​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.

​The European Union’s Digital Services Act is an object lesson in how laws that purport to prevent the spread of “misinformation” and “disinformation” are destined to turn regulators into little tyrants.
 
Thierry Breton, European Commissioner for the Internal Market, is threatening Elon Musk and his social media company X with legal consequences if he airs his interview with former President Donald Trump. In a letter to Musk, Breton wrote that X must see to it that “all proportionate and effective mitigation measures are put in place regarding the amplification of harmful content in connection with relevant events, including live streaming, which, if unaddressed, might increase the risk profile of X and generate detrimental effects on civic discourse and public security.”
 
In other words – don’t let Europeans hear the unfiltered words of a former U.S. president and major party nominee, or the EU will sanction your business.
 
This is so breathtakingly – unselfconsciously – Orwellian that it almost reads as parody.
 
Yes, much of what Donald Trump says – about the size of the crowds being drawn by his opponent, Vice President Harris, suggesting that AI was used to make them seem larger – could be fairly characterized as misinformation or disinformation. Or just plain silly. The so-called “missile gap” that dominated the U.S. election in 1960 was also patently untrue. Today, claims made by the vice president that the U.S.-Mexico border is closed and secure could be characterized in the same light. So undoubtedly could statements made by French President Emmanuel Macron or German Chancellor Olaf Scholz. Indeed, politicians of all political stripes and national origins stretch or distort the facts so regularly that fact-checking politicians (and, in turn, the fact-checkers) has become an ever-increasing part of journalism and an important part of the public debate.
 
It must not become the business of regulators to make their own determination of what is true or not true in a political campaign and then censor statements made by candidates. We cannot allow government to cut up democratic debate into little sanitized snippets where bureaucrats and politicians in positions of power get to create their own narrative and punish anyone who strays from the orthodoxy.
 
Let Thierry Breton be a lesson to all the scolds in this country who want to give Washington similar powers. They would rob the voters of their ability to make up their own minds and substitute a sanitized, government-approved narrative that the public could challenge only at its peril. That would be a truly “detrimental effect on civil discourse.”

​Aristotle wrote that anybody can get angry. The hard task is to “be angry with the right person, and to the right degree, and at the right time, and for the right purpose.”
 
We don’t know if Judge Mark Scarsi of the U.S. District Court for the Central District of California is a student of Aristotle. But when he issued a preliminary injunction on Tuesday ordering UCLA to not allow parts of its campus to be off-limits to Jewish students, his order came out hot. Judge Scarsi wrote:
 
“In the year 2024, in the United States of America, in the State of California, in the City of Los Angeles, Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith. This fact is so unimaginable and so abhorrent to our constitutional guarantee of religious freedom that it bears repeating. Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith.”
 
The plaintiffs in the case are Jewish students who have a religious belief about the importance of the State of Israel. Several students, under threat of violence, were barred from the path to UCLA’s Powell Library. Others could not access the university’s  Royce Quad because to do so they would either have to denounce their faith or meet those who promised violence.
 
As the judge notes, UCLA does not dispute these facts. Instead, it argues that it has no responsibility to protect the religious freedom of its Jewish students because the exclusion was engineered by a third party, in this case student and off-campus protesters angry about the tragedy in Gaza.
 
Judge Scarsi responds: “But under constitutional principles, UCLA may not allow services to some students when UCLA knows that other students are excluded on religious grounds, regardless of who engineered the exclusion.”
 
A preliminary injunction is usually a tell about where a court is going. In this case, it is more like a bullhorn.

​When the U.S. Supreme Court put challenges to Florida and Texas laws regulating social media content moderation on the docket, it seemed assured that this would be one of the yeastiest cases in recent memory. The Supreme Court’s majority opinion came out Monday morning. At first glance, the yeast did not rise after all. These cases were remanded back to the appellate courts for a more thorough review.
 
But a closer look at the opinion shows the Court offering close guidance to the appellate court, with serious rebukes of the Texas law.
 
Anticipation was high for a more robust decision. The Court was to resolve a split between the Fifth Circuit, which upheld the Texas law prohibiting viewpoint discrimination by large social media platforms, while the Eleventh Circuit upheld the injunction against a Florida law regulating the deplatforming of political candidates. The Court’s ruling was expected to resolve once and for all the hot-button issue of whether Facebook and other major social media platforms can depost and deplatform.
 
Instead, the Court found fault with the scope and precision of both the Fifth and the Eleventh Circuit opinions, vacating both of them. The majority opinion, authored by Justice Elena Kagan, found that the lower courts failed to consider the extent to which their ruling would affect social media services other than Facebook’s News feed, including entirely different digital animals, such as direct messages. The Supreme Court criticized the lower courts for not asking how each permutation of social media would be impacted by the Texas and Florida laws.
 
Overall, the Supreme Court is telling the Fifth and Eleventh to drill down and spell out a more precise doctrine that will be a durable guide for First Amendment jurisprudence in social media content moderation. But today’s opinion also contained ringing calls for stronger enforcement of First Amendment principles.
 
The Court explicitly rebuked the Fifth Circuit for approval of the Texas law, “whose decision rested on a serious misunderstanding of the First Amendment precedent and principle.” It pointed to a precedent, Miami Herald Publishing Co. v. Tornillo, in which the Court held that a newspaper could not be forced to run a political candidate’s reply to critical coverage.
 
The opinion is rife with verbal minefields that will likely doom the efforts of Texas and Florida to enforce their content moderation laws. For example:
 
“But this Court has many times held, in many contexts, that it 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.”
 
The Court delved into the reality of content moderation, noting that the “prioritization of content” selected by algorithms from among billions of posts and videos in a customized news feed necessarily involves judgment. An approach without standards would turn any social media site into a spewing firehose of disorganized mush. The Court issued a brutal account of the Texas law, which prohibits blocking posts “based on viewpoint.” The Court wrote:
 
“But if the Texas law is enforced, the platforms could not – as they in fact do now – disfavor posts because they:
 

• support Nazi ideology;
• advocate for terrorism;
• espouse racism, Islamophobia, or anti-Semitism;
• encourage teenage suicide and self-injury;
• discourage the use of vaccines;
• advertise phony treatments for disease;
• advance false claims of election fraud.”

 
So what appeared on the surface to be a punt is really the Court’s call for a more fleshed out doctrine that respects the rights of private entities to manage their content without government interference. For a remand, this opinion is surprisingly strong – and strong in protection of the First Amendment.

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

​A recent ruling by the Fourth Circuit Court of Appeals has struck a severe blow to the cause of parental rights and religious liberty. This contentious case revolved around the Montgomery County Board of Education's controversial decision to deny opt-out requests for certain LGBTQ+ inclusive texts used in K-5 classrooms.
 
As we’ve reported, parents argued that this policy infringed upon their First Amendment rights to shape their children's education regarding sexuality and gender, contending that it forced them into an untenable position: compromise their deeply held religious beliefs or withdraw their children from public education altogether.
 
The Fourth Circuit Court of Appeals affirmed the district court's decision, denying the parents' request for a preliminary injunction. The court concluded that the parents failed to demonstrate a substantial burden on their religious exercise, determining that exposure to the inclusive texts did not amount to a violation of their religious rights. The ruling emphasized that the school's curriculum did not compel students to affirm or renounce any beliefs, but merely exposed them to diverse perspectives.
 
Judge A. Marvin Quattlebaum issued a strong dissent in this case that should be required reading for anyone in need of a better understanding of the foundational importance of religious liberty.
 
Judge Quattlebaum criticizes the majority for not recognizing the burden placed on parents' religious rights. He asserts that “the board's decision to deny religious opt-outs burdened these parents' right to exercise their religion and direct the religious upbringing of their children by putting them to the choice of either compromising their religious beliefs or foregoing a public education for their children.”
 
A key point in Judge Quattlebaum's dissent is his emphasis on the non-neutrality and lack of general applicability of the board's actions. He argues that the board's decision was not neutral because it selectively imposed a burden on religious practices while accommodating other types of opt-outs, such as for Halloween or Valentine's Day celebrations. He asserts that the board's actions were discriminatory against religious beliefs, which is contrary to the First Amendment's protections. The judge writes:
 
“The policy was neither neutral nor generally applicable because it invited the government ‘to decide which reasons for not complying with the policy are worthy of solicitude’ in its sole discretion.”
 
Judge Quattlebaum also highlights that the parents were not attempting to ban the books but merely sought the ability to opt out. He points out that the school’s guidelines previously allowed for reasonable accommodations for religious beliefs, and the sudden reversal without clear justification exacerbates the burden on religious parents. He finds it problematic that the board changed its policy to no longer permit notice and opt-out options, a move he describes as an unexplained “about-face” that failed to consider the substantial impact on religious families.
 
While the board aims to foster an inclusive environment, Judge Quattlebaum argues that this goal should not come at the expense of fundamental religious rights. As he says:
 
“The board’s refusal to grant the parents’ requests for religious opt-outs to instruction with the books the board required be used to promote diversity and inclusivity to the LGBTQ+ community forces the parents to make a choice – either adhere to their faith or receive a free public education for their children. They cannot do both.”
 
Judge Quattlebaum's dissent stands as a powerful defense of the fundamental right of parents to direct their children's education according to their beliefs.

​There are tens of thousands of after-hours student groups in high schools across the country – from those celebrating film, music, chess, or drama to those of a more political or religious nature. At Noblesville High School in Indiana, for example, you could join the Young Democrats, the Young Republicans, the Fellowship for Christian Athletes, or the Gender and Sexuality Alliance. The one group students can no longer join is the Noblesville Students for Life (NSFL).
 
In August 2021 a freshman at Noblesville received initial approval to start a Students for Life chapter, which attracted 30 student sign-ups at the school’s fall activities fair. The following month, the student organizer prepared a poster advertising a club meeting, which featured a photograph of students outside the U.S. Supreme Court holding up life-affirming protest signs.
 
Then Noblesville’s principal “derecognized” the group, calling the poster “inappropriate” and too “political.” Noblesville, apparently, has a policy allowing administrators broad authority to issue prior restraints on student speech, barring “anything political in nature” as well as specific “political stance[s].” What constitutes “political” is entirely undefined and left up the whims of the individual administrator.
 
In December 2021, in coordination with Charitable Allies, the group’s student organizer brought suit against the school district, alleging First Amendment retaliation. The suit also claimed violations of the Equal Access Act, which prohibits discrimination against the political content of student groups meeting outside of class.
 
School administrators have every right to prevent students from engaging in disruptive conduct, but students have every right to express their First Amendment-protected viewpoints after hours.
 
Schools are limited public fora, which may issue viewpoint-neutral restrictions on groups. What they should not do is bar targeted political speech and then make ad hoc, biased determinations of what is unacceptable on a case-by-case basis. How the school found NSFL overly political when the Young Democrats and Young Republicans are permitted to meet and advertise their meetings is unfathomable. 
 
The administrators, of course, now claim they derecognized the club because of the student’s behavior, an argument contradicted by the evidence and the many contextual clues pointed out by the plaintiffs. It seems pretty clear that the principal simply doesn’t want the pro-life viewpoint represented at Noblesville High.
 
Ultimately, a District Court bought the school’s argument. Now the student is appealing to the Seventh Circuit, and this case is receiving legal backing from the Alliance Defending Freedom.
 
We hope that the court will recognize that rules must be neutral and that students don’t relinquish their First Amendment rights at the schoolhouse door – no matter how much some administrators might wish it were so.

​Facebook’s independent oversight board is now considering whether to recommend labeling the phrase “from the river to the sea” as hate speech. The slogan – often considered antisemitic – serves as a pro-Palestine rallying cry that calls for the creation of a unified Palestinian state throughout what is currently Israeli territory. What would happen to the millions of people who live in Israel today is, post Oct. 7th, the crux of the controversy.
 
However one feels about that phrase and its prominent, often uninformed, use by courageous keyboard warriors, it is appropriate that any debate about censoring it takes place in the open. This is particularly important for what is still a central social media platform, Facebook. Like X/Twitter, Instagram, and a few other media platforms, Facebook is an important venue for robust public debate. And while these private companies have every First Amendment right to moderate speech on their platforms on their own terms, because of their size and centrality we believe they nonetheless ought to be as open as possible about how they approach content moderation. Like all prominent thought leaders – individuals and companies alike – they can play an important role in reinforcing societal norms on matters of free expression, even if not legally obliged to do so.
 
Still, at the end of the day, it’s their call.
 
And make a call they did. According to the company, Meta analyzed numerous instances of posts using the phrase “from the river to the sea,” finding that they did not violate its policies against “Violence and Incitement,” “Hate Speech” or “Dangerous Organizations and Individuals.” This in contrast with the U.S. House of Representatives, which recently passed a resolution last month, 377-1, condemning the slogan as antisemitic. 
 
The House has a right to pass resolutions. But the opinions and sentiments of the government should not inform, and constitutionally cannot control, what we see on our news feeds. Already, we see too many instances of federal influence over social media platforms’ internal decisions, apparently done behind the scenes and always backed by an implied and sometimes expressed threat of coercion for highly regulated tech companies. Such government “censorship by surrogate” is inappropriate and inconsistent with the First Amendment. That’s why Protect the 1st opposes laws in Florida and Texas that would regulate how social media platforms police their own content. It’s simply not the place of government to use its power and influence to pressure private companies to remove posts or tell them how to make editorial choices.
 
In this same spirit, we urge any decisions by Facebook to remove content to be done with full transparency, especially when that content is of a political nature. No law requires this, nor should it, but transparency is a sensible approach that provides clarity to consumers and reformers about societal norms regarding free expression and association. Hats off to Meta for allowing its advisory board to review and to potentially overrule its decision. 

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

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

​Now that the bill to force the sale of TikTok has passed the U.S. Senate, and its signature by President Biden is certain, Protect The 1st as a First Amendment organization must speak out.
 
We believe the bill – soon-to-be-law – is reasonable.
 
Many of our fellow civil liberties peers make the valid point that if the government can silence one social media platform, it can close any media outlet, newspaper, website, or TV channel. We would oppose any such move with forceful public protest. But this is a compelled divestiture, which seems like the least restrictive way to protect the speech rights of TikTok’s American users while protecting their data. TikTok’s content is not the issue. The issue is one of ownership and operations.
 
The fundamental problem, of course, and the problem that gave rise to this legislation, is that TikTok is obligated by Chinese law to share all its data with the People’s Liberation Army, the military wing of the Chinese Communist Party. Under President Xi Jinping, Beijing has crushed democracy in Hong Kong, and silenced a newspaper – Apple Daily – while imprisoning its publisher, Jimmy Lai. Xi’s regime also frequently expresses malevolent intentions toward the United States. It arms Russia’s imperialist war to conquer Ukraine, a democracy. And it frequently advertises its own imperialist plan to conquer Taiwan, another democracy.
 
It doesn’t make sense to treat a publication utterly beholden to a regime that shutters newspapers, imprisons publishers, and supports wars on democracies as if it were just another social media platform.
 
Caution is warranted. A crisis between the United States and China is growing increasingly likely. TikTok gives China the means to dig into the private data of 150 million Americans, including families with parents working in the U.S. military, government, and business. To mandate a sale to an owner outside of China would begin the protection of Americans’ data, while allowing TikTok to remain the popular and vivid platform that people enjoy.
 
For more background on this issue, check out this recent PT1st post.

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