​The First Amendment ratified first for a reason. The founders recognized that the right to speak, free of government interference, is the foundational rule of a democracy. Before anything else, free speech is the one principle that all Americans should know – and cherish – by heart.
 
That many Americans don’t understand the First Amendment is regrettably not surprising, given the erosion of what used to be called civics education in our public schools. What is shocking is how America’s political leaders – tasked with defending the Constitution – are showing a lack of basic understanding of the First Amendment.
 
In the vice-presidential candidates’ debate, Gov. Tim Walz told his opponent Sen. J.D. Vance: “You can’t yell ‘fire’ in a crowded theater. That’s the test. That’s the Supreme Court test.” Too bad J.D. Vance, Yale Law School graduate, didn’t take the opportunity to correct this widespread misperception.
 
Gov. Walz’s reference came from an opinion written by Justice Oliver Wendell Holmes in Schenck v. United States, which upheld the conviction of one Charles Schenck under the Espionage Act for distributing flyers appealing to draft age men to resist induction into World War One. Justice Holmes upheld the man’s conviction. In peacetime, Holmes wrote, such criticism can be allowed. In wartime, however, criticizing the government of the United States is akin to his metaphor of “falsely shouting fire in a theater.” (Popular imagination later added “crowded” to this quote. Sixties activist Abbie Hoffman offered his own memorable twist, defining free speech as having the right to “shout ‘theater’ in a crowded fire.”)
 
Thus, Justice Holmes declared, opposition to America’s war effort justified “a clear and present danger” test for speech. Schenck went to prison and criticism of the war became a crime.
 
Gov. Walz seems unaware that in 1969 the Supreme Court in Brandenburg v. Ohio overturned this “clear and present danger” test. It narrowed the exception to language meant only to direct or incite “imminent lawless action.”
 
The Brandenburg standard protects all speech – even what any fair person would call “hate speech” – so long as it does not call for imminent violence.
 
Another remark from John Kerry, former U.S. Senator and Secretary of State, also garnered a lot of criticism about the need to “curb” some media entities. He told an audience at the World Economic Forum: “But look, if people only go to one source, and the source they go to is sick, and, you know, has an agenda, and they’re putting out disinformation, our First Amendment stands as a major block to the ability to be able to just, you know, hammer that out of existence.”
 
Some have defended Kerry by saying he was merely explaining to an audience with foreigners that the First Amendment prevents the government from blocking disinformation, in this instance about climate change. TechDirt’s Mike Masnick writes: “He appears to be explaining reality to a questioner from the audience who wants to suppress speech.” Perhaps. But then Kerry immediately pivoted to the need to “win the ground, win the right to govern, by hopefully winning enough votes that you’re free to implement change.” What else could that mean but a landslide election that could justify government “hammering” unapproved speech out of existence?
 
Finally, there is Donald Trump. In the recent presidential debate, ABC News factchecked Trump, but not Vice President Harris. Still, Trump’s response to this biased treatment gives us pause. Donald Trump said of ABC News: “To be honest, they’re a news organization – they have to be licensed to do it. They ought to take away their license for the way they did that.”
 
No, no and no. No, you don’t have to have a license to be a news organization. All you need is a printing press or a broadcast studio. No, ABC News does not need a broadcast license – the FCC grants those to local stations, not to networks. And no, you cannot punish a news organization for legal content.
 
Politicians of all stripes need to understand that biased reporting, hateful comments, and “disinformation” are all protected speech. There is no “they” who can take away someone’s license to speak. And any attempt to regulate social media content that is or is not “disinformation” is to inevitably create a Ministry of Truth.
 
The generous space the First Amendment leaves for speech still allows laws that curb incitement to violence, defamation, false advertisement, and obscenity. For almost two and half centuries, Americans have left it to juries to decide such cases within strict guidelines. Let’s leave it that way.
 
In the meantime, perhaps all candidates for federal office would do well to check out this excellent video from Publius No. 86.

A troubling update in Mahmoud v. Montgomery highlights the continued disregard for parental rights and religious freedom as Montgomery County Public Schools (MCPS) in Maryland persists in refusing to allow religious parents an opt-out for their children being exposed to sexually charged materials. Recent statements from school board members during public meetings reveal personal hostility toward the religious traditions of many parents.
 
In one striking exchange, Board Member Lynne Harris dismissed a parent’s objections to forced participation in the curriculum, saying the parent’s position was ‘just telling that kid, ‘here's another reason to hate another person.’” Couldn’t a dismissive statement like that count as “another reason to hate another person?” This kind of rhetoric doesn't just shut down dialogue – it delegitimizes parents’ deeply held religious values.
 
Even more egregious was Harris’s comment to a Muslim student who voiced her discomfort with the LGBTQIA+ content for conflicting with her faith. Harris said she “felt kind of sorry” for the student and went so far as to speculate whether she was “parroting [the] dogma” of her parents. The disdainful tone and dismissal of a young student's sincere religious beliefs underscore the problem – MCPS is not merely advocating for inclusivity. It is actively marginalizing the religious convictions of those who dissent from its progressive agenda.
 
Beyond the disrespectful treatment of religious families at these meetings, MCPS also took actions that restrict open participation in the democratic process.
 
When Foldi v. Montgomery County plaintiffs Matthew Foldi and Bethany Mandel, who write on education issues, sought to attend the June 27th school board meeting to cover and protest the curriculum, they were turned away. Foldi, a journalist, was barred from entry despite identifying himself as a reporter. Denying media access to a public meeting where major decisions were being made, including the denial of parental opt-out requests, raises serious First Amendment concerns. Such restrictions erode the public’s trust in the transparency of their government institutions.
 
No less troubling is MCPS's action toward dissenters in the digital space.
 
In the lead-up to the June 27th meeting, Mandel was blocked from the “@MCPS-StaffPRIDE” social media account, which had been used to share content and events related to instruction on sexuality. Blocking Mandel from viewing or engaging with the account, which is run by staff linked to the school, prevented her from participating in public discourse around the very topics the school board was debating.
 
A Maryland judge upheld the right of the school district to exclude Foldi and Mandel from the meeting, since they had missed a sign-in cutoff. Such a rule was permitted since it was viewpoint neutral. But the court found MCPS was in error when it blocked them from an official social media account.
 
Protect The 1st Legal Advisor Eugene Volokh observes: “The Supreme Court's Lindke v. Freed decision held that individual officeholders sometimes act in their private capacities when maintaining a social media page, and thus aren't constrained by the First Amendment in deciding whom to block from that page. But it left unaffected the lower court cases that have held that when government bodies maintain social media pages, they are indeed constrained by the First Amendment and may not block readers and commenters based on viewpoint.”
 
There is a troubling pattern of disregard for the First Amendment within MCPS. No one is trying to cancel its educational materials. The issue is that religious families are being denied an opt-out option for highly sexualized material. This infringement is made worse by a broader silencing of dissent, in person and online.
 
At the heart of this story is the right of parents to weigh in on how education impacts their religious traditions, as well as the right of citizens to speak out on matters of public concern. MCPS’s actions, both in its meetings and online, reflect a broader pattern of encroachment on First Amendment rights that should alarm everyone, regardless of their views on the underlying issues.
 
Protect The 1st will continue to monitor this story.

​On Sept. 17 in 1787, thirty-nine American men signed their names to adopt the United States Constitution, setting in motion the political system we have today.
 
It is a system of checks and balances, one that allows the Legislative branch to deliberate the will of the people, the Executive branch to bring energy and focus to national leadership, and the Judiciary to keep their actions in check with the laws and Constitution.
 
In recent years we’ve seen the Executive branch step away from this system by devising executive orders that sidestepped Congressional statute and judicial review. One prime example is EO 12333, in which the president authorizes surveillance outside of any statute. It allows the executive branch to spy on Americans, violating their Fourth Amendment rights and potentially curtailing their speech and First Amendment rights (both part of the Bill of Rights, which was ratified in 1791).
 
Today, both presidential candidates are promising to make far-reaching changes by executive order. Check out this vintage (Obama era) Saturday Night Live skit that – when the laughter dies – should be a sobering reminder that the vision of the founders must be renewed by every generation.

​Earlier we compared the First Amendment records of Sen. J.D. Vance and Gov. Tim Walz, finding the two vice presidential candidates problematic with notable bright spots.
 
So how do the two candidates at the top of the ticket compare on defending speech? Answer: Even more problematic, but also with some bright spots.
 
Vice President Kamala Harris
 
As a U.S. Senator, Harris in 2017 co-sponsored an amendment with her fellow Californian and leading Democrat, the late Sen. Dianne Feinstein, that would have required federal agencies to obtain a probable cause warrant before the FISA Court could allow the government to review the contents of Americans’ emails. Protecting Americans from warrantless surveillance of their private communications concerning personal, political, and religious lives is one of the best ways to protect speech.
 
As a senator, Harris also defended the First Amendment rights of social media platforms to moderate their content. This is not surprising given that she was from California and big tech is one of her best backers. The Washington Post reports that Karen Dunn, one of Google’s top attorneys in against the Biden administration’s antitrust case, is a top Harris advisor. This closeness suggests a danger that a Harris administration might lean heavily in support of using friendly relations with big tech as a backdoor way to censor critics and conservative speech.
 
Consider that Harris once called for the cancellation of former President Donald Trump’s then-Twitter account, saying:
 
“And the bottom line is that you can’t say that you have one rule for Facebook and you have a different rule for Twitter. The same rule has to apply, which is that there has to be a responsibility that is placed on these social media sites to understand their power … They are speaking to millions of people without any level of oversight or regulation. And that has to stop.”
 
Why does it have to stop? Americans have spoken for two centuries without any level of oversight or regulation. You might find the speech of many to be vile, unhinged, hateful, or radical. But unless it calls for violence, or is obscene, it is protected by the First Amendment. When, exactly, did liberals lose their faith in the American people and replace it with a new faith in the regulation of speech?
 
Worse, as California Attorney General, Harris got the ball rolling on trying to force nonprofits to turn over their federal IRS Form 990 Schedule B, which would have given her office the identities of donors.
 
Under Harris’s successor, this case went to the U.S. Supreme Court. Protect The 1st was proud to submit an amicus brief, joined with amici from a coalition of groups from across the ideological spectrum. We demonstrated that the likely exposure of donors’ identities would result in various forms of “cancellation,” from firings and the destruction of businesses, to actual physical threats. A Supreme Court majority agreed with us in Americans for Prosperity Foundation v. Bonta in 2021 that the same principle that defended Alabama donors to the NAACP extends to all nonprofits.
 
The Biden-Harris administration has also been mum on worldwide crackdowns on speech, from a Brazilian Supreme Court Justice’s cancellation of X, to hints from the French government that this U.S.-based platform might be the next target after the arrest of Telegram CEO Pavel Durov.
 
Former President Donald Trump
 
This is a harder one to judge. It’s long been said that Donald Trump wears better if you turn the sound off.
 
On the plus side, President Trump took a notably strong approach in supporting surveillance reform. A victim himself of illicit surveillance justified by the FBI before the FISA Court with a doctored political dossier and a forged document, President Trump was sensitive to the First Amendment implications of an overweening surveillance state. To his credit, he nixed the reauthorization of one surveillance authority – Section 215, or the so-called “business records provision.”
 
During the pandemic, Trump issued guidance in defense of religious liberty. He said: “Some governors have deemed liquor stores and abortion clinics essential but have left out churches and houses of worship. It’s not right. So I’m correcting this injustice and calling houses of worship essential.” He backed up his defense of religious liberty by appointing three Supreme Court Justices – Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh – who have been strong defenders of religious liberty.
 
But turn the sound back on and you will hear Donald Trump call the American press “the enemy of the people.” Call the media biased, corrupt, in the bag for the Democrats, whatever you like … but “enemy of the people?” Trump’s rhetoric on the media often edges toward physical hostility. As president, he mocked a CNN reporter who was hit with a rubber bullet while covering the 2020 riots in Minneapolis. “Remember that beautiful sight?” Trump asked.
 
At a time when journalists are under threat in America and around the world, this is a decidedly un-American way to confront media bias.
 
Donald Trump has also called for a loosening of the libel laws to allow elected officials to more easily pursue claims against journalists without having to meet the Supreme Court’s “actual malice” standard. We agree that there is room for sharpening libel law in the age of social media amplification, but allowing wealthy politicians to sue news outlets out of business would be one effective way to gut the First Amendment.
 
So what should we conclude? Both Harris and Trump have mixed records. Both have taken bold stands for speech. Both have treated the opposition as so evil that they do not deserve legal protections. Both seem capable of surprising us, either by being more prone to censorship or to taking bold stands for free speech.
 
Whatever your political leanings, urge your candidate and your party to lean on the side of the First Amendment.

​Sunday is National Parents’ Day, a day to recognize the sacrifices made by the 63 million parents in the United States. Signed into law by President Clinton in 1994, National Parents’ Day could be treated lightly – like so many other legislative honorifics, such as National Wine and Cheese Day (July 25) or National Bagelfest Day (July 26).
 
But Sunday’s observance calls for deeper reflection.
 
The courts, the media, and the culture focus on the responsibilities of parents, which are intense and last for years. In no other relationship is a person so bound by law and custom to see to the nutrition, clothing, education, and care of another person. Fortunately, for most of us, these things and so much more are given freely, even enthusiastically.
 
Many educators and politicians, however, seem to have a growing hostility to the flip side of responsibility – the rights of parents. Parents have many rights, including the right to see that the values they hold dear are the ones their children grow up with. Indeed, the First Amendment guarantees the right of every American – including parents – to expressive activity. And that includes not only what we say, write, post, and support, but also our efforts to perpetuate our values across generations.
 
Thus, for example, public-school parents have the right to support their children in joining the after-school club of their choice, whether it is about science, a film club, art club, or faith. And yet, regarding the latter, parents have twice had to go to federal court to obtain reversals of educators’ efforts, from Washington, D.C., to San Jose, California, to block the students of the Fellowship of Christian Athletes from holding after-school meetings. In the latter case, Judge Kenneth K. Lee of the Ninth Circuit found evidence that educators were emitting a “stench of animus” toward religious belief.
 
This animus is also seen in Montgomery County, Maryland, where Muslim and Christian parents tried and failed in court to be allowed to keep their preschool and elementary students from being taught unnecessarily explicit lessons about sexuality – the mere exposure to which violates their families’ religious beliefs.
 
Of course, parents with purely secular values also have the right to perpetuate their values across generations. Yet they generally face no such discrimination. The stench of animus that Judge Lee found leads instead to the apparent determination of some to run roughshod over parental rights mostly when it comes to religion. There seems a desire by some in the educational establishment to stamp everyone with uniform values, instead of embracing the pluralistic nature of American society.
 
With so many leaders of public education determined to shape children with a cookie cutter of uniformity, parents are increasingly exercising their rights by leaving the system altogether. This rebellion against the cookie cutter has led to a movement in a dozen states to embrace universal school choice. To be sure, private schools in these voucher systems must still adhere to state standards in the teaching of science, math, history, English, and social studies. But school choice leaves room for pluralism, whether the school imparts religious values or not.
 
The rights of parents, and how they intersect with their First Amendment rights, is something to reflect on – and celebrate – this Sunday.

​The expected landmark, decision-of-the-century, Supreme Court opinion on government interaction with social media content moderation and possible official censorship of Americans’ speech ended today not with a bang, not even with a whimper, but with a shrug.
 
The Justices ruled 6-3 in Murthy v. Missouri to overturn a lower court’s decision that found that the federal government likely violated the First Amendment rights of Missouri, Louisiana, and five individuals whose views were targeted by the government for expressing “misinformation.”
 
The Court’s reasoning, long story short, is that the two states and five individuals lacked Article III standing to bring this suit. The court denied that the individuals could identify traceable past injuries to their speech rights. In short, a case that could have defined the limits of government involvement in speech for the central media of our time was deflected by the court largely on procedural grounds.
 
Justice Samuel Alito, writing a dissent signed by Justices Clarence Thomas and Neil Gorsuch, implicitly criticized this punt, calling Murthy v. Surgeon General “one of the most important free speech cases to reach this Court in years.” He compared the Court’s stance in this case to the recent National Rifle Association v. Vullo, an opinion that boldly protected private speech from government coercion.
 
The dissenters disagreed with the Court on one of the plaintiffs’ standing, finding that Jill Hines, a healthcare activist whose opinions on Covid-19 were blotted out at the request of the government, most definitely had standing to sue. Alito wrote:
 
“If a President dislikes a particular newspaper, he (fortunately) lacks the ability to put the paper out of business. But for Facebook and many other social media platforms, the situation is fundamentally different. They are critically dependent on the protections provided by §230 of the Communications Decency Act of 1996 … For these and other reasons, internet platforms have a powerful incentive to please important federal officials …”
 
We have long argued that when the government wants to weigh in on “misinformation” (and “disinformation” from malicious governments), it must do so publicly. Secret communications from the government to the platforms to take down one post or another is inherently offensive to the Constitution and likely to lead us to a very un-American place.
 
Let us hope that the Court selects a case in which it accepts the standing of the plaintiffs in order to give the government, and our society, a rule to live by.

​During his 2020 presidential campaign, Joe Biden made a bold promise to be the most pro-union president in history. According to analysis by Tom Hebert in The Washington Times, this pledge has translated into a troubling reality. Biden has weaponized federal regulations to suppress free speech within workplaces, all to increase the strength of unions. This manipulation of regulatory power underscores a stark departure from advocating for workers' rights, veering instead towards serving union agendas at the expense of free expression.
 
Leading the charge in this regulatory shift is the National Labor Relations Board (NLRB). Traditionally, employers have been able to hold meetings, known as employer meetings on unionization (EMUs), to discuss unionization transparently with employees. These meetings, which have been uncontroversial since the 1940s, compensate employees for their time and educate them on their rights.
 
The NLRB’s recent recommendation to ban EMUs marks a significant policy reversal. This move is a strategic attempt to leave workers uninformed and sway them toward union membership. This aggressive stance against EMUs has been echoed in several states, pushing to restrict these meetings despite their longstanding acceptance and the fair context in which they were traditionally held.
 
A specific example of the NLRB's controversial approach involves Amazon CEO Andy Jassy, who faced allegations of labor law violations based on paraphrased comments from public interviews, rather than direct quotes. Jassy discussed the benefits of non-unionized workplaces, specifically noting their agility in making improvements without the bureaucratic hurdles posed by unions. However, these comments were interpreted by the NLRB as threats to workers, lacking objective evidence and direct quotes. This method of interpretation demonstrates how regulatory bodies might stretch interpretations to silence employer perspectives during union drives.
 
Legislative initiatives like the Protecting the Right to Organize (PRO) Act underscore a growing disregard for free speech in the workplace. As Hebert says, “one little-known PRO Act provision would force employers to hand over sensitive employee contact information – including phone numbers, email addresses, home addresses and shift times – to union bosses during organizing drives. If the act became legal, workers on the fence about unionization could get a 3 a.m. knock on the door from organizers attempting to “help them make up their minds.” This provision effectively silences any counter-narrative to unionization at a critical decision-making moment, highlighting a troubling shift toward limiting open dialogue and enhancing union influence under the guise of worker protection.
 
The ongoing crackdown on free speech in the workplace not only threatens the foundational rights of employees and employers but also reflects a larger governance trend where union interests are prioritized over open dialogue and workers' rights. The challenge lies in balancing these interests without undermining the principles of workplace democracy and freedom of expression, ensuring that all voices can be heard and respected in the critical conversations about unionization.
 
Protect The 1st emphasizes the importance of free and open discourse in any decision-making process about unions. We look forward to further developments in this story.

​Sometimes it seems as if the left and the right are in a contest to see which side can be the most illiberal. With each polarity defining the other as a “threat to democracy,” restrictions on political opponents are rationalized away as a necessary act of public hygiene. Recent events in Europe, from Budapest to Brussels, should serve as a warning to Americans who want to use police power to make their opponents shut up.
 
In December, the U.S. State Department warned that a new Sovereign Defense Authority law in Hungary “can be used to intimidate and punish” Hungarians who disagree with Prime Minister Viktor Orbán and his ruling party. No less an observer than David Pressman, the U.S. ambassador in Budapest, said: “This new state body has unfettered powers to interrogate Hungarians, demand their private documents and utilize the services of Hungary’s intelligence apparatus – all without any judicial oversight or judicial recourse for its targets.”
 
So how are left-leaning critics responding to the rise of the Europe right? By also using intimidation to shut down speech. In Brussels, police in April acted on orders from local authorities by forcibly shutting down a National Conservatism conference. This event, which was to host discussions among European conservative figures, including Prime Minister Orbán and former Brexit champion Nigel Farage, was terminated hours after it began.
 
The cited reasons for the closure included concerns over potential public disorder linked to planned protests. Such a policy, of course, gives protesters pre-emptive veto power over controversial speech, backed by the police.
 
The conference had earlier faced official meddling to prevent the selection of a venue. Initial plans to host the event at the Concert Noble were thwarted due to pressure from the Socialist mayor of Brussels. Subsequently, a booking at the Sofitel hotel in Etterbeek was canceled after local activists alerted that city’s mayor, who pressured the hotel to withdraw its support. Finally, the organizers settled on the Claridge Hotel, only to encounter further challenges including threats to the venue’s owner and logistical disruptions orchestrated by local authorities, culminating in the police blockade that effectively stifled the conference.
 
The good news is public response to the shutdown of the National Conservatism conference was vocal and critical. Belgian Prime Minister Alexander De Croo voiced a strong objection, stating that such bans on political meetings were unequivocally unconstitutional. British Prime Minister Rishi Sunak also responded that canceling events and de-platforming speakers is damaging to democracy.
 
The closure in Brussels is particularly ironic given the city's status as the capital of the European Union, a supposed bastion of liberal democratic values. The forced closure, threats to cut electricity, and the barring of speakers are tactics that betray a fundamental disrespect for democratic norms. What transpired was a scenario more befitting a "tinpot dictatorship," as Frank Füredi, one of the event's organizers, put it.
 
Speech crackdowns seem to be a European disease. This aggressive move to silence a peaceful assembly under the guise of preventing disorder echoes the same illiberal impulses driving Scotland's Hate Crime and Public Order Act. That law broadly criminalizes speech under the expansive banner of “stirring up hatred.”
 
Americans would do well to look to Europe to see what cancellation and criminalization of speech looks like. As the cities and campuses of the United States face what promises to be a hot summer of protest over Gaza, Americans need to keep a relentless focus on protecting speech – even speech one regards as heinous – while preventing tent city invasions, vandalism, and violence that compromises the rights of others.

​Reporters Without Borders dropped the United States 10 places on its annual rankings from last year, from 45th to 55th place out of 180 countries in its 2024 World Press Freedom Index. This is part of a trend. This NGO has downgraded the United States, which enshrines freedom of the press in our Constitution, from 17th best for press freedom in 2002 to that 55th place now.
 
To be fair, some of the organization’s metrics are questionable. For example, Argentina fell from 40th place last year to 66th place in 2024 after newly elected President Javier Miliei shuttered news outlet Télam and put its 700 journalists on the street. It should be noted, however, that Télam was a money-losing, state-funded news agency founded by Juan Perón and known for being a government and Peronista mouthpiece under previous administrations.
 
So how fairly did Reporters Without Borders treat the United States? It seems overkill to us to rank the United States below the Ivory Coast, where reporters are routinely called in by prosecutors and newspapers are suspended – or Romania, where a prominent journalist who investigated the government had her personal images hacked and uploaded to an adult website.
 
At the same time, while we can take issue with the overall ranking of the United States, this NGO is correct on what the British call the direction of travel. Protect The 1st has reported what Reporters Without Borders states: “In several high-profile instances, local law enforcement has carried out chilling actions, including raiding newsrooms and arresting journalists.” We would add to that the lack of a federal press shield law also leaves reporters vulnerable to being wiretapped and worse.
 
The good news is that protections for reporters have a strong basis of public support in the United States. A recent survey by the Pew Research Center reveals robust support among Americans for the principle of press freedom, underscoring its vital role in our democracy. It’s heartening to note that nearly three-quarters of U.S. adults (73 percent) consider the freedom of the press — enshrined in the First Amendment — extremely or very important to the well-being of society.
 
Still, we have reason for caution. While a significant majority of Americans acknowledge the importance of a free press, many are concerned about threats to journalistic freedom. Notably, a substantial portion of the population believes U.S. media is influenced by corporate and political interests — 84 percent and 83 percent respectively. In our polarized society, partisan differences color these perceptions of press freedom. Republicans and Independents consistently express greater concern over media restrictions and the influence of political interests compared to Democrats.
 
Equally concerning is the broader debate over the balance between safeguarding press freedom and curbing “misinformation.” Approximately half of the American population is torn between the necessity to prevent the spread of false information and the imperative to protect press freedoms, even if it means some false information might circulate.
 
While it's encouraging to see strong support for journalistic freedoms among Americans, local authorities must understand that raids and legal threats against reporters is intolerable under our Constitution and under the press shield laws of 49 states. And we need a federal press shield law – the PRESS Act, which recently passed the U.S. House – to reduce the shadow the Department of Justice can cast over the free exercise of journalism.
 
We’ve got work to do.

​Can a protest organizer be held civilly liable for the unlawful actions of another at a demonstration? That’s the question at issue in McKesson v. Doe, one with significant implications for protected speech.
 
The case’s circuitous journey through the courts started in 2016, when an anonymous Louisiana law enforcement officer was struck with a “rock-like” object hurled by an unknown person at a Black Lives Matter protest. This was a despicable act of violence that was in no sense expressive speech. Those who commit such acts of violence must be prosecuted to the fullest extent of the law. But what is the liability of those who organize a peaceful protest that is infiltrated by the violent?
 
Plaintiff John Doe brought suit against activist DeRay McKesson, who organized the event, on the theory that McKesson’s role as the event organizer encompassed a duty to protect everyone present. In 2020, the U.S. Supreme Court vacated the Fifth Circuit’s decision against McKesson, which upheld a novel theory from Doe of “negligent protest.” The Court remanded the case to the Louisiana Supreme Court, instructing it to analyze whether state law actually provides for negligence liability in such situations. This decision seems to ignore precedent in NAACP v. Claiborne Hardware, which held that “[c]ivil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence.”
 
The Louisiana Supreme Court ultimately reached the conclusion that state tort law does, in fact, provide Doe with a cause of action. As a result, the Fifth Circuit reinstated its ruling and the case returned again to the highest court in the land.
 
Notably, the Supreme Court ruled in the intervening years in Counterman v. Colorado that a subjective, mens rea standard (meaning specific intent, not just negligence) is required for a finding of liability in lawsuits that seek to punish speech. Justice Kagan wrote that the “First Amendment precludes punishment, whether civil or criminal, unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.”
 
Accordingly, in an order rejecting certiorari in the McKesson case earlier this month, Justice Sotomayor strongly implied that the Court has already settled this question of law. She wrote, “Although the Fifth Circuit did not have the benefit of this Court’s recent decision in Counterman when it issued its opinion, the lower courts now do. I expect them to give full and fair consideration to arguments regarding Counterman’s impact in any future proceedings in this case.”
 
The Supreme Court clearly wants to allow some deference to state law. However, it seems entirely reasonable to require a showing of intent in situations involving the random outbreak of violence at protests. Failure to do so could have a significant, chilling effect on political speech. If civil liability can be assigned for merely organizing an event, then we’re likely to see a lot less civil discourse in the future.
 
Journalists have similar concerns. As the Reporters Committee for Freedom of the Press explains, protecting against liability for the “uncoordinated,” lawless actions of others “is a critical safeguard for reporters who attend tumultuous events where violence may break out — political rallies, say, or mass demonstrations — in order to bring the public the news.” 
 
It remains possible the Fifth Circuit may reevaluate its ruing in light of Counterman, but it’s disappointing that the Supreme Court declined to weigh-in in a meaningful way. When states start imposing low liability thresholds on protestors, it jeopardizes First Amendment protections for all of us.

Can a government regulator threaten adverse consequences for banks or financial services firms that do business with a controversial advocacy group like the National Rifle Association? Can FBI agents privately jawbone social media platforms to encourage the removal of a post the government regards as “disinformation”?
 
As the U.S. Supreme Court considers these questions in NRA v. Vullo and Murthy v. Missouri, a FedSoc Film explores the boundary between a government that informs and one that uses public resources for propaganda or to coerce private speech. (“Nice social media company you have there. Shame if anything happened to it.”)
 
Posted next to this film, Jawboned, on the Federalist Society website is Protect The 1st’s own Erik Jaffe, who in a podcast explores the extent to which the government, using public monies and resources, should be allowed to speak, if at all, on matters of opinion. Is the expenditure of tax dollars to push a favored government viewpoint a violation of the First Amendment rights of Americans who disagree with that view? Jaffe thinks so and argues why this is the logical conclusion of decades of First Amendment jurisprudence.
 
Furthermore, when the government tells a private entity subject to its power or control what the government thinks it ought to be saying (or not saying), Jaffe says, “there’s always an implied ‘or else.’” And even the government’s own public speech often has coercive consequences. As if to underscore this point, Jawboned recounts the story of how the federal Office of Price Administration during World War Two lacked the authority to order companies to reduce prices but did threaten to publicly label them and their executives as “unpatriotic.” That was a very real threat in wartime. Imagine the “or else” sway government has today over highly regulated firms like X, Meta, or Google.
 
In short, Jaffe argues that a line is crossed when “the power and authority of the government” is invoked to use “the power of office to coerce people.” But it also crosses the line when the government uses its resources (funded by compelled taxes and other fees) to amplify its own viewpoint on questions being debated by the public. Such compelled support for viewpoint selective speech violates the freedom of speech of the public in the same way compelled support for private expressive groups and viewpoints does.
 
Click here to listen to more of Erik Jaffe’s thoughts on the limits of government speech and to watch Jawboned.

​The U.S. Supreme Court is set to address several critical free-speech cases this session related to speech rights in the context of social media. One of those questions was recently settled, with the Court ruling on whether an official who blocks a member of the public from their social media account is engaging in a state action or acting as a private citizen. Answer: It depends on the context.
 
Writing for a unanimous Court in the case of Lindke v. Freed, Justice Amy Coney Barrett reaffirmed that members of the public can sue a public official where their actions are “attributable to the State” (consistent with U.S.C. §1983). In order to make that determination, the Court issued a new test, holding that:
 
“A public official who prevents someone from commenting on the official’s social-media page engages in state action under §1983 only if the official both (1) possessed actual authority to speak on the State’s behalf on a particular matter, and (2) purported to exercise that authority when speaking in the relevant social-media posts.”
 
This is a holistic analysis, consistent with the Protect The 1st amicus brief filed in O’Connor-Ratcliff v. Garnier. We argued that “no single factor is required to establish state action; rather, all relevant factors must be considered together to determine whether an account was operated under color of law.”
 
That case, along with the Court’s banner case, Lindke v. Freed, is now vacated and remanded for new proceedings consistent with the Court’s novel test. When, as the Court acknowledges, “a government official posts about job-related topics on social media, it can be difficult to tell whether the speech is official or private.” So the Court set down rules. A state actor must have the actual authority – traced back to “statute, ordinance, regulation, custom, or usage” – to speak on behalf of the state. However, should an account be clearly designated as “personal,” an official “would be entitled to a heavy (though not irrebuttable) presumption that all of the posts on [their] page were personal.”
 
In Lindke v. Freed, the public official’s Facebook account was neither designated as “personal” nor “official.” Therefore, a fact-specific analysis must be undertaken “in which posts’ content and function are the most important considerations.” As the Court explains:
 
“A post that expressly invokes state authority to make an announcement not available elsewhere is official, while a post that merely repeats or shares otherwise available information is more likely personal. Lest any official lose the right to speak about public affairs in his personal capacity, the plaintiff must show that the official purports to exercise state authority in specific posts.”
 
When a public official blocks a citizen from commenting on any of his posts on a “mixed-use” social media account, he risks liability for those that are professional in nature. Justice Barrett writes that a “public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.”
 
It's always been good policy to keep official and private accounts separate. The public must be able to have access to government-issued information, whether through a social media account or a public notice posted on the door of a government building. Moreover, citizens should be able to speak on issues of public concern, whether through Facebook or in a public square. Officials – presidents and former presidents included – should take note.

​In November, we reported on a controversy in the San Antonio suburb of Castle Hills, which epitomizes the growing trend of using the law to punish disfavored speech. The Supreme Court’s recent argument reveals several justices showing solidarity with the arrested party.
 
Here are the facts: Sylvia Gonzalez was elected to a seat on the Castle Hills city council in 2019. During her first council meeting, a resident submitted a petition to remove the city manager – a petition spearheaded by Gonzalez – and it wound up in Gonzalez’s personal binder of documents. After being asked for the petition by the mayor, Gonzalez found it among her effects and handed it over.
 
The mayor initiated an investigation into Gonzalez under a Texas statute providing that “[a] person commits an offense if he […] intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record.” A warrant was subsequently served against Gonzalez, who was taken to jail and resigned from the council in humiliation. 
 
Gonzalez claims her arrest was retaliatory – trumped-up charges based on a little enforced statute and stemming from her support for removing the city manager. At issue is a legal doctrine known as the “jaywalking exception,” which guards against law enforcement arresting people for protected speech under the guise of some other petty statutory violation.
 
In Nieves v. Bartlett, the Supreme Court held that retaliatory arrest claims may proceed where probable cause exists – as it technically did with Gonzalez – but a plaintiff is arrested in a situation where officers “typically exercise their discretion not to do so.”
 
In such circumstances, a plaintiff must present “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”
 
Attempting to satisfy the exception, Gonzalez presented evidence that not one of 215 grand jury felony indictments in Bexar County under a tampering statute over the preceding decade involved an allegation remotely similar to the one levied against her. The Fifth Circuit found this insufficient, holding that Nieves requires comparative evidence of individuals who engaged in the “same” criminal conduct but were not arrested. In other words, going by the Fifth Circuit’s interpretation, Gonzalez would have to find specific instances of people who misplaced government documents but were not arrested. How would anyone even find such instances? The Fifth Circuit tasked her with proving a negative.
 
If the Fifth Circuit’s decision is left in place, Protect The 1st explained it would make it easier for law enforcement or other government officials to punish critics for expressing protected speech based on novel applications of relatively minor criminal laws. It also sets the evidentiary bar so high that few could ever hope to prove their case in a court of law.
 
During oral arguments, several justices seemed to agree. Justice Gorsuch, speaking about the many unenforced statutes on the books, said:
 
“You're saying they can all sit there unused, except for one person who alleges that ‘I was the only person in America who's ever been prosecuted for this because I dared express a view protected by the First Amendment,’ and that's not actionable?”
 
Justice Kagan, clearly thinking along the same lines, said the plaintiff has “solid objective evidence” that they were treated differently than similarly situated persons, noting:
 
“You should be able to say, ‘They've never charged somebody with this kind of crime before and I don't have to go find a person who has engaged in the same conduct.’”
 
Justice Jackson made similar remarks, while Chief Justice Roberts, who authored Nieves, seemed to take the other side, questioning whether expanding the evidentiary basis for refuting probable cause is consistent with the Court’s earlier ruling. It “seems to me to be inconsistent,” he said. Justice Kavanaugh likewise noted, "If you intentionally stole a government document at a government proceeding — that's not nothing.”
 
Why Gonzalez would want to hide a petition she helped organize is far from clear. Her conduct was so benign that the only inference one can reasonably draw is that she was the target of retaliation. Protect The 1st hopes the Court sides with her and makes it clear they will hold public officials accountable for weaponizing the law against those who speak their minds.

​Donor privacy is under unprecedented threat across the country. According to a report last month from the non-partisan People United for Privacy, efforts to curb historical privacy protections are underway in no fewer than 31 states.
 
Matt Nese of People United for Privacy details this threat in a recent RealClear Policy piece, describing the means by which politicians of all political stripes ceaselessly endeavor to dox nonprofit donors, often under the guise of curbing the influence of “dark money” or foreign sources of funding. In practice, it’s rank-and-file domestic contributors – exercising their fundamental speech rights – who end up being harmed the most by such efforts.
 
Look no further than Arizona’s Prop 211, the misleadingly titled “Voters Right to Know Act.” That measure was marketed as requiring disclosure of political “campaign” donors. Instead, it targets any group that speaks out on public policy issues – including nonprofits. It opens the door not just to self-censorship by those who may otherwise be inclined to donate to a cause, but also the possibility of doxing, intimidation, harassment, and cancellation.  
 
Multiple legal challenges to Prop 211 are ongoing. Should these challenges make it to the U.S. Supreme Court, history suggests it’s unlikely the justices will uphold the law.
 
The Court first established our bedrock principle regarding donor privacy and the First Amendment in 1958 when it struck down a State of Alabama requirement that the NAACP reveal its donors. That potential for compelled disclosure would almost certainly have led to “harassment, economic reprisal, and physical harm” – danger enough for the Court to act to protect the First Amendment.

Such reasoning carried through to 2021 when the Supreme Court struck down a California requirement for compelling donor disclosure for nonprofits. In the majority opinion, Chief Justice John Roberts noted “that it is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on free­dom of association as [other] forms of governmental action.”
 
The 2021 ruling hasn’t dissuaded the political class from continuing to push the boundaries when it comes to donor privacy. In Hawaii, SB 997 would require donor disclosure in the case of “[c]ommunications that advocate or support the nomination, opposition, or election of a candidate, regardless of whether the communication expressly advocates the election or defeat of a candidate.”
 
In Washington, legislation is being developed purporting to ban so-called “foreign influenced” entities from participating in the political process if so much as 1 percent of their equity is owned by a foreign interest. Currently, foreign participation in elections is illegal; this is a clear attempt to curb the speech rights of Americans – and particularly non-profits who may rely on donations from large corporations.
 
In these states, the war on donor privacy is not yielding to well-established precedent. This nationwide campaign is predicated on the not-unlikely hope that enough assaults will exhaust the courts and strip donors of privacy, bringing cancellation policies and doxing to donors of all stripes.
 
Protect The 1st will continue to monitor these threats to the privacy necessary to protect free speech in America.

​The recent House passage of a bill to force the sale of TikTok from its Chinese parent company – or suffer an outright ban – triggers obvious questions about the First Amendment. Many of our fellow civil liberties organizations have come to TikTok’s defense, making the point that if the government can silence one social media platform, it can close any media outlet, newspaper, website, or TV channel.
 
They point to many of TikTok’s strongest critics, who accuse it of pushing China’s line on sensitive issues and dividing Americans in what promises to be an especially heated election season. But our civil liberties allies remind us that the First Amendment protects all speech, no matter how divisive, even if it echoes foreign propaganda. That is fine as far as it goes, but there are other issues beyond the First Amendment in the TikTok debate.
 
Here is where we break ranks with some of our peers: We see real danger in TikTok’s accumulation of the personal data of its 150 million American users, and 67 percent of U.S. teens – and how TikTok’s influence could harm the First Amendment by threatening the freedom of the press and the speech of users. After reviewing results from a year-long, bipartisan investigation, the House concluded that TikTok is being used by Beijing to spy on American citizens.
 
TikTok’s parent company, ByteDance, has had a notorious relationship with the Chinese Communist Party (CCP). As we wrote last year, the Department of Justice and FBI have been investigating ByteDance over CCP access to Americans’ data. According to Emily Baker-White, a Forbes reporter who was herself surveilled by ByteDance, the department and U.S. Attorney for the Eastern District of Virginia have hit the Chinese firm with subpoenas about its purported surveillance of U.S. journalists. The company’s data policies have led multiple states to ban the app on state employee devices.
 
It would be a flagrant violation to ban a newspaper for its content. But what if a hostile power deliberately manufactured newspapers with arsenic dye, toxic to the touch? In such a case, First Amendment issues would be irrelevant. ByteDance is compelled by Chinese law to share all its data with the Beijing government, and its military and intelligence agencies. Senators should determine whether the toxicity of the threats posed by TikTok's data practices and its relationship with the CCP necessitate action.
 
This is not the first time the United States has forced a Chinese company to divest a social media platform. In 2020, the Committee on Foreign Investment in the United States raised the alarm about Kunlun Tech’s acquisition of Grindr, a popular LGBTQ dating app. The app already had a poor reputation for data security, but the committee was reportedly worried that the Chinese government could use personal data from the app to blackmail U.S. citizens, including government officials. The committee gave Kunlun a deadline by which it had to sell Grindr, and the app was sold back to an American owner.
 
Forcing a media outlet to sell or go out of business is a drastic action, not to be undertaken lightly. But as the Senate debates, we should keep in mind that there are issues at stake in the TikTok controversy that go beyond the First Amendment.

​The U.S. Supreme Court heard oral arguments Monday in Murthy v. Missouri, a case addressing the government's covert efforts to influence social media content moderation during the Covid-19 pandemic. Under pressure from federal and state actors, social media companies reportedly engaged in widespread censorship of disfavored opinions, including those of medical professionals commenting within their areas of expertise.
 
The case arose when Missouri and Louisiana filed suit against the federal government arguing that the Biden Administration pressured social media companies to censor certain views. In reply, the government responded that it only requested, not pressured or demanded, that social media companies comply.
 
Brian Fletcher, U.S. Principal Deputy Solicitor General, told the Court it should “reaffirm that government speech crosses the line into coercion only if, viewed objectively, it conveys a threat of adverse government action.”
 
This argument seems reasonable, but a call from a federal agency or the White House is not just any request. When one is pulled over by a police officer, even if the conversation is nothing but a cordial reminder to get a car inspected, the interaction is not voluntarily. Social media companies are large players, and an interaction with federal officials is enough to whip up fears of investigations, regulations, or lawsuits.
 
In Murthy v. Missouri, it just so happens that the calls from federal officials were not just mere requests. According to Benjamin Aguiñaga, Louisiana’s Solicitor General, “as the Fifth Circuit put it, the record reveals unrelenting pressure by the government to coerce social media platforms to suppress the speech of millions of Americans. The District Court which analyzed this record for a year, described it as arguably the most massive attack against free speech in American history, including the censorship of renowned scientists opining in their areas of expertise.”
 
At the heart of Murthy v. Missouri lies a fundamental question: How far can the government go in influencing social media's handling of public health misinformation without infringing on free speech? Public health is a valid interest of the government, but that can never serve as a pretense to crush our fundamental rights. When pressure to moderate speech is exerted behind the scenes – as it was by 80 FBI agents secretly advising platforms what to remove – that can only be called censorship.
 
Transparency is the missing link in the government's current approach. Publicly contesting misinformation, rather than quietly directing social media platforms to act, respects both the public's intelligence and the principle of free expression. The government's role should be clear and open, fostering an environment where informed decisions are made in the public arena.
 
Perhaps the government should take a page from Ben Franklin’s book (H/T Jeff Neal): “when Men differ in Opinion, both Sides ought equally to have the Advantage of being heard by the Publick; and that when Truth and Error have fair Play, the former is always an overmatch for the latter …”
 
Protect The 1st looks forward to further developments in this case.

​A case from Grants Pass, Oregon, presents a compelling study and examination of the role that religious charities play in helping the helpless.
 
In 2018, a group of homeless people sued the City of Grants Pass over its municipal ordinances – and hefty fines – meant to prohibit sleeping on public land. Specifically, the group alleged violations of the Eighth Amendment, which bans “cruel and unusual punishment.” In 2023, the Ninth Circuit Court of Appeals ruled for the plaintiffs using its own particularized formula that bans the prosecution of homeless people if there “is a greater number of homeless individuals … than the number of available” shelter beds. At the same time, the court relied on precedent asserting that shelters with a “mandatory religious focus” could not be included in their calculations due to possible violations of the Constitutional prohibition against the establishment of religion.
 
Whatever one thinks of the underlying issue about rights and responsibilities regarding homelessness, the Ninth Circuit’s disregard for religious charitable organizations shows a broader legal hostility towards religion itself. Worse, it discounts religious institutions’ many contributions to social welfare and safety.
 
In 1971, the Supreme Court held in Lemon v. Kurtzman that state statutes do not violate the Establishment Clause if they: 1) have a secular purpose 2) do not advance or inhibit religion, and 3) do not result in “excessive government entanglement” with religion. The test was used repeatedly as a means to disenfranchise – or entirely disregard – religious institutions that contribute to the public good. 
 
In 2022’s Kennedy v. Bremerton School District, U.S. Supreme Court Justice Neil Gorsuch instructed lower courts to ignore Lemon, instead directing them towards a historical analysis that takes into account what was understood as a religious “establishment” when our nation was founded.
 
Unfortunately, this guidance is largely disregarded across the United States. As the Becket Fund writes, “[f]or decades, the Lemon test had caused courts to incorrectly apply the Establishment Clause, driving religious people and religious ideas out of public life. Even though Lemon was overturned, many lower courts, including ones within the Ninth Circuit, continue to rely on it.” Becket’s amicus brief before the U.S. Supreme Court, which is set to review the case soon, urges the justices to “reiterate that courts should apply a historical test” when deciding on Establishment Clause violations.
 
Much is at stake behind this seemingly esoteric legal issue.
 
Religious institutions unquestionably have always had and continue to have a major role in providing a social safety net in the United States. Continuing to rely on the Lemon test, which categorically excludes religious organizations from public life due to their “overall religious atmosphere,” is a gross overextension and misinterpretation of the First Amendment’s Establishment Clause. As the Becket Fund notes, it “confuses private and state action” when it comes to making distinctions about religion. Overall, this ruling is indicative of widespread local government dismissal of, or even hostility toward, the social contributions of people of faith.
 
If a theocracy is one extreme the courts wish to avoid, a secular lack of acceptance for religious pluralism is the opposite extreme. Governments should welcome religious institutions that provide social safety nets. And it starts with the rejection of a reactionary, overruled legal doctrine that discredits the civic contribution of religious charities.

​School choice continues roll across the country. Since 2021, ten states have passed universal choice measures, with more states moving in that direction way.
 
In Texas, school choice met its Alamo in the Texas Legislature late last year. But Texans remember the Alamo with fondness because only a few weeks after that tragedy, Texans won their independence. And so it has been for school choice. In the recent slate of elections, it was six of the anti-school choice incumbents who were ousted. Four are currently fighting to retain their seats in a runoff.  
 
Their winning challengers were endorsed by Texas Gov. Greg Abbott, who aims to work with the new legislators to push through his plan for education savings accounts for the over five million K-12 students in the nation’s second most-populous state.
 
Why did the legislators, conservative and rural Republicans, stop school choice in the first place? They were worried that school choice would divert funds away from their rural public schools. This is an understandable fear for counties with small populations and scant resources. Gov. Abbott promised extra resources for these areas. These fears were further allayed by Tom Newell, a former Republican Oklahoma legislator whose timely op-ed in the Wall Street Journal called on rural Republicans to embrace school choice.
 
Newell wrote that parents, teachers, and politicians are often afraid to speak out in favor of educational freedom, lest they attract the wrath of the local superintendent or teachers’ union representative. When Newell announced his candidacy, he wrote that “a consultant told me I couldn’t support education freedom and get elected in rural Oklahoma.” Nevertheless, Newell campaigned on educational freedom and won with 61 percent of the vote. “There’s a silent majority of parents who know education freedom is good for their kids. Empowering those parents will help, not hurt, your re-election.”
 
It is easy to see why. Competition is proven to drive educational success. School choice is also the ultimate, intergenerational expression of the First Amendment, giving parents the power to choose to extend their values and heritage across generations.
 
Over 70 percent of Americans support school choice. Minority voters take the lead, with 83 percent of Black and 77 percent of Hispanic voters registering their support. Once the strongest bloc of opposition to school choice, 68 percent of Democrats support school choice. Pennsylvania Gov. Josh Shapiro declared that school choice is important because “every child of God” deserves a “quality education.”
 
More than 180 Democrats holding office at all levels are members of Democrats for Education Reform, which seeks to promote school choice policies in the Democratic Party. The group calls on Democratic politicians to adopt education freedom, declaring on its website: “If Democratic lawmakers want to be the champions of public education excellence and equity, they need to do some serious soul searching on how they position themselves on public charter schools.”
 
Newell now travels the country promoting education freedom to lawmakers. To rural Republicans who are concerned about the viability of school choice in their areas, he says, “In the district I represented, there wasn’t a marketplace until there was. An educational marketplace definitely won’t arise in places where one-size-fits-all laws block it.”
 
School choice is poised to take the nation by storm. It can no longer be held up by vested interests and timid politicians. Protect The 1st looks forward to seeing the Lone Star State be the next to offer families educational choice.

​A bill under consideration in Kentucky would neuter the state’s public records law, limiting access to government documents and shielding state decision-makers from scrutiny in the Bluegrass state.
 
This latest legislation is part of a larger trend away from public disclosure. Two years ago, Kentucky Gov. Andy Beshear, a Democrat, opposed a provision exempting that state’s legislature from public records requests, calling it a “recipe for secrecy.” He vetoed that bill but was overridden by the legislative majority, which argued that a deliberative body has a unique need for privacy. This new bill goes further, however, encompassing boards, commissions, state officials, and local government.
 
This current proposal exempts drafts, notes, correspondence with private parties, preliminary recommendations, personal communications conducted on government devices, any communications related to personal opinion, and – glaringly – information stored on a personal device. Want to make sure the public doesn’t know what government officials are up to? They can simply conduct government business on their smartphones. This bill is a roadmap for avoiding accountability. 
 
That Gov. Beshear was overridden by a supermajority comfortable with legislative privacy does not bode well for stopping this latest attempt by Kentucky officials to hide bureaucrats in the bluegrass.
 
All 50 states have some form of public records statute ensuring public access to the reports, memos, and other documents that describe official thinking behind regulatory or political decisions. These laws constitute state-level versions of the Freedom of Information Act, intended to bring the disinfecting rays of sunlight into the oft-opaque inner workings of government.
 
Yet a host of states across the country also exempt large swaths of documents from disclosure. In Massachusetts, Oklahoma, Oregon, and Wyoming, legislatures are entirely exempt from public records laws. In Georgia and Minnesota, they are simply excluded from the definition of an agency subject to freedom of information requests.
 
While some jurisprudence weighs against legislative privilege in favor of public access, there are also good arguments as to why legislatures, specifically, should not have to hand over their deliberative internal communications.
 
When FOIA passed in 1966, Congress was specifically omitted from the definition of an “agency” required to respond to public record requests. As the non-partisan Congressional Research Service summarizes, “applying FOIA to Congress may alter the functioning of the legislative process and implicate certain constitutional provisions, including the Journal Clause (art. I, §5, cl. 3) and the Speech or Debate Clause (art. I, §6, cl. 1).” In other words, a Congressional FOIA could chill legitimate debate and decision-making. The same argument could likewise extend to state legislatures.
 
Whatever one thinks of legislative exemptions to public records requests, bureaucrats and agencies simply should not have the right to expansive non-disclosure as spelled out in the latest Kentucky bill. Should it pass, it will be a near total subversion of the policy underlying the state’s public records law – a fatal blow to any semblance of good governance, transparency, and accountability.

​The U.S. Court of Appeals for the Second Circuit recently heard oral arguments in the case of Volokh v. James. It’s another in a series of critical recent cases involving government regulation of online speech – and one the Empire State should ultimately lose.
 
In 2022, distinguished legal scholar and Protect The 1st Senior Legal Advisor Eugene Volokh – along with social media platforms Rumble and Locals – brought suit against the state of New York after it passed a law prohibiting “hateful” conduct (or speech) online.
 
Specifically, the law prohibits “the use of a social media network to vilify, humiliate, or incite violence against a group or a class of persons on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.”
 
The law also requires platforms to develop and publish a policy laying out how exactly they will respond to such forms of online expression, as well as to create a complaint process for users to report objectionable content falling within the boundaries of New York’s (vague and imprecise) prohibitions. Should they fail to comply, websites could face fines of up to $1,000 per day.
 
There are a number of problems with New York’s bid to regulate online speech – not least of which is that there is no hate speech exception to the First Amendment. As the Supreme Court noted in Matal v. Tam, “speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”
 
Moreover, the law fails to define key terms like “vilify,” “humiliate,” or “incite” – leaving its interpretation up to the eye of the beholder. As Volokh explained in a piece for Reason, “it targets speech that could simply be perceived by someone, somewhere, at some point in time, to vilify or humiliate, rendering the law's scope entirely subjective.” Does an atheist’s post criticizing religion “vilify” people of faith? Does a video of John Oliver making fun of the British monarchy “humiliate” the British people? The hypotheticals are endless because one’s subjective interpretation of another’s speech could cut a million different ways.  
 
In February 2023, a district court ruled against New York, broadly agreeing with Volokh’s arguments. As Judge Andrew L. Carter, Jr. wrote:
 
“The Hateful Conduct Law both compels social media networks to speak about the contours of hate speech and chills the constitutionally protected speech of social media users, without articulating a compelling governmental interest or ensuring that the law is narrowly tailored to that goal.”
 
To be fair, there is a purported government interest at play here, even if it’s not compelling in the broader context of the law’s vast, unconstitutional reach. The New York law is a legislative response to a 2022 Buffalo supermarket shooting perpetrated by a white supremacist who was, by all accounts, steeped in an online, racist milieu.
 
Every decent person wants to give extremist views no oxygen. But incitement to violence is already a well-established First Amendment exception – unprotected by the law. Broadly compelling websites to create processes for addressing subjective, individualized offenses simply goes too far.
 
Anticipating New York’s appeal to the Second Circuit, a number of ideologically disparate organizations joined with the Foundation for Individual Rights and Expression, or FIRE, (which is prosecuting the case), submitting amicus curiae briefs in solidarity with Volokh and his co-plaintiffs.
 
Those groups – which include the American Civil Liberties Union, the Electronic Frontier Foundation, the Cato Institute, and satirical website the Babylon Bee – stand in uncommon solidarity against the proposition that government should ever be involved in private content moderation policies. As the ACLU and EFF assert, "government interjection of itself into that process in any form raises serious First Amendment, and broader human rights, concerns." True to form, the Babylon Bee’s brief notes that “New York's Online Hate Speech Law would be laughable – if its consequences weren't so serious.”
 
When the U.S. Supreme Court renders its opinion on the Texas and Florida social media laws, it will give legislatures a better guide to developing more precise, articulable means of addressing online content.

​Reporters treat promises of confidentiality to potential sources as sacred for a reason. The promise of anonymity is the bedrock upon which investigative journalism rests. This promise is so central to a free press that a bill to codify its protection is currently wending its way through Congress. The PRESS Act would protect journalists and their sources by granting a privilege to shield confidential news sources in federal legal proceedings.
 
CBS went one step further after it terminated investigative journalist Catherine Herridge: the news division reportedly seized her files, including private information about privileged sources. Lawyer Jonathan Turley writes CBS is “moving toward a resolution,” with some reports indicating CBS has already returned the files. But the initial action, which sparked widespread concern among CBS employees, is instructive about the need to protect reporters and sources.
 
Turley in The Hill wrote that the “the timing of Herridge’s termination immediately raised suspicions in Washington. She was pursuing stories that were unwelcomed by the Biden White House and many Democratic powerhouses,” which landed her in hot water with CBS executives. After she was terminated, the network seized her notes and files, informing her that it would decide what would be released to her.
 
Such an action defied established media tradition.
 
“Journalists are generally allowed to leave with their files,” Turley writes. “Under the standard contract, including the one at CBS, journalists agree that they will make files available to the network if needed in future litigation. That presupposes that they will retain control of their files.” CBS also suggested that it would allow unnamed individuals to look through Herridge’s files to determine what she would have been allowed to keep.
 
A former CBS manager said that he had “never heard of anything like this.” The Screen Actors Guild-American Federation of Television and Radio Artists union (SAG-AFTRA) has raised the issue with CBS, noting the effect of this action could have on journalistic practices and source confidentiality. If this issue is, in fact, not resolved as reported, the union could well take this to court to test Herridge’s claim to her notes.
 
Why did CBS News risk tarnishing its own legacy? It shouldn’t matter if Herridge’s investigation is of Hunter Biden’s laptop, Donald Trump, Robert F. Kennedy Jr., or the My Pillow Guy. By originally suggesting that CBS will unilaterally decide the fate of Herridge's files, including those originating from her tenure at Fox News, the network risked undermining the willingness of sources to come forward with sensitive information for all news gatherers.
 
This is one more reason why Protect The 1st stands firmly in favor of The PRESS Act. As we wrote last November, ironically about Catherine Herridge in a different context, the PRESS Act would have made a difference when she was ordered by a federal judge to reveal the identity of confidential sources she used for a series of 2017 stories published while she worked at Fox News.
 
If CBS did hold on to the files, it could easily lose control of them through a leak or litigation. If ordered by a court to reveal these documents, would executives have risked jail time like Herridge has done? Although the First Amendment does not apply to a private company, CBS News should not be less supportive of a free press than the government.

​When does a legal reporting requirement for a social media company become a violation of the First Amendment? When it drums up public and political pressure to enforce viewpoint discrimination.
 
This is the conclusion of legal scholar Eugene Volokh and Protect The First Foundation, which filed an amicus brief late Wednesday before the Ninth Circuit Court of Appeals asking it to overturn a lower court ruling that upheld a California law requiring social media companies to disclose their content moderation practices. California Bill AB 587, signed into law by Gov. Gavin Newsom in 2022, compels social media companies to produce two such reports a year on their moderation practices and decisions, to be published on the website of the California Attorney General.
 
This law “violates the First Amendment’s stringent prohibition on viewpoint discrimination” by “requiring social media companies to define viewpoint-based categories of speech,” declared Volokh, Senior Legal Advisor to Protect The 1st. “The law also requires these companies to report their policies as to those viewpoints, but not other viewpoints ...”
 
This brief supports the challenge from X Corp.’s lawsuit filed in September 2023 that also asserted that AB 587 violates the First Amendment, which “unequivocally prohibits this kind of interference with a traditional publisher’s editorial judgment.”
 
Volokh and Protect The 1st cited the landmark U.S. Supreme Court case, NAACP v. Alabama (1958), in which the Court overturned an Alabama law that would have compelled disclosure of the NAACP’s membership lists. The threat behind this law, the Court noted, relied on governmental and private community pressures that would result in the harassment of individuals and discouragement of their speech.

“Generating either massive fines or public ‘pressure,’ a euphemism for public hostility, triggers the most exacting scrutiny our Constitution demands,” Volokh told the court. “California Assembly Bill 587 violates the First Amendment’s stringent prohibition on viewpoint discrimination. And AB 587 does so by leaning on social media companies to do the government’s dirty work, either through fear of fine or public pressure.”
 
The brief cites a Supreme Court opinion that states “what cannot be done directly [under the Constitution] cannot be done indirectly.” Volokh writes:
“The intent behind the law is clear from its legislative history, comments by its enforcer (Attorney General Rob Bonta), and common sense. That intent is to strongarm social media companies to restrict certain viewpoints—to combine law and public pressure to do something about how platforms treat those particular viewpoints, and not other viewpoints. That confirms that the facial viewpoint classification in the statute is indeed a viewpoint-based government action aimed at suppressing speech—and that violates the First Amendment.”
 
Protect The 1st will continue to report on X Corp.v. Bonta as an important flashpoint in the continuous struggle to keep speech free of official regulation.

​Should we move to a post-Section 230 internet? Is liability-free content hosting coming to an end?
 
In Wired, Jaron Lanier and Allison Stanger argue for ending that provision of the Communications Decency Act that protects social media platforms from liability over the content of third-party posts. The two have penned a thoughtful and entertaining analysis about the problems and trajectory of a Section 230-based internet. It’s worth reading but takes its conclusions to an unjustifiable extreme – with unexamined consequences.
 
The authors assert that while Section 230 may have served us well for a time, they argue that long-running negative trends have outpaced the benefits that Section 230 provided. The authors write that modern, 230-protected algorithms heavily influence the promotion of lies and inflammatory speech online, which it obviously does.
 
“People cannot simply speak for themselves, for there is always a mysterious algorithm in the room that has independently set the volume of the speaker’s voice,” Lanier and Stanger write. “If one is to be heard, one must speak in part to one’s human audience, in part to the algorithm.”
 
They argue algorithms and the “advertising” business model appeal to the most primal elements of the human brain, effectively capturing engagement by promoting the most tantalizing content. “We have learned that humans are most engaged, at least from an algorithm’s point of view, by rapid-fire emotions related to fight-or-flight responses and other high-stakes interactions.” This dynamic has had enormous downstream consequences for politics and society; Section 230 “has inadvertently rendered impossible deliberation between citizens who are supposed to be equal before the law. Perverse incentives promote cranky speech, which effectively suppresses thoughtful speech.”
 
 
All this has led to a roundabout form of censorship, where arbitrary rules, doxing, and cancel culture stifle speech. Lanier and Stanger call this iteration of the internet the “sewer of least-common-denominator content that holds human attention but does not bring out the best in us.”
 
Lanier and Stanger offer valid criticisms of the current state of the net. It is undeniable that discourse has coarsened in connection with the rise of social media platforms and toxic algorithms. Worse, the authors are correct that algorithms provide an incentive for the spreading of lies about people and institutions. Writing that John Smith is a lying SOB who takes bribes will, to paraphrase Twain, pull in a million “likes” around the world before John Smith can tie his shoes.
 
So what is to be done?
 
First, do not throw out Section 230 in toto. As we previously said in our brief before the U.S. Supreme Court with former Senator Rick Santorum, gutting Section 230 “would cripple the free speech and association that the internet currently fosters.” Without immunity, internet platforms could not organize content in a way that would be relevant and interesting to users. Without Section 230 protections, media platforms would avoid nearly any controversial content if they could be frivolously sued anytime someone got offended.
 
Second, do consider modifications of Section 230 to reduce the algorithmic incentives that fling and spread libels and proven falsehoods. Lanier and Stanger make the point that the current online incentives are so abusive that the unhinged curtail the free speech of the hinged. We should explore ways to reduce the gasoline-pouring tendency of social media algorithms without impinging on speech. Further reform might be along the lines of the bipartisan Internet PACT Act, which requires platforms to have clear and transparent standards in content moderation, and redress for people and organizations who have been unfairly deposted, deplatformed, and demonetized.
 
Lanier and Stanger are thinking hard and honestly about real problems, but the problems they would create would be much worse. A post-230 social media platform would be either be curated to the point of being inane, or not curated at all. Now that would be a sewer.
 
Still, we give Lanier and Stanger credit for stimulating thought. Everyone agrees something needs to change online to promote more constructive dialogue. Perhaps we are getting closer to realizing what that change should be.

​Earlier this year, the student senate at Columbia Law voted to deny official recognition to Law Students Against Antisemitism, a student group seeking to “raise awareness and educate about both historical and contemporary antisemitism.” Nine other organizations requested official recognition this year, with LSAA being the only group to be denied so far. The reason? According to FIRE, “the rejection appeared to rest on objections to LSAA’s definition of antisemitism, which some pro-Palestine students opposed.”
 
Although the student senate quickly reversed course, the American Bar Association took it as an opportunity to formalize speech protections. This month, the ABA House of Delegates passed a resolution to adopt Standard 208, a new rule requiring law schools to “protect the rights of faculty, students and staff to communicate ideas that may be controversial or unpopular, including through robust debate, demonstrations or protests.” ABA accreditation requires adhering to Standard 208, or else law schools could be denied accreditation or have it revoked for failing to protect free speech.
 
The importance of this rule should not be missed. As the ABA Journal states, Standard 208 is “the first accreditation standard to address free speech for the entire community within law schools.”
 
Protect The 1st Senior Legal Advisor Eugene Volokh said: “the standard is another tool in the toolbox of a dean who wants to protect free speech and academic freedom … The dean can tell student activists, ‘Look, do you want us to lose our accreditation?’”
 
Nevertheless, Standard 208 is only a Band-Aid to the broader cultural decay for the respect of free speech and intellectual diversity in law schools. “I’ve had a lot of students complain to me that they are reluctant to speak out in class – not because they’re afraid of discipline, but because they’re afraid their classmates will ostracize them,” Volokh said. “But you can’t have a rule to stop that.”
 
The past few years have seen no shortage of campus incidents that would certainly have gone against Standard 208 had it been in effect. Stanford Law students shouted down Judge Stuart Kyle Duncan of the Fifth Circuit Court of Appeals when he came to give a talk in March of last year. Similarly at Yale, Kristen Waggoner of the Alliance Defending Freedom was harassed by an ugly protest over a (irony alert) panel discussion about free speech.
 
Law schools increasingly resemble the hostile and immature playgrounds that undergraduate institutions have become. While Standard 208 will help, we have a long way to go before free speech will be fully restored.