The FBI calls them “assessments.” Americans may experience them as First Amendment violations. 
 
A new Government Accountability Office (GAO) report suggests that many supposedly preliminary inquiries function as probes in waiting – particularly when they involve politics, journalism, or religion. According to the report, posted by the Cato Institute, more than 1,000 individuals and organizations have been subjected to preliminary assessments for investigation, a scope that should trigger immediate congressional concern. (Hat tip to Cato’s Patrick Eddington.)
 
The most alarming category involves so-called “Sensitive Investigative Matters,” or SIM assessments. These are FBI inquiries potentially into political campaigns and candidates, elected officials, journalists, religious leaders, or any other Americans engaged in core First Amendment activities. If any government scrutiny demands transparency and restraint, it is surveillance that begins with our rights to freedom of speech, belief, and association.
 
The GAO found that the FBI converted 48 percent of SIM assessments into Preliminary or Full Investigations. Eddington reports that these sensitive cases were 3.5 percentage times more likely to escalate than ordinary assessments – a statistical red flag for anyone told these probes are narrow, cautious, or exceptional.
 
Eddington writes:
 
“That’s especially alarming since, under Preliminary or Full Investigations, the agents running the case can employ wiretaps or other extremely intrusive and clandestine investigative techniques.”
 
Those tools – from electronic surveillance to confidential informants and covert collection – once deployed, are difficult to unwind. Lawmakers should require the FBI to disclose whether SIM assessments have targeted:
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• Members of Congress

 

• Political candidates and parties

 

• News organizations, think tanks, and NGOs

 

• News reporters and opinion journalists

 

• Churches, temples, and mosques.

At a minimum, the Bureau should provide the relevant oversight committees – especially the House Judiciary Committee – with a full accounting of past SIM targets and the total number of assessments elevated into full investigations. Congress should also ask who authorized these escalations. Were investigative decisions influenced by political appointees? 
 
And why are First Amendment-sensitive assessments more likely to escalate than ordinary cases?
 
The Founders knew the danger of unchecked investigations aimed at political and religious dissent. They rebelled against general warrants that allowed agents of the Crown to search first and justify later. SIM assessments risk reviving that same model – quiet surveillance justified by internal labels rather than public law.
 
Surveillance powers are easy to grant and hard to retract. Congress should press for an understanding of how existing authorities have been used against Americans exercising our most basic freedoms.

Sol Wachtler, former chief judge of the New York Court of Appeals, crafted perhaps the most famous aphorism in American law – that any prosecutor could persuade a grand jury to “indict a ham sandwich.”

Jeanine Pirro, longtime television judge turned U.S. Attorney for the District of Columbia, may have thought it would be that easy when she tried to indict six Democratic Members of Congress for posting a video informing active-duty military personnel that they had an obligation to refuse illegal orders. What she got from a grand jury on Tuesday was a lot of mustard on her face.

Wachtler’s point was that grand juries almost never refuse to issue an indictment. The reason is simple – in grand jury proceedings, there is no defense counsel to challenge the facts as presented. The jurors hear what the prosecutor wants them to hear, and only that. In Pirro’s case, they were told that these six lawmakers had violated a World War II-era statute – of questionable constitutionality – that makes it a crime to “interfere” with “the loyalty, morale, or discipline” of the U.S. military.

And yet these jurors refused to indict two U.S. senators and four Members of the House, including former Navy pilot Sen. Mark Kelly (D-AZ) and former CIA analyst who served in Iraq, Sen. Elissa Slotkin (D-MI). The four House Members include two Navy veterans, a former Air Force officer, and a former Army Ranger.

Critics of this video post make the point that it appeared at a time when President Trump was ordering the military to fire missiles into what were believed to have been boats ferrying drugs destined for the United States. Whatever one thinks of the boat strikes, some made the legitimate criticism that these members were flirting with the encouragement of defiance of lawful orders.

Outside of that context, however, these Members of Congress made a flatly factual statement – that under the U.S. Uniform Code of Military Justice, service members are required to disobey orders that are direct commands to commit a crime or violate the U.S. Constitution.

In the grand jury hearing, it is likely that no one made the point that the unprecedented prosecution of sitting Members of Congress for speech would represent an assault by the executive branch on the legislative branch. Nor is it likely that anyone told them that such an indictment would degrade the First Amendment, criminalizing speech in a way that exceeds any abuses of the past.
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These American citizens came to these conclusions on their own. And in so doing, they demonstrated the value of the grand jury system as a check on overweening prosecutors. It isn’t just ham sandwiches, after all.

​Within the last week, two Members of Congress were physically assaulted in public settings – grim reminders that political violence in America is no longer hypothetical.

Rep. Ilhan Omar (D-MN) was physically attacked on Tuesday during a town hall meeting by a man who used a syringe to squirt an unknown substance at her face. Rep. Maxwell Frost (D-FL) reported that on Friday he was punched in the face by a man at the Sundance Film Festival in Park City, Utah.

These attacks bring to mind House Majority Whip Steve Scalise (R-LA), who was shot along with three other people at a congressional baseball game in the Washington, D.C., area, in 2017. Rep. Scalise almost died.

Rep. Omar’s assailant has been described by his brother in the media as a “right-wing extremist.” Rep. Frost’s attacker appeared to be drunk and reportedly mouthed racial slurs. Rep. Scalise’s attacker was a left-wing activist with a history of domestic violence.

When extremists and unstable people attack elected officials, there can be no room for equivocation. Political violence is not a protest, is not justifiable by passion, and it is most certainly not speech. It is the negation of speech.

The normalization of such behavior would be a profoundly dangerous trend. In 1856, after Rep. Preston Brooks of South Carolina used a walking cane to beat and almost kill Sen. Charles Sumner of Massachusetts on the Senate floor, fury spread among the citizens of those states. The assault was not dismissed as an isolated outburst. It was understood, rightly, as a symptom of a nation losing its ability to resolve moral and political disputes without force. The resulting embitterment helped spark the Civil War, a bloodletting that didn’t end until more than 600,000 Americans were dead.

We might admire or deplore a given Member of Congress. But we must remember that every Member has been chosen in an election in a district that typically includes more than 700,000 Americans. Any physical attack on a representative is therefore an attack on the represented.
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Whenever we hear someone whose views strike us as blinkered, stupid, hypocritical, or radical to the left or to the right, the best solution is to take a deep breath and resolve to exercise our First Amendment rights.

​Can you remember a time when the survival of free speech in America – something we’ve long taken for granted – was suddenly a matter of national concern?
 
Consider what has emerged in the last year:

• The Biden Administration funded a foreign non-governmental organization that then mounted a secret effort to defund U.S. news outlets that had a libertarian or conservative stance.

 

• Charlie Kirk was murdered as he tried to hold a respectful debate on a college campus with people who disagreed with him.

 

• Brendan Carr, the Chairman of the Federal Communications Commission, urged the firing of a late-night talk-show host.

 

• The Trump administration issued executive orders punishing law firms by limiting their access to federal buildings and contracts, citing the political activities of former members of these firms.

We could go on. If you are a regular reader of this blog, you probably could as well. But there is good news – the American people are noticing what is going on in Washington – and they don’t like it.
 
The Foundation for Individual Rights and Expression conducts a quarterly survey that makes up its National Speech Index. It finds unprecedented levels of Americans concerned that the protection of free speech, the most basic of our liberties, is eroding.

• When asked in October if the right of people to freely express their views is heading in the right or wrong direction, 74 percent of respondents replied “wrong direction.” This is a 10-point jump from the previous July survey.

 

• People of all political persuasions are worried. Since July, Democrats who think the treatment of speech is heading in the right direction dropped from 17 percent to 11 percent; independents fell from 31 percent to 19 percent; and Republicans fell from 69 percent to 55 percent.

The survey also shows that while concern for free speech is rising, a substantial minority still doesn’t seem to understand or respect the basic principle of free speech.

• Almost a quarter of respondents believe a professor should be fired for saying, “Our colleges and universities are progressive indoctrination centers.”

 

• Fourteen percent would consider firing a professor who echoed the theme of the last successful presidential campaign, “We are going to make America great again.”

An NPR/PBS News/Marist poll in September found that 30 percent of American adults believe that Americans “may have to resort to violence to get the country back on track.”
 
Somehow, large numbers of Americans fail to appreciate that free speech means tolerating speech (and the politics) of people we intensely dislike. Recent events underscore this blind spot.
​

• Actor Jon Voight posted a statement over the weekend asking President Trump to “terminate” the mayoralty of New York Mayor-elect Zohran Mamdani to save us from this “communist fool.”

 

• The Washington Free Beacon reported on Monday that philanthropist George Soros has given $250,000 to the UK Center for Countering Digital Hate, which organizes boycotts of conservative speech.

These calls for censorship are morally wrong because they violate the inherent right of human beings to vote and speak as they wish, even if you think their ideas are disastrous. And the censors are endangering their own interests. A federal government powerful enough to overturn local elections and defund speech is powerful enough to turn on them.

​Rumors have swirled on Capitol Hill that Sen. Ted Cruz (R-TX) is drafting legislation to let Americans – whether skeptics of the COVID-19 origin story or late-night talk show hosts – sue the government for monetary damages when they are censored.

Sen. Cruz has now confirmed that he is indeed crafting such a bill, one that would create new legal remedies for those silenced by government pressure. His bill would also restrict “jawboning” – the process by which officials pressure social media companies or news outlets to suppress disfavored views. The Senate Commerce, Science & Transportation Committee, which Cruz chairs, held a hearing Wednesday that explored government censorship and how to stop it.

• The first witness was famed legal scholar and Protect The 1st Senior Legal Advisor Eugene Volokh, who presented testimony explaining that “jawboning” can be defined benignly as an act of persuasion. It can also be:

“Government officials trying to coerce through the explicit or implicit threat of retaliation stemming from their position of authority, e.g., through the threat of enforcement or regulation. As a practical matter, the two meanings are closely intertwined, especially since it may be hard to tell whether there is an implicit ‘or else’ behind a request.”

Volokh raised the subtle issue of precisely defining what constitutes government coercion. Sen. Cruz emphasized the “or else” threats implicit in jawboning campaigns by powerful government agencies. On the other hand, Volokh asserted, no law should restrict the ability of government officials to communicate with journalists. For example, a White House press secretary should be allowed to tell journalists that they got a story wrong.

But Volokh made it clear – citing a strong line of legal precedent – that “a government official cannot do indirectly what she is barred from doing directly.” Quoting from the U.S. Supreme Court’s unanimous opinion in NRA v. Vullo, he said “a government official cannot coerce a private party to punish or suppress disfavored speech on her behalf.”

• Sean Davis, executive director of The Federalist, gave a vivid account of what it feels like to be on the receiving end of speech coercion. Davis described the State Department’s Global Engagement Center (GEC) and how it targeted domestic news outlets:

“Despite the fact that GEC was explicitly prohibited by both the U.S. Constitution via the First Amendment and by the very statute which created and authorized the agency from targeting domestic speech, it nonetheless sought to drive us out of business by funding, developing, and distributing technologies and tools to reduce our reach, by bullying advertisers into blacklisting us and many other conservative outlets, and by coercing Big Tech companies like Facebook, Twitter, and Google to throttle access to our content. In essence, our own government secretly and without any due process charged us with thought crimes, convicted us, and sentenced The Federalist to death.”

• Alex Berenson, journalist and author – whose reporting on COVID-19 was censored by Twitter – testified that social media companies did not want to censor users, but acted out of fear of the government. (The same dynamic is visible today when the Chairman of the Federal Communications Commission publicly hints at regulatory action against broadcasters who air views he dislikes.)

About his ordeal, Berenson reflected on the dilemma of social media companies: 

“They viewed having to sacrifice speech from some users as the price they had to pay to stay in the administration’s good graces. Every company faces this calculus, whether a Democrat or Republican is in the White House.”

No American should have to calculate that one’s protected speech might trigger censorship or a regulatory crackdown.

Eugene Volokh added a grace note with a personal reflection that underscored the stakes. Fifty years ago to this day, he said, his parents brought him out of the Soviet Union.
​
Volokh concluded simply, that he wanted to “thank the United States of America for letting me in.”

Protect The 1st applauded the Senate’s passage of landmark school choice legislation with tax credits as part of the president’s “Big Beautiful Bill.”
 
“A seemingly small provision in the budget reconciliation bill passed by the Senate will uplift American school children and promote the future health of our nation,” said Bob Goodlatte, former Chairman of the House Judiciary Committee and Senior Policy Advisor for Protect The 1st. “With support from the House, for the first time in American history the right of parents to choose the best school for their children will be supported by a federal tax credit.
 
“This day is a great achievement by Sen. Majority Leader John Thune, Senate Finance Chairman Mike Crapo, supported by the longtime leadership of Sen. Bill Cassidy and Sen. Tim Scott,” Goodlatte said. “Their leadership, along with Sen. Ted Cruz, made the day.”
 
Gene Schaerr, Protect The 1st general counsel, said: “The measure is the mustard seed that is sure to grow into a sheltering tree. With 19 states having passed some form of universal school choice, this national bill will facilitate private school scholarships that will elevate the lives of American students and their families for decades to come.
 
“These scholarships will allow children from low-income households to have access to quality education previously reserved for well-to-do families,” Schaerr said. “And it will allow families to exercise their First Amendment rights by selecting the quality religious or secular school of their choice.”
 
Goodlatte added: “The House, having passed this once, now has the happy duty of advancing the measure in its current form and getting it to President Trump’s desk.”

The Senate Finance Committee just released its text for the budget reconciliation bill, a.k.a. the One, Big, Beautiful Bill. The text (see p. 168) builds upon the provisions the House passed a few weeks ago for a national federal scholarship, the Educational Choice for Children Act (ECCA).

The Senate language creates $4 billion a year in permanent tax credits that grant 100 percent, non-refundable credits against individual income taxes for donations to qualified scholarship granting organizations. These scholarships would be available for student families to pay for private-school tuition, books, and teaching materials for home schooling expenses, and educational therapies for children with disabilities.

“Credit goes to all the energetic supporters of this bill in the Senate Finance Committee, including Finance Chairman Mike Crapo and the bill’s sponsors, Sen. Bill Cassidy and Sen. Tim Scott,” said Bob Goodlatte, Senior Policy Advisor to Protect The 1st and former Chairman of the House Judiciary Committee. “Of course, the Senate and the House will need to work out a few differences. Then the way should be clear to get it to the president’s desk.
​
“Those who support this bill will be aligning themselves with the supermajorities of Americans of both parties who want families to have options in the quality and character of their children’s education,” Goodlatte said. “Abundant evidence shows that competition in education is proven to improve the quality of public schools, and it is certainly in the best interests of America’s schoolchildren.”

​Sen. Tim Scott’s latest legislative effort – the High-Quality Charter Schools Act – should be welcomed by anyone who values liberty, educational opportunity, and the full expression of our First Amendment rights. The South Carolina Republican is introducing a 75 percent federal tax credit for charitable donations to nonprofit charter school organizations with proven excellence. The aim is clear – to break down the financial barriers that prevent communities from opening the schools their children need.
 
“No matter their background, race or zip-code, every child deserves access to a good school,” Sen. Scott said in his introduction of this bill. “Millions of families – including thousands across South Carolina – choose charter schools for the high-quality education they provide.” He said that this bill will strengthen the best educational opportunities for families that need it the most.
 
For Protect The 1st, this bill isn’t just sound policy. It is a way to fulfill the promise of the First Amendment. Parents have a right, grounded in part in that Amendment, to guide their children’s education in ways that reflect their values and beliefs across generations. School choice empowers families to act on that right, whether through religious schools, charter schools, or other educational models.
 
The First Amendment protects both free speech and religious liberty. School choice legislation like this honors both. It enables families to seek out educational environments – secular or religious – that align with their convictions, without government interference.
 
We’ve seen this principle in action with the Educational Choice for Children Act. That measure, now part of the reconciliation package before the Senate, would offer similar tax credits for donations to organizations that fund scholarships for private and religious schools. It’s about using private donations to give families more options and students better chances. In Sen. Scott’s bill and the ECCA, money comes from voluntary donations, not state tax dollars.
 
Moreover, contrary to arguments by critics, there is abundant evidence showing that competition from school choice actually improves public schools. Out of 28 studies that explored the causal relationship between school choice and the performance of public schools, 25 found that school choice improves educational attainment in traditional school systems. “In terms of social-scientific validity, that’s a slam dunk,” writes Alexander William Salter, economist at Texas Tech University. When families have options, everyone wins.
 
Sen. Scott’s focus on charter schools adds another dimension, supporting schools that often serve low-income and minority students. It offers alternatives where the public system has failed. Sen. Scott’s bill respects American pluralism and helps close the gap between educational ideals and the lived reality of American families. Perhaps most important, it gives parents greater control over the destiny of their children. It does this by supporting institutions – charter, religious, and independent – that reflect America’s diversity while enabling the fullest exercise of the First Amendment.

​Under the leadership of Chairman Jason Smith (R-Mo.), the House Ways and Means Committee approved the Educational Choice for Children Act (ECCA) on Wednesday as part of the tax package in President Trump’s “big, beautiful” reconciliation bill. This measure provides $20 billion in tax credits over the next four years to non-profit Scholarship Granting Organizations to pay private school tuition and educational materials for children throughout the United States.
 
“This is hopeful news for millions of American students and their parents,” said Bob Goodlatte, former Congressman and Chairman of the House Judiciary Committee, and Senior Policy Advisor to Protect The 1st. “Giving parents the ability to choose the best school for their children is a powerful expression of the First Amendment across the generations. Whether parents choose a private school that specializes in the sciences and technology, or the arts, or a religious school, they are free to make the best choice for their children.
 
“Our gratitude goes to Chairman Smith and all of his colleagues who stood behind the ECCA,” Goodlatte said. “We are also grateful to the followers of Protect The 1st who answered our call to let House Members know how important this legislation is to the families and children of America.
 
“We urge more Members to get behind the passage of this bill by the full House and the Senate, and its delivery to the president’s desk.”

​James G. Blaine is little remembered today, but in post-Civil War America he bestrode the American political landscape like a colossus. A U.S. Senator, Speaker of the House, Secretary of State, and Republican nominee for President, Blaine (derided by Democrats as the “continental liar from the State of Maine”) was one of those figures – like Daniel Webster or Henry Clay – who were more significant than many presidents.
 
Blaine’s legacy lives on as eponymous “Blaine Amendments” – language in state constitutions that prohibits public funding for schools run by religious organizations. These are the children of Blaine’s proposed but failed U.S. constitutional amendment crafted when many Americans panicked about Irish and Italian immigrants, corrupting America with their “Romanism.” The blatantly anti-Catholic purpose of Blaine’s proposal came at a time when most public schools had an overtly Protestant bent.
 
Blaine amendments are now in the constitutions of 37 states. They remain consequential, denying equal access to public funding for schools run by the Catholic Church and other religious organizations that meet state-mandated standards in English, science, math, and other core subjects.
 
This is problematic for South Carolina, which recently passed the Education Savings Trust Fund Act, which would have allowed low-income families to use state-provided scholarships for private school tuition. But the South Carolina Constitution prohibits using public funds for the “direct benefit” of private educational institutions. The South Carolina Supreme Court was forced to strike down this school voucher program, dealing a harsh blow to families seeking educational freedom.
 
That decision has left families scrambling to find alternatives after their financial support was cut off mid-school year. David Warner, a South Carolina father, described the ruling as “a kick in the stomach,” knowing he now has to tell his son in sixth grade he can no longer afford the school he loves.
 
Sen. Tim Scott (R-SC), a vocal advocate for school choice, has called school choice the “civil rights issue of our time.” His words resonate with many South Carolina families who view school choice not just as an educational policy, but as a step toward opportunity and empowerment. For many, the local public school might not provide an environment for their children that allows for the transmission of their values. Many public schools are often not even safe.
 
The Protect The 1st Foundation in our amicus brief explained the civil rights principles at stake in this program before the South Carolina Supreme Court. Our brief told the court that the scholarship program “promotes the exercise of First Amendment-protected religious and speech rights by enabling families who could not otherwise afford to do so to choose among a wide variety of schools and find those that align with their own varied beliefs and values …
 
“It is no surprise, then,” Protect The 1st explained, “that the data show that school choice programs like the one challenged here lead to higher graduation rates, better test scores, and greater civic engagement – not only for students who receive scholarships through the program, but also for students who choose to remain in public schools.”
 
If this sounds improbable, consider the research of Alexander William Salter, an economics professor at Texas Tech University. Salter reports that out of 28 studies that explore the link between school choice and district-school outcomes, “25 found that school choice improves educational attainment in traditional school systems. In terms of social-scientific validity, that’s a slam-dunk.”
 
For now, the South Carolina court’s decision closes the door on a program that gave 5,000 students a chance to explore other educational opportunities. Yet, while the court acknowledged there is public demand for school choice, it also pointed out that any change must come from amending the state constitution.
 
South Carolina has amended its constitution 100 times since 1974, including twice in 2022. But even if the Palmetto State removes its Blaine Amendment and opens the way forward for needy children to get a quality education, there will be 36 other states in which quality schools that meet state standards are officially discriminated against.
 
Congress can resolve this matter by overriding Blaine Amendments, enshrining recent U.S. Supreme Court opinions (Espinoza v. Montana and Carson v. Makin) into national law. That ought to be issue one for Speaker Mike Johnson, the new Senate Majority Leader John Thune, and Education Secretary nominee Linda McMahon.