​President Trump announced on Monday that he is directing the Department of Education to formulate guidelines to protect prayer in public schools. Is this the first step in imposing religion on Americans through public institutions, or a necessary act to defend the First Amendment rights of the religious?
 
The president could not have picked a more colorful stage for this announcement – inside the Museum of the Bible in Washington, D.C. – or a more attentive audience, the Religious Liberty Commission that he himself created. “The Department of Education will soon issue new guidance protecting the right to prayer in our public schools, and it's total protection,” the president said. Cue the critics who echo Robert Reich, former Secretary of Labor and leading progressive voice, who wrote: “A society where one set of religious views is imposed on those who disagree with them is not a democracy. It’s a theocracy.”
 
Is this fair? Of course, no executive order or law would override the Constitution’s establishment clause to allow, say, a teacher to begin each class with the Lord’s Prayer. But what about a teacher saying grace before lunch, or wearing a crucifix or Star of David? Or students who choose to privately pray?
 
We note two aspects of Monday’s event. First, President Trump did not say he was “establishing” prayer in public school classrooms. He said he was going to “protect” prayer in schools. To illustrate what he meant, President Trump pointed to Hannah Allen, who in 2018 was an eighth-grader at Honey Grove Elementary School in Texas. Hannah had organized a group of students to hold hands around an empty table at lunchtime to pray for the healing of a fellow student who had been injured in an accident.
 
The school’s principal broke up the prayer session. The next day, he told Hannah that students who wanted to pray should go behind the curtain of the cafeteria’s stage, outside the school, or to the gym. A tart letter from First Liberty Institute lawyers to the school district said these statements constituted an official message that prayer “is illegitimate, disfavored and should not occur in public.” The letter asserted that the principal showed hostility by “quarantining” prayer as if it were “an infectious disease.”
 
The school district quickly backed down.
 
During the session of the Religious Liberty Commission, commissioners heard from several other former students with harrowing tales of what can only be described as religious persecution.
 
One of them was Maggie DeJong, who filed a lawsuit against Southern Illinois University Edwardsville, alleging violations of her First Amendment rights. She had been ordered by university administrators to refrain from having “any contact,” or even “indirect communication” with three fellow graduate students who complained about her posts about religion and her respectful critique of Critical Race Studies theory in class.
 
Maggie told the commissioners that the administration had sent out emails to faculty and students denouncing her for “oppressive” comments that created “a toxic learning environment.” She expressed her dismay to the commissioners that a university, “which should be a marketplace of ideas,” would so forcefully shut her up. “I wish we could have shared our views,” she told the commissioners.
 
The Commission also heard from a young woman who attempted to establish a Students for Life organization at Queens College, part of the City University of New York. That application was denied, forcing the members of this would-be student organization to fund, through the university’s mandatory student activity fees of $1,200 (per student over eight semesters) for groups that support abortion.
 
Whatever your views on this contentious issue, surely banning one viewpoint and subsidizing its opposite is unconstitutional. After being sued in federal court, Queens College agreed to recognize the organization and revise its policies to prevent discrimination on the basis of belief.
 
The Commission also heard from an evangelical student at Georgia Gwinnett College, one that went all the way to the U.S. Supreme Court. When Chike Uzuegbunam attempted to share his enthusiasm about his recent conversion experience with fellow students at an outdoor plaza, campus police showed up to crack down on this act of “disturbing the peace.”
 
He was later offered the chance to voice his views from a designated “speech zone” that constituted 0.0015 percent of the campus, open only 10 percent of the time – as if the whole school shouldn’t be a free speech zone. A lower court ruled that because Uzuegbunam had claimed no monetary losses (beyond $1), and that the college had changed the policy, his case was moot.
 
The U.S. Supreme Court begged to differ. It heard the case and overturned the lower-court’s ruling. In an 8-1 decision, the Court reversed the lower court, citing precedent from British common law: “Because ‘every violation of a right imports damage,’ nominal damages can redress Uzuegbunam’s injury even if he cannot or chooses not to quantify that harm in economic terms.”
 
Uzuegbunam told the Commission that without this recognition of his religious rights, the “Constitution is an empty promise.” He also noted that in his case before the Supreme Court, he was elated to be supported by statements not just from fellow Christians, but also from Jews, Muslims, and atheists.
 
What came to the fore in this hearing was that despite reversals in court, there is a lack of understanding among educators that expressions of faith on campus – as long as they don’t interfere with instruction – enjoy First Amendment protection. It shouldn’t take a presidential initiative to make this clear.

​There is much more to Rastafari than reggae music and the ritual inhalation of ganja. This belief system is, in fact, recognized as an Abrahamic religion, with roughly one million adherents around the world, dedicated to its interpretation of the Bible and devotion to Jah, the Rasta designation for God.
 
Damon Landor, a devout Rastafarian, had grown dreadlocks over nearly two decades in devotion to his faith. Sentenced to prison for a drug-related conviction, Damon was allowed to keep his dreadlocks in keeping with court interpretations of the Religious Land Use and Institutionalized Persons Act (RLUIPA). With only three weeks left before his release, Damon was transferred to Raymond Laborde Correctional Center in Louisiana. At intake, he explained his beliefs, presented proof of past accommodations, and handed a guard a copy of the Fifth Circuit decision protecting Rastafarian inmates.
 
The guard threw it in the trash. When Damon offered to contact his lawyer to prove his dedication to his religion, guards forcibly handcuffed him to a chair and shaved his head bald. What began as an ugly dispute is now a landmark religious-liberty case. The U.S. Supreme Court has agreed to review Landor v. Louisiana Department of Corrections.
 
Though lower courts condemned the conduct, they denied Landor the ability to seek monetary damages under RLUIPA, finding that the statute bars such relief against individual officials.
 
In a powerful amicus brief, the Becket Fund for Religious Liberty argues that allowing damages under RLUIPA is essential – not merely appropriate – for holding prison officials accountable and safeguarding religious liberties. The brief warns that without such a remedy, courts effectively bless “mootness gamesmanship” – the practice of officials evading accountability by transferring or releasing inmates before injunctive relief can take effect.
 
“Without money damages, prison officials can engage in strategic gamesmanship to moot meritorious cases,” Becket told the Court. Becket warns that RLUIPA would otherwise be a "parchment promise." The brief also highlights that fears of burdening officials are overblown. Existing safeguards, including qualified immunity, the Prison Litigation Reform Act’s exhaustion and filing requirements, and screening for frivolous suits, ensure that only culpable officials face liability.
 
If the Supreme Court holds that RLUIPA doesn’t authorize damages, countless prisoners – particularly those who are transferred or released before adjudication – could never receive redress for profound religious violations. This is why dozens of Jewish, Christian, and Muslim organizations have filed amicus briefs in this case, understanding that respect for the religious rights of some involve the religious rights of all.
 
Protect The 1st will closely follow oral argument before the Court on November 10. In the meantime, keep in mind the words of the late, great Bob Marley: “You never know how strong you are until being strong is your only choice.”

​Two events cast long shadows over the House Judiciary Committee’s hearing on Wednesday concerning the threat of European censorship to American speech and innovation.

One was the arrest this week of comedy writer Graham Linehan by five armed police officers at London’s Heathrow Airport. If anyone should doubt that the speech laws of the UK’s Online Safety Act, as well as the Digital Services Act of the European Union, were meant to be global, it had to be the arrest of this Irish citizen who had posted his offending tweets from Arizona.

The other shadow was cast by the looming midterm elections, with Democratic Members firing shots not at Europe but at the White House. Ranking Member Rep. Jamie Raskin (D-MD) launched a spirited attack on President Trump for his treatment of the First Amendment, including the use of regulatory authority to coerce a $16 million settlement from Paramount over a nuisance lawsuit about CBS’s editorial decisions.

Chairman Jim Jordan (R-OH) archly noted that while Rep. Raskin spoke, an aide stood behind him with a large poster full of headlines “from countless articles criticizing Donald Trump” – underscoring, that whatever one thinks of the controversies of the Trump administration, free speech in America remains robust.

The star of the show was Nigel Farage, MP and the leader of the UK Reform Party in Parliament. His remarks were well set up by Chairman Jordan who noted that when European Commission member Thierry Breton had fired off a letter in 2024 to Elon Musk complaining about X’s posting of an interview with Donald Trump, he threatened “full use of our toolbox.”

This toolbox under the EU’s Digital Services Act includes fines that can reach 10 to 20 percent of global revenues. Enough of those could amount to a potential death-penalty fine for even the largest social media companies.

Breton, Rep. Jordan said, “threatened an American running an American company regarding our most important election.”

Farage seamlessly picked up on Jordan’s characterization, telling the committee that he came bearing bad news from the “land of the Magna Carta and the Mother of Parliaments.” He had come to the United States, he said, “to be a klaxon” warning of the impending threats from the UK and EU to free speech in America.

In his formal testimony, Farage told the committee that the British regulator Ofcom “purports to have the authority to demand that American citizens who operate web platforms provide Ofcom with incriminating information about themselves and their services. Failure to respond to these demands, or any evasion in a response to these demands, is a criminal offense in the United Kingdom, punishable by arrest, fines, and a term of imprisonment of up to two years’ duration.”

This threat is far from merely rhetorical, as the arrest of Linehan underscores.

“Ofcom has already threatened four American companies with exactly these penalties,” Farage told the committee. “I repeat: regulatory bodies in the United Kingdom are actively threatening to imprison American citizens for exercising their protected Constitutional rights.”

There were some notes of bipartisanship. Rep. Zoe Lofgren (D-CA), whose district includes Silicon Valley, said that she has long been “critical of the approach of the EU” on internet regulation.

Chairman Jordan defended American technology companies as an “engine of innovation in our global economy.” He noted that European regulation has not resulted in the rise of any competitive European champion.

“China wins as Europe hurts both itself and America,” Chairman Jordan said.
​
Overall, the hearing was noisy, contentious, and spirited – in all, exactly what one would hope for in a discussion about free speech.

Graham Linehan is an Irish sitcom producer and writer who lives in the UK. He also wrote a series of harsh tweets criticizing “trans activists” on X.

“I am furious about what is happening to women in the UK and I despise trans activists because I think they are homophobic and misogynist,” Linehan wrote.

He also posted this: “If a trans-identified male is in a female-only space, he is committing a violent, abusive act. Make a scene, call the cops and, if all else fails, punch him in the balls.”

How to characterize these tweets? Reactions range from “bigoted,” to “obscene,” to “kind of agree but over the top,” to “about time someone said that.” Left alone, Linehan’s posts would have floated past us down tweet river into oblivion.

But the ever-vigilant UK government, oblivious to the Streisand Effect, enlarged these tweets to the size of the Hollywood Sign and pumped them full of bright, blazing neon. Now the whole online world has read them. This happened after Linehan returned from Arizona to London, only to be greeted at the airport like a suspect in a terrorist investigation.

“The moment I stepped off the plane at Heathrow, five armed police officers were waiting,” he wrote. “Not one, not two, five. They escorted me to a private area and told me I was under arrest for three tweets … I was arrested like a terrorist, locked in a cell like a criminal, taken to hospital because the stress nearly killed me and banned from speaking online – all because I made jokes that upset some psychotic crossdressers.”

Offended? Many will be. But even if you judge the remarks to be radical, intemperate, or narrow-minded, it is still just speech. In our country, a comedian saying “punch him in the balls” would surely fall far short of the judicial doctrine of a “true threat” that would be actionable. Actual true threats by extremists preceded the July 7, 2005, terrorist bombings that killed 52 people and injured 800 in London. Confusing that with “punch him in the balls” degrades the meaning of actual violence.

Many Britons outside of Prime Minister Keir Starmer’s Labour government are as alarmed as most Americans.

“Sending five officers to arrest a man for a tweet isn’t policing, it’s politics,” said Tory leader Kemi Badenoch. “It’s time this government told the police their job is to protect the public, not monitor social media for hurty words.”

Nigel Farage, leader of the Reform party, said, “The Graham Linehan case is yet another example of the war on freedom in the UK … Free speech is under assault, and I am urging the USA to be vigilant.”

Should we be vigilant?

Warning Americans about the importation of these speech standards may, in the era of Trump at least, sound alarmist – “couldn’t happen here,” etc. But keep in mind that social media posts are global. The UK’s Online Safety Act, as with the European Union’s Digital Services Act, under which people can be officially investigated, arrested, and prosecuted, for merely insulting politicians, can also be used to deplatform Americans on U.S.-based social media under the laws’ broad definitions of “harmful” speech.
​
It's almost enough to make you want to punch someone in the cojones.

Call it Euro-creep – the tendency of Europe’s draconian censorship laws to seep into American law.

Germany is prosecuting digital speakers for “public insults against politicians.” Not to be outdone, California passed two laws that punish speakers for posting satirical memes and parodies of politicians, while requiring large online platforms to act as the government’s censors and remove political humor from their sites.

On Friday, the satirical site, Babylon Bee, and video-sharing platform Rumble, prevailed in a lawsuit before a federal district court. The court swept the two California laws into the dustbin of unconstitutional attempts to control speech.

Lowbrow Humor Gets Equal Protection

The California laws targeted the use of digital technology and AI to create “materially deceptive” content. Think of concocted images of President Donald Trump standing next to a giant cannon on the White House lawn to fire deportees into the air, or Gov. Gavin Newsom deploying a giant can of Febreze over San Francisco to mask the city’s “poo smell.”

As Judge John Mendez of the U.S. District Court for the Eastern District of California wrote, “Novel mediums of speech and even lowbrow humor have equal entitlement to First Amendment protection and the principles undergirding the freedom of expression do not waver when technological changes occur.”

Targeting Some Speakers, Protecting Others

Concluding that California’s approach “suffers from a ‘compendium of traditional First Amendment infirmities,’” the court found that the laws discriminated on the basis of “content, viewpoint, and speaker.”

One of the laws only punished content that could “harm” a candidate’s electoral prospects. But “materially deceptive content that helps a candidate or promotes confidence would not be subject to penalty.”

Broadcasters and some internet websites are covered by more lenient rules, exempt from general or special damages. But no such leniency is afforded parodists.

Deputizing “Censorship Czars”

Worst of all, California sought to deputize legions of internet users as plaintiffs, allowing them to seek general and special damages, including attorneys’ fees and cost, even from those who merely repost the offending image. The court rightly concluded that “this attempts to stifle speech before it occurs or actually harms anyone as long as it is ‘reasonably likely’ to do so and it allows almost anyone to act as a ‘censorship czar.’”

Imagine the flood of lawsuits that would have drowned nearly all satirical speech if this litigation factory had been allowed to continue.

The Solution to Bad Speech Is… the Envelope Please… More Speech!

Judge Mendez acknowledged the problem of digital technology spreading deceptive stories and deepfakes misleading people. But burying the First Amendment’s guarantee of free speech under a heap of lawsuits is not the answer.

“When it comes to political expression,” Judge Mendez wrote, “the antidote is not prematurely stifling content creation and singling out specific speakers but encouraging counter speech, rigorous fact-checking, and the uninhibited flow of democratic discourse.”

The mere fact that the California legislature and Gov. Newsom saw nothing amiss with these laws should serve as a wake-up call that the First Amendment is poorly understood and respected, even by elected officials. “It is alarming to think that government officials could decide which political speech is permitted, silenced, or erased altogether,” said Rumble CEO Chris Pavlovski.
​
We agree. Vigilance is called for, especially considering that Babylon Bee still has to defend itself against similar laws in Hawaii.

We reported in 2023 on Minnesota’s exclusion of Christian colleges and universities from participating in a publicly funded program that allows high school students to earn college credit at the postsecondary institution of their choice.
 
The law explicitly excluded students from post-secondary programs in which the admission process considered “religious beliefs or affiliations.”
 
This law would have barred from the program the University of Northwestern-St. Paul and Crown College, the latter the largest provider in this 40-year-program. Both schools asked students to sign a statement of faith to ensure that they are a good fit for their institutions that – while they teach secular subjects at a high level – have a religious orientation.
 
At the time, Minnesota legislator Harry Niska said this amounted to the “targeting of people of faith.”
 
Now, thanks to a federal court in Minnesota, that targeting is over. The court scrapped the law as unconstitutional, finding that the outlawing of faith statements as admissions requirements was unconstitutional. The court held that under the law, the “free exercise in maintaining a campus-community of like-minded believers is burdened.”
 
Credit for this victory goes to the Becket law firm that backed parent-plaintiffs who brought suit.
 
“Minnesota tried to cut off educational opportunities to thousands of high schoolers simply for their faith,” said Diana Thomson, senior counsel at Becket. “That’s not just unlawful – that’s shameful. This ruling is a win for families who won’t be strong-armed into abandoning their beliefs, and a sharp warning to politicians who target them.”

​Earning a graduate degree is one way to stuff knowledge into one’s brain. But the stomach still needs food, the body still needs a place to shower and sleep, and every student needs a little extra cash to go out with friends. This is why for graduate students, working as a teaching assistant is one way to make ends meet while earning a Ph.D.
 
For decades, teaching assistants – better known as “TAs” – have complained about being overworked and underpaid. Many grumble that their professors offload too much of their teaching load and benefit from free research help for their next paper or book. The running joke: TAs just grade papers until they pass out. Understandably, graduate students sought to unionize to set limits on their labor and seek better pay.
 
That is a good thing. But union membership should never come at the cost of freedom of speech.
 
“Campus labor groups once motivated by economic fairness are increasingly governed by ideological litmus tests,” writes Jon Hartley, a doctoral candidate in economics at Stanford University, in The Wall Street Journal. The unions that represent teaching and research assistants in academia are often steeped in far-left ideological agendas that many don’t support and don’t want to endorse support with their dues.
 
This was the case at the University of Chicago, where graduate students are going to court to protect their First Amendment rights against their union, the United Electrical, Radio, and Mine Workers of America. The union’s local, GSU-UE, is a proponent of the “Boycott, Divest, and Sanction” movement against Israel, branding Israel an “apartheid regime” that commits “ethnic cleansing.” The union has joined in the campaign to “fight against campus Zionists,” resist “pigs” (meaning the police), and “liberate” Palestine from the “river to the sea” by “any means necessary.”
 
Jewish students understandably regard their compelled dues as forced subsidies of antisemitism. So they are going to federal court for being compelled to pay a union that, they believe, leans hard against Israel and Jews.
 
Hartley himself is suing for being forced by the Stanford Graduate Workers Union for refusing to sign a membership form and pay dues to that same union that supports progressive causes such as abortion, public subsidies for “gender-affirming care,” and defunding the police. Because the union’s advocacy contravenes his Roman Catholic faith, he is seeking a religious-objector accommodation under Title VII of the Civil Rights Act. Hartley writes:
 
“At both Stanford and Chicago, union leadership insists that such coercion is routine – part of collective bargaining. But there’s a world of difference between negotiating wages and punishing dissenters. When students are told they can’t work, teach or study unless they pay dues to a political organization, it’s no longer about labor rights – it’s about freedom of association, conscience and speech.”
 
On Labor Day, we celebrated the solid advantages unions have brought to all Americans, from the five-day work week to the eight-hour workday. Even if you buy the idea that Americans should be forced into union membership (and some of us don’t), no one should be forced to support speech they find objectionable. This is especially true in academia, where the freedom to study, teach, and research is held to be sacrosanct.

​At the Rose Bowl in Pasadena, California, we saw safety barriers stamped with the words, “Free Speech Zone.” Presumably, these portable safety barriers are used to cordon off protesters into designated areas.
 
While we understand the need for “time, manner, and place” restrictions on protests, the signage on these barriers is an abomination and a travesty. It amounts to an advertisement for ignorance. There are no “free speech zones” in America. Thanks to the First Amendment, the nation itself is one giant free speech zone.
 
Why is free speech so important? Why did the Founders make sure to put it at the very beginning of the Bill of Rights? How do Americans today benefit from this legacy of the 18th-century Enlightenment?
 
Greg Lukianoff, CEO and president of the Foundation for Individual Rights and Expression (FIRE), explains in a recent TED Talk the benefits that result from the “four truths” of free speech. Some of them run counter to today’s prevailing assumptions – beginning with the realization that, far from creating “safety issues,” free speech actually makes us safer. To find out why, listen to Lukianoff explain how free speech is this safety valve that keeps our society freer, fairer, and ultimately securer. In just 12 minutes, he explains to a 21st-century audience why this 18th-century principle is more essential to America than ever before.

​Does a Christian prayer on a stadium loudspeaker at the start of a football game amount to a government endorsement of religion, or does it fulfill the First Amendment’s guarantees of free speech and the free exercise of religion?

That’s the question that arose when two Christian schools made it to the state championships in Florida in 2015. The state’s high school athletic association, a government entity, barred the teams from conducting a joint prayer over the stadium loudspeaker.

Many would reflexively side with the athletic association. The government sets the venue for the event. The government controls the loudspeaker. Allowing any religion to pray over government-controlled equipment might, at first glance, appear to violate the clause of the First Amendment that forbids the official establishment of religion.

That was essentially the conclusion the Eleventh Circuit Court of Appeals supported last year. To mix sports metaphors, it may have seemed like a slam dunk. But the Eleventh’s decision was, in fact, a bad call.

In a petition asking the Supreme Court to hear the case, Protect The 1st wrote that the “Eleventh Circuit held that the First Amendment was not even implicated – on the dubious theory that the proposed prayer, and by extension anything else that had ever been said by private parties on the loudspeakers, was government speech.”

Worse, that “dangerous expansion of the already questionable government-speech doctrine flips the First Amendment on its head.”

Protect The 1st is now telling the Supreme Court that this case presents “a clean vehicle to resolve the conflict and confusion” about the difference between the government’s speech and the speech of private actors using public forums.

Consider what happened when the city of Boston allowed 284 diverse groups at various times to hoist their flags on a city-owned flagpole, except for one group seeking to fly a standard that included the Latin Cross. In that case, Shurtleff v. City of Boston (2022), Protect The 1st told the Court that when the government provides a public forum for all comers, it is not “government speech.” It is merely a government forum. To single out religious expression for exclusion in a public venue is to abridge freedom of religious expression. Period.

Justice Samuel Alito wrote then that “speech by a private individual or group cannot constitute government speech if the government does not attempt to control the message.” The same principle applies, whether with flagpoles or loudspeakers.

Protect The 1st told the Court that the state athletic association “would not itself have been speaking had it allowed a student to use the limited public forum it created to pray at the championship football game.” We added that expanding the government-speech doctrine to convert government-sponsored forums into tools for censoring some views – but not others – weakens the First Amendment.

Protect The 1st concluded by telling the Court that “a prayer to solemnize the forthcoming competition, thank God, and seek His help in ensuring a good game for players and fans alike offers a religious viewpoint. That viewpoint must be respected and permitted every bit as much as a speech thanking parents, teachers, and the school, or merely cheering, ‘Go team!’”
​
Many long-time Court observers believe the Justices will recognize the threat to free speech and expression in the Eleventh Circuit’s ruling and will, this fall, place this case on their docket.

​The historian Robert Paxton notes that governments of all stripes are susceptible to authoritarian trappings, especially when their narratives suggest “obsessive preoccupation with community decline.”

This happens when power elites – whether left, center, or right – become convinced of their correctness close ranks to maintain dominance. Before long, they begin acting “in ways quite contrary” to their professed beliefs – a pattern Vice President J.D. Vance condemned in a blistering critique of Europe’s entrenched interests in Munich in February).

All this makes a recent post by Jonathan Turley particularly resonant. “Free speech is in a free fall in Europe,” he observes. This dynamic helps explain why Germany’s tendency to censor speech continues to find new targets:

• A comment mocking a politician’s weight warranted a criminal inquiry

 

• An opposition newspaper editor was indicted and fined for posting a meme ridiculing the hypocrisy of a minister’s supposed support for free speech

 

• A Bavarian pensioner was convicted for posting satirical Nazi-era images on X, because he did not make his critique of a government minister sufficiently clear

 

• Annual police raids target so-called “digital arsonists.”

Germany’s current coalition politicians seem intent on furthering, as the examples above demonstrate, crackdowns on speech. Writing in the Wall Street Journal, Filipp Piatov excoriated this censorship:

“Germany’s establishment is fighting to reassert control over public discourse – especially online, where it’s losing ground. The main targets are social-media platforms and populist parties. The tools are censorship and criminal law.

“This isn’t really about fighting disinformation. It’s about regaining control, which they sense is slipping away.”

Alas, Germany is hardly alone in this regard. As we’ve written before – and undoubtedly will again – the European Union’s Digital Services Act threatens to censor the speech of Americans and other foreign citizens, making it the new price of simply doing business. Across the Channel, the increasingly restrictive United Kingdom seems locked in step with the EU.

There, the Online Safety Act is poised to wreak havoc on privacy, free speech, and even the safety of the children it purports to protect.
​
Jonathan Turley is rightfully leery of EU Commission President Ursula von der Leyen’s recent declaration of a Pax Europaea. If the current pattern of free speech violations holds, it signifies a larger abandonment of the shared values that helped build robust post-war democracies on both sides of the Atlantic.

​Is a drag show an expressive activity worthy of First Amendment protection?
 
On Monday, the U.S. Fifth Circuit Court of Appeals decided that it is. In a 2-1 ruling, the court blocked West Texas A&M University President Walter Wendler from preventing a student group from sponsoring a drag show at a campus event center.
 
President Wendler put forward multiple arguments defending his ban. The court’s majority opinion, written by Judge Leslie Southwick, dismantles Wendler’s arguments one by one. That opinion, paired with a strong dissent by Judge James Ho, makes an excellent primer on recent developments in First Amendment law.
 
“A Fool’s Drag Race”
The drag show was organized by Spectrum WT, a recognized student group, at this public university in Canyon, Texas, just south of Amarillo. Titled A Fool’s Drag Race, the show aimed to raise funds for a suicide prevention initiative among LGBT+ youth. Organizers promised to keep the show at a “PG-13” level.
 
Three Arguments Slapped Down
One of Wendler’s objections was that, to qualify for First Amendment protection, an event must present a particular and discernible point of view. Judge Southwick rejected this, citing a 1995 Supreme Court decision that held that “a narrow, succinctly articulable message is not a condition of constitutional protection.” Otherwise, the abstract paintings of Jackson Pollock, the atonality of the modernist composer Arnold Schöenberg, or Lewis Carroll’s whimsical Jabberwocky verse would be unprotected. (Judge Southwick, a George W. Bush appointee, noted archly that the First Amendment even protects “opaque judicial opinions.”)
 
In short, all expressive works are protected by the First Amendment – including, apparently, cross-eyed impersonations of Liza Minnelli singing “Cabaret.”
President Wendler also protested that drag shows do not “preserve a single thread of human dignity,” which comes from being “created in the image of God.” He objected that drag shows, like blackface, “stereotype women in cartoon-like extremes for the amusement of others and discriminate against womanhood.”
 
Some agree. Others disagree. Most simply laugh at the campy performances and lip-sync fails. Judge Southwick, however, observed: “Drag shows – with performers dancing and speaking to music on stage in clothing associated with the opposite gender – mark a deliberate and theatrical subversion of gender-based expectations and signify support for those who feel burdened by such expectations.”
 
Wendler also protested that the campus venue, Legacy Hall, “is not open to the general public.” This would place the event squarely under Supreme Court case law dealing with the right of universities to place restrictions on the use of school resources. But Judge Southwick noted that past uses of Legacy Hall include a local church group’s “Community Night of Worship and Prayer,” a congressional candidate’s forum, a local high school’s “Casino Night,” a dance, a local nonprofit’s benefit gala, a livestock show, and a religious retreat center’s dinner.
 
He concluded: “These past uses, or practices, do not support that West Texas A&M University has limited Legacy Hall to ‘public expression of particular kinds or by particular groups.’”
 
Overall, we largely agree with the majority’s ruling under current Supreme Court precedent. While universities may limit some expression to protect their educational mission, “a justification for selective exclusion from a designated public forum must be carefully scrutinized.”
 
But Bad Precedent Remains
On the other hand, Judge Ho’s dissent highlights a remaining threat to the First Amendment on campus. He wrote:
 
“But as anyone aware of current campus conditions nationwide can attest, the vision of the university as a First Amendment haven is woefully naïve – at least when it comes to views disfavored in certain circles.
 
“Just ask the Christian Legal Society. Members of the CLS chapter at the Hastings College of Law sought to exercise their First Amendment right to associate with fellow believers who share their Biblical views on marriage and sexuality … But university officials chose to expel CLS – and only CLS – from campus. And the Supreme Court sided with university officials over CLS.”
 
Judge Ho quotes the Supreme Court’s insistence from this 2010 case that the First Amendment must be analyzed differently “in light of the special characteristics of the school environment,” in which “judges lack the on-the-ground expertise and experience of school administrators.”
 
With his trademark bluntness, Judge Ho writes: “This is all bunk, of course.”
 
He blasted the Court’s opinion for its deference to “academic ‘experts’” who “advocate policies that violate our nation’s most cherished principles.” Judge Ho adds:
 
“CLS contradicts all these principles. But only the Supreme Court can overturn its own precedents. So until the Court itself overturns CLS, we’re bound to follow it.”
 
Judge Ho’s logic oddly aligns with the majority opinion. Judge Southwick chips away at precedent, while Judge Ho insists on rigorously applying it – though with the shoe now on the other ideological foot. Both suggest CLS is flawed and that viewpoint discrimination has no place in public universities.
 
One unfortunate result of this opinion – a real drag, if you will – is that this case will not give the Supreme Court a chance to revisit CLS. But given the state of America’s colleges and universities, there should be no shortage of cases to test that precedent.

​Does the First Amendment’s protection of free speech extend to non-citizens? To paraphrase Avril Lavigne’s old hit, it’s complicated.
 
In this era of rising immigration enforcement, the speech rights of legal visitors to the United States have suddenly become an acute issue. The latest test case comes from The Stanford Daily and two unnamed legal resident noncitizens and student journalists who are suing Secretary of State Marco Rubio and Secretary of Homeland Security Kristi Noem for what they see as the chilling effect administration policies are having on their freedom of expression.
 
“As an independent student paper whose mission is to represent the voices of the Stanford community, this fear of the government directly impacts the quality of our work,” the editors declared. Given that a foreign student could be arrested and expelled from this country and have his or her education terminated, that is a real and palpable fear.
 
The Foundation for Individual Rights and Expression (FIRE) is representing the student newspaper of Stanford University (here is the full complaint and this description of the lawsuit and its background). FIRE has also published a full-throated response to critics in defense of this lawsuit. It’s part civics lesson, part philosophical exposition, and well worth reading.
 
Given, however, that this suit is at the intersection of First Amendment rights and laws concerning foreign policy this case is, as we said, complicated.
 
The courts have periodically wrestled with the extent to which constitutional rights apply to non-citizens since the 1880s. Foreign visitors can certainly have their constitutional rights violated, as in the case of Tufts Ph.D. student Rümeysa Öztürk’s right to due process. After this student from Turkey added her name to an opinion-editorial that made moderate criticisms of Israel, Öztürk was arrested by a group of masked federal agents dressed in all black who whisked her off, for a time, to a detention facility in Louisiana.
 
Understandably, the young woman at first thought she was being kidnapped, not arrested.
 
Öztürk was later released by an international outcry (including from 27 Jewish groups, whose amicus brief accused the government of using antisemitism “as pretext for undermining core pillars of American democracy, the rule of law, and the fundamental rights of free speech and academic debate”).
 
Thanks to cases like this, overreach may end up being the Oxford English Dictionary’s Word of the Year for 2025. It’s happened in Öztürk’s case and elsewhere, and FIRE’s lawsuit suggests it may be happening again. Yet FIRE’s Stanford Daily case is less clear cut.
 
It’s complicated in part because the suit isn’t about a specific incident. Instead, the focus is the interpretation of two foreign policy provisions that have been in place for 60 years, since the passage of the Immigration and Nationality Act:

• One provision allows Secretary Rubio to deport noncitizens if he “personally determines” their speech “compromises a compelling foreign policy interest.”

 

• The other enables the secretary to revoke the visa of a noncitizen “at any time” for any reason.

FIRE’s lawsuit seems to be aiming for a declaration of unconstitutionality if the reason for deportation is clearly protected First Amendment speech. And therein lies another complication: Unlike citizens, non-citizens can be deported if their speech is deemed to fall into one of the categories historically unprotected by the First Amendment, such as incitement, true threats and obscenity.
 
Finally, protected categories of speech are simply less robust in reach when it comes to noncitizens:
​

• Immigration law can weaponize otherwise lawful speech against non-citizens, depending on whether the expression is interpreted as advocating for terrorism or anti-U.S. policies. Consider Secretary Rubio’s justification for arresting protestor Mahmoud Khalil, for posing “potentially serious adverse foreign policy consequences for the United States.”

 

• As the Freedom Forum points out, “The Constitution does not specify whether the First Amendment applies only to citizens. Rather, those who wrote it talked about ‘the people.’”

Columbia’s Knight First Amendment Institute offers an exhaustive analysis of these points. In sum, the law governing potential actions against resident aliens grants the government sweeping power. With such power comes the responsibility to use it with wisdom and restraint.

​Does The Washington Post truly mistake correlation for causation?
 
The Post recently offered a heart-rending profile of tearful teachers celebrating bittersweet memories as the John R. Davis Elementary School in Phoenix shut its doors for good. This sad moment was presented as an example of how school closures are “a response to enrollment declines as the state [Arizona] offers unprecedented taxpayer funding for alternatives to public school.”
 
In this recent feature piece, The Post linked the closure of one-third of schools in the Roosevelt Elementary School District in Phoenix, like Davis Elementary, to declining attendance caused by school choice. The piece specifically blamed the participation of students in the state’s school voucher program under its Empowerment Scholarship Accounts (ESAs) for shuttered public schools.
 
Thankfully, Brittany Bernstein of National Review dug into this story and found that of the 8,500 students who have left the district, only 102 went to a private school under the ESA. Where did the other 8,398 flee to?
 
“The rest have enrolled in public schools not operated by Roosevelt,” Bernstein writes. “It’s not hard to figure out why parents are pulling their kids out of Roosevelt schools en masse: Just 10 percent of students in the district scored proficient in math and just 17 percent scored proficient in reading on the 2024 state tests.”
 
As we’ve reported before, far from degrading public schools, school choice improves them. Randomized control trials of voucher programs found moderate evidence of improvement in academic achievement from private school vouchers – a welcome result given America’s persistently mediocre place in international school rankings. Moreover, out of 28 studies that explored the causal relationship between school choice and the performance of public schools, 25 found that school choice improves educational attainment in traditional school systems.
 
It is evidence-based results like these that show that competition benefits schools and elevates the student experience. That is why 18 states have embraced some form of universal school choice. The momentum behind this policy juggernaut is coming from parents who want to choose schools equal to their ambitions for their children, and respectful of the values they want to express across the generations. That is why Protect The 1st sees school choice as a quintessential First Amendment issue.
 
It is easy to see why parents love school choice. It is harder to understand why so much of the legacy media clings to old narratives based on shoddy evidence.

President Trump’s recent executive actions on workplace religious freedom and “debanking” are bold initiatives that reinforce our most important First Amendment freedoms.
 
Religion in the Federal Workspace

The U.S. Office of Personnel Management recently issued a detailed memorandum that builds on Trump’s earlier executive orders such as “Eradicating Anti‑Christian Bias” and establishing the Religious Liberty Commission.
 
The OPM memo affirms that federal employees are entitled to private expressions of faith equal to secular forms of expression, such as wearing religious jewelry or displaying items of faith on their desks. Expression, whether secular or religious, is still subject to reasonable, viewpoint-neutral restrictions of time, place, and manner. This seems to us in keeping with the Supreme Court’s logic in the 2022 case of the “praying coach,” Kennedy v. Bremerton School District.
 
More than anything, the OPM memo reflects the essence of the First Amendment, an essentially American commitment to protect people of all faiths and creeds.
 
Debanking

As we’ve reported, debanking was an informal use of regulatory and commercial power to silence politically disfavored groups defined as posing a “reputational risk” that justifies the closure of their accounts.
 
A blatant example of government using regulatory action to silence disfavored speech was in full view in the Supreme Court’s 2024 unanimous rebuke of New York state regulator Maria T. Vullo. She had twisted the arms of insurance companies and banks to blacklist the nation’s most prominent Second Amendment advocacy group.
 
We also covered the plight of the National Committee for Religious Freedom after it was summarily debanked by Chase Bank. Somehow, this faith-based institution dedicated to freedom, and founded by Sam Brownback, former governor, senator, and U.S. ambassador, was defined under the Orwellian category as being run by a reputationally dangerous “politically exposed” person.
 
President Trump’s executive order now stakes a firm position – no American should be denied banking services for constitutionally protected speech. His order directs regulators to stop using “reputational risk” as a justification for account closures, to investigate possible cases of unlawful debanking, and to reinstate previously affected customers. 
 
Removing reputational risk from financial oversight is a concrete step toward clarity and fairness. The Cato Institute further commends the executive order for its focus on investigation over interventions, which Nicholas Anthony judges reflect the prudence of a sound policy, allowing policy to be shaped by evidence.
 
These executive actions are strong and necessary pushbacks against cancel culture overreach through regulation. But both have ambiguities that need to be clarified, and potential pitfalls that must be addressed.
 
Supporting Faith Freedom, Not Proselytizing

The Free Speech Center at Middle Tennessee University reports it is unclear the extent to which OPM’s standards override Clinton‑era guidelines. Douglas Laycock, a legal scholar at the University of Texas Law School, told Bloomberg News that the “Clinton document was much more sensitive” to power dynamics between supervisors and employees. “The failure to caution supervisors about how their comments,” he said, “can easily be misunderstood (or correctly understood) as demanding compliance.”
 
Banks in a Bind
​
The debanking order, as welcome as it is, adds yet another regulatory wrinkle to the heavy-handed requirements of the Bank Secrecy Act. Financial institutions are required by current law to send secret “suspicious activity reports” to U.S. Treasury’s Financial Crimes Enforcement Network whenever a customer’s activities fall outside of narrow behavioral parameters. Although most of these reports turn out to have nothing to do with money laundering or terrorism, banks can still be required to debank a customer who inadvertently trips a low threshold of suspicion.
 
Thus, the cross purposes of the Bank Secrecy Act and the new executive order are likely to put financial institutions in an impossible “damned if you do, damned if you don’t” position.
 
We also have to ask if we want to deny banks any ability to legitimately exercise their right of freedom of association in rejecting accounts for groups that offer genuine reputational (and other) risks. Think of the North American Man-Boy Love Association, or the National Socialist White People’s Party. More prosaically, should a bank be liable for cancelling the account of a political group that has a history of overdrafts and financial irresponsibility?
 
Congress needs to follow up to fill in these gaps. Far from weakening the administration’s actions, legislation would bolster these protections in the face of inevitable legal challenges.
 
Credit goes to President Trump for getting the ball rolling on these two areas of discrimination. Lawmakers now have a duty to translate these executive priorities into clear, balanced laws that both avoid unintended consequences while cementing enduring, equitable protections for all Americans.

We’ve chronicled many attempts by state authorities to try to force religiously oriented private schools to knock the religion out of their curricula. Maine, for example, persists in defying the U.S. Supreme Court, which ruled that the state cannot exclude religious schools from a state-funded tuition program for simply being religious.

The expanding school choice movement is predicated on the belief that giving parents the choice of their school – whether a school with a religious character, or purely secular school dedicated to STEM or the arts – respects the pluralism of our society.

But parent-plaintiffs in North Carolina are flipping that script. They are suing a private school because their children were expelled after the parents led a protest over its supposedly “woke” curriculum.

Now the Roman Catholic Church, which has long gone to court to defend its right to maintain its traditional teachings, is going to court to support the right of this private school to maintain its non-traditional curriculum.

Here's a brief review of the case, which will be heard by the North Carolina Supreme Court in October:

• Unhappy with a leftward ideological shift after a new headmaster was installed at Charlotte Latin School, a private college preparatory academy, two parents started a protest movement at the school, engaging administrators and the board.

 

• Citing its “Partnership with Parents” agreement and determining that it had become impossible to have a productive working relationship with the parents in light of perceived attacks on the school’s mission, Charlotte Latin nullified the education contracts of the couple’s two children and severed ties.

 

• The parents sued the school, garnering support from 14 state and federal lawmakers, all North Carolina Republicans.

 

• The state’s Appeals Court ruled against the plaintiffs twice, first unanimously and then in a 2-1 split, affirming the trial judge’s original ruling. The parents had previously tried to bypass the Appeals Court but that move was rejected by the state Supreme Court because the petition deadline was missed.

 

• Meanwhile, the N.C. Association of Independent Schools and the Southern Association of Independent Schools filed an amicus brief with the Appeals Court on behalf of the school, writing:

 
“Private and independent schools should be permitted to shape their values and culture as they see fit. If some parents do not like the direction that they perceive a school to take, they should vote with their feet and seek a new school.”
 

• Last week, in anticipation of the state Supreme Court’s upcoming hearing, both associations filed an additional amicus brief. The Catholic Diocese of Charlotte did as well.

The diocesan brief is particularly noteworthy, going straight to heart of the matter in holding that private schools also have association rights under the First Amendment. The Diocese told the court:

“These contractual provisions are essential tools that allow religious schools to carry out their faith-based educational missions,” and enforcing them, “avoids entangling courts in religious questions and protects the constitutional autonomy of private religious schools under the Free Exercise and Establishment Clauses of the First Amendment to the U.S. Constitution.”

We couldn’t agree more. If parents are unhappy with the ideology of their children’s private school, then it’s time to find a new school (there are 96 others in the N.C. Association of Independent Schools beyond Charlotte Latin). But if we allow litigation to shape the curricula of private schools, there will be no end to the control of curricula.
​
The genius of the First Amendment is that it guarantees choice in a free market of ideas. Matching families to schools, not legal coercion, is what the school choice movement is about.

​Police in Allentown, Pennsylvania, have long drawn the scrutiny of civil libertarians over claims of excessive force and occasional brutality. Since 2015, the city has paid out more than $2 million in police misconduct claims.
 
Phil Rishel, a 25-year-old Allentown resident, is determined to drive home Allentown’s lack of training in the First Amendment for its police force. He has often filmed police to demonstrate the point that he has a constitutional right to do so. In one of his recent posts, in which Rishel filmed a police garage through widely spaced bars from a public sidewalk, an officer sternly told him that “filming is not a First Amendment right.”
Courts have long held the opposite – that a citizen’s right to film in public is a vital form of public oversight, as seen in the arrest of a citizen-journalist who dared to film a public hearing in Texas. (Here’s a good guide on your rights and suggestions on how to film the police from the ACLU.)
 
Rishel’s recent posts have blown up the internet in which he has an insulting interaction with a police officer in the garage. In that recent video, the officer loses his cool and drives his police car down the sidewalk toward Rishel, who gleefully films him. When the officer inadvertently bangs the side of his car against a sidewall, Rishel responds with profane insults about the officer’s intelligence.

​Rishel has beaten charges of “verbally abusing, harassing, and screaming obscenities on the public street.” Local courts have recognized that swearing and even flipping the middle finger amount to constitutionally protected speech. Now the Foundation for Individual Rights (FIRE) is backing Rishel in his First Amendment lawsuit to protect his right to film and criticize police activities.
 
As Rishel tells an officer in his video, “there is no purer form of protest than on a public sidewalk.”
 
Well put. But can the same be said for Rishel’s pointed insults? They almost certainly fall far short of the Supreme Court’s “fighting words” threshold for what would constitute an actionable offense.
 
One likely – and commendable – result of this incident will be enhanced First Amendment training for Allentown police. Still, we don’t feel like breaking out the champagne over this one. Yes, the U.S. Constitution protects Phil Rishel’s right to act like an insulting jerk who provokes police officers into overreacting. But provoking police officers in a very personal way – who are, after all, human – is not a good way to test the boundaries of the First Amendment.

Rep. Jim Jordan, Chairman of the House Judiciary Committee, followed up on his committee’s report on how Europe enforces censorship of Americans on U.S. platforms by taking his complaints to the censors themselves.

The Ohio Congressman led a bipartisan delegation to explain to regulators in Brussels, London, and Dublin exactly why Americans find European censorship of American social media platforms so disturbing.

“America innovates, China replicates, and Europe regulates,” complained a member of the delegation, Rep. Scott Fitzgerald (R-WI). In an interview in Brussels, Fitzgerald noted that “there are seven corporations that are currently listed as gatekeepers by the DSA (Digital Services Act) and six of the seven are American corporations” being punished for their speech.
Did this message land?

“Nothing we heard in Europe eased our concerns about the (EU’s) Digital Services Act, Digital Markets Act, or (the UK) Online Safety Act,” Jordan said. “These sweeping regulations create a serious chilling effect on free expression and threaten the First Amendment rights of American citizens and companies.”

Like so many media outlets, Spotify was caught in the crossfire between free speech and medical authority during the pandemic. Joe Rogan on his popular podcast interviewed a vaccine-skeptical doctor who asserted that the antiparasitic medication, Ivermectin, can cure COVID-19. Spotify also removed “War Room,” the Steve Bannon podcast for calling on President Trump to seize CDC Director Anthony Fauci and FBI Director Christopher Wray and put their “heads on spikes.”

In this investigation, we caution House investigators to always keep in mind that Spotify has a First Amendment right to ban Bannon, curtail Rogan, and play the treacly “Dr. Fauci Say” (“Doctor Fauci, save me, I’m going insane”!) 24 hours a day. The First Amendment allows Spotify to make its own editorial decisions regarding Ivermectin or anything else. It can only be dissuaded by the free market of its listeners if it should decide to dedicate itself 24/7 to ridiculing President Trump or former President Biden, the Bible, the Quran, or apple pie.

If it decided to pull Bannon for making a graphic and menacing statement, Spotify was well within its rights to do so. And when rocker Neil Young pulled his music from Spotify in protest of Rogan’s COVID coverage – agree or disagree – he was fully exercising his First Amendment right to free association. Or in this case, disassociation.

The First Amendment only restricts the government’s ability to abridge speech.

The House Judiciary Committee should, then, be commended for correctly targeting its investigation on how the Biden administration and the European Union may have used coercive state power to bludgeon Spotify into censoring itself for them. Such “jawboning” from powerful regulators can never be treated as mere suggestions. It is more like the Mafia’s protection racket shakedowns: You have a nice little media company there, shame if anything happened to it.

At the time Spotify took this action, Biden press secretary Jen Psaki praised it as a “positive step” while urging other social media platforms to do more. Now the House Judiciary Committee is asking Spotify to turn over any communications and judicial orders from the EU, the UK, and a host of other governments since 2020.
​
This is the right approach. We praise Chairman Jordan and his colleagues for taking their case directly to the sources of censorship. Meanwhile, as we recently pointed out, conservatives in the United States should not punish the targets of past official censorship and coercion by enacting a censorship regime of their own.

Conservatives, firmly in power, hold the whip hand over their long-standing tormentors, including those who for years privately censored their speech. The Trump administration is now exploring ways to use its regulatory power to punish Silicon Valley and social media companies for suppressing conservative voices on private platforms.

• But punishing people who refused to associate their platforms with conservative speech by using government to infringe on their speech and associational rights threatens to permanently degrade the First Amendment.

​

• Conservative regulators should also realize they are publicly toying with the very weapons that will almost certainly be used to silence them again, only in more effective ways, if another progressive president is elected.

Consider Federal Trade Commission Chairman Andrew Ferguson, who is threatening to use Section 5 of the FTC Act – which outlaws unfair or deceptive practices – to target social media companies for selective enforcement of their terms of service. Chairman Ferguson also contemplates using antitrust law to “prosecute any unlawful collusion between online platforms, and confront advertiser boycotts which threaten competition among those platforms.”
 
Ferguson told an audience in March: “I’m not looking for censorship qua censorship. I’m looking for exercises of market power that might reveal themselves in censorship.”
 
Conservatives, bruised by rough treatment at the hands of big social media companies, understandably exult in this role reversal. Discrimination against conservative speech clearly happened, from Facebook’s efforts to exclude the conservative Prager University from its digital audiences, to crackdowns on posts that asserted that COVID-19 originated in a lab in Wuhan, China (which the FBI and CIA now believe it probably did), to efforts by secret entities within the State Department to persuade advertisers to defund conservative and libertarian publications.
​
Are consumer-protection complaints about companies’ editorial judgments, which would put the government firmly into the business of managing speech, a legitimate approach to reform? Section 5 allows the government to go after a company selling an ointment that it falsely claims prevents COVID-19 infections. That would not be a “speech” issue. It would be fraud enforcement. But should the government be able to tell a private company it must post a conservative or a progressive political statement, or be in violation of the law?
 
Labeling such editorial choices as supposed “evidence” of collusion inevitably carries the risk of government manipulation of private speech.
 
It would in fact be a violation of the First Amendment for the government to tell private actors – whether a network news organization or a social media platform – what to say or not say. The U.S. Supreme Court held in Moody v. NetChoice that social media companies have a First Amendment right to select, order, and rank third-party posts as they see fit. Prosecuting content and its moderation under unfair or deceptive trade practices would install government as a national content manager and editor-in-chief.
 
This is worse than overkill. The essential problem of content management censorship was, after all, driven primarily by government. Meta’s Mark Zuckerberg told Joe Rogan that he received calls from White House staffers who screamed at him about Facebook’s content decisions. The FBI had 80 agents assigned to evaluating social media posts as possible disinformation. Agencies from the IRS, to the Department of Homeland Security, to the State Department, pressured platforms on their posts. All of them have enormous regulatory power over Silicon Valley, making their “jawboning” for editorial changes far stronger than polite suggestions. Changing the jawboner to the FTC is just a new version of this regulatory game of three-card Monte.
 
The application of laws about fair trade practices and antitrust enforcement to speech would be an abusive extension of Washington’s power. It is easy to imagine this power being misused in myriad ways. Conservatives above all need to keep in mind that the weapons used now to punish their progressive opponents will surely one day be in their opponent’s hands as well.
 
The better way forward is to renounce the tools of punishment and restore respect for the First Amendment. With a few social media platforms making up so much of the nation’s townhall, social media companies should live up to a civic – even a moral – obligation to not discriminate against the right or the left. But it is ultimately up to the public to enforce such standards with what they click and what they purchase.
 
If this sounds naïve, take stock of how companies are already listening and responding to public pressure. X pioneered the freeing of moderation from government control and developed “community notes” to crowdsource fact-checking. Meta is testing this crowdsource technique for Facebook, Instagram, and Threads. Meta also got rid of its notoriously biased “fact checkers.” Google is standing up to political demands by activist-employees. Such market-driven reforms are the way to go, not speech regulation from Washington regulators.
 
Conservatives would do well to remember Marcus Aurelius, who wrote that the “best revenge is to be unlike him who performed the injury.”

We’ve frequently noted the popularity of school choice among the vast majority of Democratic voters, and asked when blue state governors will sign up for a national movement that is sweeping the states. Eighteen states now have some form of universal school choice. Most are red states, though some on that map are purple.
 
Now Corey DeAngelis, long-time advocate for school choice, challenges Gov. Josh Shapiro (D-PA) and Gov. J.B. Pritzker (D-IL) to take the plunge. Both men supported school choice in their 2022 gubernatorial campaigns. Both had their hands tied by state legislatures in which the influence of the change-nothing leadership of the teachers’ union blocked school choice. DeAngelis writes in The Wall Street Journal:
 
“The federal tax-credit program bypasses this problem entirely, empowering these governors to expand school choice unilaterally. By opting in, they can deliver scholarships to help their constituents afford private school tuition – opportunities Messrs. Shapiro and Pritzker valued for their own children. And it takes no additional spending out of the state budget …

“Democratic governors who might wish to opt out face a political dilemma. Because the federal program allows donations from all states, residents of Pennsylvania and Illinois can still contribute to scholarship organizations and receive a dollar-for-dollar tax credit, even if their governors opt out of allowing residents to receive the scholarships. If Messrs. Shapiro and Pritzker opt out, they’ll not only deny their states’ families access to scholarships for private schools, but also send their residents’ tax dollars to other states like Texas or Florida while getting nothing in return. But if they opt in, they could inspire other blue-state governors to follow, expanding a nationwide movement for school choice.”

Strong bipartisan support among voters for school choice suggests that opting-in to donations would be a show of leadership by these governors, both of whom are believed to harbor presidential ambitions for 2028.

School choice is simply too popular among the American people to be treated as a partisan issue. Studies show that school choice, far from degrading public schools, provides competition that improves their performance. Millions of parents also support it for the same reason we do as a non-partisan First Amendment organization: By allowing parents to choose the best school for their children, they can express their values across generations, whether in faith-based schools, or secular schools devoted to the arts or sciences.
​
What’s not to like?

​Sometimes it is good news that breaks late on a Friday. A federal court in Colorado just ruled in favor of Bella Health and Wellness, an independent, faith-based Catholic medical center that offers “life-affirming, dignified health care.”
 
Judge Daniel D. Domenico’s tight and well-reasoned opinion permanently enjoined Colorado authorities from taking any enforcement action against Bella Health for offering an abortion-reversing pill to women who are having second thoughts about a chemically induced abortion. Judge Domenico’s ruling upholds this clinic’s right be free from the unequal application of laws that substantially burden its religious exercise.
 
Whatever your take on the controversial issue of abortion, this is a First Amendment win for the free exercise of religion.
 
This case began when Colorado adopted a first-of-its-kind law restricting progesterone treatment, a popular method to reverse a chemical abortion.
 
According to Becket, the law firm that represents Bella Health, the Colorado law allows public-interest clinics to offer the hormone to women in any circumstance, except if the purpose is to reverse the effects of an abortion pill. Colorado held that if Bella continued to offer progesterone for women who seek to reverse an abortion, the healthcare provider would have faced up to $20,000 per violation and the loss of the medical licenses of its providers.
 
Judge Domenico found: “Overall, it is impossible to avoid the conclusion that Plaintiff’s use of progesterone is not being regulated neutrally – it is being singled out.”
 
He found that various other off-label uses of progesterone were allowed, even if they caused similar uncertainty regarding risk and efficiency. He further noted that singling out this one use for further restriction substantially burdened Bella Health’s free exercise of its religious beliefs, triggering strict scrutiny under the First Amendment.
 
Whatever one’s views on the controversial issues surrounding abortion, we should all be in favor of the neutral application of laws and medical standards, and against unnecessary or biased burdens on the free exercise of religion.
 
Judge Domenico reminds us that when government asserts that some unequal burden is “necessary,” the government must meet a high standard of proof of why that is so.

A report released last week by the House Judiciary Committee adds detail to our report about how the European Union’s 2022 Digital Services Act allows Europeans to control and censor Americans’ speech at home and around the world.
 
The committee subpoenaed nine major technology companies to produce communications with foreign censors around the world. Analyzing the responses, the committee gained insight into the EU’s censorship goals from its requests for social media companies to identify “misleading or deceptive content,” “disinformation, “actual or foreseeable negative effects on civil discourse and electoral processes,” “hate speech,” and (this one’s a gobsmacker) “information which is not illegal.”
 
These vague and subjective standards reflect German rules that have criminalized insults to German politicians. They also fall in line with the actions of former EU Commissioner for Internal Markets Thierry Breton who wanted to sanction X for broadcasting a live interview with Donald Trump during the 2024 campaign. Social media companies – almost all of them American companies – now have their content subjected to continuous scrutiny by government-designated “trusted flaggers.”

• The committee reports: “In practice, these ‘trusted flaggers’ are uniformly pro-censorship, and in many cases, they are government-funded, meaning that these so-called ‘trusted’ flaggers are incentivized to censor speech critical of politicians or the current regime.”

The Digital Services Act threatens these American social media companies with up to 6 percent of their global revenue per violation. The law, however, offers a safe harbor for U.S. companies if they adopt the EU’s ‘codes of conduct’ on a global basis. These gentle suggestions to sign up are backed with threats as subtle as Al Capone wielding a baseball bat.

• When X dropped the Code of Conduct on Disinformation in May 2023, because it does not generally use third-party fact-checkers, the EU in October opened an investigation of X’s Community Notes program. “Now,” the committee reports, “the Commission reportedly plans to fine X more than $1 billion for non-compliance with the DSA.”

 
As European censorship filters down into American speech, defensible speech – some of it banal, some of it edgy – is effectively criminalized.

• In 2023, the French National Police sprang into action when an American sarcastically responded to a mass stabbing attack: “I certainly hope this little dust-up in #Annecy doesn’t hurt this poor Syrian asylum seeker’s chance of becoming a Frenchman.”

 

• In 2024 a Polish flagger targeted a TikTok post that simply said, “electric cars are neither ecological nor an economical solution.”

 

• In 2024 a tweet that factually noted that a Syrian family in Germany is reported to have committed 110 criminal offenses was judged by the German government to be a violation of the criminal code.

The committee’s conclusion is blunt: “Taken together, the evidence is clear: the Digital Services Act requires the world’s largest social media platform to engage in censorship of core political discourse in Europe, the United States, and around the world.”
 
With the announcement of a new trade deal between the United States and the European Union, the way should now be clear for the Trump administration to take up the EU’s censorship as the next big issue in our bilateral relations.

​In any democracy, the justice system and the Fourth Estate are bound to clash. When they do, the clash often reveals much more about the status of constitutional freedoms than the details of a given case. Case in point, a headline from July 22 on Bloomberg Law: “Journalist’s Wiretap Prosecution Exposes First Amendment Risks.”

Here's the backstory behind a case fraught with First Amendment implications, one Protect The 1st has followed since 2022.

• Journalist Tim Burke obtained deleted clips from Tucker Carlson’s controversial interview with Kanye West when Carlson was still with Fox News. Burke then shared those with Vice and Media Matters for America, which published them. This was embarrassing to Carlson, who framed the interview as showing Kanye West – now Ye – to be an iconoclast worth listening to. The deleted portions were, to put it in strictly scientific terms, absolutely bonkers.

 

• Fox apparently invited this embarrassment by uploading the outtakes to a public online site and neither securing nor encrypting them. But that didn’t stop the Justice Department from raiding Burke’s Tampa home and seizing his electronic devices.

 

• Now the case against Burke is proceeding in a federal court in Florida. It represents, warns Bloomberg’s Holly Barker, an invitation for prosecutorial abuse, potentially turning what doesn’t even seem to rise to the level of misdemeanor molehills into felony mountains. The prosecutors’ “felonizer” here is an expansive over-interpretation of the Wiretap Act, which DOJ appears to be using to turn possible Computer Fraud and Abuse Act infractions into far more serious violations – 14 of them, to be exact.

At the heart of the case is the relevance of the First Amendment in the digital age – and, to a lesser extent, what constitutes a journalist in the modern sense and perhaps even the meaning of what is “public.” For the moment at least, the court is taking the case and these constitutional questions seriously, seeing it as the high-level referendum on freedom that it is.
Judge Kathryn Kimball Mizelle acknowledged: “Burke’s arguments raise novel questions with potential wide-reaching impact.”

An ACLU-led coalition, the Reporters Committee for Freedom of the Press, and the Electronic Privacy Information Center have all filed amicus briefs outlining what’s at stake in this case.
​
Protect The 1st believes that making use of materials left in open view – whether posted online or put out on a public sidewalk – is in no sense a wiretap. Worse, the FBI raid on Burke’s home was overkill that deserves to be slapped down. We hope Judge Mizelle will stand for a free press and rule against this attempt by prosecutors to narrow the First Amendment.

​President Trump last week issued several executive orders that command AI developers to refrain from building in “ideological biases or social agendas” in their artificial intelligence services. The orders deploy the federal government’s procurement power to enforce ideological neutrality on AI Large Language Models (LLMs).
 
The president’s concern is understandable. Google’s AI image-generator Gemini, in an effort to provide racial and gender balance, portrayed both the American founders and Nazi soldiers as Black, the Pope as female, and National Hockey League players as women.
 
What was going on here?
 
“Well, it turned out that Google was aware that Gemini’s data, which draws from the entire internet, was flawed,” said Bobby Allyn, an NPR technology correspondent. “It perpetuated stereotypes. There are more images of male doctors than female doctors. There are more photos of white CEOs than executives of color. So every time someone asked for an image, Google placed secret code into the request that basically said, make the images more diverse.”
 
What had begun as a commendable tweak turned into a monstrous distortion of reality. Conservatives note that LLMs are also apt to give progressive answers on controversial social issues. One conservative reported that ChatGPT refused to create an argument for how fossil fuels enhance human civilization. It was willing to write poems extolling former President Biden but not one about President Trump.
 
On the other hand, when we asked ChatGPT about the 1619 Project, which asserts that America’s true founding began with the importation of slaves and not the Declaration of Independence in 1776, it answered: “The claim that America's ‘real founding’ was in 1619 is a provocative reinterpretation, not a universally accepted historical fact.” We would score that as a solid and unbiased answer.
 
So what is going on with the more biased answers? LLMs compose responses extracted from terabytes of public and copyrighted material vacuumed up from the internet. It is all too easy to forget that humans originate AI’s raw material. It necessarily absorbs the biases of society, of the right as well as the left. The old saying about computer programming – “garbage in, garbage out” – should apply to the contents of the human brain as well.
 
We also do not preclude the built-in biases the president’s executive order aims at. Whether ChatGPT or X, the design parameters often reflect the views of their creators.
 
Though the president’s executive orders aim at a real problem, his approach has two flaws. The first is that when the government uses its purchasing power to manage speech, it is clearly encroaching on First Amendment territory. Over the years, government influence over AI could bend this technology in one political direction or another.
 
This points to the second problem – that language is slippery. The 20th century philosopher Ludwig Wittgenstein warned against the “bewitchment of our intelligence” by language. Words are simply too malleable and subject to interpretation to codify under an order. What are the boundaries of “woke”? Where does the ideological hobbyhorses of the DEI movement end and a simple dedication to racial fairness begin?
 
These are real questions that no government regulation could or should answer. Only time, criticism, free markets, and free speech can do that.

Congress last week rescinded $1.1 billion earmarked for the Corporation for Public Broadcasting (CPB) – a move that severs federal support for National Public Radio (NPR) and its member stations.
Weeks before, in a lawsuit before a federal court, NPR claimed that an executive order by President Trump to cut off its funding was “textbook retaliation and viewpoint-based discrimination in violation of the First Amendment.” Does this view fairly characterize the subsequent vote of a conservative Congress to silence a media organization widely seen as left-leaning?
We say no. Protect The 1st firmly supports the congressional cut-off. Why we think so, however, has nothing to do with the prevailing partisan narratives of Washington, either of the left or the right.
 
Conservatives argue that NPR’s left-leaning reporting and the self-parodying ideological pronouncements of its president and chief executive officer, Katherine Maher, justify the cut-off. Among NPR’s top Washington-based editors, 87 are registered Democrats and exactly none are Republicans. This latter fact was revealed by NPR journalist Uri Berliner, who was pressured to leave after he issued a public essay in which he accused NPR’s bias of costing it the public’s trust.
 
During the 2020 election, NPR haughtily dismissed the Hunter Biden laptop story (one editor declared “we don’t want to waste our time on stories that are not really stories”). When NPR found itself on the chopping block before a Republican Congress, Maher apologized, “NPR acknowledges we were mistaken in failing to cover the Hunter Biden laptop story more aggressively and sooner.”
 
All true. These are the viewpoints that had conservatives sharpening their axes. But we are unmoved by these concerns. We have a different, deeper problem with NPR: Regulating editorial viewpoints necessarily involves the federal government in the regulation of speech. We would also object if NPR had trimmed its sails to the prevailing wind and became an echo chamber of conservative media and the Heritage Foundation. Maher’s editorial pliability on the Hunter Biden laptop story demonstrates this potential for government influence over news coverage.
 
Our stand is simple: Government should not be in the business of subsidizing viewpoints. The law requires NPR to practice “objectivity and balance in all programs or series of programs of a controversial nature.” But objectivity and balance are subjective judgments that can never be well defined by a statute and regulated by law.
 
Defenders of NPR note that only 2 percent of NPR’s budget came directly from CBP and taxpayer dollars. As Sen. Ted Cruz (R-TX) demonstrated, these taxpayer funds were intermingled with funds from “left-wing non-profits looking to advance their own narratives in the press.” We add that “mega-donors,” be they left-wing, right-wing, or libertarian, have every right under the First Amendment to subsidize any speech they wish. The problem arises when American taxpayers are compelled to enrich those subsidies. Mingling the funds of private donors with the funds of the federal government is not a healthy elixir.
 
Unlike many, we take no joy in this moment. We hope that smart NPR content like Radiolab and news service to rural and underserved communities will continue. But we also see government-subsidized speech as inherently problematic. A government forbidden by the First Amendment from abridging the freedom of the press should also be forbidden from subsidizing the news – because official sponsorship of the news is the flip side of censorship.