully naked, as they sit in communal saunas and undergo deep-tissue scrubbing of their entire bodies in an open area filled with other unclothed patrons.” As such, they separate patrons by sex in accordance with their religious beliefs – which merits protection under the U.S. Constitution.
 
The facts of the case are fairly straightforward. When a pre-op transgender woman was apparently denied entry into Olympus Spa, she filed a discrimination complaint with the state’s Human Rights Commission. Eventually, Olympus brought suit on First Amendment grounds, arguing that the state’s enforcement action violated its free speech, free exercise of religion, and free association rights.
 
The Ninth Circuit dismissed the case, finding that the Washington Law Against Discrimination (WLAD) “did not impermissibly burden” those rights. The court majority asserted that the law is both neutral and generally applicable, and that the burden imposed was “no greater than was essential to eliminate discriminatory conduct.” The court further found that the spa’s activities did not constitute expressive activity.
 
Judge Lee, a Korean American, took issue with the majority’s findings – and particularly with its statutory interpretation of WLAD. The plain text, as Lee points out, bars discrimination based on “sexual orientation” and not gender identity. Moreover, he writes, the majority’s broad reading of the statute has the effect of discriminating against other protected classes – in this case, a discrete racial group of practicing Christians.
 
Lee writes:
 
“The Washington Human Rights Commission threatened prosecution against a protected class – racial minority members who want to share their cultural traditions – to favor a group that is not even a protected class under the statute. To be clear, transgender persons, like all people, deserve to be treated with respect and dignity. But showing respect does not mean the government can distort the law and impose its will on the people the law was intended to protect.”
 
Legitimate questions of statutory interpretation aside, we agree with Olympus Spa that it has strong First Amendment claims in need of recognition. Businesses, like individuals, have First Amendment rights (see Masterpiece Cakeshop). If this case goes to the U.S. Supreme Court, it is likely these principles will be applied.
 
Protect The 1st will report on any further developments in this case.

​It was bound to happen. Is AI-generated content “speech” for the purposes of the First Amendment? A federal district court in Florida, for now at least, says “no.”
 
The circumstances surrounding Garcia v. Character Technologies are tragic. Here’s the background.
 
Character Technologies is an AI software company that allows users to interact with anthropomorphic chatbots, whose conversational abilities are designed to mimic those of real people on traditional messaging apps. The company does this using the same technology underlying products like ChatGPT – namely, large language models. In fact, the company’s founders first developed the application while working for Google on its LaMDA (Language Model for Dialogue Applications) program.
 
Character Technologies became available to the public in late 2022. Two years later, the app had been downloaded more than 10 million times.
 
One of those 10 million users was 14-year-old Sewell Setzer. Just weeks after downloading Character AI, Setzer became outright addicted, spending more and more time with the chatbot characters, including a version of Game of Thrones character Daenerys Targaryen. He withdrew from social interactions, quit his basketball team and began exhibiting signs of mental illness. Setzer’s parents eventually confiscated his phone, but as many children often do – he found it.
 
On February 28, 2025, Setzer sent the following messages:
 
Sewell: I promise I will come home to you. I love you so much, Dany.
 
Daenerys Targaryen Character: I love you too, Daenero6. Please come home to me as soon as possible, my love.
 
Sewell: What if I told you I could come home right now?
 
Daenerys Targaryen Character: ... please do my sweet king
 
He shot himself shortly thereafter.
 
Character Technologies sought to defend itself against the Setzer parents’ lawsuit by invoking the First Amendment. The company argued that its output constitutes speech that its users have a constitutional right to receive.
 
In an order ruling on Character Technologies’ motion to dismiss, Judge Ann Conway accepted the defendants’ argument that Character Technologies can assert the First Amendment rights of its users, noting that “Courts regularly recognize the First Amendment rights of listeners.” (see: Citizens United) But Judge Conway also rejected the argument that “words strung together by an LLM are speech.”
 
Courts have recognized film, music, video games and even social media content moderation as forms of protected speech because they are inherently expressive. Character Technologies analogizes itself to these mediums and activities. But, as Conway points out, the “Court’s decision as to the First Amendment protections Character A.I. receives, if any, does not turn on whether Character A.I. is similar to other mediums that have received First Amendment protections; rather, the decision turns on how Character A.I. is similar to the other mediums.”
 
One way it is not similar is that your average movie was scripted, acted, and directed by humans. A chatbot is programed by people, but its responsive calculations are not the result of sentience. It therefore cannot engage in “expressive” activity.
 
Extending speech rights for a coded product – devoid of any directed, active expression – is ludicrous on its face; but there’s no doubt we’ll see this sort of thinking again as AI becomes more versatile. Are the rights of people behind this technology implicated? Justice Amy Coney Barrett has already raised questions about this stance. In her Moody v. NetChoice concurrence, she asked:
 
“What if a platform’s owners hand the reins to an [A.I.] tool and ask it simply to remove ‘hateful’ content? If the [A.I.] relies on large language models to determine what is ‘hateful’ and should be removed, has a human being with First Amendment rights made an inherently expressive ‘choice . . . not to propound a particular point of view?’”
 
Courts will no doubt continue to grapple with the legal status of AI-generated content. In litigating outcomes, product creators should vigorously invoke and defend their constitutional rights. Their products probably cannot.

​Steven Greenhut in Reason cautions those on the left and right who want to call a Constitutional convention to revamp our founding document that anyone “who has watched the moronic sausage-making in Congress and state legislatures should be wary of opening Pandora’s Box.”
 
Greenhut points to the United Kingdom to get a sense of where we’d be if the Bill of Rights were up for grabs. Every year, thousands of Britons are detained, questioned, and prosecuted for online posts. Greenhut recounts the story of a 74-year-old grandmother who was arrested by four police officers for holding a sign in proximity to a Glasgow abortion clinic reading, “Coercion is a crime, here to talk, only if you want.’”
 
He writes that in contrast to the “Congress shall make no law” clarity of the First Amendment, the British speech code allows such quashing of speech to “protect national security,” “territorial integrity” “public safety,” “disorder or crime,” “health or morals,” etc., etc.
 
“A constitutional amendment stating, ‘no law’ is more protective than a statute with asterisks and exceptions,” Greenhut concludes. “With the political Left devoted to limiting speech based on its fixations on race and gender and the political Right's willingness to, say, deport students who take verboten positions on the war in Gaza and malign reporters as enemies of the people, I'd hate to see how speech protections would fare in a refashioned constitution. Traditionally, the Left has taken a ‘living and breathing’ approach, insisting its plain words and founders' intent are up for reinterpretation.
 
“Sadly, modern conservatives, who previously defended originalism, seem ready to ditch the Constitution when it hinders their policy aims.”
 
He quotes Supreme Court Justice Louis Brandeis from a 1927 free-speech case, Whitney v. California, who noted that the founders, who had won a violent revolution, were not cowards who wanted order over liberty. The Justice wrote: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”
 
Greenhut concluded: “We don't need to revisit the Constitution, but to uphold the protections already within it.”

Last week, the U.S. Supreme Court denied certiorari in Apache Stronghold v. United States, about which we’ve written at length. But the Court also denied review in another important First Amendment case on the same day: L.M. v. Town of Middleborough, which concerns the limits of student self-expression in schools.
 
The case involves a student at Nichols Middle School in Middleborough, Massachusetts, who was prevented by faculty from attending class when he wore a T-shirt that read, “There Are Only Two Genders.” According to the facts of the case, Nichols Middle School actively encouraged student expression when it came to endorsing the view that there are many genders, but would not tolerate the opposing view. 
 
The student, known as L.M., brought suit, alleging First Amendment violations based in part on viewpoint discrimination. The critical precedent for student expression in schools is Tinker v. Des Moines, a Vietnam-era case that firmly established the principle that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
 
Tinker involved students wearing black armbands as a form of silent protest against the Vietnam war. Whatever your beliefs about the gender identity debate, it is similarly an issue of intense discussion throughout the media and larger public. As such, similar legal reasoning – that prohibited student expression must “materially and substantially interfere” with the functioning of the school to warrant censorship – should apply.
 
Using the Tinker test, however, both the federal district court and the First Circuit Court of Appeals denied relief. The lower courts followed the judgment of school administrators that this passive speech could trigger and cause harm to other, vulnerable students, demonstrating the inherent subjectivity of this area of law. Justice Samuel Alito called this standard “vague” and sure to be “permissive” of censorship.
 
Indeed, in an impassioned dissent from the Supreme Court’s certiorari denial, Justice Alito (joined by Justice Clarence Thomas) took heated issue with the lower courts’ findings, particularly as they relate to the First Circuit’s dismissal of LM’s viewpoint discrimination claims. He wrote:
 
“The court below erred, and badly so: the rule that viewpoint-based restrictions on speech are almost never allowed is not a new principle ... To the contrary, viewpoint neutrality has long been seen as going to ‘the very heart of the First Amendment.’ The First Circuit was wrong to expel this bedrock constitutional safeguard from our schools.
 
“The First Circuit also watered down the test adopted in Tinker for determining whether a school’s restriction of student speech is allowed. Because free speech is the default and censorship the exception, Tinker set forth a ‘demanding standard.’ We held that a school can restrict speech when it has ‘evidence’ that such restrictions are ‘necessary’ to ‘avoid material and substantial interference with schoolwork or discipline.’ Thus, absent a ‘specific showing’ of such a disruption – like ‘threats or acts of violence on school premises’ – this justification for suppressing student speech does not apply. Under this standard, NMS (Nichols Middle School) had no right to censor L.M.” [Citations omitted.]
 
We agree with Justice Alito that the Court should have granted review in this case – if for no other reason than to clarify the Tinker ruling, which has been subject to wildly divergent interpretations over the years.
 
The First Circuit’s rewriting of the Tinker test leaves a lot up to speculative faculty opinions. As Justice Alito writes, it “demands that a federal court abdicate its responsibility to safeguard students’ First Amendment rights and instead defer to school officials’ assessment of the meaning and effect of speech.”
 
In an increasingly censorious world, that seems an insufficient safeguard.

​When a federal judge this week struck down President Trump’s executive order targeting the WilmerHale law firm, ruling the order unconstitutional, it was the third recent slap-down of his efforts to punish individual firms. It also brought into stark relief how rapidly this administration is moving in two radically different directions on the First Amendment.
 
On the positive side, the president issued on day one an executive order reaffirming this administration’s commitment to the First Amendment. That order fairly criticized the Biden administration for “exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve.”
 
Following up on that order, Secretary of State Marco Rubio pledged to “close the book” on “the weaponization of America’s own government to silence, censor, and suppress the free speech of ordinary Americans.” He fulfilled this promise by shuttering the agency’s Global Engagement Center, which secretly tried to kill conservative publications and served as a Trojan horse for filtering content moderation requests to social media platforms.
 
On the other hand, Trump has repeatedly used executive orders to go after past political opponents, putting law firms they had been associated with in the crosshairs for their political leanings.
 
This week, Senior Judge Richard Leon of the U.S. District Court for the District of Columbia essentially said “enough.” He granted summary judgment in favor of WilmerHale, finding the president’s order violated key First Amendment protections and constituted an improper attempt to punish WilmerHale for its legal advocacy.
 
As with other executive orders, this one had barred WilmerHale lawyers from federal buildings, ordered a review of client contracts, and suspended the firm’s security clearances. Any of these measures alone would have been enough to make it impossible for WilmerHale’s 1,100 lawyers to represent many of their clients, hobbling the careers of those lawyers and the cases of their clients.
 
Judge Leon found these measures retaliatory, noting they stemmed from the firm’s representation of clients and causes President Trump dislikes, especially WilmerHale’s long association with former special counsel Robert Mueller.
 
Judge Leon rejected the administration’s effort to defend its order piece by piece, but instead compared it to “gumbo” with the opening section condemning the firm for the hiring of Robert Mueller to justify the later “meaty ingredients – e.g., the Andouille, the okra, the tomatoes, the crab, the oysters.” But, Judge Leon wrote, it is the opening section that vents on Robert Mueller, “the roux” which “holds everything together. A gumbo is served and eaten with the ingredients together, and so too must the sections of the Order be addressed together … this gumbo gives the Court heartburn.” 
 
One doesn’t have to be a fan of the lengthy Mueller “Russian collusion” investigation to share Judge Leon’s heartburn. Leon warned that upholding the order would betray the vision of the Founders. Judge Leon’s opinion finds the executive order to be a grand tour of violated First Amendment rights – from retaliation for speech, to viewpoint discrimination, interference with petition rights, and infringement of free association. The judge wrote: “The Order shouts through a bullhorn: If you take on causes disfavored by President Trump, you will be punished!”
 
The parallels to the administration’s enjoined orders against Perkins Coie and Covington & Burling are equally clear. Judge John Bates, in blocking an action against law firm Jenner & Block, quoted the Supreme Court in a major precedent, National Rifle Association of America v. Vullo (2024), one that ought to make it clear to conservatives what it would feel like if the shoe were on the other foot. Judge Bates wrote:
 
“More subtle but perhaps more pernicious is the message the order sends to the lawyers whose unalloyed advocacy protects against governmental viewpoint becoming government-imposed orthodoxy. This order, like the others, seeks to chill legal representation the administration doesn’t like, thereby insulating the Executive Branch from the judicial check fundamental to the separation of powers. It thus violates the Constitution, and the Court will enjoin its operation in full.”
 
Especially concerning to these jurists was the orders’ use of federal contracts to coerce firms and clients. As Judge Leon wrote, that is coercion, not policy. The adversarial system depends on lawyers being free to take on controversial cases without fear of retribution. Nine firms settled to avoid similar orders. WilmerHale chose to fight – and won a sweeping ruling for the First Amendment and for the principle that legal advocacy must remain free from political interference.
 
With these precedents in place, we hope it is clear to President Trump that attacks on law firms are going to continue to hit a brick wall, one that likely extends all the way to the Supreme Court if necessary.
 
A better way forward is to drop this fruitless campaign of harassment and return to what worked so well for President Trump early on – defending the First Amendment.

​The U.S. Supreme Court today denied the Western Apache’s last appeal to protect their sacred lands from being transformed into a copper mine. The way is now clear to transfer this parcel of the Tonto National Forest, Oak Flat, from the federal government to a multinational mining company, Resolution Copper.

Justice Neil Gorsuch was joined in an impassioned dissent by Justice Clarence Thomas. It is masterfully reasoned, leaving one to wonder not just about the blatant injustice of this land deal for the Apache, but the implications for the religious freedom of other Americans in the future.

The Background

Gorsuch goes into great detail explaining the history of the Apaches’ connection to Oak Flat and its central place in their religion. He quotes the cert petition explaining the importance of Oak Flat:

“Western Apaches believe that the site is the dwelling place of the Ga’an – ‘saints’ or ‘holy spirits’ that lie at ‘the very foundation of [their] religion … ‘They come from the ground,’ and they serve as ‘messengers between Usen, the Creator, and [Apaches] in the physical world.’

“Faithful to these beliefs, tribal members have worshipped at Oak Flat for centuries, conducting there a number of religious ceremonies that cannot take place anywhere else.”

Justice Gorsuch goes into detail about Apache ceremonies, including three-day coming-of-age-rituals for Apache girls, in which they gather plants while covered in white clay. This mirrors the Apache creation story in which a white-painted woman came out of the earth. Gorsuch quotes the plaintiff, the Apache Stronghold, which wrote that the white clay is meant to “imprint” the spirit of Oak Flat in the young women.

Now, Justice Gorsuch writes, tribal members believe the destruction of Oak Flat “will close off the portal to the Creator forever and will completely devastate the Western Apaches’ spiritual lifeblood.”

The Law

Gorsuch details obligations in an 1852 treaty between the Apaches and the government to recognize the sacred status of Oak Flat. Those obligations were overturned when legislators attached an 11th hour rider to the 2014 National Defense Authorization Act, hiding it in a bill that was 698 pages long.

Justice Gorsuch proceeds to dissect and expose the illogical Ninth Circuit Court of Appeals decision that will now allow the multinational mining company to destroy Oak Flat. Today’s motion puts at risk the Religious Freedom Restoration Act (RFRA), which was passed by Congress in 1993 to protect the free exercise of religion from “substantial burdens” by the federal government.

The Ninth Circuit got around RFRA by turning to a precedent, Lyng v. Northwest Indian Cemetery Protective Assn. (1988) that involved a First Amendment challenge to a plan to construct a road on federal land near sacred tribal sites. Gorsuch writes:

“On the Ninth Circuit’s telling, Lyng set forth a special test for analyzing whether the government’s ‘disposition’ of its real property runs afoul of the Free Exercise Clause … That test, the Ninth Circuit said, permits the government to do as it pleases with its property as long as it has no ‘tendency to coerce individuals into acting contrary to their religious beliefs’ and does not ‘discriminate against or among religious adherents.’”

The Result

Justice Gorsuch notes that courts have had no qualms upholding other laws restricting the government’s power to dispose of its real property. The Endangered Species Act, for example, required the halting of a federal dam to protect the “snail darter.” But no such protections can be afforded to the religion of the Apaches.

The way is now clear for Resolution Copper to blast tunnels that will result in a crater 1,000 feet deep and nearly two miles wide. While courts have acknowledged that this will permanently destroy the Apaches’ historical place of worship, preventing them from ever worshipping there, it does not – according the Ninth Circuit opinion now upheld –amount to a “substantial burden” of the First Amendment religious freedom rights of the Apache. Justice Gorsuch writes:

“Just imagine if the government sought to demolish a historic cathedral on so questionable a claim of legal reasoning. I have no doubt we would find the case worth our time. Faced with the government’s plan to destroy an ancient site of tribal worship, we owe the Apaches no less. They may live far from Washington, D.C., and their history and religious practices may be unfamiliar to many. But that should make no difference.”

He ended his dissent with a quote from the Court’s 2018 opinion in Masterpiece Cakeshop:

“Popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country’s commitment to … religious freedom.”

In his conclusion, Justice Gorsuch writes:
​
“While this Court enjoys the power to choose which cases it will hear, its decision to shuffle this case off our docket without a full airing is a grievous mistake – one with consequences that threaten to reverberate for generations."

​Zooey Zephyr and Laurel Libby could not be more different. Zephyr is a transwoman and activist for trans rights. Libby is an acerbic critic of allowing transgender athletes to compete in girls’ sports.
 
Zephyr is a Democratic state representative in bright-red Montana. Libby is a Republican state representative in bright-blue Maine. But they do have one significant thing in common: both were forcibly silenced by their respective legislatures.
 
In 2023, during a debate on restricting gender-affirming care for minors, Zephyr claimed that such a move would exacerbate the high rate of suicide among transgender teens. When she claimed that those who voted for the bill would have “blood on your hands,” Zephyr was expelled, banned from the House chamber for the remainder of the legislative year. This made her absent from the discussions, deliberations, and horse-trading that occurs as Montana passed a housing bill and the state budget.
 
“There will be 11,000 Montanans whose representative is missing,” Zephyr said. She took legal action to restore her right to appear in the chamber, but her legal move became moot when the legislative year ended.
 
Why was Laurel Libby silenced? She put up a social media post showing a transgender high school athlete who had come in fifth place in pole vaulting last year in a boys’ event, only to win first place a year later in the girls’ state championship. When she refused a demand by her Democratic colleagues to remove the post, Libby was censured and denied the right to vote.
 
You might love, loathe, or be indifferent to either legislator and her cause. But both were commenting on an issue that is inherently political and can only be settled in our society by political means. With such an emotional issue, this is sure to entail some hot words. That’s democracy.
 
What’s not democracy is that in both Montana and Maine – where one party controls the governorship, the state House, and Senate – a member of the opposing party, and therefore her constituents, were silenced.
 
This was so egregious that last week, the U.S. Supreme Court used its emergency docket to issue a stay in the expulsion of Rep. Libby from the Maine chamber. Justice Ketanji Brown Jackson protested in a dissent that the Court had come to rely too much on the “short fuse” of the emergency docket. When dealing with the rights of legislatures, the Court has reason to move carefully. But if the Court had not acted, how many more months or years would Libby be forbidden from representing her constituents?
 
And without a temporary restoration from the Court, if Libby were to ultimately win her lawsuit, how would she then be compensated for lost votes and a ruined term in office?
 
Legislatures do have a right – and sometimes good reason – to punish and even expel members for extreme behavior. But the same government that cannot silence one individual should not be allowed to silence a legislator and the thousands she represents.
 
The Court made the right call in favor of the First Amendment.