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

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

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

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

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

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

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

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

​How much scrutiny must a court apply to a Texas law that requires porn sites to use age verification procedures or technology to prevent minors from accessing pornography?
 
What are the security and reputational risks for adults who upload their IDs or submit to biometric analysis?
 
How can such a law be squared, if it can be, with the First Amendment and past precedent?
 
The U.S. Supreme Court on Wednesday heard oral arguments about Texas law H.B. 1181, which requires some media platforms that display sexual material to age-gate some or all of their site to verify that all users are 18 years of age or older.
 
Erik Jaffe, Protect The 1st Policy Director, in this lively Federalist Society webinar, breaks down the oral argument, the issues, and the precedents the Court must now consider.

WATCH HERE:

​Joe Rogan’s recent interview of Mark Zuckerberg was a bro-fest, complete with discussions of the joys of hunting, Nordic curls, and ju-jitsu. The CEO of Meta also recounted how he got boiled by degrees in giving in to the demands of government agencies and the Biden Administration in censoring content.
 
“They pushed us super hard to take down things that honestly were true. Right? I mean they basically pushed us and said, you know, anything that says that vaccines might have side effects, you basically need to take them down. And I was like, we’re not gonna do that …”
 
Zuckerberg pointed to the voluminous report by Chairman Jim Jordan of the Judiciary Committee documenting the government’s efforts to manipulate content. The committee’s analysis and the government’s documents show the reality of government “jawboning” on social media.
 
“I mean basically these people from the Biden Administration would call up our team and like scream at them and curse,” Zuckerberg said. “They want[ed] us to take down this meme of Leonardo DiCaprio looking at a TV talking about how 10 years from now or something, you know, we’re going to see an ad that says, okay, if you took a COVID vaccine, you’re eligible … for this kind of payment, like, some sort of like class action lawsuit type meme. And they’re like, ‘no. You have to take that down.’ We’re not gonna take down humor and satire. We’re not going to take down things that are true.”
 
When Meta resisted some of the persistent demands of the government to remove content, Zuckerberg notes that President Biden in a 2021 press conference accused social media companies of “killing people.” The Federal Trade Commission launched antitrust lawsuits and investigations against Facebook and a number of other big social media outlets. Zuckerberg said, “all these different agencies and branches of government basically just started investigating, coming after our company. And it was brutal.”
 
Any suggestion that jawboning by officials at the White House and in the agencies was purely a matter of advice should be laid to rest by the Judiciary Committee’s analysis and postings, as well as Zuckerberg’s description of being on the receiving end of this treatment. As Zuckerberg said, “you can’t censor that if it’s real legitimate information because it’s not ideologically convenient for you.”

​On Jan. 10 the U.S. Supreme Court will hear oral arguments in TikTok v. Garland to decide whether the First Amendment requires the Court to block the law requiring the social media platform to undergo a forced sale by its Chinese owner, ByteDance, or be shuttered.
 
Many civil liberties organizations have come to TikTok’s defense in recent months, making the point that if the government can silence one social media platform, it can close any media outlet, newspaper, website, or TV channel. And they are right that forcing a private media company to sell or go out of business is a drastic action usually associated with authoritarian rule.
 
President-elect Trump filed an amicus brief with the Court asking the Justices to stay the legislative deadline that falls on Jan. 19, one day before his inauguration. The incoming president wants to be free to negotiate a solution for TikTok that will not require the blunderbuss of a forced sale or closure. His brief seeks “a negotiated resolution that could prevent a nationwide shutdown of TikTok, thus preserving the First Amendment rights of tens of millions of Americans, while also addressing the government’s security concerns.”
 
The president-elect’s brief also contained a nod to the real danger in TikTok’s accumulation of the personal data of its 170 million American users, including 67 percent of U.S. teens. A year-long, bipartisan investigation in the House concluded that TikTok is being used by Beijing to spy on American citizens. The Senate agreed by voting for a bipartisan aid bill that included the “ban-or-sale” measure.
 
The U.S. Court of Appeals for the District of Columbia upheld the law as constitutional, concluding that the measure satisfied strict scrutiny due to the national security necessity of preventing China from secretly collecting the data of United States citizens (and covertly manipulating content, too). As one TikTok official said in a leaked communication, “Everything is seen by China.”
 
As we reported, TikTok also surveils journalists like Emily Baker-White from Forbes. Want a good way to chill speech in America? How about permitting an adversarial nation to spy on reporters and their sources? 
 
With such facts in mind, Judge Douglas Ginsburg, who wrote for the court, declared that the law does not violate the speech rights of users. Nor does it necessarily even curb disfavored speech. Judge Ginsburg wrote:
 
“Content on the platform could in principle remain unchanged after divestiture and people in the United States would remain free to read and share as much [People’s Republic of China] propaganda (or any other content) as they desire on TikTok or any other platform of their choosing.”
 
In short, the lower court has held that the First Amendment should not apply to the corporate subsidiary of a hostile foreign adversary. The D.C. Circuit suggests that since the measure is the narrowly tailored result of considered legislative processes in furtherance of a compelling government interest, it can be allowed.

The court understands that the government could never ban a media outlet for its content. But could it ban an online website that distributes foreign spyware on the computers of its readers? That’s not so far off from what so many have concluded is happening here. Yet forcing the sale or closure of a media outlet is an extreme measure for any democracy to take.
 
The Court will have much to consider. Stay tuned.

​The State Department’s Global Engagement Center (GEC) that steered advertisers away from conservative American publications has shuttered after being stripped of its funds by Congress.
 
In its heyday, with a $61 million budget and 120 employees, GEC oversaw a $330,000 grant from affiliated entities to the UK-based Global Disinformation Index (GDI). It also made direct grants to GDI. This organization then distributed blacklists to ad companies with the intent of defunding websites that put out what it regards as “disinformation.” GDI also identified the ten “riskiest” news outlets – The American Spectator, Newsmax, the Federalist, the American Conservative, One America News, the Blaze, the Daily Wire, RealClearPolitics, Reason, and the New York Post.
 
A GDI insider told The Washington Examiner that publications on the “riskiest” list were probably also on an “exclusion” list sent to corporate advertisers.
 
GEC’s determinations were a black box. All we know is that a host of federal agencies – from the CIA to the FBI, DHS, and the Pentagon – through GEC provided Twitter, Facebook, and Google with guidance on what content they should depost or hide. The requests were so frequent, The New York Post reports, social media companies developed systems to respond to these content moderation requests, often by complying.
 
The idea of a government agency secretly sanctioning U.S. journalism outlets on the basis of their coverage makes President Nixon’s “enemies list” seem benign by comparison. Beyond setting the First Amendment on fire, this effort also betrays the conceit that only a precious set of intelligence analysts can discern the truth. Thus, the GEC suppressed speakers who held that the COVID-19 virus had leaked from a lab in Wuhan, China, only to have the director of the FBI affirm in Congressional testimony that the bureau now believes that this was the likeliest cause of the pandemic.
 
Investigative journalists, foremost among them Matt Taibbi, reported many similar instances of the federal government’s efforts to censor news outlets.
 
Protect The 1st has no problem with an official effort to identify the propaganda of foreign terrorists and hostile regimes so long as officials are willing to make their case publicly. But secret efforts to kill U.S. publications, whether they are as careful and buttoned-down as Reason, as wide-ranging and balanced as RealClearPolitics, or unashamedly right-leaning as Newsmax, is not the business of our government. Protect The 1st would be just as alarmed if the State Department tried to shut down Mother Jones, the Nation, or the Daily Kos.
 
The Global Engagement Center was un-American in conception and operation. Nothing like this should be allowed to happen again.

​“Can we finally say and admit to ourselves that the First Amendment is not this noble principle? It is mostly a … tool, and mostly what it's going to be used to do is to crush the people who are trying to advocate for equality, and it's going to be used to protect the people who are trying to preserve the status quo."
 
So posits celebrated academic and author Mary Anne Franks in a recent interview about her new book, Fearless Speech: Breaking Free From the First Amendment.
 
Franks’ latest effort attempts to draw a distinction between what she dubs “reckless speech … which endangers vulnerable groups” … and “fearless speech … which seeks to advance equality and democracy.” The obvious implication is that we should stop protecting the former and elevate the latter. But who decides what’s reckless and what’s fearless?
 
We’ve written about Franks before when she proposed a rewrite of the First Amendment that would omit the Freedom of the Press clause in order to resolve conflicts between rights “in accordance with the principle of equality and dignity of all persons.” And it’s with this vague prescription that her argument not only fails but leads to the short road to tyranny.
 
This should be obvious for someone who teaches “civil rights law” at a respected law school. This should, in fact, be obvious to anyone who has cracked a book about world history. If you open the door to subjective interpretations of speech that violates someone’s “dignity,” then you inevitably end up with a weaponized First Amendment that could be used to punish comics, satirists, journalists, musicians, and any other speaker whose views offend someone’s sense of dignity. Maybe such censorship will net some bigots, too, but then you’re always going to catch a few fish when you spread dynamite around the lake.
 
Franks’ interpretation of the First Amendment is explicitly rooted in grievance – a belief that America is fundamentally unjust and that our systems of governance protect “racial patriarchy.” (For an in-depth look at what Franks leaves out in her polemical take on American history, Prof. Jacob Mchangama has a great book review in Reason.) Franks’ worldview comes with an automatic list of protected speakers and another list of speakers at risk of violating the law. This framing trashes any idea of the law being viewpoint neutral.
 
And so what happens if an election flips the governing philosophy, as has just happened in November? Is Franks ready for the day when she is defined as part of the illicit governing patriarchy and her speech is forbidden? If Franks had her way, what is and is not permitted would reverse with every election or change in the composition of the Supreme Court – because my fearless speech and your undemocratic speech are subjective and easily weaponized as convenient excuses to persecute each other.
 
Almost every American can agree there is objectively bad speech, like much of the speech of the Ku Klux Klan or neo-Nazis. But such speech doesn’t go away if it is repressed by law. Censorship inevitably leads to black-market samizdat. Once underground, such speech acquires the allure of the illicit and the magnetism of the forbidden.
 
Franks dismisses reverence for the Constitution as “fundamentalist.” This is an odd word choice for a principle that has protected atheists, communists, dissenters, and writers of erotic literature. We are richer today for being able to decide whether or not to read Anaïs Nin, Allen Ginsberg, and Angela Davis. Would society be better off today if someone decided to strike the works of C.S. Lewis, William F. Buckley, and Victor Davis Hanson?
 
The genius of the First Amendment lies in its simplicity and neutrality. The First Amendment offers the same protection for all while permitting reasonable exceptions. For example, the First Amendment couldn’t protect talk show provocateur Alex Jones from handing over his fortune and livelihood after a jury found that he had defamed the grieving parents of children murdered in the Sandy Hook school massacre. And while the First Amendment may shield the occasional extremist, it also ensures that powerful organizations and groups cannot silence men and women of conscience who criticize them.
 
Franks’ ideas are unserious to the point of childishness. (There, saved you an Amazon purchase. Try this one instead.) She seems willing to delegate complex adjudications of social conflicts to people she regards as the smartest and best intentioned. No one – but no one – should be trusted with that kind of power. That’s what the Founders felt in their bones when they wrote:
 
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
 
Many Americans have died for those words. We should not casually toss them aside.

​We recently covered the plight of Sam Brownback – former Kansas governor, U.S. Senator, and ambassador – who learned that the Chase Bank account for the non-profit he heads, the National Committee for Religious Freedom, had been closed with no explanation. In a lengthy back-and-forth with Chase Bank, Brownback learned that he had been defined in regulatory filings as a “politically exposed person.”
 
Allysia Finley in The Wall Street Journal explains the mechanisms behind these actions. She covers the widespread and growing practice of federal agencies’ use of the Bank Secrecy Act to surveil and punish the speech of law-abiding but politically disfavored groups through “debanking.”
 
These Orwellian acts don’t originate with the banks. The banks themselves face penalties that can go into the billions of dollars if they fail to close an account for a customer who is the target of numerous “Suspicious Activity Reports” (SARs), which flag them as “high risk.” Last year, banks filed 4.6 million SARS. Who knows how many customers were debanked as a result? 
 
Victims include former First Lady Melania Trump, and groups targeted by some in government such as firearms dealers, payday lenders, and pawn shops. Now the provision has blocked the Blockchain Association, a trade group for the cryptocurrency industry. Barney Frank, a former Chair of the House Financial Services Committee, says that the FDIC seizes banks “to send a message to get people away from crypto.”
 
Think about that for a moment. The banks were forced not to go after crypto accounts, some of which admittedly could be sketchy, but to go after a trade association (“the collective voice of the crypto industry”) that exercises its First Amendment right to petition the government to argue for pro-crypto legislation.
 
Unraveling the practice of silencing people and organizations by snapping their accounts shut should be high on the list for reform by the incoming Trump administration and the next Congress.

​You don’t have to be in the bag for one party or another to see that media outlets are taking on the partisan tone of newspapers reminiscent of the vitriol of the early American Republic. CNN and Fox News are at the far latitudes of different hemispheres and Newsmax and MSNBC are the North and South poles.
 
Roland Fryer, a Harvard University professor of economics, in Monday’s Wall Street Journal writes that the economic incentives of a fragmented media environment make it unlikely that we will see a return to objective journalism any time soon. “My hunch is that it will get worse before it gets better,” Fryer wrote. “I am skeptical that there is enough demand for objectivity and believe there are powerful economic forces pushing media outlets to give audiences the red meat they desire.”
 
All answers to this conundrum have so far failed. For example, some promote subsidized journalism as a way to ensure clear-eyed objectivity. But a close reading of subsidized ventures invariably reveals they skew to the left- or right-leaning predilections of their billionaire donors. We should remember that one reason early American newspapers were so biased is that they often received lucrative printing contracts when their favored political party won an election.
 
Out of frustration some hold up the heavy-handed speech codes of Canada, the United Kingdom, and the European Union as a way forward. But, as we saw in the censorship of the Covid “lab-leak theory” – now held by the FBI as probably true – no one is smart enough to declare what is disinformation and what is mere information that belongs in the national debate.
 
Some look to President-elect Trump’s successful lawsuit against ABC for anchor George Stephanopoulos’ inaccurate statement that Donald Trump had been held “liable for rape by a jury.” ABC’s admission of error resulted in a $15 million settlement by the news organization to the Trump presidential library. This defamation case is cheered by some on the right as a sign that media bias can be addressed by aggressive application of libel law. This outcome certainly offers a new precedent that widens the boundaries of a public figure’s ability to win a defamation suit. Yet the statement in question was a limited misstatement of fact from a professional news organization, placing it arguably within the boundaries for public figures set by the U.S. Supreme Court in New York Times v. Sullivan.
 
Most media bias, right or left, is not like that. Bias is less about how a story is reported, and more about which stories are selected. Thus CNN focuses on anonymous reports of Defense nominee Peter Hegseth’s alleged peccadillos, while Fox News focuses on heinous crimes committed by illegal aliens.
 
So if subsidized journalism, anti-“disinformation” campaigns by a consortium of government and media, and libel law will not guarantee objective journalism, what can we do?
 
We should begin by accepting there is no getting around the need to respect that the First Amendment gives media outlets the right to report in a biased fashion if they so choose. Even biased reporting fulfills the right of readers, watchers, and listeners to receive available reporting that aligns with their own biases. This is decidedly suboptimal. But if the alternative is to put some government functionary or faceless executive, or trial lawyer in charge of determining truth for everyone, we will be even worse off.
 
Fryer is right that media outlets pander to their audiences. The only way we’ve found to achieve balance is to skim The New York Times and Breitbart, CNN and Fox News, and then use our brains to read between the lines.

​A new Maryland law regulating how energy companies describe their products as “green” or “renewable” raises significant First Amendment concerns. By restricting the language that companies can use to market their services, the law forces businesses to align with the state’s dictated views on sustainability. This case, now playing out in federal court, underscores the tension between government regulation and the constitutional right to free speech, even in the realm of commercial activity.
 
Green Mountain Energy and the Retail Energy Advancement League (REAL) argue that this law crosses constitutional boundaries by going beyond regulating misleading claims. It forbids the use of “green energy” for the resale of “renewable energy credits.” By dictating the context for terms like “green” and “renewable,” Maryland is attempting to enforce its own perspective on sustainability with a legal mandate. The state offers no evidence that the companies’ descriptions of their products are deceptive. Instead, it seeks to impose its definitions, effectively punishing businesses for expressing a viewpoint that doesn’t align with Maryland’s preferred narrative.
 
The state’s defense rests on the argument that this is "commercial speech," which has many exceptions from the broad protections of the First Amendment. Courts have long held that commercial speech can be regulated for truthfulness and safety. But applying that standard here is flawed reasoning. Commercial speech does not lose its constitutional safeguards simply because it involves business interests. Courts have repeatedly ruled that truthful and non-misleading commercial speech is protected. Maryland's law doesn’t regulate false advertising: it imposes civil penalties for truthful speech that doesn’t align with the state’s ideological preferences. This sets a dangerous precedent for governmental overreach.
 
Consumers benefit from robust, diverse speech in the marketplace. Allowing companies like Green Mountain to share their perspective on what constitutes “green” energy fosters healthy competition and transparency. If Maryland’s law stands, it sends a chilling message that the government can censor private speech to promote its policy agenda. The First Amendment exists to prevent precisely this kind of state overreach.
 
This case highlights a growing trend where governments seek to weaponize regulations to silence voices they don’t agree with. The Maryland law must be struck down to uphold the First Amendment's principles and ensure that businesses retain their right to speak freely.

​President-elect Donald Trump’s nominee for Chairman of the Federal Communications Commission promises he will “smash the censorship cartel.” A current FCC commissioner, Brendan Carr is a seasoned policymaker and scholar of communication law. He is an unabashed promoter of the free market, promising to reduce regulation and “refill America’s spectrum pipeline” to “unleash economic prosperity.”
 
Carr authored the FCC section of Project 2025, which encapsulates what the FCC’s policy efforts are likely to encompass in the coming years. Relevant to the First Amendment is Carr’s approach to Section 230. This is the law that grants social media companies immunity from liability for content produced by third parties, while acknowledging the companies’ right to moderate their sites.
 
Carr believes Section 230 has been expanded and abused to censor conservative and other speech, concluding it “is hard to imagine another industry in which a greater gap exists between power and accountability.” That’s why, in his view, the “FCC should issue an order that interprets Section 230 in a way that eliminates the expansive, non-textual immunities that courts have read into the statute.”
 
Specifically, Carr suggests that the “FCC can clarify that Section 230(c)(1) does not apply broadly to every decision that a platform makes. Rather its protections apply only when a platform does not remove information provided by someone else. In contrast, the FCC should clarify that the more limited Section 230(c)(2) protections apply to any covered platform’s decision to restrict access to material provided by someone else.”
 
What this means, in effect, will be much less immunity for platforms under Section 230(c)(1), broadly interpreted by courts to apply to both distribution and takedown decisions – even though Section 230(c)(2) speaks more directly to the latter. Carr’s proposal is a direct shot at the kind of censorship decisions that have so enflamed conservative circles in recent years, and it means platforms could have substantially less legal protection in such future cases. At the same time, basic publishing and editorial functions (even a hands-off editorial approach), as well as removal of lewd or violent material would likely remain covered under this framework. (For more on the distinction between Section 230(c)(1) and Section 230(c)(2)), we recommend this Congressional Research Service report.)
 
Carr’s writings make frequent appeals to Congress to reform and update the laws governing the internet, eager to work with Congress to harmonize his regulatory approach with the law. Given the role of courts in interpreting rules against the statutes they are based upon, it is hard, however, to predict what this new framework will look like.
 
There’s certainly a scenario where litigation against tech platforms could snowball in a way that harms innovation, consumer experience, and the overall speech climate. Moreover, the First Amendment upholds the right of social media companies to moderate their content. Courts should not allow any rule that compromises their rights. Still, Carr’s effort to carve out more respect for speech by reinterpreting Section 230 is a lighter touch than many legislative proposals.
 
Carr suggests placing transparency rules on big social media platforms – specifically, requiring “platforms to provide greater specificity regarding their terms of service.” We would prefer social media companies to voluntarily take up these rules. Platforms’ moderation decisions should take place in the open, providing clarity to consumers and furthering free expression and association on the handful of sites that have become the nation’s townhall.
 
Carr also advocates for returning “to Internet users the power to control their online experiences,” perhaps through choosing “their own content filters and fact checkers, if any.” At the same time, he concedes that such policies could be seen by some as intruding “on the First Amendment rights of corporations to exclude content from their private platforms.” Carr should heed his reservation. Protect The 1st wholeheartedly supports the speech rights of private companies and opposes external impositions on this fundamental right.
 
Regarding national security, Carr wholeheartedly supports a ban on TikTok, espousing that it provides “Beijing with an opportunity to run a foreign influence campaign by determining the news and information that the app feeds to millions of Americans.” We support the law that requires divestment by China’s ByteDance. With a sale to a U.S. owner, there would be no need for a blanket ban on TikTok that infringes on the speech and associational rights of Americans.
 
Lastly, Carr seeks to re-emphasize the establishment of wireless connectivity for all Americans by freeing up more spectrum and streamlining the permitting process for wireless builds. According to the FCC, 24 million Americans still lack high-speed Internet as of 2024, and that’s 24 million Americans who are less able to exercise their speech rights than their fellow countrymen.
 
Overall, Carr’s focus is to modernize the FCC and promote prosperity by turning to a “pro-growth agenda” over the heavy hand of regulatory decree. “The FCC is a New Deal-era agency,” Carr writes. “Its history of regulation tends to reflect the view that the federal government should impose heavy-handed regulation rather than relying on competition and market forces to produce optimal outcomes.”
 
In short, Brendan Carr promises to be a bold leader at the FCC who aims to break policy logjams. Protect The 1st looks forward to evaluating his proposals when they are fleshed out in January.

​An extreme measure that would give future U.S. Treasury Secretaries unprecedented authority to shut down non-profit, advocacy organizations remains a live option in Congress.
 
The “Stop Terror-Financing and Tax Penalties on American Hostages Act,” HR 9495, failed to pass the House last week. But it maintains momentum due to a little sweetener that is widely popular – a commendable side measure to offer tax relief to Americans held hostage in foreign countries. The main part of the bill would grant future U.S. Treasury Secretaries power to use secret surveillance to declare a tax-exempt, non-profit advocacy organization a supporter of foreign terrorism, and shut it down.
 
This provision, in essence, does one thing – it removes due process from existing law that allows the government to crack down on supporters of terrorist organizations. CRS reports that the IRS is already empowered to revoke the tax-exempt status of charitable organizations that provide material support to terrorist organizations, a power it has used.
                                                              
But current law also requires IRS to conduct a painstaking examination of the charge before issuing a revocation. It gives groups the ability to answer charges and to appeal decisions. But the “Stop Terror-Financing” bill would give targeted organizations a 90-day window to challenge the designation, while giving them no access to the underlying evidence behind the determination. An organization could challenge the designation in court but might not be able to access the charges against it due to the state secrets doctrine. In the meantime, being designated a terrorist-affiliate would be a death penalty for any organization and its ability to attract donors.
 
“The entire process is run at the sole discretion of the Secretary of the Treasury,” Kia Hamadanchy of the American Civil Liberties Union told the media. “So you could have your nonprofit status revoked before you ever have a chance to have a hearing.”
 
The latest attempt to pass this measure failed to reach a two-thirds majority needed to pass, with 144 Democrats and one Republican voting against it. Democrats were buoyed by a Who’s Who of liberal organizations, ranging from the ACLU to Planned Parenthood and the Brennan Center for Justice, that denounced the bill. Not surprisingly, pro-Palestinian groups were united in opposition as well.
 
But Republicans and conservatives would be well advised to consider the principled opposition to the bill by Rep. Thomas Massie (R-Ky). He surely appreciates that this power, once created, could be used by future administrations against nonprofits of all sorts. Could a conservative organization be targeted as a supporter of terrorism for advocating, for example, a settlement with Russia (certainly a state sponsor of terror) in its war against Ukraine?
 
Conservative principles and an adherence to the Constitution should begin with the notion that the government should not have the unilateral right to shut down the speech of advocacy organizations on the basis of secret evidence from surveillance, even if you despise what they advocate.
 
Conservatives would also be well-advised to consider not how this law would be used in the near future, but by future administrations. Have they forgotten Lois Lerner and the attempt to use tax law to shut down conservative advocacy groups? “We don’t need to worry about alien terrorists,” Lerner wrote in an email justifying her actions against right-leaning organizations. “It’s our own crazies that will take us down.”
 
Conservatives should be wary. This bill creates a weapon that can be aimed in any direction.

​There’s no denying that the U.S. Fifth Circuit Court of Appeals, which covers Louisiana, Mississippi, and Texas, has a maverick streak. Earlier this year, the court ruled that geofence warrants of cellphone data of suspects and innocents alike are inherently unconstitutional. Law enforcement, which routinely collects such data from the scene of a crime or around a suspect, found its practices upended.
 
And now… oops, they did it again. This week, the Fifth Circuit invalidated settled IRS regulations in a way that is certain to upend speech protections under the law, at least in states under the Fifth Circuit’s purview.
 
The court’s unanimous three-judge panel ruling on a healthcare organization’s tax exemption opens up for revision IRS regulations on 501 (c) (4) “social welfare organization’s” right to engage in political speech. This ruling concerns the current regulation stipulating that these groups can engage in political activities if 51 percent of their funds are spent on approved activities, like public education. Political activity – including ads and social media campaigns – are allowed if they account for no more than 49 percent of the group’s spending. The Fifth Circuit ruled that 501 (c) (4)s can now no longer qualify for tax exemptions if their political activity is at a level that is judged “substantial.”
 
As a result of the Fifth’s ruling it is anyone’s guess how other courts and the IRS will come to define the “substantial” standard for 501 (c) (4) organizations. If spending 49 percent of an organization’s time and money on political activity is substantial, how about 39 percent? Would 29 percent be too much? Five percent?
 
Critics of the 49 percent rule have long argued that it allows donors to pass so-called “dark money” through tax exempt educational organizations to fund political ads for and against candidates. This criticism sharpened in the aftermath of the U.S. Supreme Court’s Citizens United decision in 2010 that held that private groups unaffiliated with political campaigns are not limited by the donation limits set by law and enforced by the Federal Election Commission.
 
The Supreme Court found that limiting what someone can spend on their opinions about the issues and candidates of the day is a limit on speech itself. Protect The 1st agrees and defends Citizens United as a cornerstone of the First Amendment’s protection of speech. Undoing that standard would subject all political speech in America to bureaucratic regulation and parsing.
 
A possible collateral casualty of the Fifth’s ruling is donor privacy. The Supreme Court unanimously ruled in NAACP v. Alabama in 1958 that organizations have a right to withhold the identities of their donors. In this age of doxing and political retaliation against individuals and their businesses, the wisdom of NAACP seems greater than ever. The Fifth’s decision to open the rule to revision will almost certainly lead to efforts to force the disclosure of donors to 501 (c) (4) organizations. This opening has not exactly gone unnoticed. One advocate for donor disclosure told The Wall Street Journal that donors should be revealed if the tax law was “interpreted the way that we believe it should be.”
 
In the interest of full disclosure, Protect The 1st is organized as a 501 (c) (4), and we use our status to advocate for the PRESS Act, which protects the notes and sources of journalists from compelled exposure, as well as other important First Amendment causes, from donor privacy to the free exercise of religion. For our part, we believe that under all circumstances Americans have the right to freely associate and advocate for their opinions. Full stop. That is what the founders had in mind when they wrote and passed the First Amendment.

​Protect The 1st filed a brief urging the U.S. Supreme Court to hear a case in which a public school teacher was terminated over a search of her old retweets of social media memes. While a seemingly small case, it could have outsized influence over the speech rights of millions of Americans.
 
The case involves a public schoolteacher, Kari MacRae, who was hired by the Hanover High School in 2021. Months before, MacRae had been a candidate for the local school board in this Massachusetts town. At that time, she had shared and liked on her TikTok account several memes and videos poking fun at “woke” ideology. (You can decide for yourself what you think of MacRae’s reposted memes, highlighted in this Boston.com article.)
 
Hanover High learned of the unearthing of MacRae’s old TikTok reposts from local media. It then placed MacRae on administrative leave to conduct a 14-day investigation. The school then fired her.
 
MacRae sued for wrongful termination and the violation of her rights only to lose in federal district court and then on appeal before the U.S. First Circuit. In our view, the First Circuit misapplied a framework that if not reviewed and overturned by the Supreme Court, will leave the speech rights of government employees – 15 percent of the U.S. workforce – at risk.
 
The Supreme Court has already held in Garcetti v. Ceballos (2006) that when government “employees are speaking as citizens about matters of public concern,” they “must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” The First Circuit instead embraced a “balancing” standard between personal rights and public responsibilities.
 
Protect The 1st responds: “Framed in Garcetti’s terms, this case asks whether government employers, to ‘operate efficiently and effectively,’ must have carte blanche to punish their employees not for what they are now saying, but for anything they have ever said – even before they were hired. If the First Amendment means anything in this context, the answer to that question must be no. An alternative holding would silence prospective government employees lest their speech, whenever it was made, could later be cited as a reason to destroy their careers.”
 
We warn that if the First Circuit’s standard were adopted broadly, “fully protected speech could lose its protection with time – an untenable proposition.” Protect the 1st also told the Court:
 
“… that in a world where many people spend their lives online, a rule that anything they say there can later be the impetus for their termination from government employment would impose an unconscionable burden on the right to speak on issues of public concern: It would chill pre-employment speech at the front end and give a modified heckler’s veto to bad actors at the back end.”
 
We urge the Supreme Court, which has taken up few First Amendment cases so far in this term, to grant the petition and reverse the First Circuit’s erroneous ruling.

​The nation’s two presidential candidates sometimes seem at a loss to understand or appreciate the First Amendment, which protects religious expression and freedom of the press, among other forms of speech.
 
Case in point: when Vice President Kamala Harris was asked this week in an NBC interview if she would support a religious exemption for physicians on abortion, she flatly rejected any such “concession.” The Democratic nominee for president spoke about the “basic freedom” of a woman to control her own body, while rejecting the idea that a physician in a white surgical gown should have control over the actions of his or her own hands.
 
Let’s be clear what we’re talking about – the Harris position would pull the medical licenses of men and women of faith for declining to personally perform abortions. Never mind that this country has no lack of physicians willing to perform that procedure.
 
Contrast the vice president’s stance with the Democrats of New Mexico, where last year Gov. Michelle Lujan and her fellow Democrats in the legislature took a commendable step to improve a law they championed to make sure it observes the religious freedom of physicians. That law is the Elizabeth Whitefield End-of-Life Options Act, which went into effect in 2021. The law required doctors who objected to administering fatal drugs to a patient to refer them to a physician who would. Gov. Lujan and her allies in the New Mexico legislature heard the outcry from physicians of faith and responded with courage to correct their law to observe the religious freedom of expression.
 
Why can’t Harris follow that example?
 
Then there is former President Trump, who has been littering the airwaves with threats to pull the broadcast licenses of ABC and then CBS for disputes over their fact checks and editorial decisions. News flash: Networks don’t have broadcast licenses. Their local affiliates do. News organizations don’t need a “license” to practice journalism. Anyone can do it. Again, it’s called the First Amendment.
 
Contrast the Republican nominee’s frequent threats with those of his Republican predecessors. Presidents Reagan, Bush and Bush complained about media bias, but each of them found artful ways to counter it. The first President Bush forcefully rejected the contentions of CBS’s Dan Rather on air, then the allies of the second President Bush discredited him so badly that Rather eventually resigned from CBS. The presidential father and son did so by exercising their First Amendment rights, without resorting to threats of censorship.
 
Yet listening to our candidates today, we have to ask: is rubbishing the First Amendment the new normal in American presidential politics? At the very least, the current state of the presidential debate points to the urgency of restoring civics education that imparts a classical understanding of our Constitution.

​California holds the unique position of being both the most innovative state in the union and perhaps the most ignominious when it comes to government overreach. Take a recent law that passed the California State Legislature back in September: AB 2839, which targets election misinformation, and which is now enjoined pursuant to a federal court order.
 
AB 2839 takes aim at “materially deceptive” communications distributed within 120 days of an election and up to 60 days after one. Specifically, the law states that “[a] person, committee, or other entity shall not…with malice, knowingly distribute an advertisement or other election communication containing materially deceptive content” of a candidate “portrayed as doing or saying something the candidate did not do or say if the content is reasonably likely to harm the reputation or electoral prospects of a candidate.” The law permits any recipient of the content to file suit against the content creator.
 
In an era in which many voters hold legitimate concerns about AI, deepfakes, bots, and other methods of digital manipulation, the impulse to use whatever means necessary to protect election integrity is not entirely misguided. AB 2839 goes way too far.
 
Like many such laws, AB 2839 “lacks the narrow tailoring and least restrictive alternative that a content-based law requires under strict scrutiny.” Its broad sweep, writes Judge John Mendez, “does much more than punish potential defamatory statements since the statute does not require actual harm and sanctions any digitally manipulated content that is ‘reasonably likely’ to ‘harm’ the amorphous ‘electoral prospects’ of a candidate or elected official.” For instance, as written, the law could subject the creator of any candidate deepfake to civil liability – even if it “does not implicate reputational harm.” 
 
As Mendez points out, New York Times v. Sullivan long ago addressed the issue of deliberate lies about the government, which are constitutionally protected. To the extent speech conduct targets public figures or private individuals, remedies like “privacy torts, copyright infringement, or defamation” already exist. As such, it is entirely unnecessary to separately target speech occurring within an electoral context, which is “a content-based regulation that seeks to limit public discourse.” Beyond the legal implications, it practically opens the floodgates to all manner of politically motivated censorship.
 
Parody is perhaps the most likely victim of AB 2839’s reach. The plaintiff, Christopher Kohls, runs a YouTube channel steeped in political satire. And, while the law does contain a carveout exempting such content, it requires a written disclaimer "no smaller than the largest font size of other text appearing in the visual media." In other words, it would render Kohls’ content unwatchable.
 
Judge Mendez writes, “Supreme Court precedent illuminates that while a well-founded fear of a digitally manipulated media landscape may be justified, this fear does not give legislators unbridled license to bulldoze over the longstanding tradition of critique, parody, and satire protected by the First Amendment. YouTube videos, Facebook posts, and X tweets are the newspaper advertisements and political cartoons of today, and the First Amendment protects and individual’s right to speak regardless of the new medium these critiques may take.”
 
We’ll be watching this case closely should the Golden State decide to appeal.

​An important analysis from Real Clear Investigations probes the extent to which censorship abroad threatens the First Amendment here at home. 
 
Writer Ben Weingarten asks whether foreign demands that domestic media companies operating abroad comply with those nations’ often far more censorial legal requirements will lead in turn to more censorship here at home. The preponderance of the evidence suggests bad news for fans of the First Amendment.
 
Weingarten points specifically to the European Union’s Digital Services Act, which imposes content moderation standards that far exceed what would be considered constitutional in the United States. For example, companies doing business in the EU must combat “illegal content online,” which includes the disfavored rhetoric like “illegal hate speech.”
 
Writes Weingarten:
 
“Platforms also must take ‘risk-based action,’ including undergoing independent audits to combat ‘disinformation or election manipulation’ – with the expectation those measures should be taken in consultation with ‘independent experts and civil society organisations.’ The Commission says these measures are aimed at mitigating ‘systemic issues such as … hoaxes and manipulation during pandemics, harms to vulnerable groups and other emerging societal harms’ driven by ‘harmful’ but not illegal content.”
 
What’s more, investigations pursuant to the DSA can result in fines of up to 6% of annual global revenue, a potential outcome likely to give companies like X and Facebook pause when considering whether to comply with the invasive oversight of European bureaucrats and NGOs serving as arbiters of the appropriate.
 
Then there’s the question of whether social media companies that agree to the EU’s demands are likely to run parallel services – for example, a DSA compliant version of X and another that is consistent with the requirements of the First Amendment.
 
Elon Musk seemed willing to abandon Brazil after that country banned X for failing to de-platform the account of former president Jair Bolsonaro. (Though Musk’s company is now very much back in business there.) But the EU is a much bigger market with a lot more monetizable users.
 
As Weingarten documents, the punishment of media companies abroad for speech that is well within the bounds of the First Amendment is a growing trend – not just in the EU but also in countries like the UK and Australia. And Weingarten reserves no small amount of criticism for the Biden Administration’s silence – and even capitulation – in the face of such foreign censorship.
 
Bills like the No Censors on our Shores Act, which could “punish foreign individuals and entities that promote or engage in the censorship of American speech,” offer one potential solution to foreign censorship creep. So do articles like Weingarten’s, which provide a much-needed diagnosis of our speech-related ailings and failings.

​Former senator and presidential candidate John Kerry said the quiet part out loud in recent comments before the World Economic Forum.
 
In answer to a question regarding critics of climate change, Kerry responded vigorously, saying:
 
“You know, there’s a lot of discussion now about how you curb those entities in order to guarantee that you’re going to have some accountability on facts, etcetera. 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 be able to just, you know, hammer it out of existence.”
 
We at Protect the 1st are no critics of the climate change debate, which is important. But we cast a critical eye at those who would minimize First Amendment protections to silence their opposition. 
 
Kerry said, "Democracies around the world now are struggling with the absence of a sort of truth arbiter, and there’s no one who defines what facts really are."
 
With all respect to Kerry, we’re a hard pass on a Ministry of Truth. The free exchange of ideas, even bad ideas, is essential for an informed discourse.

​The recent wave of government actions against social media platforms — from Brazil’s suspension of X to France’s charges against Telegram’s CEO — reveals a downward global trend in official respect for free speech in the digital age. Framed as efforts to protect public safety, national security, or the democratic process, governments around the world are increasingly bold in controlling what can be said and who can speak online.
 
While some actions target harmful content, many governments (including, as Meta CEO Mark Zuckerberg attests, our own) risk outright censorship that stifles dissent and restricts access to information.
 
Exhibit A is Brazil, in which the Supreme Court, led by Justice Alexandre de Moraes, ordered a nationwide block on X, formerly Twitter, after the platform refused to appoint a legal representative in the country. This decision follows confrontations over X’s refusal to remove content and block accounts linked to “disinformation” and “extremism” – even though some of the blocked accounts are those of a Brazilian senator and prominent critics of the current administration. X’s Elon Musk understandably is concerned that such “regulation” could be used to censor dissent and control public discourse. So he refused to appoint a legal representative who almost surely would be arrested and prosecuted.
 
Justice de Moraes frames his efforts as a battle against misinformation, citing X's failure to comply with directives as evidence of its disregard for Brazilian law. But Elon Musk, a "free speech absolutist," correctly portrays these actions as overreach by an authoritarian judge.
 
France recently charged Telegram CEO Pavel Durov with failing to prevent illicit activities on his platform. Some argue that pressure from the U.S. Congress and Biden Administration for TikTok to divest from its Chinese parent company is also censorship, though many (Protect The 1st included) have concerns about TikTok’s threats to the data privacy of 170 million Americans and national security.
 
What is clear is that governments are more aggressively regulating platforms they see as threats to public order or sovereignty. Each presents a mix of justifications and overreach. Brazil's crackdown on X is seen by some as necessary to safeguard democracy, while others view it as an overreaction that threatens rights. France’s prosecution of Durov is an overreach if it criminalizes encryption and undermines privacy. Concerns over the data practices of TikTok, its parent ByteDance, and the Chinese government are legitimate, while cracking down on perceived “Chinese-friendly” content would be a clear First Amendment issue.
 
It is true that social media platforms wield considerable power to shape public discourse and influence the conduct of elections; however, methods to counter these threats risk stifling dissent, restricting information, and setting dangerous precedents for censorship. For example, targeting Starlink, Musk's satellite internet provider, for X’s fines seems excessive. Similarly, arresting Durov risks conflating the platform with the actions of Telegram’s users.
 
Is there a better path? Regulators should focus on transparency, accountability, and due process rather than outright bans. Overregulation risks losing a vibrant, open digital space where even controversial ideas can be freely exchanged. If not carefully calibrated, efforts to protect will become efforts to suppress.
 
It won’t be easy, but democratic governments must both defend against illegal content and protect principles of free speech and the robust sharing of information – even when that information is deemed to be wrong.

​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.

​We’ve already heard a lot of rowdy speech from the two vice-presidential candidates, Democratic Minnesota Gov. Tim Walz and Republican U.S. Sen. J.D. Vance. Would they be as generous in applying the First Amendment to others as they do to themselves?
 
Tim Walz, who, despite correct opinions regarding the tragedy of Warren Zevon being left out of the Rock and Roll Hall of Fame, hasn’t been as on the money when it comes to which types of speech are protected and which are not. In 2022, Walz said on MSNBC:
 
“There's no guarantee to free speech on misinformation or hate speech, and especially around our democracy. Tell the truth, where the voting places are, who can vote, who's able to be there….”
 
As PT1st senior legal advisor Eugene Volokh points out in Reason: “Walz was quite wrong in saying that ‘There's no guarantee to free speech’ as to ‘hate speech.’ The Supreme Court has made clear that there is no ‘hate speech’ exception to the First Amendment (and see here for more details). The First Amendment generally protects the views that the government would label ‘hateful’ as much as it protects other views.”
 
Legal treatment of misinformation is more complicated. In United States v. Alvarez, the Supreme Court held that lies “about philosophy, religion, history, the social sciences, the arts, and the like” are largely constitutionally protected. Libel, generally, is not – though, in a defamation case, a public official can only succeed in their claim if they can show that a false statement was published with “actual malice” – in other words, “with knowledge that it was false or with reckless disregard of whether it was false or not.” Categories of intentional misinformation that are patently not protected include lying to government investigators and fraudulent charitable fundraising.
 
Walz may be on firmer ground when it comes to lies about the mechanics of voting – when, where, and how to vote. Thirteen states already ban such statements. As Volokh writes, “[I]f limited to the context that Walz seemed to have been describing – in the Court's words, ‘messages intended to mislead voters about voting requirements and procedures’ – Walz may well be correct.”
 
On freedom of religion, Walz’s record as governor is concerning. During the pandemic lockdowns, the governor imposed particularly harsh restrictions on religious gatherings, limiting places of worship to a maximum of ten congregants, while allowing retailers to open up at 50 percent capacity. An ensuing lawsuit, which Walz lost, resulted in an agreement granting religious institutions parity with secular businesses.
 
Walz also signed a law prohibiting colleges and universities that require a statement of faith from participating in a state program allowing high school students to earn college credits. As the bill’s sponsor conceded, the legislation was intended in part to coerce religious educational institutions into admitting students regardless of their beliefs – diluting their freedom of association. That controversy is currently being litigated in court. Little wonder the Catholic League declared that “Tim Walz is no friend of religious liberty.”
 
The Knights of Columbus might agree – at least as pertains to the broader ticket. In 2018, during the federal judicial nomination hearing for Brian Buescher, then-Sen. Kamala Harris criticized the organization for its “extremist” (read: traditional) views on social issues. Harris also sponsored the “Do No Harm” Act, which would have required health care workers to perform abortions in violation of their religious beliefs. 
 
Regarding Vance, the former Silicon Valley investor is hostile to the speech rights of private tech companies (who certainly enjoy the same First Amendment protections as any other person or group). In March, the senator filed an amicus brief in support of the State of Ohio’s lawsuit against Google, which seeks to regulate the company as a common carrier. In his brief, Vance argues Google’s claim that it creates bespoke, curated search results that directly conflict with its past claims of neutrality. Sen. Vance writes:
 
“[Google’s] functions are essentially the same as any communications network: it connects people by transmitting their words and exchanging their messages. It functions just like an old telephone switchboard, but rather than connect people with cables and electromagnetic circuits, Google uses indices created through data analysis. As such, common carrier regulation is appropriate under Ohio law.”
 
Vance’s argument creeps in the direction of Texas and Florida laws that seek to regulate social media companies’ internal curation policies. Both laws were found wanting by the Supreme Court. The Court in a strongly worded remand on both laws wrote:
 
“[I]t is no job for government to decide what counts as the right balance of private expression – to ‘un-bias’ what it thinks is biased, rather than to leave such judgments to speakers and their audiences.”
 
Yet Vance also attempts to “un-bias” social media platforms, leaving little to no room for independent curatorial judgment.

On the plus side, Vance has cosponsored numerous bills aimed at curtailing government censorship, including the “Free Speech Protection Act,” which prohibits government officials from “directing online platforms to censor any speech that is protected by the First Amendment.” He also sponsored the PRESERVE Online Speech Act, which would force social media companies to disclose government communications urging the censoring or deplatforming of users.
 
As the election season progresses, we can hope for more clarity on the candidates’ positions regarding our First Amendment freedoms. It is already clear, however, that both candidates are far from purists when it comes to protecting other people’s speech.