​Last week, Miami Beach Mayor Steven Meiner threatened to terminate a lease agreement between the city and an art house film cinema after it screened the pro-Palestine film, No Other Land (which recently won the Oscar for best documentary).
 
In a newsletter to city residents, Meiner said, "I am a staunch believer in free speech. But normalizing hate and then disseminating antisemitism in a facility owned by the taxpayers of Miami Beach … is unjust to the values of our city and residents and should not be tolerated."
 
Meiner introduced a resolution before the city council to cancel the lease for O Cinema, which rents space from the city, and also terminate roughly $80,000 in grant funding that the city agreed to give the theater. The mayor pulled the resolution when only one commissioner supported it, and five opposed it.
 
We congratulate the mayor and the council for ultimately making the right call.
 
Regardless of whether No Other Land constitutes antisemitism (the film depicts the Palestinian experience in the occupied West Bank), Meiner’s stated intentions run directly into the First Amendment’s prohibition on “Congress shall make no law … abridging the freedom of speech.” Supreme Court opinions have long held that the First Amendment applies to government at all levels – federal agencies, states, and yes, city governments.
 
But what happens when government subsidizes speech, as Miami Beach does with its grant to the theater? Government subsidies often lead to the inevitable temptation toward viewpoint discrimination. The issue of restrictions on government-paid speech is one of the thorniest – and most poorly adjudicated issues in First Amendment jurisprudence.

Generally speaking, the government is permitted to “speak for itself” without necessarily being required to do so neutrally. In Rust v. Sullivan, for example, the U.S. Supreme Court held that the government could fund family planning programs while also prohibiting providers from discussing abortions. By contrast, in Legal Services Corp. v. Velasquez, the Court said a government program funding legal representation for indigent parties could not prohibit lawyers from helping those parties challenge welfare laws.
 
Amid these divergent cases, another one seems more on point than others. In Rosenberger v. Rector and Visitors of Univ. of Va, the Court distinguished between government speech and instances in which the government “does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers.”
 
In other words, when the government acts as patron, it may not prefer one lawfully stated view over another. That would seem to be the case here.
 
Initially, O Cinema CEO Vivian Marthell agree to cancel screenings of the film, noting “concerns of antisemitic rhetoric.” She later changed her mind, and it’s a decision which – agree or disagree with it – we support her right to make. ACLU of Florida legal director Daniel Tilley said, "The government does not get to pick and choose which viewpoints the public is allowed to hear, however controversial some might find them.”
 
That’s correct, but the issue of government speech remains tricky, as is the corollary issue of government subsidies for speech. It would help to get additional clarity on such cases in the future. One thing is clear – the best way to oppose a view you dislike is to speak out, not sue.

​Today, the Lone Star State is poised to embrace universal school choice. Is that a good idea?
 
With debate in Austin now underway, Texas legislators – who serve the nation’s second most populous state – might look to the third most populous state for answers to that question.
 
In 2023 Florida Gov. Ron DeSantis signed House Bill HB1, which established universal school choice. Today, Florida has more than 524,000 children participating in Florida’s school choice scholarship program for private school or home schooling. Florida also supports the expansion of charter schools, now enrolling more than 400,000 Florida youth.
 
Protect The 1st supports the school choice movement’s rapid expansion rolling across the states. We do so because we believe this policy gives parents something precious – the ability to choose schools that allow them to express their values across generations. Thus choice enhances the ultimate protection of free expression, as guaranteed by the First Amendment. We also hope it will return American school children to a solid appreciation of American history and civics – lessons lacking today in many public schools – that are essential to a healthy First Amendment society.
 
But none of this matters if – as we’ve asked before – school choice doesn’t work. Does it actually improve educational outcomes?
 
Gov. DeSantis writes in Wednesday’s Wall Street Journal that charter school students, a population that is majority low-income, perform above their peers in traditional school districts. The return of core principles in teaching math, science, history, and reading has allowed the Sunshine State to see marked improvement in test scores, so much so that The U.S. News & World Report ranks Florida first in the nation in education among the states for the past two years.
 
That’s something to emulate as well as celebrate. Tennessee and Wyoming recently joined the universal school choice club. With the addition of Texas, the school choice movement should be well on its way to becoming a nationwide policy.

​We recently reported on the results of a Becket Fund for Religious Liberty survey, the Religious Freedom Index finding that 75 percent of Americans accept and support the freedom for people to choose (or not choose) a religion – up nearly 20 points since 2020. Now the Pew Research Center’s recently released Religious Landscape Study, raises a few red flags about the future of continued support for the free exercise of religion in America.  

While Pew’s findings are something of a mixed bag for the prospect of religious affiliation, Protect The 1st is concerned with the implications of declining religiosity for the protections of the First Amendment. When fewer people value faith, the less likely it becomes that our country will steadfastly honor expressions of religious beliefs in accordance with the Constitution. In fact, as religious adherents become a minority, the more vital it becomes that we protect them and their activities.

First, here are some top-line findings from Pew, many of which religious people may find somewhat reassuring:

• Following years of decline, the number of Americans identifying as Christian is around 62 percent. The figure constitutes a marked decrease from the first such study concerning the nation’s majority religion. In 2007, 78 percent of Americans viewed themselves as Christian.

 

• At the same time, over the last five years, “the Christian share of the adult population has been relatively stable,” oscillating between 60 percent and 64 percent. The latest figure falls squarely in the middle of that range.

 

• Spiritual beliefs are far more common, with 86 percent of respondents affirming belief in a soul and 83 percent of respondents attesting to a faith in God or in a “universal spirit.”

Now for the red flags – despite indicators suggesting a stabilization in patterns of religious affiliation, Pew’s findings suggest a real possibility of continued declines over the coming years because young people are significantly less likely to be religious than older generations. According to the survey, only 46 percent of respondents in the 18-24 demographic identify as Christian versus 80 percent of adults in the 74+ demographic.

“Generational replacement,” the study notes, could have the effect of upending recent stabilization patterns.  

Pew’s survey surprisingly found that more than one-half of Americans believe religion either does more harm than good, or only does good and harm in equal amounts. Only 44 percent believed it was a clear force for good – no doubt a deep decline in historical terms. A whopping 83 percent of religiously unaffiliated people say that religion does at least as much harm as good. Pew’s study further provides that “[c]ompared with 2014, Americans now express less positive views of churches and other religious organizations.”

These are trends that could inspire infringements on the free exercise of religion. As public perceptions of religious organizations worsen, these perceptions create an unfavorable environment for religious expression of all sorts – even if religious organizations ultimately prevail against legal challenges in court.

For those of us who defend the free exercise of religion – the right to practice any religion or hold no religion at all – it seems clear that we must navigate a complex landscape with growing cultural antipathy towards religious institutions. This makes it more important than ever that we continue to honor our foundational precepts by educating people about the Bill of Rights and opposing those who would use state power to scale those rights back.
​
The Supreme Court of the United States will soon hear Mahmoud v. Taylor, a case that concerns the rights of parents in Montgomery County, Maryland, to opt their children out of teachings about sexuality contrary to their religion. The Court is also still considering whether to take up the case of Apache Stronghold v. United States, which seeks protection for the long-recognized sacred site of the Apaches in Arizona, whose very existence is under threat by a mining project that would obliterate this site.
 
We hope these and other cases will be resolved in favor of the First Amendment. In the meantime, Protect The 1st will keep following the trend lines, while continuing to unwaveringly advocate for the future of free exercise.

​In 1927, Supreme Court Justice Louis Brandeis wrote that the best remedy for “falsehood and fallacies,” besides education, “is more speech, not enforced silence.”
 
Almost a century later, enforced silence became the favored solution of government censors, from the FBI to the State Department, who secretly jawboned social media platforms to remove posts the government believed to be disinformation from Russia, misinformation, or dangerous information. As Mark Zuckerberg made clear in his recent interview with Joe Rogan, when a highly regulated industry gets angry calls demanding removal of content from the government, it is not taken as a gentle suggestion. Thus for several years threads of the national discussion were quietly pulled, with millions of social media consumers none the wiser.
 
That era is now over.
 
President Trump’s executive order forbidding censorship and the shuttering of government agencies, like the State Department’s infamous Global Engagement Center, prevent a restart of the government censorship regime, at least for the foreseeable future.
 
But the complex problems of content moderation still remain. The First Amendment restricts government control of speech, but it does not forbid social media companies from moderating the content they host. Meta says it will continue the content moderation for material that is obscene, violent, and extreme. But otherwise, the way is open for controversial speech of all sorts.
 
How, then, will assertions be vetted? Not by third-party fact-checkers. That model, too, is broken. Zuckerberg agreed that the fact-checking process was subjective and often warped by partisan bias. The way forward for Meta’s Facebook, Instagram, and Threads, then, is to promote more speech, by allowing the public to test ideas. Meta is doing this with the incorporation of the same open-source algorithm that powers X’s community notes. That technology is now being tested by Meta across the country, with 200,000 people already signed up to become Community Notes contributors.
 
Crowd-sourced factchecking will undoubtedly be imperfect. Social media platforms will have to be on guard for organized efforts to game the new system. But overall, Community Notes is the superior solution. It follows speech with more speech – and then leaves it up to us to decide what is fair and true, just as we do all the time at the American dinner table.

​Should anti-Israel activist Mahmoud Khalil have his green card pulled so he can be deported? Only if he is given due process before a judge or other government official, as a legal resident of the United States.
 
Expelling Khalil is what the Trump Administration has set out to do for his leading role in protests last spring on the Columbia University campus attacking Israel and purportedly praising Hamas. And, as the lead negotiator and spokesman for the Columbia University Apartheid Divest (CUAD), Khalil might be deportable for violating the law governing green card holders. The law makes a green card holder inadmissible for residency if he “endorses or espouses terrorist activity” or represents a group with the same goal.
 
An appearance before a judge or other unbiased official is the only way to winnow out the facts of this case, namely the degree of Khalil’s participation that led to the illicit occupation of parts of Columbia University as a “Jew-free” zone, and giving Jewish students and faculty legitimate reason to fear for their safety. And what, specifically, did he say and endorse? Only an unbiased decision-maker can determine if Khalil’s anti-Israel, pro-Hamas protests veered into endorsement of terrorism, which would lead to his ejection from this country, or were simply political speech protected by the First Amendment.
 
We appreciate that due process for a Hamas-sympathizer is the tiniest of violins. But it must be played. As a legal resident, Khalil deserves only one thing – a fair opportunity to account for his actions and to answer accusations. We cannot lose sight of the bigger picture: If Khalil loses those due process rights, we all lose something precious.

​Federal Judge Beryl Howell made a necessary call Wednesday when she issued a temporary restraining order blocking parts of the March 6 executive order that sanctioned the entire Perkins Coie law firm.
 
“We can’t recall a similar White House order from any president,” The Wall Street Journal opinion editors wrote. We can’t either. If the massive enforcement powers of the federal government can be used for such blunderbuss political retaliation, it would violate the First Amendment rights of law firm personnel and harm the due process rights of their clients. It would also set a precedent that conservatives and MAGA supporters would surely live to regret whenever a progressive administration returns to office.
 
To be fair to the White House, some former Perkins Coie lawyers attracted justifiable criticism for facilitating the dubious dossier and false reports to the FBI general counsel that cast then-candidate Donald Trump as a Russian agent. An investigation by the Justice Department Inspector found that the dossier was a sloppy, gossip-laden compendium of misstatements, used by the FBI (which knew the dossier was unreliable) to obtain four warrants to surveil Trump campaign advisor Carter Page, and through him, the campaign itself.
 
Still, this doesn’t begin to justify an executive order that bars more than 1,000 Perkins Coie lawyers from entering federal buildings and restricts government contractors from working with their firm. The vast majority (if not all) of the current Perkins Coie attorneys working on thousands of cases today had nothing to do with the controversies surrounding the Trump-Russia accusations. And the two Perkins-Coie partners who were responsible for the creation and spreading of these accusations left the firm in 2021. So the executive order plainly overreaches.
 
Indeed, if the full executive order had been kept in place, Perkins Coie lawyers would have been barred from all federal buildings, harming their ability to represent clients. And if the order included courthouses, it would have essentially disbarred them as litigators – all without any legal process to determine whether any particular lawyer merited such punishment. Such orders harm not just the firm’s lawyers, but also their thousands of clients who depend on them for effective representation.
 
All Americans deserve representation. And law firms – even if you detest their politics – have a First Amendment right to lean woke, MAGA, libertarian, or vegetarian.
 
This controversy brings to mind Paul Giamatti’s portrayal of John Adams, in HBO’s magnificent series of the same name. Giamatti portrayed Adams stepping forward to defend British soldiers standing trial for murder after the Boston massacre. When challenged by Sam Adams that “this is a time for choosing sides,” John Adams replied, “I am for the law, cousin. Is there another side?”

​Houston’s Discovery Green Park is an urban jewel, a 12-acre site with playgrounds, skating rinks, a jogging trail, a music venue, yoga classes, and more. It has everything, except respect for the free exercise of religion.
 
This park has seen no lack of other kinds of protests, from pro-choice demonstrations to anti-NRA protests. But when Dr. Faraz Harsini and Daraius Dubash dared to hold an educational series about factory farming, they each acquired a pair of shiny new handcuffs. Their crime? They showed eye-catching but harmless images of industrial farming practices.
 
Dr. Harsini’s work on animal rights emerges from his work as a scientist. Dubash’s advocacy springs from the Hindu school of Advaita Vedanta. For him, ahimsa, or nonviolence against other living things, is a holy teaching. His invitation to tell passersby about animal cruelty was an expression of his deeply held religious beliefs.
 
Is such preaching allowed in a public park?
 
That question allowed Protect The 1st and the Harvard Free Exercise Clinic to embark on a historical quest in an amicus brief in support of Daraius Dubash in his appeal before the U.S. Fifth Circuit Court of Appeals. While the Foundation for Individual Rights and Expression and other groups represent Mr. Dubash and Dr. Harsini before the Fifth Circuit, we thought this was an excellent opportunity to do a deep dive into American history and the question of how religion is protected – or not – in public places.
 
This is an issue that hearkens back to the very beginnings of America.
 
We all know that Puritan settlers fled religious persecution to find freedom on the shores of New England. It wasn’t long, however, before the persecuted became the persecutors. Puritans publicly beat Quakers “like unto a jelly,” cutting off their ears, branding them, and putting them in outdoor stockades. Refugees from the theocracy in Massachusetts carried a heightened appreciation for the rights of others. In Quaker Rhode Island and New Jersey, guarantees of “free exercise” and “liberty of conscience” took root. In 1681, King Charles II famously granted William Penn a charter to found the Province of Pennsylvania as a “holy experiment” in tolerance.
 
Later, the itinerant preachers of the First and Second Great Awakenings – religious revivals that bracketed the Founding – spurred a transformation of American public spaces into places where religious expression flourished. One famous traveling proselytizer, George Whitefield, recognized that disaffected believers “who would not come to a church to hear his message would go to a park.” Whitefield drew a record-breaking crowd of 20,000 to Boston Commons, where he spoke within view of the site where Quaker preachers had earlier been hanged.
 
Then came the Methodists, preachers outside the mainstream who spoke on public land because houses of worship and school buildings were closed against them, leaving them only “the street corner, the public parks, or gardens, the fields, or woods.”
 
As public tolerance grew, so did legal protection for preaching in public. Thomas Jefferson provided the model of the natural right of the free exercise of religion in Virginia, later established for the nation in the First Amendment. The Supreme Court in the 20th century would uphold these rights for the Jehovah’s Witnesses in 14 out of 19 cases.
 
Now this right is being tested again, this time for an American preaching ahisma, aided by a portable television, in Houston. We find once again, that when religious expression is violated, the rights of all Americans are at stake. That is our message to the Fifth Circuit.
 
To learn more about the evolution of American law on the free exercise of religion in public places, from colonial times to today, check out our brief.

​When the government decides which religious practices qualify as truly “religious” and which do not, it is such a clear violation of the Establishment Clause of the First Amendment that it is practically parody. Yet, that’s exactly what happened in Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission, set to be heard by the U.S. Supreme Court in a few weeks.
 
These charities have reason to be optimistic. The Supreme Court has in recent years cast a skeptical eye on restrictions on the free exercise of religion. And if the early briefs filed against these charities are any indication, the case against them is very weak.
 
The Case
Catholic Charities Bureau is the 100-year-old social ministry arm of the Diocese of Superior, Wisconsin. The organization wishes to be exempted from the state’s unemployment program – allowed for organizations that are “operated primarily for religious purposes” – in order to participate in the separate but similar Wisconsin Bishops’ Church Unemployment Pay Program. The Wisconsin Supreme Court ruled against the group, finding that Catholic Charities’ activities did not constitute “typical religious activities.” It further found that because Catholic Charities’ mission “can be provided by organizations of either religious or secular motivations,” its services are not inherently religious.
 
What’s at Stake
Taken literally, the Wisconsin standard could mean a religious service is not religious if someone else can light a candle or burn incense. This standard puts government in the position of telling religious organizations how to make fine theological distinctions. Unless reversed, the Wisconsin Supreme Court has opened a gaping legal vulnerability for the free exercise of religion.
 
Adjudicating an organization’s degree of religiosity places courts squarely within the realm of “excessive entanglement” prohibited by the First Amendment, while also subjecting religious groups to wrongheaded interpretations of their activities. Catholics, for example, are compelled by scripture to aid the needy.
 
Jumbled Arguments Against the Charities
The Supreme Court will hear arguments on March 31. Ahead of that hearing, several groups have filed amicus briefs in opposition to Catholic Charities’ position.
 
One of those, the Freedom From Religion Foundation, argues that fact-based inquiries into an organization’s activities are commonplace and do not constitute excessive entanglement of the state with religion. Yet, FFRF conveniently elides the reality of what such fact-based inquiries would entail. To quote dissenting justice Rebecca Grassl Bradley of the Wisconsin Supreme Court, such arguments would place courts in the “constitutionally tenuous position of second-guessing the religious significance and character of a nonprofit’s actions.”
 
Many courts, recognizing just how sticky these wickets are, accordingly focus on whether an organization’s activities are motivated by its sincerely held religious beliefs. It’s a holistic test that is far preferable to adjudicating what is “typical” for a religious behavior. “When you give a banquet,” Jesus said, “invite the poor, the crippled, the lame and the blind and you will be blessed.” Providing in-home health care, housing, and childcare services – no less than banquets – often does not include explicit proselytizing. But these acts are still religiously motivated activities.
 
We often align with the American Civil Liberties Union but find ourselves on opposite sides here. The ACLU is concerned about opening a floodgate of implications in applying the religious motive test. ACLU fears that a host of religion-adjacent organizations will also seek to opt out of unemployment taxes, prompting legislatures to crack down on exemptions. This is a reach. Any reasoned investigation of the present case would lead to the conclusion that charity is inherent to the Catholic faith. An analysis of whether a hardware store affiliated with a synagogue meets the exemption criteria would doubtless lead to a different conclusion.
 
A third amicus brief by American Atheists Inc., is a hodgepodge of mischaracterization and speculation. This brief seems more interested in adjudicating the very existence of religious exemptions rather than the test at the heart of this case. They argue that Catholic Charities’ position “violates the Establishment Clause by making a tax exemption contingent solely on a profession of religious belief,” mischaracterizing both Catholic Charities’ practices and the Supreme Court’s opinion in Walz v. Tax Commission of the City of New York, which plainly allowed tax exemptions for religious organizations when offered in the spirit of “benevolent neutrality.”
 
American Atheists goes on to ascribe nefarious and unfounded motives to Catholic Charities, suggesting the group wants states to “treat unemployed workers differently based on whether or not they chose to work for charities that espouse – even nominally – a religious motivation for their efforts.” This turns the law on its head, judging the religious character of an organization by its employees, not its associational doctrine.
 
Again, American Atheists seems focused on undermining the very premise of tax exemptions for religious organizations, which are already recognized as constitutional. The issue at hand is the appropriate test for determining religious character – not whether exemptions should exist in the first place.
 
American Atheists further makes the odd and speculative argument that Catholic Charities’ position would somehow prompt the state to use its taxation power to coerce professions of religious belief. We disagree. States are highly motivated by revenue, and it seems unlikely that they would seek to further expand tax exemptions in order to prop up one religion or another. In that extreme scenario, a governmental party would not survive one day in court. 
 
Most important is a widening lower court split on what constitutes “typical” religious practice. That is the wrong metric. It is clear that for a Catholic, charity is central to the free exercise of religion. If you have any doubts on that score, we refer you to the words of our expert witness quoted above.

In an amicus brief to the Supreme Court on Monday night, Protect The 1st represented 66 Members of Congress that showed the U.S. Supreme Court why it should reverse a Fourth Circuit ruling in Mahmoud v. Taylor that rejected the First Amendment objections of parents whose children, some as young as three, cannot be opted out of exposure to material on moral issues controversial with many parents. In its brief, the Protect The First Foundation showed that it is unconstitutional to deny parents this choice, and that “federal law has consistently protected parental rights in the educational arena.”
 
Background
In 2022, the Montgomery County school board embraced books that promoted pronoun preferences, pride parades, and gender transitioning for young students. One book tasks three- and four-year-olds to search for images from a word list that includes “intersex flag,” “drag queen,” “underwear,” “leather,” and a celebrated activist/sex worker. 
 
When some Muslim and Christian parents sought to opt out their children from these teachings, one board member told them that claiming these books “offend your religious rights or your family values or your core beliefs is just telling your kid, ‘Here’s another reason to hate another person.’” On appeal, the Fourth Circuit held that because there was no evidence of either coercion or a direct penalty on these parents’ religious faith if their children were required to participate in these one-sided portrayals of questions about morality, this case involved no burden on their First Amendment rights.
 
An Absurd Outcome
The Protect The 1st brief demonstrates that there is nothing in federal law or the Court’s precedent that remotely supports the Fourth Circuit’s decision to deny parents the choice to keep their children out of such indoctrinating instruction.

• The Board argued that Title IX of the Educational Amendments of 1972 required it to deny notice or the right to opt out. Protect The 1st told the Supreme Court: “Yet the Board failed to quote or even cite a single provision of Title IX for its claim. Nor could it. The statute’s plain language makes clear that a school’s duty is to not itself discriminate.”

 

• The Fourth Circuit shared the Board’s view that the Supreme Court’s decision in Bostock v. Clayton controlled this expansive interpretation of Title IX. In fact, in Bostock, the majority – which ruled on whether an employer who fires someone for simply being homosexual or transgender – addressed employer discrimination, not educational policy. The majority did “not purport to address bathrooms, locker rooms, [dress codes,] or anything else of the kind.”

 

• In Bostock, the Court went out of its way to display concern that this opinion did not trample on religious liberty: “We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society.”

Neither the statute’s text nor Supreme Court precedent support the Board’s claims or the Fourth Circuit’s opinions.
​

• The current opinion stands directly opposed to carefully crafted laws passed by Congress over the past half-century to protect the religious freedom rights of parents. Courts have also regularly applied the Religious Freedom Restoration Act to protect parental rights.

“It seems clear to us that the excuses given by the board and the court, relying on federal law and Supreme Court precedent, border on the frivolous,” said Erik Jaffe, President of Protect The 1st. “Both Congress and the Supreme Court have routinely supported parental choice in matters involving the education of their children. And an opt-out for parents has long been recognized as a non-disruptive remedy that protects the rights of parents.

“We fully expect the Supreme Court to agree.”

​Protect The 1st champions school choice on First Amendment grounds. We support it as a way for parents to choose schools that reflect their values, and to extend those values across generations. It is sweeping the nation, with Wyoming becoming the latest state to embrace universal school choice.
 
But some have nagging doubts – in budgetary and educational terms, does school choice actually work?
 
With the recent reintroduction of the federal Educational Choice for Children Act in the 119th Congress – and with Texas on the verge of becoming the latest state to embrace universal school choice – this seems like a good time as any to point out that school choice improves educational outcomes in both public and private schools.
 
Critics of school choice worry that school choice programs will bleed public schools and drain state treasuries. This has not been the experience of Arizona, which has had universal educational school choice for several years now. The Arizona Department of Education reported late last year that it had a $4 million funding surplus. This happened despite larger enrollments than the experts predicted.
 
Arizona is not unique. Martin Lueken, director of Fiscal Research and Education Choice at EdChoice, surveyed fiscal data since 2018, analyzing 40 private educational choice programs in 19 states plus the District of Columbia. He found that schools save money when students depart for a private option, funded by education savings programs, school voucher programs, and tax-credit scholarship programs.
​

• Lueken found that school choice programs, on average, saved state and local taxpayers between $1.80 and $2.85 for every dollar invested.

 

• Far from harming public schools, school choice has long been associated with higher student achievement. A study from the University of Arkansas shows “a strong and statistically significant association is clear between education freedom and both academic scores and academic gains.”

Results like these, with Texas Gov. Greg Abbott publicly itching to sign legislation now being debated in Austin, ought to put wind in the sails of a federal effort. The Educational Choice for Children Act was recently introduced in the House by Rep. Adrian Smith (R-NE) and Rep. Burgess Owens (R-UT), and in the Senate by Sen. Bill Cassidy (R-LA).
 
Rep. Smith said that this bill will “empower parents with more options, acknowledging that they have the final say in what educational setting is best for their children.” Sen. Cassidy said, “more freedom empowers parents and allows American children to thrive in school.”

• After decades of declining test scores, it is time to rethink American education for states and the nation. Consider Pennsylvania, where just 33 percent of fourth graders performed at or above the National Assessment for Educational Progress proficient reading level in 2024. Low-income students are particularly disadvantaged. They had an average score that was 25 points lower than that for middle- and high-income students. Why should some students do well, and others suffer because of the state or the zip code their families happen to live in?

We know what doesn’t work – public school systems unchallenged by competition. We know what does work – competition improves outcomes. It also serves parents, as Rep. Smith put it, by giving parents the final say in choosing the best educational setting for their children.
 
Why not make school choice the law of the land?

​President Trump on Tuesday declared on Truth Social:
 
“All Federal Funding will STOP for any College, School, or University that allows illegal protests. Agitators will be imprisoned/or permanently sent back to the country from which they came. Americans students will be permanently expelled or, depending on on [sic] the crime, arrested. NO MASKS! Thank you for your attention to this matter.”
 
There is less to unpack here than there is to fill in. The basic question raised by this post is what the Trump Administration will consider an “illegal protest”?
 
Absolute clarity is needed on this point. A protest on behalf of Gazans, or even in favor of Hamas, is not an illegal protest. It is as fully protected by the First Amendment as would be any protest. Just because we believe an opinion is off-putting, stupid, or vile does not make it a crime.
 
A good example of an illegal protest can be seen in UCLA’s toleration of protesters harassing Jewish students and declaring “Jew-free zones” on campus. Jews were denied access to all parts of the UCLA campus unless they renounced their faith. That protest broke the letter of the law and was fascist in its heart. Federal judge Mark Scarsi told UCLA in no uncertain terms that the university had to act against these illegal protests. The judge said that the attacks on Jewish students were “unimaginable” and “abhorrent to our constitutional guarantee of religious freedom.”
 
Another needed distinction is whether an institution is public or private. The First Amendment only restricts the power of the government to abridge speech. This means that a public university like UCLA has an obligation to lean hard to give maximal space for speech, even vile speech. But go up Highway 101 to Stanford University, and you find a private institution with more leeway to define what is or is not acceptable speech on campus. But just a little. Stanford University accepts federal funds, which comes with some strings about any limits on speech. Moreover, California’s Leonard Law mandates that private schools respect speech that would be protected off campus.
 
So again, what is an illegal protest? It is one in which protesters defy time, place, and manner restrictions of the administration of their college or university to take over a part of a campus, to occupy a building, to engage in violence or destroy property, or to harass students and faculty.
 
We trust that Department of Education Secretary Linda McMahon will instill these distinctions in President Trump’s directive.

​What do we make of the recent move by President Trump to punish the lawyers who are defending former special counsel Jack Smith, now believed to be under investigation?
 
The president’s order suspends – pending a legal review – the security clearances of these lawyers and orders agencies to “review and terminate” any federal contracts of their law firm, Covington & Burling LLP, to the “maximum extent” permitted by law. Depending on how it is implemented by the Office of Management and Budget and other agencies, this order could end up violating multiple aspects of the First Amendment.
 
Before we get into why that is so, we first want to make a distinction between this order and the president’s recent revocations of the security clearances of former CIA officials. These officials used their presumed access to classified information to inject themselves into the Hunter Biden laptop controversy two weeks before the 2020 election, claiming that The New York Post story on that subject had “all the classic earmarks of a Russian information operation.”
 
Former government officials retain security clearances to help advise current government officials. Such clearances are not intended to create a false perception of secret knowledge to skew public debate and elections.
 
As it turned out, while many media outlets simply accepted the disinformation claims, The Post had done something that no other media outlet did – solid, investigatory journalism. The previous knee-jerk outlets now admit that the contents of the laptop concerning foreign dealings by the Biden family was authentic. Suspending the security clearances of those who use their access for personal or political purposes, rather than in the aid of national security, if done evenhandedly, is an acceptable narrowing of the privilege of access.
 
Unfortunately, the administration’s announcement that it seeks to punish attorneys with the law firm of Covington & Burling for representing Jack Smith is a different kettle of fish.
 
The order aims to suspend security clearances from a Covington partner and other attorneys that President Trump believes may have been a part of Jack Smith’s team as a special counsel. Law 360 reports that no Covington attorneys show up as a part of Smith’s official investigative team, though it’s possible they helped out on the side. A search of a government database fails to show any government contracts with Covington.
 
President Trump’s order has already been criticized by legal groups. For example, the New York Council of Defense Lawyers said in a statement that this order “is a brazen attack on the defense function and the rule of law.” Perhaps so – assuming Jack Smith is actually under investigation by the Justice Department (DOJ hasn’t confirmed this) and Covington is defending him in that investigation.
 
If that is true, then we would add that the order appears to be a viewpoint discriminatory punishment of the Covington firm, based on their defense of a person who (in Trump circles) is highly unpopular. Depending on how it is implemented, moreover, the order could end up slapping an unconstitutional condition on the privilege of security clearances, and an interference with the right to petition the government in the courts or before the other branches.
 
You may believe that Smith’s investigation was justified by the events of Jan. 6, 2021, or you may believe that Smith’s long inquiry weaponized the law. But Smith, like any potential defendant or public or private person, is entitled to a defense. And Covington lawyers also have a First Amendment right to provide the defense, whether they do so for $1,000 an hour or for bubble gum wrappers. Punishing particular attorneys and their firms for providing a legal defense, or assisting with a First Amendment-protected defense, strikes at the heart of the American system of justice, due process, and First Amendment freedoms.
 
Yet the president’s order is not as harsh as some media outlets have reported it to be. It doesn’t outright “strip” these lawyers’ security clearances. Instead, it “suspends” their clearances pending a review of their work, and it specifies that any punishments ultimately imposed must comply with “applicable law” – including, presumably, the First Amendment. We can hope the OMB and other agencies charged with implementing the President’s order will bear that in mind as they proceed. 
 
Ensuring the neutrality of the law, and of the powerful institutions of government, is a noble and essential goal that President Trump embraced in his executive order on free speech. Remaining true to that goal, even when it involves persons and views you deeply oppose, takes hard work and vigilance. But such is the burden of our constitutional system, and adherence to those principles builds the legacy of those who put in that work and remain vigilant even when it would be easier not to.

​Chicago was the site of riots in 2020, with economic damages exceeding $66 million. In 2024, groups successfully protested the Democratic National Convention and Vice President Harris with a “noise demo” that included banging pots and megaphones.
 
But Brett Raio finally took things too far for the Chicago police when he recently preached the gospel on a Chicago street. Police charged Raio for violating a noise ordinance, despite video evidence proving that Raio’s decibel levels from a handheld mic with an amplifier were well within reasonable limits. This arrest further demonstrated that the street preacher acted peacefully during interactions with police. Now, the American Center for Law & Justice is filing a court action on Raio’s behalf.

That action relies on a line of cases from the Supreme Court of the United States, which has long recognized the right to engage in free speech and debate on sidewalks and other public areas because they are considered “traditional public forums.” In fact, the Court even addressed the use of sound amplification devices in such circumstances. In Saia v. New York (1948) the Court declared that:
 
“A city ordinance forbidding the use of sound amplification devices in public places except with the permission of the Chief of Police and prescribing no standards for the exercise of his discretion is unconstitutional on its face, since it establishes a previous restraint on the right of free speech in violation of the First Amendment, made applicable to the states by the Fourteenth Amendment.”
 
In Chicago, authorities seem to increasingly consider religious people – particularly Christians – as targets, while allowing other, patently obnoxious behavior by others. In 2022, Protect The 1st’s policy director Erik Jaffe filed a certiorari petition in Keister v. Bell, which involved the right of evangelist Rodney Keister to stand on city-owned sidewalks on a public street in Tuscaloosa, Alabama, near the University of Alabama. The UA campus police enforced an agreement with the city to clamp down on expressive activity at that portion of the sidewalk.
 
The Eleventh Circuit erroneously ruled against Keister using a multifactor balancing test and allowed the University to forbid expressive activity. As we wrote at the time, “Even assuming the propriety of a balancing test, the Eleventh Circuit’s circular reliance on the University’s intent to suppress speech was an improper fulcrum for converting the most quintessential of traditional public fora into a limited forum allowing suppression.”
 
Given all this, it’s time the Supreme Court addressed the issue of using public order laws to crack down on constitutionally protected speech. A sidewalk preacher should not fear arrest over the complaint of any local Demetrius. The same applies to all religions. The Tenth Circuit Court of Appeals, for example, recognizes that “traditional public fora are open for expressive activity regardless of the government intent.” We hope that the court considering Raio’s case recognizes the importance of ensuring that religious speech is not persecuted for merely being public by granting him the relief he seeks.

Protect The 1st has long held that parents have a First Amendment right to extend their beliefs and values across generations. It is for that reason that we object to schools in Montgomery County, Maryland, (Mahmoud v. Taylor) denying parents the right to opt-out their young children from sexually explicit reading courses. As we demonstrated in an amicus brief before the U.S. Supreme Court, Montgomery County schools violate these families’ free exercise of religion.
 
Now a similar case has arisen in Massachusetts, as recognized by commentator Jonathan Turley:
 
“The 1st Circuit just held that parents have no right to know about their 11-year-old changing gender in school. This ‘unwritten’ policy was viewed as overriding parental rights. The decision is defended as a reflection of our ‘pluralistic society.’”
 
Frederick Claybrook, in a guest post on the case for The Federalist Society added:

“The First Circuit smoothed over all of this by finding that nobody at school forced the young lady to announce she was genderqueer; they just gave her information about LGBT issues after she expressed struggles with depression, insecurity, low self-esteem, poor self-image, and a perceived lack of popularity. To the First Circuit, this no more directed her to exhibit as another gender than providing a child a book about bricklaying would direct her to become a mason. After all, the school didn’t stop her parents from espousing their own views to her at home or from seeing her own mental health professional. The Fourth Circuit reasoned similarly in Mahmoud v. McKnight when it rejected a Free Exercise Clause challenge to a school district’s refusal to tell parents when they would be teaching their children LGBTQ+ lessons and what materials they would use; the Supreme Court has accepted that case (now Mahmoud v. Taylor) for review. Hopefully, the Court’s decision, expected by the end of June, will shed some light on the path rather than cloud it further.”
 
We too hope for clarity from the U.S. Supreme Court.
 
For our part, Protect The 1st cherishes the fact that we live in a pluralistic society. We stand fast against bigotry in any form. But schools keeping parents in the dark about mental health care decisions for their children strikes us as Orwellian, and for parents with faith commitments on issues of sexuality, a violation of the First Amendment. 

​Student journalists and their supporters across the United States are celebrating the eighth annual Student Press Freedom Day. This year’s theme, "At the Forefront," emphasizes the resistance of student journalists and the challenges of prior restraint, censorship, and even the threat of arrest they face. How these challenges are met today will shape the future of tomorrow’s journalism, already facing stiff challenges from collapsing business models and social media fragmentation.
 
Student Press Freedom Day, organized by the Student Press Law Center, brings together students, educators, and press freedom advocates to raise awareness about the struggles of student journalists. Participants advocate for legal reforms, such as “New Voices” laws, which safeguard student journalists from administrative censorship.
 
Consider how the University of Northern Iowa handled student journalists, imposing unconstitutional prior restraint by requiring resident assistants to obtain approval before speaking to the media. The student newspaper, The Northern Iowan, exposed this policy, leading to its revocation and earning the publication the First Amendment Award at the Iowa College Media Association Awards.
 
Student Press Freedom Day also shines a light on precedents that threaten student press freedom.
 
The 1988 Supreme Court decision in Hazelwood School District v. Kuhlmeier weakened protections for high school journalists by allowing administrators to censor school-sponsored publications if they could justify doing so for “legitimate pedagogical concerns.” Though the ruling was meant to apply to K-12 institutions, its logic was later extended to colleges in Hosty v. Carter in 2005. In that case, the Seventh Circuit Court ruled that a university could exert prior review over a student newspaper if it was not designated a public forum.
 
Courts have also upheld the rights of college journalists. Over the past four decades, more than 60 cases have addressed censorship in public college and university student media, with decisions consistently affirming that the First Amendment prohibits most administrative censorship of student-edited publications.
 
The challenges faced by student journalists are not limited to administrative censorship. In 2024, Stanford University student journalist Dilan Gohill was arrested while covering a protest after following demonstrators into the university president's office. Despite wearing a press pass and acting in his capacity as a reporter, Gohill faced potential disciplinary action and criminal charges. After seven months of uncertainty and advocacy from First Amendment groups, Stanford President Jonathan Levin confirmed there would be no disciplinary action from the university.
 
With changing business models and a polarized society, quality, independent journalism struggles to exist. Whether or not quality journalism can continue will require, at the very least, cultivating young reporters and editors who are free to learn their chosen profession by practicing it without restraint.
 
Protect The 1st is pleased to join student journalists in celebrating Student Press Freedom Day.

​America’s charities face a growing danger of being crushed by onerous regulations and government regulation of their speech.
 
Multiple courts have ruled that “tax-exempt” status constitutes “federal financial assistance,” subjecting non-profit organizations to a host of burdensome, proactive obligations to ensure compliance with: Title VI of the Civil Rights Act, Title IX of the Education Amendments of 1972, The Age Discrimination Act of 1975, Section 1557 of the Affordable Care Act of 2010 … and the list goes on.
 
These are laws with noble intents, but they come with onerous paperwork requirements and the ever-present threat of restrictions on a faith-based group’s speech and doctrines. Most non-profit entities – charities, churches and schools – are ill-equipped to handle the vast compliance burdens reserved that a large university or national NGO would be able to dedicate a whole department of lawyers to handle. 
 
As Philanthropy Roundtable wrote last year, “targeting nonprofit organizations that exist to address community problems and provide assistance for those in need should be off limits on the political battlefield.” We’ll refrain for now from commenting on whether these cases constitute lawfare, but we’ll happily point out why the courts came to the wrong conclusion.
 
In Buettner-Hartsoe v. Baltimore Lutheran High School Association, a federal district court in Maryland found that Concordia Prep’s tax-exempt status constituted “federal financial assistance” for the purposes of Title IX compliance. The Fourth Circuit Court of Appeals disagreed, writing:
 
“Tax exemption is not ‘Federal financial assistance.’ This is not a novel concept. Indeed, since Title IX’s inception over fifty years ago, it has never been applied to organizations based solely on their tax-exempt status. And for good reason.”
 
That reason, of course, has to do with the underlying policy goal of encouraging good works from organizations that are not seeking to make a profit. Placing burdensome requirements on such organizations hinders their ability to express their goals, values, advocacy interests and opinions – to the detriment of their First Amendment rights.
 
Another case from the Central District of California, Herrera v. Valley Christian Academy, however, also found that a non-profit school’s tax-exempt status “is a form of federal financial assistance that would subject the institution to Title IX.” The judge ruled:
 
“[T]he plain purpose of the statute is controlling. Here that purpose is clearly to eliminate discrimination in programs or activities benefitting from federal financial assistance.”
 
Yet legislative references to purely tax-exempt status goes back to at least 1894. According to the Internal Revenue Code, non-profits must merely be: “Organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals …”
 
Requiring non-profits to serve these charitable missions while constantly navigating a vast bureaucratic labyrinth undermines the clear policy aims of the law’s definition. Such requirements could crush smaller organizations that are doing immense social good. These rules also threaten the free speech of charitable groups to hold and express beliefs that offend official sensibilities, whether it is a Christian or Muslim group that advocates traditional marriage, or an environmental group that holds policy ideas that offend this administration or the next one.

Last year, then-Sen. Marco Rubio and Rep. Greg Steube (R-FL) sponsored the “Safeguarding Charity Act” to clarify that tax-exempt status does not qualify as “federal financial assistance.” And if all else fails, the U.S. Supreme Court should strike down these rulings. That might be our fastest way to reform.
 
We’ll keep a close eye on these cases as they pop up, and new legislative efforts by the 119th Congress to protect America’s charities.

​The city of Clarksdale, Mississippi, sued the Clarksdale Press Register for publishing an editorial that criticized officials for allegedly failing to provide public notice regarding a hearing on a local “sin tax.” The editorial in question began: “SECRECY, DECEPTION ERODE PUBLIC TRUST.”
 
Hinds County Chancery Court Judge Crystal Wise responded by ordering the newspaper to take down the column.
 
In her order, Judge Wise said the case involved “defamation against public figures through actual malice in reckless disregard of the truth and interferes with their legitimate function to advocate for legislation they believe would help their municipality during this current legislative cycle.”
 
Perhaps Judge Wise could benefit from a few hours reading The First Amendment for Dummies. The “actual malice” standard in legal jurisprudence protects journalists from libel suits, requiring a public figure to prove: 1) that a defendant knew a statement was false; or 2) that a news outlet acted with reckless disregard for the truth. It’s one of the most basic, foundational protections for free speech in the United States, allowing for unfettered coverage of public figures without fear of legal reprisal.
 
There was at least one question of fact: Was there a reckless disregard for the truth by the newspaper? Not according to a city clerk, who submitted an affidavit admitting that she failed to send a routine notification of the public meeting to the newspaper. As for what else Judge Wise thought was illegal about the Press Register’s opinion column – that remains unclear. Since she didn’t hold a hearing before issuing her order, it’s anyone’s guess.
 
After the ruling, Clarksdale mayor Chuck Espy lauded the decision, writing on Facebook:
“Thank GOD! The City of Clarksdale WON today! The judge ruled in our favor that a newspaper cannot tell a malicious lie and not be held liable. The newspaper had to take down a false story that they printed. The only thing that I ask, that no matter what you print, just let it be the truth; be it good or bad. Thank you GOD for a judicial system.”
After the Foundation for Individual Rights and Expression (FIRE) and its lawyers became involved, the mayor withdrew his suit. And thank God for that!
 
In the meantime, Mayor Espy and other officials should keep in mind that when the courts fail, the internet’s Streisand Effect always kicks in to punish would-be censors.
 
Protect The 1st looks forward to seeing this editorial hot off the press when it is reprinted by The Clarksdale Press Register.

​Like a seven-layer gelatin salad in the aftershocks of an earthquake, the European commentariat is still quivering from Vice President J.D. Vance’s tongue-lashing on their abandonment of the principles of free speech. The vice president spoke boldly of “a retreat of Europe from some of its most fundamental values” as “a threat from within.”
 
Dominic Green of The Wall Street Journal nailed it when he said that this is “really, a threat from above.” European governments and the meta government of the European Union in Brussels are imposing a host of policies – from heavy-handed overregulation to mass immigration policies, to speech codes – that are unpopular among European voters.
 
But the disconnects are here in America as well as in Europe. Vance’s critique identified an intellectual short-circuit on the nature of free speech. This disconnect is one suffered not just by progressive European elites, but also American journalists, a celebrated conservative Italian prime minister, and even some in the Trump Administration who would do well to read Vance’s speech and take it to heart.
 
Germany’s Speech Police
 
CBS’s 60 Minutes did an in-depth exploration of Germany’s speech code regulation, interviewing German prosecutor Dr. Matthäus Fink, who said he tells people he arrests for speech violations, “you have free speech as well, but it also has limits.”
 
The German government’s stated concern is that hateful speech can lead to violence. The segment reported that a local German politician, Walter Lübcke, was shot to death in 2019, four years after he gave a speech in favor of immigration. But Lübcke had been the target not just of criticism, but also death threats. In the United States, as in Europe, such explicit threats against individuals are crimes – as well they should be. Beyond that, policing speech becomes not just a slippery slope.
 
It becomes a slope slathered in Crisco for a Vaseline-coated sleigh.
 
Consider: Germans can now be prosecuted not just for violent threats, but also for “public insults against politicians” – “spreading malicious gossip,” “inventing fake quotes,” or even reposting “lies” online. For such “crimes,” Germans can receive fines, suffer the confiscation of their devices, and go to prison.
 
Among the crimes, Dr. Fink told 60 Minutes, are “comments like ‘you’re a son of a bitch,’ excuse me for using, but these words have nothing to do with political discussions or a contribution to a discussion.” Protect The 1st begs to differ. We think that any prosecutor who would put someone in prison for calling a politician an SOB is, himself, an SOB.
 
Did Free Speech Cause the Holocaust?
 
Many commentators have harshly criticized CBS’s Margaret Brennan for explaining in a recent interview with Secretary of State Marco Rubio that “free speech was weaponized to conduct a genocide …”
 
It was left to Secretary Rubio to correct Brennan by noting that the Nazis were the ones who shut down free speech. The shuttering of newspapers, the infiltration and takeover of churches, the dispatching of editors, journalists, intellectuals and academics, along with dissenting pastors, priests and nuns to concentration camps led to a vacuum. In that vacuum-echo chamber, when the Nazis spoke about “the Jewish problem,” there was no one to counter “actually, we have a Nazi problem.”
 
To be fair, Brennan was probably not talking about the Nazi era, but the Weimar Republic that preceded it. If only, she seems to suggest, someone had shut up the Nazis before they gained adherents. But that perspective is also flawed. The Weimar Republic did cancel Hitler speeches, shut down some Nazi publications, and outlawed hate speech. And the Weimar Republic learned what we now seem to have forgotten – that suppressing speech is like squeezing water in your hands. It always slips through your fingers and finds another channel. Indeed, for misfits and outsiders of all sorts, outlawing speech gives it the erotic allure of the forbidden.
 
There’s Still Free Speech Work to Do in Romania, Italy, and at Home
 
The vice president spoke of the recent Romanian election that was cancelled 48 hours before people were set to go to the polls. The reason? It was reported that Russia had invested in Tik Tok videos in support of a presidential candidate who favored withdrawing support for Ukraine. Vice President Vance said, “But if your democracy can be destroyed with a few hundred thousand dollars of digital advertising from a foreign country, then it wasn’t very strong to begin with.”
 
But it isn’t just stripey-pants, tea-sipping progressives who seem to lack a firm grasp of free speech. The decidedly non-progressive prime minister of Italy, Giorgia Meloni, is taking British rocker Brian Molko to court for “contempt for institutions” by calling her a “fascist” during a concert in Turin. The prime minister’s action, to quote Curly from the Three Stooges, says, “Who me? I resemble that remark!”
 
Then there is our own country and Vice President Vance’s administration. President Trump made a clear, powerful statement with his Executive Order “restoring freedom of speech and ending federal censorship.” But not every member of the president’s administration seems to have received the president’s memo.
 
For example, Federal Communications Commission Chairman Brendan Carr is “fast-tracking” a probe of CBS over whether it is guilty of “news distortion” in its editorial decisions on which portions to air from an interview with former Vice President Kamala Harris. The White House press office has even excluded AP from some events for refusing to adopt President Trump’s new moniker for the Gulf of Mexico.
 
Around the world, on the right as well as on the left, the intellectual disconnect is the inability to always accept that a commitment to free speech means allowing speech you find offensive, stupid, and wrong. 
 
Like Fight Club, free speech in a democracy has three rules: I will not attempt to censor people and ideas I don’t like. I will not attempt to censor people and ideas I don’t like. I will not …

Here are some choice excerpts from Vice President Vance’s recent speech to the Munich Security Conference in which he spoke truth to the dour:

• “What I worry about is the threat from within, the retreat of Europe from some of its most fundamental values …”

 

• “I look to Sweden, where two weeks ago the government convicted a Christian activist for participating in Koran burnings that resulted in his friend’s murder. As the judge in his case chillingly noted, Sweden’s laws to supposedly protect free expression do not, in fact, grant, and I’m quoting, ‘a free pass to do or say anything without risking offending the group that holds that belief.’”

 

• “A little over two years ago, the British government charged Adam Smith-Connor, a 51-year-old physiotherapist and an army veteran, with the heinous crime of standing 50 meters from an abortion clinic and silently praying for three minutes.”

 

• “This last October, just a few months ago, the Scottish government began distributing letters to citizens whose houses lay within so-called safe access zones, warning them that even private prayer within their own homes may amount to breaking the law. Naturally, the government urged readers to report any fellow citizens suspected guilty of thought crime. In Britain and across Europe, free speech, I fear, is in retreat.”

About a Romanian court’s cancellation of a national election in that country after posts on Tik-Tok were deemed Russian disinformation:
​

• “But if your democracy can be destroyed with a few hundred thousand dollars of digital advertising from a foreign country, then it wasn’t very strong to begin with.”

 

• “But what no democracy, American, German, or European, will survive is telling millions of voters that their thoughts and concerns, their aspirations, their pleas for relief are invalid or unworthy of even being considered. Democracy rests on the sacred principle that the voice of the people matters. There’s no room for firewalls. You either uphold the principle or you don’t.”

​Tennessee just became the 13th state to adopt universal school choice. The new program creates education savings accounts granting scholarships of up to $7,300 per student, which can be used for private school tuition, textbooks, transportation, and instructional materials.
 
It’s the latest win in the ongoing school choice movement sweeping the states. Already this year, two more states seem poised to take the plunge, while a bill to expand school choice nationally has new momentum in Washington, D.C.
 
In Texas, the Senate swiftly passed a universal school choice bill, SB 2. It’s now in the House, where Speaker Dustin Burrows believes the votes are squarely in favor of passage. President Donald Trump has spoken in favor of the bill. So have Sen. Ted Cruz and a Texan named Elon Musk, who wrote on X: "If kids only have one school option and it's bad, then it's like they never had a chance at all."
 
In Wyoming, a universal school choice bill passed that state’s House and is now one step closer to becoming a reality.
 
Why is this important to a First Amendment organization? PT1st believes the right of parents to choose their children’s schools is essential to their ability to transmit their beliefs across generations – an activity that is as close to the heart of the First Amendment as anything we can imagine. And as for “social justice,” school choice allows the children of the poor to attend quality schools that primarily serve the affluent. Americans agree that these are good outcomes, which is why all demographic groups and people from both political parties give school choice overwhelming support. A poll from September found that candidates who support school choice are more likely to win at the ballot box.
 
With all that in mind, Congress should follow the lead of the states and the will of the people. Sens. Katie Britt (R-AL), Bill Cassidy, (R-LA), and Tim Scott (R-SC) have the ball rolling by reintroducing the Educational Choice for Children Act (ECCA), which would allow individuals and businesses to receive tax credits for donations to Scholarship Granting Organizations that provide scholarships to eligible students for attending private or religious schools, homeschooling, or other non-public educational options. ECCA is a critical step in providing lifelines to struggling parents and children everywhere.
 
Sen. Scott, a die-hard school choice advocate, calls the school choice movement “the civil rights issue of our time.” He believes, as we do, that parents should be able to freely choose a school that fits their child’s needs and select an education that upholds their values. 
 
To date, school choice has mostly been propelled by Republicans. But there are now signs the blue wall of opposition to school choice is breaking. Democrats can’t stand athwart progress for much longer – particularly if they continue to alienate minorities who want better lives for their children.
 
That’s why we’re so optimistic about what else 2025 will have in store for families.

​A hearing in the House last week brought to light the dimensions of government censorship in America and around the world. One star witness before the House Judiciary Committee’s Select Subcommittee on the Weaponization of the Federal Government was Matt Taibbi, a key figure in revealing the “Twitter Files” documenting questionable “content moderation,” aka censorship, policies at the social media giant.
 
Taibbi’s remarks on the “Censorship Industrial Complex” emphasized the importance of the present “Alamo moment” for free speech. Drawing from the ongoing controversy regarding USAID, Taibbi pointed out that an organization called Internews received more than $400 million from USAID to train journalists, despite the fact that its chief Jeanne Bourgault argues for actively repressing heterodox journalistic perspectives.
 
The State Department recently disbanded funding for the so-called Global Disinformation Index, a British organization that helps “advertisers and the ad tech industry in assessing the reputational and brand risk when advertising with online media outlets and to help them avoid financially supporting disinformation online." A 2022 report from GDI listed Reason, New York Post, Real Clear Politics, The Daily Wire, The Blaze, One America News Network, The Federalist, Newsmax, The American Spectator, and The American Conservative as among the “riskiest online news outlets.” The U.S. government was thus in the business of pressuring advertisers to shun media outlets based on viewpoint discrimination.
 
These revelations are emblematic of a massive government censorship campaign. As the Trump Administration pumps the brakes on censorship at home, the repression of views is gaining momentum in Europe. The EU’s highly punitive Digital Services Act explicitly allows member nations to threaten platforms into censoring speech. As journalist Michael Shellenberger noted in his own testimony before the subcommittee, “the censorship industrial complex remains almost entirely intact.”
 
Shellenberger added:
 
“The head of NATO, NATO-backed think tanks, the European Commission, former president Barack Obama, former secretary of state Hillary Clinton, Bill Gates, the United Nations, the World Health Organization, the World Economic Forum, influential think tanks at Harvard and Stanford, elements of the DOD, the CIA, the FBI, the National Science Foundation, the Department of Homeland Security and many others have all called for government censorship of so-called misinformation in recent years.
 
“And it’s not just censorship that is the problem. The problem is that deep-state agencies within the U.S. government have for two decades sought to gain control over the production of news and other information around the world as part of ongoing covert and overt influence operations, and that after 2016 multiple actors in several deep-state U.S. government agencies turned the tools of counter-terrorism, counter-insurgency and counter-populism against the American people.”
 
It's abundantly clear that taxpayer dollars are going to pass-through agencies that fund organizations and individuals who actively despise First Amendment values and seek to undermine freedom of speech.
 
Canadian journalist Rupa Subramanya highlighted some of the state-sponsored censorship taking place internationally. Scotland, she noted, now criminalizes anything that “stirs up hatred” against certain protected groups.
 
Subramanya said:
 
“I’m not saying these countries are the same as the fear-based authoritarian societies of North Korea and Iran – not by a long shot. But I am suggesting that some of the free countries are not, in fact, living up to their promises of liberty, and that many allies of the U.S. have gotten in the habit of using the government against political enemies or disfavored companies.”  
 
President Trump last month issued an executive order aimed at restoring freedom of speech and ending federal censorship. We’ll have to wait and see if it has any teeth. The Federal Communications Commission seems to be ignoring the president’s anti-censorship executive order by continuing the speech-repression tradition of the Biden Administration through its ongoing and utterly baseless probe of CBS for “news distortion.”
 
The job of countering government censorship, coercion, and jawboning, which Protect The 1st has covered extensively, will always require eternal vigilance. Let’s hope we’ll all be allowed to keep up the scrutiny of the censorship bureaucrats at home and abroad.  

​You might like, laugh at, or deplore the renaming of the Gulf of Mexico to the Gulf of America. One thing that cannot be disputed is that the administration’s new designation has spawned the sale of innumerable T-shirts.
 
Private organizations are free to adopt or not adopt the administration’s terminology. Google, for its part, enacted a diplomatic solution. Use Google Maps in the United States and you will find that it reflects the new name – Gulf of America. But Google Maps users in Mexico will find that the old name, the golfo de méxico, is intact.
 
The AP news organization does not have the luxury of splitting names in its reportage. It stuck with the old name, as do most Americans. This makes sense, given that Mexico’s Gulf coastline is longer than that of the United States. Now AP says the White House has informed the news organization that because AP “did not align its editorial standards” with the executive order renaming the Gulf of Mexico, “AP would be barred from accessing an event in the Oval Office.” An AP reporter was later blocked from an executive order signing.
 
AP says that these actions violate its First Amendment rights. It remains to be seen whether courts will hold that this action violates the letter of the First Amendment. AP can argue that the White House is engaged in viewpoint discrimination, even if about access to a limited public forum. This kind of petty play and attempts to direct editorial policy from above is a violation of the spirit, if not the letter, of the First Amendment.
 
Those who advocate such a muscular approach to press relations were the first to protest attempts by the recent progressive administration to strongarm corporations, universities, and media into language policing. We were told to refer to America’s Latino population as “Latinx” (which most Latinos hated), to women as “birthing persons,” and to pronoun policing. The Trump press office would do well to discontinue the tradition of heavy-handed language control.

​Journalist Matt Taibbi testified before the House Judiciary Committee on Wednesday. He noted that many politicians, such as former Senator and Secretary of State John Kerry, are publicly justifying curtailment of free speech, saying that the First Amendment gets in the way of building “a consensus.”

Matt Taibbi told the committee that building “consensus” is not his job as a journalist. He went on to say:

“This is an Alamo moment for the First Amendment. Most of America’s closest allies have already adopted draconian speech laws. We’re surrounded. The EU’s new Digital Services Act is the most comprehensive censorship law ever instituted in a democratic society.

“Ranking member Raskin, you don’t have to go as far as Russia or China to find people jailed for speech. Our allies in England now have an Online Safety Act that empowers the government to jail people for nebulous offenses like ‘false communication’ or causing ‘psychological harm.’ Germany, France, Australia, Canada, and other nations have implemented similar ideas.

“These laws are totally incompatible with our system. Our own citizens have been arrested in some of these countries, but our government hasn’t stood up for them. Why? Because many of our bureaucrats believe in these laws.

“Take USAID. Many Americans are in an uproar now because they learned about over $400 million going to an organization called Internews, whose chief Jeanne Bourgault boasted to Congress about training ‘hundreds of thousands of people’ in journalism. Her views are almost identical to Kerry’s.

“She gave a talk about ‘building trust and combatting misinformation’ in India during the pandemic. She said that after months of a ‘really beautifully unified Covid-19 message,’ vaccine enthusiasm rose to 87%, but when ‘mixed information on vaccine efficacy’ got out, hesitancy ensued.

“We’re paying this person to train journalists, and she doesn’t know the press doesn’t exist to promote ‘unity’ or political goals like vaccine enthusiasm. That’s propaganda, not journalism.

“Bourgault also once said that to fight ‘bad content,’ we need to ‘work really hard on exclusion lists or inclusion lists’ and ‘really try to focus our ad dollars’ toward ‘the good news.’”

“Again, if you don’t know the fastest way to erode ‘trust’ in media is by having government sponsor ‘exclusion lists,’ you shouldn’t be getting a dollar in taxpayer money, let alone $476 million. And USAID is just a tiny piece of a censorship machine Michael and I saw across a long list of agencies. Collectively they’ve bought up every part of the news production line: sources, think-tanks, research, ‘fact-checking,’ ‘anti-disinformation,’ commercial media scoring, and when all else fails, censorship.

“It’s a giant closed messaging loop, whose purpose is to transform the free press into a consensus machine. There’s no way to remove the rot surgically. The whole mechanism has to go.
​
“Is there ‘right-wing misinformation’? Hell yes. It exists in every direction. But I grew up a Democrat and don’t remember being afraid of it. At the time, we didn’t need censorship because we figured we had the better argument.”

​Congress is once again attempting to keep children off of social media. It’s a noble and well-intended effort – but it also implicates the First Amendment in ways that deserve more scrutiny in Congressional debate.
 
The bill, dubbed the “Kids Off Social Media Act,” is a bipartisan effort spearheaded by Sen. Brian Schatz (D-HI) and Sen. Ted Cruz (R-TX). According to a press release on Sen. Schatz’ website, the legislation would ban social media accounts for children under 13 and prohibit algorithmic recommendations to users under the age of 17.
 
A large body of research implicates social media as harmful to child development. Sen. Schatz himself cites an alarming study showing that social media is a leading driver of poor mental health among youth. According to the CDC, 57 percent of high school girls and 29 percent of high school boys felt persistently sad or hopeless in 2021. This social despondency is often attributed to sites like Instagram that proliferate unattainable standards for children in looks, wealth, and travel.
 
As parents ourselves, we do not underestimate the risks social media can pose to children. At the same time, we cannot ignore that children have free speech rights, too. Some digital rights activists have also expressed concern that implementing new rules around social media would cause platforms to collect even more data from consumers. The Open Technology Institute demonstrates that such a law could make it necessary to engage in “the installation and use of AI-powered spyware to surveil students’ online activities during and outside of school hours.”
 
We advise Congress to move with great deliberation in considering this bill – and others like it – to ensure that Congress fully considers its secondary effects like the law’s potential to promote AI surveillance of students. There are few serious problems in America that cannot be made worse by an overly ambitious law and regulatory regime. It’s one thing to want to keep our kids happy and healthy – it’s another to prescribe broad fixes with insufficient detail and safeguards. Members of Congress should think hard about the implications inherent in any bill regulating the speech rights of Americans.
 
Perhaps this debate might spur social media companies to preempt legislation by taking serious steps to address the multitude of problems children face on social media. If social media companies were to create safer, more kid-friendly spaces, Congress may not need to act at all.

​The United States Military Academy at West Point last week ordered all extracurricular clubs centered around gender or race to immediately “cease all activities.” While the directive is likely legal, we might want to take a deep breath to navigate entry into tricky territory.
 
According to a recent memo issued by West Point deputy commandant Chad Foster, such clubs must immediately “unpublish, deactivate, archive, or otherwise remove all public facing content.” All other group activities, meanwhile, have been paused – presumably pending a review. Affected clubs include the Society of Women Engineers, the National Society of Black Engineers Club, the Asian-Pacific Forum Club, the Contemporary Cultural Affairs Seminar Club and the Latin Cultural Club. In total, at least a dozen groups are explicitly required to disband.
 
It's understandable why Defense Secretary Pete Hegseth would want to end DEI programs within our national security apparatus. DEI is an eccentric and extreme ideology that defines people based on their immutable characteristics – permanently branding them as privileged colonizers or oppressed victims. Replacing “equality” with “equity” is not exactly the best way to build unit cohesion in the military, or even to address racial disparities in the civilian world.
 
On the other hand, protecting us against the threat of the West Point chapter of the National Society of Black Engineers seems like overkill. Such affinity groups have traditionally been where minorities go for mutual support. West Point now has 280 women in a class of more than 1,200. It’s perfectly understandable why women might want their own affiliate group in a traditionally male-dominated institution like West Point.
 
Groups that will likely survive the order include gender-oriented clubs centered around athletics, such as women’s boxing and women’s team handball. West Point’s “Clubs and Organizations” web page is currently – and perhaps unsurprisingly – buggy and largely useless.
 
It is not immediately obvious how the First Amendment right to speech and free association should be treated at a military academy. Once a plebe takes the R-Day Oath to the Constitution, they are in a unique zone where some of those constitutional rules no longer strictly apply. It is reasonable to keep military education free of ideological indoctrination. But care must be taken to remove DEI in a way that is neutral in its application.
 
We’ll continue to closely monitor this situation as it develops.