Frederick Douglass said that the suppression of free speech is a “double wrong” because it “violates the rights of the hearer as well as those of the speaker.”
 
Douglass had no lack of such speech suppressors to contend with, both in antebellum American and during the time of Jim Crow. But he likely never imagined that one day those who would be foremost in dismissing their own rights and those of others to hear would be in colleges and universities.
 
This dispiriting realization emerges from the Foundation for Individual Rights and Expression (FIRE), which has released its 2027 College Free Speech Rankings. Before we look at FIRE’s ranking of colleges, first take in the results of FIRE’s survey of their students.
​

• FIRE reveals that almost 70 percent of college students surveyed said that shouting down a campus speaker is acceptable under rare conditions.
  
  
• Fifty percent said it is acceptable to block some speakers.
  
  
• And 30 percent said using violence to stop a campus speech is sometimes acceptable.

 
These are responses to survey questions, not evidence that those students have disrupted an event or committed violence. But they reveal a dangerous confusion about what it means to protest. Students have every right to challenge a speaker, organize a competing event, or walk out. They have no right to prevent others from hearing a speech, much less to attack the person giving it.
 
The consequences of this misunderstanding became horrifyingly clear when Charlie Kirk was murdered during a campus event at Utah Valley University in September 2025. His killing tells us why the boundary separating argument from violence must be bright and inviolable.
 
FIRE’s new college rankings also describe a wider failure of campus openness.
 
Of 261 ranked schools, 121 received an “F” for their punitive speech climate. The University of Chicago came in first place for its open speech climate. New York University came in last.
 
At 61 schools, more than half of surveyed students said Kirk was difficult to discuss. Nine schools lost points after punishing faculty over comments about his death. Other campuses saw efforts to deny recognition to chapters of the organization he founded, Turning Point USA. 
 
Colleges should defend students’ freedom to condemn Kirk’s views, criticize responses to his murder, and debate the issues he raised. They should defend that same freedom for his supporters. Administrators can make the rule credible by protecting events from disruption and applying speech policies consistently, especially when the views at issue are unpopular with those on the far left or far right.
 
The troubled state of speech in American higher education is revealing that repression breeds repression. Or, as Douglass said: “No man can put a chain about the ankle of his fellow man without at last finding the other end fastened about his own neck.”
 
The answer to a speaker you oppose is to make your case so well that others will want to hear it. A campus that teaches students to answer words with words is doing its part to preserve both free speech and peace.

We’ve regularly reported on aggressive moves by Federal Communications Commission Chairman Brendan Carr to threaten the broadcast licenses of local stations in an effort to punish networks for politically significant speech.

While the FCC pioneers new ways to use official power to try to regulate speech, the Securities and Exchange Commission is setting the opposite example. SEC Chairman Paul Atkins is scrubbing old rules that have long curtailed the First Amendment rights of Americans working in financial services.

In May, Chairman Atkins rescinded Rule 202.5(e), a gag rule that prevented defendants who settled with the agency from ever publicly challenging its allegations.

As one such defendant, Thomas J. Powell, wrote about that rule:

“While the SEC remained free to publish allegations against those it accused of violating securities regulations, even when no court had tested those allegations, the rule compelled settling respondents to stay silent about their own cases.”

The shelving of that gag rule was a major victory for the First Amendment, even though the SEC is rarely thought of as an agency whose work implicates speech rights.

Now Atkins is proposing to rescind another speech-curtailing regulation: 206(4)-5, or the SEC’s so-called “pay-to-play” rule. That rule generally prohibits an investment adviser from providing compensated services to a government entity for two years after that adviser or certain employees make covered political contributions. Exempted contributions are limited to $350 when the contributor is eligible to vote for that candidate, and $150 when that contributor is not.

The theory behind this Obama-era rule is that political contributions could influence elected officials who may play some role in selecting appointed officials responsible for choosing firms to manage public pension funds.

As worthy as preventing favoritism may be, Chairman Atkins correctly noted that local ordinances and state laws, along with federal election regulations, are the better suited to police political donations than the SEC.

And make no mistake, this restriction has curtailed speech rights.

“I can’t speak up, and I can’t fight for what I believe,” Jamie Dimon, CEO of JPMorgan Chase, complained. “Doesn’t that violate my First Amendment rights?”

Atkins said that the harm from this policy radiated throughout entire organizations. He said:

“Many firms simply impose blanket prohibitions on employee political contributions rather than navigate the rule’s complexities. People should not have to choose between their political speech rights and a job in a particular industry.”
​
Questions about speech arise much more often in the domain of Chairman Carr’s FCC than in that of Chairman Atkins’ SEC. Perhaps the FCC Chairman might see in Atkins’ actions a praiseworthy example to follow. We would much rather have reason to commend the FCC’s actions than condemn them.

​The angels may appear to be on the side of ABC in its lawsuit against the Federal Communications Commission, but the devils are in the details.

We’ve followed the Disney-owned corporation’s spirited First Amendment defense against the FCC’s extraordinary decision to subject the broadcast licenses of eight ABC-owned stations to an early review. These licenses are in jeopardy over official ire at the liberal bias of ABC shows like Jimmy Kimmel Live and The View.

Leave it to Thomas Hazlett to tell the rest of the story – that the broadcasters’ regulatory predicament is the result of a trap they helped set for themselves.

Hazlett, a professor of economics at Clemson University and a former chief economist at the Federal Communications Commission, is a renowned scholar of telecommunications economics and policy. Hazlett writes in The Wall Street Journal that “there’s a loophole” in the First Amendment treatment of broadcasters. Hazlett observes:

“While most media operate in a laissez-faire regime, terrestrial radio and television broadcasting are licensed, and their airwave access has sometimes been deemed a privilege, not a right.”

Hazlett quotes comedian George Carlin, who said that radio and television are “the only two parts of American life not protected by the free-speech provisions of the First Amendment to the Constitution. I’d like to repeat that because it sounds vaguely important.”

Hazlett points out that the 1927 Radio Act’s “public interest” language, which opens the door for regulation of broadcasters’ speech, was written by the National Association of Broadcasters. Hazlett concludes:

“The broadcasters traded freedom for free licenses and a lucrative, protected market.”

In the early television age, this regulatory protection shielded legacy broadcasters from new entrants. Hazlett then proceeds to describe how these restrictions were turned on the industry that designed them. In 1973, to cite one example, President Richard Nixon’s political allies challenged the license renewals of two Florida TV stations for failing to meet their “public interest” obligations. It just so happened that both stations were owned by the same company that owned The Washington Post, where two reporters named Woodward and Bernstein were publishing an investigative series about the crimes of the Nixon White House. The Washington Post Company’s stock price plunged 50 percent. Similar intrusions from the FCC occurred under Democratic administrations going back to John F. Kennedy.

We draw two lessons from this history lesson.

First, government overreach – whether in speech, privacy, or other basic rights – is rarely just the story of officials behaving badly, though there is plenty of that. It is often the result of businesses seeking regulatory advantage to boost their competitiveness and handicap their competitors. Many executives and stockholders are shocked when the monster they helped create turns on them.
​
Second, broadcasters might consider a new arrangement with the government. Paying a reasonable market price to secure their spectrum rights might enable broadcasters to control, as Hazlett puts it, both their spectrum and their content.

​This can’t be an easy week for Federal Communications Commission Chairman Brendan Carr.
 
He sits on a dilemma – one horn being a direct and public request from President Trump to “punish” NBC journalist Kristen Welker, the other being mounting public and Republican criticism of the FCC’s heavy-handed forays into policing broadcast speech.
 
To date, Chairman Carr has followed President Trump’s desire to use the regulatory authority of the Federal Communications Commission to retaliate against media critics.
 
Carr pressured Disney-ABC to fire late-night host Jimmy Kimmel, only to be criticized by Sen. Ted Cruz (R-TX) for making a statement to the network (“we can do this the easy way or the hard way”) that the senator likened to a mobster’s threat.
 
When Carr opened an investigation into whether the daytime talk show The View improperly gave airtime to Texas Senate candidate James Talarico, he prompted Sen. John Kennedy (R-LA) to say that the FCC was exploring the “foothills of violating the First Amendment.”
 
Whatever directives the White House may have given Chairman Carr about these actions in private, there is no mistaking the charge President Trump has now given him in public.
 
Kristen Welker drew the president’s ire by saying on NBC’s Meet the Press that he has had “some mixed results” in his endorsement of Republican candidates. While the president has had extraordinary success in backing his preferred Senate candidates – replacing two incumbent Republican senators with his picks – it is true that he has been far less successful in backing gubernatorial candidates.
 
The president immediately fired back, saying Welker would be “reported to the FCC for rebuke or punishment” for the crime of “purposeful inaccuracy.”
 
The president added on his Truth Social account: “The Press is a Disgrace to our Nation, and I hope that Chairman Brendan Carr, and the fine people of his Commission, will take this Threat to our Country very seriously.”
 
And on what basis might the FCC assert authority over the comments of a journalist? The president answered that question: “How can anyone be allowed to say this, working for freely given Public Airwaves.”
 
This is in keeping with Chairman Carr’s oft-stated rationale for his investigations, predicated on the New Deal-era rules governing broadcasters’ access to public airwaves.
Carr told Fox News host Maria Bartiromo said that broadcasters “struck a deal with the American people. You broadcasters get subsidized access, free access to a valuable public resource, the airwaves, worth billions of dollars. In exchange, you have to operate in the public interest.
 
“Look, as a country, we should have a trusted, respected news media, and we’re not there. So I hope more broadcasters return to their public interest obligations.”
Thus, the president’s demand to “punish” and “rebuke” a journalist is clearly based on the theory that the use of public airwaves by broadcasters entitles the government to regulate their reporting until, in the judgment of the government, the news media are “trusted” and “respected.” For decades, the “public interest” obligation has traditionally meant that broadcasters have a general duty to be responsive to local events and needs, avoid obscenity, and give political candidates relatively substantially equal access outside “bona fide news interview programs.”
 
Now the president is proposing to interpret these broad and general obligations into an asserted authority to micromanage speech. Could there be a better example of policing speech than “punishing” a journalist for the relatively mild suggestion that the president’s political endorsements are not always successful?
 
We don’t discount conservative complaints that most corporate news organizations are biased. The best solution to the perception of biased speech has proven to be more speech, creating a market for alternative perspectives in which Fox News has prospered. But regulatory policing of speech is a recipe for authoritarianism.

For more than half a century, the Securities and Exchange Commission offered people accused of violating securities laws a coercive choice: Fight the federal government at enormous expense, or settle and surrender the right to tell your side of the story.

That practice finally ended in May, when the SEC rescinded Rule 202.5(e), commonly known as its “gag rule.” Make no mistake – withdrawing the gag rule is a victory for the First Amendment. But unless the courts or Congress act, another SEC majority could easily reinstate this rule.

How the Gag Order Worked

Since 1972, the SEC had refused to settle an enforcement action imposing a sanction unless the defendant agreed to never contest the agency’s allegations publicly. Defendants were usually permitted to say that they “neither admit nor deny” the accusations. But they could not claim innocence, dispute the SEC’s account, or even create the impression that the agency’s allegations lacked a factual basis.

The restriction was permanent. As Thomas J. Powell, the lead petitioner in a constitutional challenge to the rule, writes in The Wall Street Journal:

“In 2021 the SEC settled a proceeding involving a firm I led. The commission never proved the allegations underlying its findings. Its lawyers drafted the order without a hearing and without contested adjudication, inside the agency’s own forum, where the SEC served as accuser and judge …”

“While the SEC remained free to publish allegations against those it accused of violating securities regulations, even when no court had tested those allegations, the rule compelled settling respondents to stay silent about their own cases.”

The rule also required settling defendants to withdraw court filings to the extent those filings denied the SEC’s allegations. If a defendant later violated the gag order, the agency reserved the right to ask a court to vacate the settlement and return the case to active litigation.

Chairman Paul Atkins’ Course Correction

Calling such an agreement “voluntary” ignored the realities of federal enforcement. Individuals and businesses often settle not because they accept the government’s account, but because they cannot afford years of litigation against an agency backed by federal resources. The government should not be allowed to use that imbalance to extract a lifetime waiver of First Amendment rights.

Facing Powell’s Supreme Court petition and 16 supporting friend-of-the-court briefs, the SEC abruptly rescinded the rule. Protect The 1st commends Chairman Paul Atkins, who correctly declared that “speech critical of the government is an important part of the American tradition.” The SEC also promised not to enforce gag provisions contained in earlier settlements.

The Power to Gag Has Been Shelved, Not Repealed

Any celebration should, however, come with a caution. The Supreme Court subsequently declined to hear Powell v. SEC, never ruling on whether the gag rule violated the First Amendment. And because the SEC repealed the rule administratively, a future commission could restore it administratively.
​
Chairman Atkins and the SEC deserve credit for ending an indefensible policy. But constitutional rights should not depend on who happens to chair a federal agency. Congress should prohibit the SEC – and every federal agency – from conditioning settlement on a promise never to criticize the government or dispute unproven allegations.

​Federal Communications Commission Chairman Brendan Carr insists that his agency is not targeting the speech of President Trump’s critics. But Chairman Carr’s answers in a wide-ranging Politico interview do little to dispel that concern.

Politico’s White House Bureau Chief Dasha Burns pressed Carr on whether President Trump should be able to direct the FCC to investigate a broadcaster. The FCC chairman avoided the constitutional heart of the question. “Every decision we make is going to be based on the fact and the record and the law,” he replied.

That exchange set the tenor of the interview. Burns asked Carr pointed questions, and Carr retreated behind recitations of law and regulation. We wish the FCC chairman had stated unequivocally that no regulator may use the FCC’s powers to punish broadcasters for unfavorable coverage, political satire, or opinions the regulator dislikes. Instead, Carr portrayed the controversy as part of a needed “course correction” by legacy media. He pointed to broadcasters’ obligation to serve the “public interest” and the need for “trusted news outlets” – as if those standards were properly defined by the government.

After all, who decides what constitutes the proper course correction? Or what “trusted” means? Is it Chairman Carr? President Trump? And how will Republicans like it when these emerging powers are exercised against them by the next Democratic president?

The danger of government regulation of speech was illustrated last week by Sen. John Kennedy (R-LA), who grilled FCC General Counsel Adam Candeub during a Senate hearing.
“Explain to me like you’re talking to a 10th grader,” Kennedy said. “What business is it of the FCC if a television network criticizes a political figure?”

Candeub initially declined to answer. Kennedy persisted: “I mean, this stuff scares me ... I don’t like some of the stuff that is said on television, but what business is it of the FCC? Educate me.”

Candeub invoked the FCC’s statutory authority to regulate broadcasters in the “public interest.”
“And who decides what the public interest is?” Kennedy asked.

“It is the judgment of the FCC following precedent and following the law,” Candeub replied.

Kennedy warned Candeub: “Y’all be careful. You are getting into the foothills of violating the First Amendment.”

The warning is especially apt given the FCC’s actions under Carr. The agency has scrutinized ABC station licenses years ahead of their normal renewal schedule. It has also questioned whether The View qualifies for the statutory exemption from equal-time requirements for bona fide news interviews.

Carr says the FCC has not prejudged the outcomes. But an investigation can itself become punishment when the regulator controls licenses essential to a broadcaster’s business. Prolonged scrutiny encourages editors and executives to soften coverage to avoid provoking Washington.

Conservatives have every reason to resent media bias and feel iced out of the mainstream media. Look at the lineup of Stephen Colbert, Jimmy Fallon and Jimmy Kimmel – it can sometimes feel like a hate group aimed at Republicans. But the remedy for one-sided speech is more speech – as Greg Gutfeld demonstrates nightly on Fox by attracting a million more viewers than any of his late-night competitors.
​
The FCC may enforce neutral laws, neutrally. It should quit hiking in the foothills of violating the First Amendment.

​Every decent person deplores child sexual abuse material (CSAM) and supports every reasonable effort to eradicate it. Existing laws already make it a crime for anyone – including social media platforms – to “facilitate,” “distribute,” “promote,” or “possess” CSAM.

But a new proposal would inadvertently threaten the privacy and encryption that shield women and children from stalkers, whistleblowers from wrongdoers, and journalists and dissidents from cartels and tyrants. It would also incentivize lawsuits, based on loose standards, that could chill and censor legitimate speech.

These are the problems with the STOP CSAM Act, which has been quietly added to the latest defense authorization bill. It’s the same crossroads we arrived at in 2023, when Electronic Frontier Foundation (EFF) contributors Jason Kelley and Sophia Cope detailed why this bill’s approach is flawed.

The STOP CSAM Act would allow lawsuits that could compromise the privacy of millions of Americans who simply wish their digital communications to be as private as their conversations with friends in a park. Encryption isn’t a crime or a problem. In the digital age, it’s how we ensure true privacy.

Because digital privacy supports digital expression, the STOP CSAM Act and similar measures could also threaten all manner of speech. All Americans, including minors, have an inherent right to access the internet as “our nation’s primary marketplace of ideas.”

As EFF puts it, the punitive regulatory regime imposed by this legislation would “certainly be gamed by bad actors, exposing platforms and users to bogus takedown requests, likely involving First Amendment-protected content …To mitigate the risk of new civil lawsuits and administrative proceedings, platforms would censor more and more user content and accounts, with minimal regard as to whether that content is in fact legal.”

EFF is not spinning wild theories. These are likely outcomes.

The bill is a trial lawyer’s dream, basing liability on “recklessness” – allowing plaintiffs to recover at least $300,000, punitive damages, and litigation costs. This could give platforms an incentive to remove anything remotely edgy.

The bill’s nebulous crimes of “promotion” and “aiding and abetting” could reach beyond illegal images to discussions, links, searches, private messages, or services. This could easily suppress lawful conversations about sexuality, abuse recovery, reproductive health, or sex education. When the penalty for leaving something remotely questionable online is so enormous, platforms will embrace a “remove first and ask questions later” approach.

Under the revised bill, encryption alone would not constitute a basis for civil liability, but it could still be used as evidence in litigation. This would pressure companies to scan messages, weaken encryption, or abandon encryption altogether. Such pressure creates the risk of mistaking ordinary conversations among teenagers, parents, teachers, doctors, or counselors for evidence of grooming or exploitation.

We applaud congressional efforts to blot out CSAM and punish its purveyors. But this bill would create a system with so many uncertainties and financial threats that private platforms would be forced to become overzealous censorship agents.
​
Simply put, this well-intentioned bill has too many unintended consequences.

​Paigelynne Gonyea was working at a polling place in Syracuse, New York, when she received a phone message from a special agent with the Department of Homeland Security.

The caller said agents “were just by” her apartment seeking to talk to Gonyea about an online post in which she supposedly “doxed an ICE agent back in January.”

Gonyea, who has an Instagram account with more than 30,000 followers, took this as a reference to a post she had made about a masked ICE agent linked to a major national story, the fatal shooting of Renée Good in her car.

Gonyea’s post read: “The ICE agent who shot and killed Renée Good in broad daylight has been identified as Jonathan Ross by the Minnesota Star Tribune. I think today is a great day for Jonathan to be indicted!”

When armed agents took Gonyea up on offer to meet at her polling place, she was presented with a “warning notice.” This document informed Gonyea that “it is unlawful to threaten to assault, kidnap, and/or murder a federal official” and that “knowingly making restricted personal information about a covered person, or their immediate family member, publicly available with the intent to threaten, intimidate, or incite the commission of a crime.” Doing so, the document said, could subject her to federal and state prosecution.

Gonyea was baffled. The post she had made did not include Ross’s address, phone number, or any other personal information other than his name – which had been widely reported.

Gonyea later told the media that the agents “tried to scare me into signing” the document “while I was working.” She refused. She also refused to remove her post about Agent Ross.

To summarize: Whatever one thinks about ICE’s efforts to repatriate undocumented persons in general, or the facts surrounding the shooting of Renée Good in particular, all Gonyea did was to make a post expressing her opinion that a named agent of the federal government should be indicted for shooting a woman. ICE treated that opinion as a crime, showing up at polling station with armed officers who attempted to intimidate Gonyea into signing a document in which she would have likely incriminated herself.

To be sure, it is indeed a crime to publish “restricted personal information” about a federal official with the intent to do harm. ICE’s unwillingness to distinguish between this sort of actual “doxing” and expressing an opinion about holding an agent accountable before the law displays a thuggish disregard for the First Amendment.
​
More details are available in this NPR post. Read here. 

​What Thomas Nast was to the age of 19th-century political cartooning, AI is becoming to modern political satire. We’ve all come across AI-generated shorts that depict realistic looking political figures – AOC, Donald Trump, Bernie Sanders, J.D. Vance – saying and doing absurd things.  
 
The Babylon Bee’s “We Asked AI to Predict What Will Happen Now that Elon Musk Is a Trillionaire” is a sterling example of how this technology can allow Americans to engage in a pastime as old as the Republic – ridiculing public figures. And if the satire is broad enough, no one mistakes these shorts for the real thing.
 
But the same technology that can ridicule a politician can also take the image of a woman – whether she’s an ex-girlfriend or a celebrity – and create what appears to be an image of her acting out hardcore porn.
 
Republican Arizona state Rep. Nick Kupper set out to do something about this by outlawing revenge porn and other AI-generated sexual depictions of underage victims, as well as of adults who have not given their consent. Arizona Gov. Katie Hobbs, a Democrat, vetoed his bill, claiming in a statement that the bill’s sponsor said in committee that the “legislation’s intent is to require the consent of an elected official before they are satirized on a show like South Park.”
​
Kate Ruane, director of the Center for Democracy and Technology’s Free Expression Project, told the Tucson Sentinel that the bill’s definition of “synthetic” content – any visual depiction altered or created using AI or digital technology – is vague and could encompass parody, satire, or public-interest citizen reporting.
 
“That introduces a whole new host of issues that will create a gigantic burden for speech that is happening on a lot of very big platforms that allow sexual content,” Ruane said, referencing websites such as Reddit, Bluesky, and X. “It will be up to the whims of political actors to determine what content is covered by sexual content that is harmful to minors …
 
“What we're dealing with here is the potential for significant jawboning, essentially, on the part of motivated politicians who wish to erase certain speech from the internet,” Ruane said. “What you could get is just gigantic blocking of content.”

In other words, the bill could create a “Mother, May I?” standard for seeking permission from politicians before satirizing them on sites where one could also find some types of sexual material (basically, the same standard as any of the major streaming channels).
 
For her part, Gov. Hobbs says that Arizona law and the federal Take It Down Act already protect Arizonans. The governor also says that she reached out to the Rep. Kupper to sharpen the bill, only to be rebuffed.
 
For his part, Rep. Kupper told The Center Square that the governor’s statements are misleading and that his bill is an improvement over the Take It Down Act in that it would prevent offending material from being uploaded – not merely allow it to be punished with criminal charges and civil remedies later.
 
“Once it’s uploaded, the harm has been done to the individual who’s in the content,” Rep. Kupper said.
 
Whether or not courts would find that clause to be prior restraint – forbidden under First Amendment law – the culling of content before it is posted seems to us to validate Ruane’s concern about overreach. Blocking content could incentivize platforms to censor anything that smacks of synthetic material, leading to political jawboning and “the gigantic blocking of content.”
 
Perhaps the two politicians should get together to discuss a better approach – before someone satirizes them.

When lawmakers decide that some Americans may speak about politics and public issues while others may not, the First Amendment is relegated to secondary status.

That is the core issue in a new lawsuit challenging Hawaii’s Act 11, a law that bars a broad range of organizations from engaging in political and ballot-measure advocacy. The plaintiff, the Grassroot Institute of Hawaii, argues that the law violates the First Amendment by preventing nonprofit organizations, businesses, associations, and other groups from speaking about candidates, elections, and ballot initiatives. 

At first glance, some may shrug. After all, corporations are not exactly a sympathetic constituency. But that misses the point.

The First Amendment protects people. And people often join together in organizations to make their voices heard.

The NAACP, the Sierra Club, the National Rifle Association, labor unions, chambers of commerce, churches, civil-rights organizations, and countless local advocacy groups all rely on the ability of individuals to pool resources and speak collectively. All are “corporations.” Restricting the speech of organizations inevitably restricts the speech of the people who make up those organizations. 

According to the complaint, Hawaii’s law goes far beyond regulating campaign contributions. It broadly prohibits many organizations from spending money or resources to support or oppose ballot measures and other political causes. The law also authorizes severe penalties, including revocation of an organization’s legal status, termination of state contracts, and even involuntary dissolution. 

That is a level of speech coercion worthy of King George III. Whether one agrees with the Grassroot Institute’s views is beside the point.

Imagine a future legislature deciding that environmental groups cannot campaign for a ballot initiative. Or that pro-life organizations cannot advocate for a constitutional amendment. Or that business associations cannot oppose a tax increase. Or that labor unions cannot seek a change in labor law.

Once government acquires the power to decide which organizations may participate in public debate, every group becomes vulnerable when political winds shift.

The danger is particularly acute when ballot measures are involved. Ballot initiatives are one of the purest forms of democratic self-government. Citizens are asked to decide major policy questions directly. To make informed decisions, voters need to hear arguments from every perspective.

The lawsuit also raises another troubling issue: speaker discrimination. According to the complaint, Hawaii’s law exempts traditional media organizations, allowing newspapers and broadcasters to continue publishing editorials and commentary on candidates and ballot measures while restricting many other organizations from engaging in similar advocacy. 

The First Amendment was designed precisely to prevent government from deciding which speakers are trustworthy and which are not. Government officials should not be empowered to pick favored participants in public debate while silencing others.

Americans regularly disagree about politics. We disagree about taxes, education, energy policy, public health, immigration, and countless other issues. The answer to those disagreements is not to narrow the range of voices in the public square. It is to widen it.

The principle at stake in this case extends far beyond Hawaii. Today, one state may target think tanks, nonprofits, or business organizations. Tomorrow, another state could target labor unions, advocacy groups, or religious organizations.

A government that can decide who gets to speak about public affairs possesses a power fundamentally at odds with the First Amendment.
​
In a free society, citizens retain the right to join together, advocate for causes they believe in, and persuade their fellow Americans. That principle protects every viewpoint, not just the popular ones. And it is worth defending, no matter who happens to be speaking.

​When government officials scrutinize media outlets because they dislike the viewpoints being expressed, Americans of every political persuasion should pay attention.

That is the core message of a new comment filed by Protect The 1st with the Federal Communications Commission (FCC) regarding the agency’s unusual decision to revisit a decades-old determination that ABC’s The View qualifies as a “bona fide news interview” program. 

As we noted in an earlier post, the FCC has raised questions about whether The View should continue to enjoy an exemption from federal “equal opportunity” requirements that apply to broadcast candidates. The trigger for this inquiry was The View’s hosting of James Talarico, a liberal Democrat and his party’s nominee for a Texas Senate seat.

In our public comment, PT1st tells the FCC that when it withdraws regulatory approvals over disagreements with a show’s hosts or guests, it crosses a dangerous constitutional line. The Commission would move from regulating technical aspects of broadcasting to becoming an arbiter of acceptable political speech. 

That should worry conservatives as much as liberals.

Today, the target may be a left-leaning daytime talk show. Tomorrow, a progressive administration could use the same precedent against conservative broadcasters, podcasters, or commentators. Once government acquires the power to punish or pressure speakers because of their viewpoints, no ideological camp remains safe for long.

PT1st’s comment emphasizes a simple principle: the First Amendment exists precisely to protect speech that many people dislike. Government officials do not get to decide which viewpoints are sufficiently balanced, neutral, or acceptable to deserve protection. 

Worse, if broadcasters conclude that politically controversial interviews could trigger regulatory scrutiny, many may choose to avoid such programming altogether. The result would be less debate, fewer interviews, and fewer opportunities for voters to hear competing perspectives. Even the threat of government retaliation can chill speech before it occurs. 

Our filing also notes that the media landscape of 2026 bears little resemblance to the one that existed when equal-time rules were first developed. Americans now receive news, commentary, and political information from thousands of sources, including podcasts, streaming platforms, social media, newsletters, and online publications. The View competes in a marketplace crowded with voices from every point on the political spectrum. Consider:
​

• The View, the most popular daytime television show, attracts about 2.5 million viewers.

 

• But more than 16 million people follow podcaster Joe Rogan, whose show on Spotify is not (and should never be) subject to FCC regulation.

While The View featured Senate candidate Talarico, Joe Rogan – with an audience more than six-and-a-half times greater – featured presidential candidate Donald Trump just before the 2024 election. This comparison shows how antiquated New Deal-era laws are, harking back to a time when access to the airwaves had to be rationed because of scarce spectrum.

While broadcast television may lean left, the national cafeteria menu offers plenty of options on the right. The notion that government officials must supervise editorial choices to ensure citizens hear competing viewpoints in this new age of information abundance is risible.

Reasonable people can disagree about The View. Some find it informative. Others find it partisan. Still others may simply change the channel.
​
But in a free society, those decisions belong to viewers holding their remotes, not regulators.

​The U.S. Supreme Court will soon hear a case, Suncor v. Boulder, in which the city and county of Boulder, Colorado, seek to punish fossil fuel companies for presenting contrarian views on climate change.

This should trouble anyone who cares about open debate, including people who angrily disagree with the energy company defendants.

Boulder is trying to compel everyone to agree with only one side of a public issue, violating the First Amendment. Worse, allowing lawyers to act as national moderators would stifle science. Remember when the theory that the COVID-19 virus was artificial was considered so outlandish, and even racist, that it had to be suppressed on social media? That stiff-arming approach to a critical question lasted until the Biden-era CIA and FBI concluded that an artificial origin for the virus was the likeliest explanation.
​
In this Washington Examiner article, PT1st General Counsel Gene Schaerr describes our brief asking the Supreme Court to recognize the danger arising from devastating financial penalties meant to force ideological or scientific conformity.

​As David Badash writes in AlterNet, protesters have been displaying an “86 47” flag in front of the U.S. District Court in Washington, D.C. Interpreting the flag’s language as a “threat against the President,” the Interior Department had asked the National Park Service to revoke the group’s permit.

Yet even Merriam-Webster refuses to ascribe violent meanings to the term “86” – which began among soda jerks as slang for refusing to serve an unruly customer. So does federal Judge Randolph Moss, who issued a two-week restraining order against the Park Service, saying Accountability Now USA’s rhetoric did not imply violence.

The red, white, and blue flag “contains no knives, skulls, nooses, or other threatening symbols” the judge noted, and was surrounded by “four signs that read ‘IMPEACH. CONVICT. REMOVE.’” Protesters had told the court that their intentions were peaceful and political, namely to engage passersby and advocate for impeachment – which is protected political expression, both permitted and permit-able. A flag, in other words, is not a rifle scope. Badash quotes the court’s opinion at length:

“The Court does not doubt that political violence is on the rise and that it poses a grave threat not just to the targets of the threats but to the country as a whole. But the enormity of that problem does not change the meaning of Plaintiff’s speech, which by any reasonable measure merely advocated for the President’s impeachment and removal from office.”

According to the ruling, a Secret Service officer interviewed one of the protesters, asking her about having “no ill-will towards” the president. She replied, “I want Trump to live forever” and for him to “rot in jail.” The officer left and even assured the protester he wanted “to make sure that [her] First Amendment rights are protected.”

Which may be why Judge Moss wrote in closing: “The Court can only guess as to why the agency decided to censor Plaintiff’s speech.” He also referred to the Park Service as “the agency that directed Plaintiff to remove (that is, to 86) the flag.”
​
Since the beginnings of our democracy, political speech has often been rough and rude. Whether the message is “Let’s Go Brandon,” or “86 47,” when government officials start treating political slogans as criminal threats based on speculation rather than evidence, the danger is not merely to one protest group – it is to the First Amendment rights of everyone who engages in the rough and tumble of political speech.

The word “jawboning” was popularized by John Kenneth Galbraith during World War II. Galbraith picked up the term after witnessing bureaucrats at the federal Office of Price Administration using verbal intimidation to harass businesses into keeping their prices low.
 
The federal government no longer uses jawboning to control prices. But during the Biden administration it tried to do something much more sinister: use jawboning to control speech. At one time, teams of government agents – from the FBI to the Cybersecurity and Infrastructure Security Agency – were tasked with monitoring social media and contacting platforms to demand that certain content be taken down. What began as a crackdown on those who questioned the efficacy and safety of vaccines soon expanded to suppress wide range of conservative speech. Some sites, like PragerU, actually disappeared for a while from Google and YouTube, being placed in “restricted mode.”
 
“These people from the Biden administration would call up our team and scream at them and curse,” Meta CEO Mark Zuckerberg told Joe Rogan on his podcast last year. As a result, many conservatives began to wonder why their posts and organizations were being shadowbanned, de-posted, deplatformed, and demonetized.
 
This dangerous use of secret power created a situation in which the federal government was actively managing the national conversation. Sen. Ted Cruz (R-TX) said last year:

“It is dangerous for the government to abuse its authority and act as the speech police. No free society, built on an informed citizenry and public discourse, can thrive when government censors lawful speech and sets itself up as the arbiter of truth. With growing bipartisan interest in protecting free speech, I am increasingly hopeful Congress can advance legislation to stop government jawboning and safeguard every American’s right to free speech.”
 
That bipartisan interest bore fruit. Sen. Ted Cruz (R-TX) joined Sen. Ron Wyden (D-OR) to introduce the JAWBONE Act to stop federal agencies from pressuring social media and tech companies to censor lawful speech. The legislation aims to provide Americans with a robust legal right to sue and seek monetary damages if the government pressures platforms to remove, demonetize, or suppress their content. 
 
What the JAWBONE Act Does
 
The JAWBONE Act outright bans government coercion of platforms, whether it is to remove or add content. Observing the legal principle that a right without a remedy is no right at all, this bill contains a provision that gives Americans a private right of action against government officials who violate their First Amendment rights.
 
The bill would also compel the government to disclose its attempts at jawboning, revealing certain communications with social media and AI companies, and broadcasters.
 
This bill, as it moves forward, might be clarified on some points. For instance, does the ban on jawboning – which covers government officials and employees – extend to the president and vice president? Does it extend to Congress? After all, presidents can exert enormous power over platforms. Powerful committee chairs in Congress can issue subpoenas and launch investigations.
 
It is also not clear whether the bill would restrict the use of regulatory authority – like that exercised by Federal Communications Commission Chairman Brendan Carr and Federal Trade Commission Chairman Andrew Ferguson – in pressuring news organizations to change their coverage.
 
But this bill meets the central and urgent task of confronting what has become a common practice – that of violating American norms and the First Amendment’s guarantee of free speech.
 
Bob Goodlatte, former Chairman of the House Judiciary Committee and PT1st Senior Policy Advisor, said:
 
“Protect The 1st is proud to endorse the JAWBONE Act, and we commend Senators Ted Cruz and Ron Wyden for crafting this legislation. This bill addresses the insidious, behind-the-scenes use of government pressure to control and censor speech in America. The JAWBONE Act counters this toxic trend, including with a sorely needed remedy for First Amendment violations. We look forward to working with the senators to advance this bill into law.”

A free press depends on the ability of journalists to gather information without fear that the government will seize their records, expose their confidential sources, or use surveillance for fishing expeditions. Recent reports about aggressive Justice Department leak investigations tied to coverage of Iran should remind Congress why passage of the bipartisan Protect Reporters from Exploitative State Spying, or PRESS Act, is needed now more than ever. 
 
A Bipartisan Problem
 
The Justice Department is firing off subpoenas right and left to reporters and news organizations over stories involving internal deliberations about Iran policy and military action. Targets of these investigations include The Wall Street Journal, The Washington Post, Axios, and other major outlets. 
 
These subpoenas represent an erosion of principle. For decades, the Justice Department and its prosecutors were cautious about using the law to breach the confidential notes and sources of journalists. That discretion ended in 2009 when the Obama Justice Department investigated a Fox News reporter as a co-conspirator in an alleged violation of the Espionage Act. The Obama Administration also secretly helped itself to the phone records of Associated Press reporters.
 
Not to be outdone, the first Trump administration secretly snooped on the phone records of reporters at the Washington Post, the New York Times, and CNN. The second Trump administration is now, in the words of Andrew McCarthy in National Review, “going to war with the press.” McCarthy writes that the Justice Department is “flexing its muscles to squeeze reporters into giving up their sources, threatening to imprison them if they don’t.” McCarthy, a former prosecutor, offers this “word of caution” for those who oppose this bill. He writes:
 
“The reason press-shield legislation has not gotten traction, even though we’ve always had tension between the public’s security and its need to be informed, is that the DOJ has generally been seen as a responsible arbiter of that tension. Not always, but generally. As the executive branch has become more imperious during the past 20 years, that assumption has eroded. I suspect we’re about to see whether there’s anything left of it.”
 
A Bipartisan Solution
 
The House unanimously passed the PRESS Act in 2024 because lawmakers across the political spectrum recognized that press freedom is not a partisan issue. With the Justice Department under administrations of both the left and the right using national security as a pretext to threaten reporters, bipartisan support for the PRESS Act continues to grow.
 
What would this law do? Just as important, what would it not do?
 
The PRESS Act would prohibit the federal government from compelling journalists and communications providers to disclose protected newsgathering materials, but with reasonable exceptions. It does not grant blanket immunity to journalists. Contrary to some critics, the bill does not shield reporters who commit crimes. It does not prevent investigations into genuine national security threats. It simply requires the government to meet meaningful standards before intruding into the newsgathering process. 
 
Consider that throughout American history, some of the most important reporting on government misconduct, military operations, intelligence failures, and executive overreach has depended on confidential sourcing. Without such protections, many stories of immense public value would never have been published.
 
Congress should not wait for another escalation in the conflict between government secrecy and press freedom. The current controversy surrounding Iran reporting is merely the latest reminder that constitutional protections cannot depend on the goodwill of whichever administration holds power.
 
It is time for the House and the Senate to pass the PRESS Act.​

​The Federal Communications Commission under Brendan Carr is winning a special place in American history – for mounting the most serious effort to impose government control of Americans’ speech since President John Adams used the Sedition Act to imprison writers for making disrespectful statements about the president and the government.
 
The victim this time is ABC’s The View, of Whoopi Goldberg and Joy Behar fame.
 
We know, we know… You might love it – 2.5 million viewers do. You might be a conservative who finds The View utterly biased. Or you might be a fan of Saturday Night Live and find The View supremely ridiculous. Wherever you land, you should find this latest foray into speech regulation deeply troubling.
 
Carr first rankled many, including principled conservatives, when he tried to use his regulatory authority to force ABC to remove a late-night talk show host. Now he’s using his regulatory authority over broadcast television to open an investigation of Disney-ABC Television and The View for, well, its viewpoint.
 
Carr’s ire was raised when the program invited James Talarico, a Democratic candidate for the U.S. Senate in Texas, on the show in February. For some programs, this could have been a violation of the “equal-time” rule – which originated in the Radio Act of 1927 and requires candidates to get equal access to the airwaves. Recognizing that this requirement was chilling news coverage, Congress added an exemption for news programming in 1959. The View, which has enjoyed such a news exemption for decades, suddenly found this status being questioned by the government and ABC affiliates bombarded with demands by the FCC’s Media Bureau to file their license renewal applications early.
 
Former U.S. Solicitor General Paul Clement, a Republican, is representing Disney-ABC in a petition with the FCC against these actions. He argues that the Commission’s aggressive regulatory approach threatens “critical protected speech” and could chill political coverage ahead of the 2026 elections. The filing states that the FCC’s current posture risks interfering with “editorial discretion” and could force broadcasters to alter political programming out of fear of regulatory retaliation.
 
Clement’s filing notes that the FCC is not going after stations that aired the conservative Mark Levin Show in which that host interviewed Dan Patrick, who is running for re-election as the lieutenant governor of Texas. Nor did it investigate the Glenn Beck Program for its interview of a Republican candidate for Texas attorney general. Why, then, did the FCC only investigate The View over Talarico?
 
For a conservative administration, this selective, let-me-see-your-papers approach to regulatory enforcement is a decidedly unconservative act. The Disney-ABC filing quotes conservative commentator Ben Shapiro:
 
“I do not want the FCC in the business of telling local affiliates that their licenses will be removed if they broadcast material that the FCC deems to be false. Why? Because one day the shoe will be other foot … I know a lot of people on the Right are saying, ‘The shoe will never be on the other foot, and if it is, the Left will just do it anyway.’ But preemptively breaking things because you believe that the Left is going to break the things still makes the things broken – and you can’t unbreak them.”
 
We would like to add just one more point – it is time to toss the equal-time rule entirely. It is a vestige of laws that hark back to the era of flappers and Model-Ts, when broadcast was king. Streaming and cable today make up about 70 percent of television viewing. Media today is multi-dimensional – full of short videos, websites, influencers, social media platforms, streaming shows, and now AI. Worrying about a candidate getting scarce “airtime” in this environment is an increasingly antiquated concern.
 
Worse, it gives government regulators too much room to meddle in speech. Congress should send the equal-time rule to the scrap heap.

​When College Democrats invite speakers to campus, they usually aren’t forced to include Republicans for “balance.” Nor are conservative campus groups generally required to include liberals in their discussions. Yet the Catholic University of America is imposing this oppressive standard on its Students Supporting Israel (SSI) chapter (hat tip to Sara Weissman at Inside Higher Ed).

SSI tried twice to invite speakers Catholic University apparently considered too controversial and had their requests for an event on campus denied. In each instance, the group was told the university would reconsider approval “for this topic and speaker as long as there is a balanced presentation,” and asked SSI to kindly “restructure the event and resubmit a request to have speakers representing both sides of this issue.”

How many “sides” must a pro-Israel student group be required to invite to its pro-Israel – and by definition anti-antisemitic – event? And what exactly are the other “sides” that need consideration? A pro-Hamas speaker, many of whom defend the barbarity of Oct. 7?

For what it’s worth, it would be just as obnoxious for an event critical of Israel’s actions in Gaza or the West Bank to be forced to include speakers defending Israel’s current policies.

Whatever happened to free expression on campus, including the right to ask any invited speaker really tough questions? Or to protest peacefully outside the event? That’s the American way. And that’s exactly what happened last fall when the university approved SSI’s request to bring two Israeli Defense Force soldiers to campus. Difficult questions were asked and peaceful protesters showed up.

Catholic University’s new approach is now as inconsistent as it is capricious, which makes its administrators’ rationalizations in this case read more like recriminations. The university’s vice president for communications told Inside Higher Ed that the school wanted to hear from a greater variety of voices about how to fight antisemitism – beyond the ones that SSI chose to invite.

Fine, if so, then the university should sponsor its own event.
​
In an interview with Jewish News Syndicate, SSI chapter president Felipe Avila discussed the letter to CUA that the organization sent in response. It’s a refreshing (and much-needed) crash course on the First Amendment and we’ll close with one line from it. The university’s decision, it reads, is “not an exercise in academic freedom. It is forced speech.”

​Two years ago, the U.S. Supreme Court handed down one of the most consequential administrative-law decisions in decades: Loper Bright Enterprises v. Raimondo. The Court dismantled the Chevron doctrine, under which federal agencies could stretch vague statutes into blank checks for regulatory power. The message from the Court was unmistakable: agencies are not mini-legislatures, and courts must independently determine the limits of agency authority.

This was widely seen as a blow against government bureaucrats expanding their power to enact progressive policies. It is far from clear, however, whether courts will now rely on Loper Bright to rein in the expansion of agency power by so-called conservatives.

As Ed Whelan reports in National Review, judges on the D.C. Circuit are now probing whether the Federal Communications Commission is attempting to evade meaningful judicial review. This case centers on whether the FCC under Loper Bright can manipulate procedural timing and administrative maneuvering to shield its actions on a merger from court scrutiny. Similar – but far more urgent – questions should be tested on another, more fundamental issue:

When will the courts finally rein in the FCC and FTC for abusing the First Amendment? And will Loper Bright help them do it?

These questions arise because these agencies are increasingly acting as though “public interest” regulation includes the power to intimidate, pressure, and discipline disfavored speech.

Consider the FCC’s escalating flirtation with speech regulation. FCC Chairman Brendan Carr’s threats over ABC’s broadcast licenses have been invoked to try to force late-night host Jimmy Kimmel off the air. Sen. Ted Cruz aptly compared Carr’s rhetoric to a mob threat from Goodfellas: “Nice bar you have here. It’d be a shame if something happened to it.” 

The FCC has no lawful authority to police “bias,” ideological tone, or political content. The First Amendment does not empower bureaucrats to decide whether broadcasters are too liberal, too conservative, too vulgar, too partisan, or too offensive. Indeed, the whole point of the First Amendment is to deny government officials that authority.

And yet the FCC increasingly behaves as though broadcast licenses are contingent on political obedience.

The FTC under Chairman Andrew Ferguson has been moving in a similarly dangerous direction. As we previously reported, the FTC is attempting to weaponize consumer-protection laws against news organizations and media-rating firms whose viewpoints or editorial decisions offend those in power. The FTC’s theory appears to be that editorial judgments can somehow become “deceptive practices” subject to federal oversight.

That is exactly the kind of expansion of agency authority – with no statutory justification – that Loper Bright sought to restrict.

The danger of speech regulation transcends party. Republicans may enjoy seeing pressure applied to progressive media figures today. Democrats may applaud investigations into conservative outlets tomorrow. But once government acquires the habit of regulating speech indirectly through licensing threats, merger leverage, investigations, or administrative harassment, everyone’s freedoms become contingent on who currently controls the bureaucracy.

Fortunately, courts can use the standards of Loper Bright to stop the creation of a permanent administrative state increasingly detached from constitutional limits. This precedent can end the use of the phrase “public interest” as a magical incantation that authorizes speech control.

The FCC was not created to supervise political dialogue. The FTC was not established to referee journalism. Neither agency possesses constitutional authority to pressure Americans into acceptable speech. Nor should courts permit agencies to evade review through procedural gamesmanship, as the D.C. Circuit now appears increasingly skeptical of permitting. 
​
The judiciary has begun reclaiming its role in policing administrative overreach. But reclaiming that role means more than narrowing Chevron deference. It requires judges willing to tell Brendan Carr and Andrew Ferguson that the First Amendment means what it says.

The Justice Department has succeeded in persuading a grand jury to indict former FBI director James Comey for posting an image of seashells arranged to read “86 47” on his Instagram account.

The 47 part is a clear reference to Donald Trump, the 47th (and once 45th) president. According to the New Deal era columnist Walter Winchell, “86” was a slang term that originated with soda jerks to mean that a soda fountain was out of something and thus should be “86ed” from the menu. Over time, it has come to mean “get rid of” people as well – as in, “it’s time to 86 that rowdy customer.”

Merriam-Webster’s dictionary notes that the term has been used occasionally to mean “kill,” but “we do not enter this sense, due to its relative recency and sparseness of use.” Even if the word “kill” itself is ambiguous – as in “kill that story” or “kill that light.”

These linguistic nuances did not dissuade the Justice Department from charging Comey with two felony counts: one count of making threats to kill or harm the president and a second count of transmitting that threat publicly.

Two full days before a gunman stormed the White House correspondents’ dinner, Jimmy Kimmel recorded a joke about Melania Trump outliving her husband because she has that “expectant widow glow” – based solely on the fact that she is 24 years younger than her husband. It was not a joke about assassination given that Kimmel is a comedian, not a prophet, with no ability to know what would happen.

And yet Federal Communications Commission Chairman Brendan Carr is threatening the broadcast licenses of ABC affiliates for running Kimmel’s joke.

What is not fair is to twist language into criminal meanings and intent where none was intended. “I didn’t realize some folks associate those numbers with violence,” Comey said later. “It never occurred to me, but I oppose violence of any kind, so I took the post down.”

Actually, we’d say that no one in their right mind would associate Comey’s seashells with violence.

Moreover, even a joke that was actually about assassination – as long as it was not a direct incitement to violence – would likely be protected speech under the U.S. Supreme Court’s Brandenburg v. Ohio standard. That Court opinion protects even inflammatory speech so long as it does not call for imminent lawless action.

We agree with the observation that the coarsening of American discourse is dangerous. But using criminal law and heavy-handed regulation to persecute critics of an administration is a short path to a banana republic. And those who stretch the law should be wary of how their speech may one day be criminalized when the other party is in power.
​
Our advice to this administration is to 86 this indictment and deep-six the regulatory threats.

​As Ken Klippenstein reports, the FBI is planning to create a new center to proactively track the social media posts of Americans who may be “domestic terrorists.” The dangers to privacy and the Fourth Amendment associated with such extensive surveillance are obvious. But when one considers the list of proposed categories, George Orwell’s notion of “thoughtcrime” leaps to mind rather than anything resembling actual terrorism.

The FBI’s suspect categories include:

• Three varieties of “anti”: anti-Americanism, anti-capitalism, and anti-Christianity
• Three varieties of extreme: concerning migration, race, and gender
• Three varieties of hostility: toward traditional American families, religion, and morality

It’s a perfectly malleable list, capable of being repurposed according to what antagonizes whoever is in power. Today it’s atheists, agnostics, and Bernie Sanders supporters. (Good thing Thomas Paine, the anti-Christian patriot who helped spark the American Revolution, did not live to fall under suspicion from this list.) But tomorrow the government could just as easily cast suspicion on gun owners or perhaps once again target “radical traditional Catholics.”

According to the budget request that Klippenstein highlighted, airing your opinions on social media seems like the best way to get included in the new database:

“Domestic terrorists exploit a variety of popular social media platforms, smaller websites with targeted audiences, and encrypted chat applications. They use these platforms to recruit new adherents, plan and rally support for in-person actions, and disseminate materials encouraging radicalization and mobilization to violence.”

Terrorists do, in fact, use social media. They also use mobile phones, get around in cars, and eat at restaurants. Similarly, most of us use social media, and often use encrypted apps to protect our privacy. Once again, the government is using the broadest of brushes to make everyone a potential suspect.

In other words, warns Klippenstein, under such a regime we should all be officially “on notice.” The Biden administration had convinced itself that the First Amendment did not protect speech it regarded as disinformation or misinformation. Now the Trump administration is ready to use nebulous categories to render people suspect, from your local atheist to the anti-ICE protester.
​
More than ever before in our history, the federal government seems ready to demonize what citizens think. These are the times that try men’s souls.

​The recent consent decree signed by the parties that settled Missouri v. Biden has been hailed by civil libertarians as a “major blow against social media censorship,” signaling that “Free Speech Wins Big in Court.”
 
Kenin Spivak in RealClearPolitics says, “not so fast.”
 
Missouri v. Biden (formerly Murthy v. Missouri) combined lawsuits filed by the attorneys general of Louisiana and Missouri with claims of several leading health care professionals. After a serpentine trip through the courts, including a remand from the Supreme Court to lower courts, the case has ended with that consent decree. Along the way, an egregious pattern of secret government censorship was exposed.
 
Spivak reports that the case revealed that 80 senior Biden officials and at least 11 federal agencies, including the White House, pressured social media companies into censoring conservative speech. Spivak writes:
 
“Underscoring the left’s strange and newly formed view that the First Amendment somehow does not protect ‘misinformation,’ ‘disinformation,’ or ‘malinformation’ (truthful information that nonetheless undermines the approved policy agenda), in 2021, CISA (Cybersecurity and Infrastructure Security Agency) director Jen Easterly claimed that social media speech is a form of ‘infrastructure’ that fell within her agency’s purview, and that Americans should not be allowed to make their own decisions about what is true.”
 
Spivak lists censorship targets that included YouTube’s suspension of The Hill newspaper for posts that included Donald Trump’s speech at the CPAC conference, Sen. Ted Cruz, actor James Woods, The New York Post, the Babylon Bee satirical site, and many more.
 
These facts landed hard in court. On July 4, 2023, federal judge Terry A. Doughty issued a preliminary injunction that blocked numerous federal agencies from communicating with social media companies for “the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.” These included government requests to social media companies to delete posts that were critical of President Biden, gasoline prices, climate change, and social issues.
 
The judge likened the government’s actions to George Orwell’s Ministry of Truth from 1984.
 
One would hope that, in the face of such a massive violation of the First Amendment, the consent decree would arrive like the famous Apple MacIntosh TV ad in 1984, in which an athletic woman hurls a sledgehammer into Big Brother’s screen. Judging from Spivak’s account, the consent decree was more like a hurled paperclip.
 
The consent decree, Spivak writes, is “powerful-sounding pap” in which, for ten years, the Surgeon General, CDC, and CISA will refrain from threatening Facebook, Instagram, X, LinkedIn, or YouTube “with some form of punishment (i.e., an adverse legal, regulatory, or economic government sanction)” to remove or deemphasize protected speech.
 
Not included were other bad actors, including the Department of Homeland Security, the Justice Department, the State Department, and the FBI. The decree does not cover other social media companies or those that may arise in the next decade. It includes vague and easily exploited exceptions for “criminal activity” and “national security” that may leave the named plaintiffs vulnerable.
 
We would add that refraining from threatening is a weak standard – one that fails to account for the reality that in such “jawboning” explicit threats are often unnecessary when government officials issue demands to heavily regulated industries.
 
“The First Amendment and Americans have lost an opportunity that may not recur for a strong permanent injunction that would have been nearly impossible to amend, modify, or avoid,” Spivak writes. “Instead, we got press releases.”
 
Read his full piece here.