​The media has had a field day with indignant headlines over Texas A&M University forbidding the teaching of Plato – in a philosophy class! There must be an Aggie joke in there somewhere.

But underneath the headlines are some deeper issues worthy of discussion.

The Texas A&M University System’s Board of Regents voted in November to require professors to seek the approval of their campus presidents in advance for any courses that “advocate race or gender ideology, or topics related to sexual orientation or gender identity.” They simultaneously prohibited faculty from teaching material inconsistent with a course’s approved syllabus.

Since Texas A&M is a public institution, it can be directed – or at least influenced – by public policy in a way that a private university cannot. The board was responding to the widespread conviction within the conservative majority in the Texas Legislature that “gender studies” is too ideological and crowds out serious studies with turgid, jargony papers.

But Plato is anything but turgid or jargony. The philosopher who invented the concept of academia had a lot to say about sex. The many facets of Plato’s discussion on eros provoke critical thinking, as it was meant to.

The proposed curricula included parts of Plato’s Symposium in which seven characters express varying views on sexuality. One speaker praises homosexuality as a way to create virtuous and courageous armies. Another extols the supposed benefits young males receive when having relations with older men. The drunken Alcibiades regrets that he couldn’t seduce the elderly, homely, Socrates.

Socrates, as usual, seems to speak for Plato when he turns from these earth-bound considerations to spiritual ones. He recounts a relationship he had as a young man with an older woman, Diotima. She taught him about the “ladder of love,” an escalation from physical attraction to a love of knowledge, ultimately to a sublime appreciation for Beauty. Socrates concludes by extolling the “pregnancy of the mind,” which gives birth to insights and virtue.

These passages would have also given Texas A&M students insights into Socrates’ unique take on eros as an invitation for the soul to climb the ladder of love. It certainly wouldn’t have corrupted them (leave that to the internet). Corruption of youth is the charge behind the sentence that resulted in Socrates drinking hemlock. Today, we just make the professor pull the course.

Texas legislators and leaders of the Texas A&M system alike should consider that their backlash is a mirror image of what they are reacting against. Is this action no less a betrayal of the First Amendment’s protection of the free expression of ideas than was the preceding, decades-long hostility towards conservative ideas (often disguised as “speech codes”)?

“This is what happens when the board of regents gives university bureaucrats veto power over academic content,” wrote Lindsie Rank of FIRE, the Foundation for Individual Rights and Expression. “You don’t protect students by banning 2,400-year-old philosophy.”

If all of this strikes you (as it does us) as impinging on academic freedom, you’re not alone.

“That’s not education,” tweeted FIRE, “it’s risk management.” The purpose of higher education, from a First Amendment perspective, remains the opposite of that, namely intellectual risk taking. Should faculty follow their syllabi? Common sense requires that they do. But the content of those syllabi – by whom should that be governed?
​
After he founded the University of Virginia, Thomas Jefferson declared to his Enlightenment pen pal William Roscoe, “This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.”

Will Smith sang of Miami, “the heat is on all night.” In Miami Beach, it’s on all day too, especially if one is brazen enough to criticize the mayor.

A couple of weeks ago, resident Raquel Pacheco left a hot comment on a Facebook post by Mayor Steven Meiner. The mayor had posted, “Miami Beach is a safe haven for everyone,” adding, “We will always stand firm against any discrimination.”

In response, Pacheco commented:

“The guy who consistently calls for the death of all Palestinians, tried to shut down a theater for showing a movie that hurt his feelings, and REFUSES to stand up for the LGBTQ community in any way (even leaves the room when they vote on related matters) wants you to know that you’re all welcome here.”

She then added three clown emojis.

Two police officers were soon dispatched to knock on her door. One of the officers was later identified in a photo taken at a residential campaign event for the mayor in October.

Both Pacheco and Meiner are Jewish, but they have very different views when it comes to Israel, culture, and politics. To be clear, Pacheco’s post was hyperbolic. The mayor has never called for the death of Palestinians. He did, however, attempt to break the city’s lease with a theater that was showing what he considered to be a film that contained anti-Israeli hate speech. As for LGBTQ issues, community reviews are far from glowing.

Pacheco’s comment and additional replies contained inaccuracies, sarcasm, and exaggeration. But nothing in it justified a police visit, which could be taken as a thinly disguised attempt at intimidation. Agree or disagree with her words, they strike us as a traditionally, and perhaps uniquely, American approach to political discourse – which is to say, rude –  yet guaranteed by an at-times inconvenient First Amendment. This isn’t Germany, after all, or the UK, where comedians are arrested for tasteless jokes.

Which leads us to wonder, was it the clown emojis that pushed the mayor and his team over the edge? We wouldn’t envy anyone the task of explaining emojis to James Madison and his fellow founders, but we feel confident they would recognize them as symbolic communication, the substance of all human language, and therefore something to be given a wide berth when confronted by thin-skinned authorities.

The only truly scary line uttered by anyone involved in this entire imbroglio came from one of the attending police officers. Whether speaking on behalf of his boss or not, he told Pacheco:

​“What we’re just trying to prevent is someone else getting agitated or agreeing with the statement.”

Send in the clowns.

On January 14, FBI agents raided the home of Washington Post reporter Hannah Natanson and seized her phone, two laptops, and a Garmin watch.

This story has brought the Privacy Protection Act (PPA) of 1980 back into focus. In theory, that law protects journalists from having their notes or “work product” seized unless they themselves are criminal suspects. And while the affidavit has yet to be unsealed, Natanson and The Post were told that they are not targets of the government’s probe. Yet clearly, she is being targeted as if she were a criminal. First Amendment watchdogs are understandably barking mad.

As Chris Cillizza recounts in his concise summation of recent history on the law and past raids on reporters, the PPA has inspired creative ways by administrations of both parties to circumvent it. The government doesn’t like it when a reporter knows more about a crime than the Department of Justice does. In such cases, what’s an administration to do? In the case of Fox News reporter James Rosen, Obama’s Justice Department in 2013 declared Rosen a co-conspirator with an actual criminal in order to confiscate that reporter’s notes. Then-Attorney General Eric Holder later admitted he never suspected Rosen of an actual crime.

To quote Cillizza, after the Obama Administration “stretched the rubber band” on First Amendment press protections, it “never went back.” The First Trump Administration stretched the rubber band some more. So did the Biden Administration. And now the second Trump Administration appears to be giving the method for getting around the law even more elasticity. Gabe Rottman of Reporters Committee has meticulously chronicled the long struggle between free press advocates and these successive administrations.

It is not a tale that inspires hope. Consider how the Department of Justice embraced an internal policy of protecting reporters, only to violate its own policy, then rescind it altogether.

As dysfunctional as the media may sometimes be, it still performs a vital role in national hygiene – bringing to light corruption and malfeasance in government. Time after time, we’ve seen administrations act under the banner of “national security,” when they are in fact seeking primarily to avoid political embarrassment.

This worsening trend in press freedom in recent years suggests that the Privacy Protection Act is an insufficient guarantor of journalistic rights. As aggressive and overreaching as Attorney General Bondi’s move against Natanson was, it is the logical continuation of the policies of the last four presidential administrations.
​
Only by passing the Protect Reporters from Exploitive State Spying (PRESS) Act – a genuine press shield law – will the feds respect the role of journalists in a First Amendment society.

​The conventional wisdom has long held that religion in America is steadily retreating from public life. Faith, we’re told, is becoming ever more private – something to be practiced quietly at home or in church, but kept out of schools, workplaces, and civic debates.

Becket’s newly released 2025 Religious Freedom Index tells a very different story.

According to the latest national polling, Americans’ support for religious liberty has reached an all-time high. The Index’s composite score climbed to 71 percent in 2025 – up from 2024 and five points higher than in 2020 – marking the strongest public backing for religious freedom since Becket began tracking attitudes. 

Even more striking is where that support is growing.

Faith Is Re-Entering the Public Square

One of the clearest trends in the 2025 data is a renewed confidence in public expressions of faith. Fifty-seven percent of Americans now agree that religious freedom is “inherently public,” meaning people should be free to share their beliefs at school, at work, and online – a five-point jump since 2020. 

That shift matters. It suggests Americans are pushing back against the idea that religious conviction must be hidden to be acceptable. Instead, they increasingly see faith as part of ordinary civic life – no more out of place than political views, cultural identity, or personal values.

At a moment when public discourse feels deeply fractured, this trend is unexpectedly unifying. Becket’s polling finds that support for religious liberty cuts across political, demographic, and generational lines, making it one of the few issues that still brings Americans together.

Parents’ Rights Are a Rallying Point

Nowhere is that unity clearer than on the question of parental rights in education.

Seventy-three percent of Americans support allowing parents to opt their children out of public-school curriculum they find objectionable – an increase of ten points since 2021.

That growing consensus mirrors recent U.S. Supreme Court decisions affirming that parents’ authority over their children’s moral and religious upbringing does not stop at the classroom door. In Mahmoud v. Taylor, the Court required Montgomery County, Maryland to offer curriculum opt-outs, recognizing that parental rights extend into public education. Becket’s data shows that 62 percent of Americans agree with that ruling – a rare moment when public opinion, constitutional principle, and judicial decision align. 

The message is clear – parents expect the law to respect their role as the primary guardians of their children’s values.

Protecting the Sacred Still Matters

Another revealing result concerns one of the oldest religious practices in the Western world – the Catholic sacrament of confession.

Washington State enacted a law that would have forced priests to report anything they heard in confession related to abuse or neglect, effectively breaking the age-old seal of the confessional. This law made no sense as a law enforcement measure. In the confessional, a priest can urge a wrongdoer to turn himself in. Under this statute, the process of turning someone toward repentance and the law would be discouraged.

Becket challenged the law, and a federal court struck it down.

The poll shows that Americans overwhelmingly side with that outcome. The Index found strong support for protecting priests under the First Amendment in this context, affirming that even serious policy goals cannot justify trampling core religious practices.

This isn’t merely a Catholic issue. It reflects a broader public instinct that the government should not insert itself into sacred spaces – whether that’s a confessional, a synagogue, a mosque, or a prayer meeting.

School Choice Gains Ground

Colorado barred families from receiving state funding – available to most private schools – if they choose to send their children to Catholic schools. Americans also approve of the idea that when tax credits and funding are available for private schools, religious schools should be treated equitably. Three in four Americans now favor allowing public education funding to follow families who choose religious schools for their children.

Americans increasingly see educational funding as belonging to families, not systems. If parents decide that a religious school best serves their child, many Americans believe the government should respect that decision rather than penalize it.

A Cultural Rebalancing

Taken together, these results point to something larger than any single Supreme Court case or policy debate. They suggest that after years of cultural turbulence – from pandemic shutdowns to ideological battles in schools, to rising mistrust of institutions – Americans are once again coming to value the stabilizing role of religious freedom.
​
Becket’s 2025 Index shows that this vision resonates far beyond church pews. It resonates with parents who want a say in their children’s education, with workers who don’t want to check their beliefs at the office door, and with citizens who still believe that pluralism, not enforced secularism, is the hallmark of a healthy democracy.

​Once upon a quainter time, America’s elected leaders understood that it is unwise and improper to fully exercise their First Amendment rights by commenting on an ongoing homicide investigation. Just because the Constitution allows you to speak does not make all speech wise, prudent, or necessary.
 
President Richard Nixon learned this the hard way in 1970 when he declared Charles Manson, then on trial, “guilty, directly or indirectly, of eight murders without reason.”
 
This set off a firestorm of criticism, despite the fact that Manson was obviously guilty of inciting the murder of actress Sharon Tate and seven others. The president’s comments interfered with the due process of an ongoing trial, potentially giving Manson’s defense attorneys an unexpected gift.
 
Within hours, the Nixon White House released a statement:
 
“To set the record straight, I do not know and did not intend to speculate as to whether the Tate defendants are guilty, in fact, or not. All of the facts in the case have not yet been presented. The defendants should be presumed to be innocent at this stage of the trial.”
 
Like many other long-respected guardrails, the prohibition of official interference in homicide investigations and prosecutions has been cast aside. It started with the early verbal conviction by politicians of the police officer who was ultimately found guilty of the murder of George Floyd. The emergence of politicians as judge and jury escalated with another fatal shooting in Minneapolis, that of Renee Nicole Good at the hands of an Immigration and Customs Enforcement (ICE) officer on January 7.
 
Within days of that event, former Secretary of State and U.S. Senator Hillary Clinton posted on X: “Last night, at the corner where an ICE agent murdered Renee Good, thousands of Minnesotans gathered in the frigid dark to protest her killing.”
 
President Trump chimed in on Sunday. Speaking to reporters, he said: “At a very minimum, that woman was very, very disrespectful to law enforcement.”
 
This prompted Mike Fox, a legal fellow at the Cato Institute’s Project on Criminal Justice, to tell The New York Times: “As far as I can tell … she’s just a local woman who lived in the community. But it doesn’t really matter, right? You don’t get to kill someone because they engage in conduct that you disagree with or find distasteful or deplorable. If cops could just kill people any time they get annoyed or frustrated, my God, we would be in trouble.”
 
Whatever your views about Americans treating the police with disrespect – and to be clear, while we exist to defend speech, we hate it when people insult police officers – courts have long upheld that speaking disrespectfully to the police is protected by the First Amendment. Courts have even upheld the right of Americans to curse at cops, so long as their words are not threatening violence. Perhaps you disagree. But we hope you agree that in this country, we don’t shoot people in the head for being “very, very disrespectful.”
 
Tom Homan, White House “border czar,” is one public official who has kept his head. He told Tony Dokoupil of CBS:
 
“I am not going to make a judgment call on one video when there’s a hundred videos out there. I wasn’t on the scene. I’m not an officer that may have body cam video. It would be unprofessional to comment on what I think happened in that situation. Let the investigation play out and hold people accountable based on the investigation.”
 
While the FBI having taken over the investigation have made some people suspicious and others defensive, the wiser course is still to let the legal process play out before litigating it in the court of public opinion.
 
That is far better than convicting an officer of murder while an investigation into his actions is still under way, or suggesting that – “at a minimum” – Americans are subject to being shot to death for exercising their First Amendment rights.

​Imagine you’re a Roman Catholic and you go to confession. After spilling your guts about things you’ve done that weigh on your conscience, the priest says, “Actually, don’t sweat it, I don’t believe there is such a thing as sin. Do whatever feels right to you.” You would understandably feel confused as you stumbled out of the confession booth.

This never actually happens because the Roman Catholic Church, like all religions, insists that its clergy believe in its precepts. And in Roman Catholicism, the need for confession and the forgiveness of sins is definitely one of them.

This makes religious organizations different from a business. If a corporation were to tell a job applicant, “sorry, you’re well qualified for this position, but we don’t hire Jews (or Christians, or Muslims, or atheists),” that would be a gross violation of federal civil rights laws. And it should be.

But the law cannot force the Catholic Church to employ a priest who is a stone-cold atheist, or a synagogue to employ a rabbi who wishes to share the Christian gospel. In order for religious groups to have integrity – in the sense of being a coherent whole – they must be able to use their right of free association, as implied by the First Amendment, to only hire their co-religionists.

That is, in essence, what the law means by a “ministerial exception.” Without that exception, religions would have no coherence, rendering the First Amendment’s promise of the free exercise of religion meaningless.

So far, so good. But does the ministerial exception extend to staff? What about the IT guy who keeps the organization’s computer system running? Does he have to adhere to the faith?

That was the question at stake for the Union Gospel Mission of Yakima, Washington. This Christian mission group offers services to the homeless, the hungry, the sick, and the addicted. It operates shelters, health clinics, soup kitchens, and faith-based recovery services. That organization insists that its support staff uphold its beliefs and practices, which includes “abstaining from any sexual conduct outside of biblical marriage between one man and one woman.” Again, in any ordinary context, such a standard by an employer would be – and should be – illegal. But what about a church?

A case against this mission group has bounced several times between a lower court and the Ninth Circuit Court of Appeals over a violation of the state’s Washington Law Against Discrimination – perhaps the most robust anti-discrimination law in the United States. On Jan. 6, the Ninth Circuit ruled – and it came down in favor of the Union Gospel Mission on the basis of a broader “church autonomy doctrine.”

Judge Patrick Bumatay wrote: “The church autonomy doctrine encompasses more than just the ministerial exception. It forbids interference with ‘an internal church decision that affects the faith and mission of the church itself.’”

Judge Bumatay noted that Union Gospel requires “employees attend daily prayers and weekly chapel services, and are encouraged and expected to pray for one another and share devotionals … Union Gospel’s religious beliefs guide everything it does … It expects its employees to participate in the group’s evangelism and be an example to others of what Union Gospel believes it means to be a Christian.”

The court found that the hiring of non-ministerial positions isn’t necessarily a religious matter. The religious institution must be able to show – as Union Gospel did – that it has a sincere religious belief in the religious mission of these staff positions.

Judge Bumatay, noting in his opinion that “personnel is policy,” wrote that “this applies perhaps even more so for religious organizations.”
​
In the end, the Ninth Circuit did not say that churches get a blank check to discriminate – but it did say that when a religious organization can show that every role is bound up in its spiritual mission, the Constitution gives that judgment real weight. The IT guy may not preach from the pulpit, but if his job is part of advancing the faith, the law will not force a church to separate belief from practice. That balance – between civil rights and religious autonomy – is exactly the line the First Amendment was meant to draw.

​Challenges to the First Amendment kept coming throughout 2025 – whether to freedom of speech, to the free exercise of religion, or to the freedom of the press. At every turn, Protect The 1st was there to advocate for First Amendment rights, before Congress, the courts, and the court of public opinion.

The Little Sisters of the Poor

In December, we told the states of Pennsylvania and New Jersey to get a life and stop harassing nuns. In our amicus brief supporting the Little Sisters of the Poor, we asked the Third Circuit Court of Appeals to remind the states that the Supreme Court has twice upheld the Catholic charity’s right to receive a religious exemption from an onerous Affordable Care Act mandate requiring employers to provide contraception in their insurance programs.

The Little Sisters have been fighting this battle for a long time. We will remain as persistent in standing up for their right of religious expression as we have for Sikhs, Muslims, Jews, and other believers and non-believers. And we will also continue to call on the Supreme Court to clarify how the Religious Freedom Restoration Act (RFRA) – which prohibits the government from substantially burdening religious exercise – protects the rights of all religious groups.

Standing Up for Free Speech Online

In July, Protect The 1st policy director Erik Jaffe delivered a robust “old school textualist” defense of the First Amendment at the Federalist Society’s Freedom of Thought conference. While others called for more government control of algorithms, Jaffe warned against expanding government influence over anything speech-adjacent. He reminded us that algorithms, like other software code, are effectively “speech” tools that execute human editorial choices. The constitutional rules limiting them should be the same whether digital or analog.

Defending Unpopular Speech

Protect The 1st is committed to the principle that the First Amendment applies even when it’s inconvenient, protecting expression that many reasonable citizens might wish it didn’t. Such was the case with anti-Israeli activist Mahmoud Khalil. We also stood up to protect Jewish students who were targeted by anti-Israel activists, including those who tried to enforce “Jew-free zones” on campus. Likewise, we urged our followers to denounce the new wave of anti-Semitism arising on both the left and the right.

Mahmoud v. Taylor

In our amicus brief before the Supreme Court, we told the Court that public schools cannot compel young children to endure instruction that violates their family’s religious convictions without providing notice or the ability to opt out.

“Such manipulation of a captive and vulnerable audience” is as morally wrong as it is unconstitutional. Parents must be able to trust that their deeply held convictions will not be undermined without recourse. On June 27, 2025, in a 6-3 decision that cited Protect the 1st’s brief, the Court sided with the parents, holding that the government burdens parents' religious exercise when it requires their children to participate in instruction that violates the families' religious beliefs.

Advancing School Choice in Congress

Protect The 1st sees school choice as a First Amendment issue. Why? It advances the right of parents to preserve and express their values and beliefs across generations. For that reason, we advocated on Capitol Hill in support of both the House and Senate’s passage of landmark school choice legislation.

“For the first time in American history,” our senior policy advisor Bob Goodlatte said, “the right of parents to choose the best school for their children will be supported by a federal tax credit.”

Conservative Censorship Is Also Censorship

Throughout the Biden years, Protect The 1st consistently criticized that administration for secret jawboning of social media companies to deplatform conservative voices. We even reported on expenditures within the State Department to persuade advertisers to defund conservative publications.

When Brendan Carr, President Trump’s Chairman of the Federal Communications Commission, pressured ABC to fire a late-night talk show host, we were no less outspoken. We saluted Sen. Ted Cruz (R-TX), who denounced this heavy-handed attempt at government management of speech – likening the temptation to use official power to silence one’s critics to the almost unbearable temptation of the magical ring of power in J.R.R. Tolkien’s Lord of the Rings.

The PRESS Act

We look forward to the passage of the Protect Reporters from Exploitive State Spying (PRESS) Act, which would protect the notes and sources of journalists from government prying. We criticized Attorney General Pam Bondi’s reversal of a Department of Justice memo that offered limited protections to journalists in leak investigations.

We will continue to work with a bipartisan coalition on Capitol Hill to fill the gap in journalist protections at the Justice Department by urging Congress to pass the PRESS Act. The PRESS Act would prohibit federal authorities from spying on journalists through the collection of their phone and email records, with reasonable exceptions for emergencies.

The PRESS Act has passed the House twice. With support from Republican Sens. Mike Lee (R-UT) and Lindsey Graham (R-SC) as well as Democrats like Sens. Ron Wyden (D-OR) and Sen. Dick Durbin (D-IL), we are hopeful that 2026 will be the year the PRESS Act becomes law. 
​
We will continue to stand up for free expression – whether political, journalistic, or religious. Wherever some have been silenced, we will be loud in their defense. We will continue to advocate for the First Amendment because it gives you the right to have your voice heard in America’ diverse, democratic marketplace of ideas.

​A three-judge panel of the 11th Circuit Court of Appeals denied President Trump’s lawsuit against CNN for saying that his claims about the 2020 election were a “Big Lie.”

What’s the big deal about the Big Lie?

That propaganda term was coined by Adolf Hitler in the 1920s to describe a technique in which many people – who might doubt a small, unfounded accusation – are apt to believe an absurd, outlandish falsehood. Say that your opponent is beholden to special interests, and people shrug. Say that he sacrifices stray dogs to the Roman God Mars, and a surprising number of people will believe it must be true.

Why do some react this way? Hitler wrote in Mein Kampf that it is because most people believe that no one “could have the impudence to distort the truth so infamously.”

So, when CNN ran a story accusing Trump of peddling the “Big Lie” that the 2020 election was stolen, the president was understandably offended by the comparison. He sued. But was he correct in telling the court that audiences would assume that he was doing exactly what “Hitler did in his monstrous, genocidal crimes against humanity”?

A cursory search shows that the “big lie” trope has been watered down by commonplace usage. During President Trump’s first term, then-Attorney General William Barr described the allegations that Trump’s 2016 victory occurred with an assist from Putin as a “big lie.” Sen. Mitch McConnell, then-Minority Leader, accused Democrats of pushing a “big lie” about Republican proposals for voter IDs. President-elect Joe Biden castigated Sen. Josh Hawley for being “part of the big lie” about the 2020 election.

The term “big lie” might have been defamatory in 1938. By 2025, it has been used so often and so elastically that it has surely lost much of its sting. That is one reason why the appeals court panel ruled:

“To be clear, CNN has never explicitly claimed that Trump’s ‘actions and statements were designed to be, and actually were, variations of those [that] Hitler used to suppress and destroy populations.’”

Two of the three judges were Trump appointees. The judges harked back to failed defamation cases in which one plaintiff was described as a “fascist” and another as “an outspoken proponent of political Marxism.” Courts found that such terms were, in the ruling on the first case, “so debatable, loose and varying that they were insusceptible to proof of truth or falsity.”
​
Courts have long recognized that political speech deserves the widest latitude when it comes to defamation. Politics is not for the easily bruised. Still, with great freedom comes great responsibility. We would all be better off as a country if politicians and journalists alike were to dial back the rhetoric and stick with the facts.

​Nearly half of the residents of Westminster, California, are Asian American. So when an ancient Chinese religious symbol – a “bagua mirror” – appeared on the exterior entrance of the mayor’s office, it did not strike locals as exotic, unfamiliar, or out of place.

This particular bagua mirror, however, came to reflect a recurring but often misunderstood issue in First Amendment law: When does the government’s tolerance of religious expression cross the line into an establishment of religion?

For the uninitiated, a bagua mirror is an octagonal mirror with special design features that serve as a protective amulet to deflect harmful spirits and attract good fortune, in keeping with Taoist beliefs and feng shui principles.

In September 2024, Joseph Ngo, a candidate for city council, held a press conference in front of the mayor’s office, complaining that the bagua mirror offended him as a devout Catholic. When the candidate removed the mirror, he was promptly arrested by the Westminster police. (Hat tip: Eugene Volokh.)

Was this a justifiable act of civil disobedience by a citizen against a symbol in violation of the First Amendment’s prohibition against the establishment of religion? Ngo sued, claiming his arrest was a violation of his free exercise of religion and speech.

U.S. Magistrate Judge Autumn Spaeth came down with a decisive ruling – one that demonstrates that the Constitution does not require the eradication of all religious imagery. Nor does it allow an individual to use physical action – possibly vandalism – to curate what a community can post or see. Judge Spaeth quoted the U.S. Supreme Court, which held that the Establishment Clause does not “compel the government to purge from the public sphere anything an objective observer could reasonably infer endorses or partakes of the religious.”

It is for that reason that, in Lynch v. Donnelly (1983), the Supreme Court held that a city-owned and displayed Christmas nativity scene including the infant Jesus, Mary, and Joseph did not violate the Establishment Clause. The Justices noted that the very Supreme Court chamber in which oral arguments on that case were heard “is decorated with a notable and permanent – not seasonal – symbol of religion: Moses with the Ten Commandments.”

The case of the bagua mirror may seem like an outlier. But it is a timely reminder to many communities that while the Establishment Clause limits the state’s power to promote religion, it does not authorize citizens or the government to treat religious expression as presumptively suspect, much less as a contaminant to be scrubbed from public life.

The First Amendment was designed to restrain government coercion, not to mandate government hostility. A Constitution that required officials to sterilize the public square of every cultural or religious reference would not be neutral – it would be aggressively secular, and deeply illiberal.

Under such a regime, much would be lost.

“We must judge the tree by its fruits,” the philosopher William James wrote. “The best fruits of the religious experience are the best things history has to offer. The highest flights of charity, devotion, trust, patience, and bravery to which the wings of human nature have spread themselves, have all been flown for religious ideals.”
​
The Constitution, properly understood, leaves room for those flights – even when they appear by the door of a mayor’s office.

​Those words, penned by Thomas Jefferson in the Declaration of Independence in 1776, were revolutionary in every sense. They defined human rights not as gifts bestowed on people by their rulers, but as birthrights we all possess as human beings. In a provocative and thought-provoking essay published by the Ethics and Public Policy Center, Andrew Walker and Kristen Waggoner ask whether the right to free speech is related, as the Declaration suggested, to the will of our Creator.
 
Of course, for that question to make sense, one must believe in God. The late Nat Hentoff, author of Free Speech for Me, But Not for Thee, was a confirmed atheist and passionate defender of free speech. He believed in the ethical roots of free speech – as well as its value for democracy. But Walker and Waggoner see moral roots in free speech – “not merely a political concession of liberal democracies but [one that] arises from humanity’s nature as rational agents made in the image of God, created to be seekers and speakers of truth.”
 
The rub, as Pontius Pilate asked, is: What is truth? The answer from belief is that truth is rock-solid and not subject to the relativism of politicians. “In general,” the authors write, “speech enters a ‘danger zone’ when people abandon the pursuit and expression of truth, allowing prurient (valueless), scandalous, malicious, and inciteful (physically animating) speech to predominate.” They later write: “Not all sinful speech should invite government regulation.”
 
On that note, we can imagine Lenny Bruce crushing a cigarette on the floor and saying – with a few choice expletives – “not any *@#$% regulation at all!” Walker and Waggoner, however, in defining their “Public Theology of Free Speech,” also see the dangers of government regulation: “We allow free speech as a political concession in service of a deeper moral and theological right – the right to seek and speak the truth.”
 
As theologians have argued for millennia, free will enables sin, but without that enablement, no virtue would be possible. The same holds true for speech. The Supreme Court allows government sanction of direct calls for violence, as well as the punishment of libel and false advertising. Going further than that risks tampering with free will. The authors quote Christ, who warned in the parable of the weeds, “lest in gathering the weeds you root up the wheat along with them.”
 
Whether the roots of free speech are divine or ethical, Walker and Waggoner converge with Hentoff on the value of free speech. The latter wrote:
 
“Those who created this country chose freedom. With all of its dangers. And do you know the riskiest part of that choice they made? They actually believed that we could be trusted to make up our own minds in the whirl of differing ideas. That we could be trusted to remain free, even when there were very, very seductive voices – taking advantage of our freedom of speech – who were trying to turn this country into the kind of place where the government could tell you what you can and cannot do.”
 
Is there a better use of humanity’s free will than that?

Wilmer Chavarria is a school superintendent in Vermont. He became a U.S. citizen in 2018 after arriving in the United States a decade earlier to get an education. In April, he refused to sign his state’s request to certify to the U.S. Department of Education that no school district in Vermont was using “illegal” DEI practices.

He did so publicly, noting that his district is Vermont's most diverse. The controversial DOE request was one that 19 states, including Vermont, ultimately refused to comply with. Agree or disagree, Chavarria’s political speech should not make him a target for selective law enforcement.

Chavarria is making precisely that claim, suing the Department of Homeland Security for an incident at Bush Intercontinental that happened a suspiciously coincidental three months after he criticized the policy.

According to the lawsuit, Customs and Border Patrol (CBP) agents detained him and demanded his device passwords. They threatened him and refused to say why he was being held. Only after agents promised not to look at confidential student records did he reluctantly relent. The agents then disappeared with his devices, returned them without comment, and immediately revoked his longstanding TSA Global Entry status, stating that Chavarria suddenly no longer met “program eligibility requirements.”

That day in July, he was returning home after visiting family in Nicaragua – something he had done many times before without trouble. When asked about such incidents, CBP consistently maintains that “lawful” travelers need have no fear of being detained. By that logic, it appears that New England schoolchildren and naturalized citizens are a greater threat to the republic than anyone previously realized.

In short, this story looks like political targeting, walks like it, and quacks like it. There are some 26 million naturalized U.S. citizens. And from the moment they finish swearing “so help me God,” they fall under the protection of the First Amendment, no less than a native-born citizen of Vermont or metropolitan Houston.
​
As the lawsuit proceeds, Congress would do well to look under the hood of this detention and forced surveillance. If political dissent can trigger warrantless searches, credential revocations, and digital shakedowns at the border, then the problem is not one traveler – it’s the power over speech being exercised in our name.

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

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

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

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

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

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

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

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

In our amicus brief, we tell the Third Circuit:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The College Pulse Poll commissioned by FIRE found:

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

 

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

 

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

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

Calm Surface, Roiling Emotions

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

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

Confusing Words with Violence

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

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

But we take Tuccille’s point.

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

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

Is Some Speech So Heinous that Violence Is Justified?

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

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

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

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

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

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

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

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

The governing Liberal Party in Canada thinks so.

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

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

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

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

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

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

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

Precedent Is “a Dried Husk”

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

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

 

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

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

Who Makes the Laws?

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

Lawmaking?

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

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

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

Regulating Speech: Risks Under Both Models

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

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

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

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

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

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

A Constitutional Contradiction with No Easy Fix

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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