​The U.S. Supreme Court in 1952 slapped down President Harry S. Truman’s Executive Order 10340, which nationalized America’s steel factories to stabilize production during the Korean War. Justice Hugo Black wrote for the majority that “we cannot with faithfulness to our constitutional system hold that the Commander-in-Chief of the Armed Forces has the ultimate power as such to take possession of private property...”
 
Washington, D.C., today has a workaround to control business in a way that no Court opinion will likely overturn. Its approach is very simple – invest taxpayer money in a targeted company. This may be perfectly legal, but it is certainly dangerous. How free can a company remain when the most powerful monopolist of them all – Uncle Sam – sits on its board?
 
Make no mistake, Washington is making huge inroads into private businesses, and the list is growing. To cite one example, the White House has made deals with Nvidia and AMD to take a 15 percent cut from their revenues from computer chip sales in China. This is not regulatory oversight. It is revenue-sharing with the government.
 
Government also invests by leveraging its regulatory permission. The Trump administration took a “golden share” in U.S. Steel as a precondition for allowing Nippon Steel of Japan to acquire the company. The government’s golden share now gives Washington veto power over plant closures, factory idling, offshoring, moving the company’s headquarters from Pittsburgh, or even changing the company’s name.
 
With U.S. Steel, shares were “bought” in exchange for settling the administration’s claim against the company. Only the 800-pound gorilla of government could get away with threatening an acquisition, and then remove the threat and watch the value of its investment rise. This is not a market exchange. It is nationalization by another name.
 
Such government ownership of the means of production (sound familiar?) guarantees that business decisions will be politicized.
 
Would a defense contractor reliant on Washington’s goodwill feel pressured to purchase components from a company partially owned by the federal government? Would a company feel free to announce layoffs in a swing state, or subsidize an inefficient investment for political protection? Would a company that is partly government-owned turn to Washington to approve its business strategy?
 
Washington is not exactly shy about directing business strategies.
 
President Biden lectured snack companies about producing too few potato chips per bag and pressured social media companies to deplatform dissenting voices he accused of “killing people.” President Trump, meanwhile, personally lobbied Coca-Cola to replace high fructose corn syrup with cane sugar. When President Trump read media reports that Amazon was considering posting the added costs of tariffs to some of its products sold online, the president called Amazon CEO Jeff Bezos to complain. “Jeff Bezos was very nice,” President Trump told reporters. “He solved the problem very quickly.” As Washington continues mixing public power and private enterprise, expect more heavily regulated companies to be “very nice” in not speaking out about the price impact of tariffs.
 
As the state’s power increases, the ability of companies to speak freely will also shrink. Witness the whipsawing of General Motors CEO Mary Barra, who supported the first Trump administration’s legal actions in favor of fossil fuels, then endorsed President Biden’s mandate for an all-electric future, only to later donate $1 million and provide vehicles for the Trump Inauguration. Last week, GM announced a $1.6 billion write-off for its electric vehicle business as it switches back to gasoline-powered vehicles.
 
Whatever Mary Barra really thinks, she has an obligation to her company to parrot the currently approved line from whichever party is in power.
 
This marks a departure from historic norms. J.P. Morgan, Bernard Baruch, and Lee Iacocca gave presidents unvarnished technical and economic advice. But as Washington increases its ownership of business – amplified by regulatory gamesmanship like the whiplash inflicted on car companies – expect executives to sound less like independent business leaders and more like government mouthpieces.
 
A government that owns a business will not tolerate disagreement from it. Every share Washington buys comes with a little less freedom for everyone else. Perhaps Congress should consider passing a First Amendment Is Not for Sale Act.

​When President Trump issued an executive order directing the attorney general to prosecute those who burn American flags, it struck many as a snub of the U.S. Supreme Court. Did the president’s order fly in the face of a 1989 Supreme Court opinion, Texas v. Johnson, holding that flag-burning is protected by the First Amendment?

“We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents,” wrote Justice William Brennan for the 5-4 majority in that case.

Even Justice Antonin Scalia, known for conservative social views, gave the majority its decisive swing vote. He later said that if he were king, “I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.” Justice Scalia put his understanding of the Constitution before his personal preferences.

President Trump’s executive order seems to ignore this clear precedent, putting emotion above legal logic. The president wrote that desecrating the flag “is uniquely offensive and provocative.”

And it is.

The Executive Order and the Boundaries of the Law
But the First Amendment does not allow speech to be outlawed simply because it is offensive or provocative. There are other, more complex issues for the courts to consider in this executive order. The president took pains to expand enforcement while purporting to acknowledge the boundaries of the law.

Consider two distinctions in the president’s executive order.

• First, the order directs the attorney general to rely on existing national criminal and civil laws that are “content neutral” and focus on harms “unrelated to expression.”

 

• Second, it targets burning this “representation of America” in a way that may “incite violence and riot.” The president specifically singled out flag burning by “groups of foreign nationals as a calculated act to intimidate and threaten violence against Americans because of their nationality and place of birth.” The executive order also notes that the Supreme Court has never extended constitutional protection to “fighting words” that are “likely to incite imminent lawless action.”

This seems an attempt to build on the 2003 Supreme Court ruling in Virginia v. Black, which affirmed the right of Virginia to ban cross burning when it is done with the intent to intimidate. Writing for the majority, Justice Sandra Day O’Connor noted the long history of “whipping, threatening, and murdering” associated with burning crosses.

From this history, she concluded:

• “The protections the First Amendment affords speech and expressive conduct are not absolute … Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”

The Trump executive order attempts to predicate action against flag burners on this principle. But does every instance of flag-burning place specific Americans in fear of bodily harm or death? Is that reasonable, or too much of a stretch? It is one thing to burn a cross on a particular person’s front lawn, quite another to burn a flag as part of a mass protest against the government rather than against individual Americans.

Is the Executive Order Content Neutral?
Similar principles apply to the directive to use “content-neutral” laws relating to harms unrelated to expression. While content-neutral enforcement of laws against burning things in public places would of course be reasonable, the executive order specifically directs a content and viewpoint-based enforcement against burning American flags. That is hardly content neutral, and the order makes clear that the harm it goes after is exactly based on the expressive content of the act of burning an American flag, not any concern with fire safety. If the executive order does not include enforcement on burning the flags of other countries, it is by definition not content neutral.

Courts will have to decide whether a viewpoint-based directive to selectively enforce otherwise permissible laws can end-run existing precedent on flag burning. This being America, within hours of the executive order’s release, a man torched an American flag across the street from the White House. He was arrested, but not for burning the flag. He was arrested for starting a fire in Lafayette Park.

That seems reasonable to us. Starting fires is illegal in most public places, and is not exactly the safest activity. Would the police plan to be equally diligent against flammable conduct the president likes – perhaps a pardoned January 6th protester burning a picture of the J6 Committee in effigy?
​
There may be specific instances in which flag burning poses a threat of imminent violence. Attaching such a threat to all flag burning could, however, be just a means of punishing the expression by imposing the costs of arrest and defense, regardless of the merits of the charge.

​In the meantime, we point to the words of Justice Anthony Kennedy, who wrote in a 2003 concurring opinion: “It is poignant but fundamental that the flag protects those who hold it in contempt.”

​Is a drag show an expressive activity worthy of First Amendment protection?
 
On Monday, the U.S. Fifth Circuit Court of Appeals decided that it is. In a 2-1 ruling, the court blocked West Texas A&M University President Walter Wendler from preventing a student group from sponsoring a drag show at a campus event center.
 
President Wendler put forward multiple arguments defending his ban. The court’s majority opinion, written by Judge Leslie Southwick, dismantles Wendler’s arguments one by one. That opinion, paired with a strong dissent by Judge James Ho, makes an excellent primer on recent developments in First Amendment law.
 
“A Fool’s Drag Race”
The drag show was organized by Spectrum WT, a recognized student group, at this public university in Canyon, Texas, just south of Amarillo. Titled A Fool’s Drag Race, the show aimed to raise funds for a suicide prevention initiative among LGBT+ youth. Organizers promised to keep the show at a “PG-13” level.
 
Three Arguments Slapped Down
One of Wendler’s objections was that, to qualify for First Amendment protection, an event must present a particular and discernible point of view. Judge Southwick rejected this, citing a 1995 Supreme Court decision that held that “a narrow, succinctly articulable message is not a condition of constitutional protection.” Otherwise, the abstract paintings of Jackson Pollock, the atonality of the modernist composer Arnold Schöenberg, or Lewis Carroll’s whimsical Jabberwocky verse would be unprotected. (Judge Southwick, a George W. Bush appointee, noted archly that the First Amendment even protects “opaque judicial opinions.”)
 
In short, all expressive works are protected by the First Amendment – including, apparently, cross-eyed impersonations of Liza Minnelli singing “Cabaret.”
President Wendler also protested that drag shows do not “preserve a single thread of human dignity,” which comes from being “created in the image of God.” He objected that drag shows, like blackface, “stereotype women in cartoon-like extremes for the amusement of others and discriminate against womanhood.”
 
Some agree. Others disagree. Most simply laugh at the campy performances and lip-sync fails. Judge Southwick, however, observed: “Drag shows – with performers dancing and speaking to music on stage in clothing associated with the opposite gender – mark a deliberate and theatrical subversion of gender-based expectations and signify support for those who feel burdened by such expectations.”
 
Wendler also protested that the campus venue, Legacy Hall, “is not open to the general public.” This would place the event squarely under Supreme Court case law dealing with the right of universities to place restrictions on the use of school resources. But Judge Southwick noted that past uses of Legacy Hall include a local church group’s “Community Night of Worship and Prayer,” a congressional candidate’s forum, a local high school’s “Casino Night,” a dance, a local nonprofit’s benefit gala, a livestock show, and a religious retreat center’s dinner.
 
He concluded: “These past uses, or practices, do not support that West Texas A&M University has limited Legacy Hall to ‘public expression of particular kinds or by particular groups.’”
 
Overall, we largely agree with the majority’s ruling under current Supreme Court precedent. While universities may limit some expression to protect their educational mission, “a justification for selective exclusion from a designated public forum must be carefully scrutinized.”
 
But Bad Precedent Remains
On the other hand, Judge Ho’s dissent highlights a remaining threat to the First Amendment on campus. He wrote:
 
“But as anyone aware of current campus conditions nationwide can attest, the vision of the university as a First Amendment haven is woefully naïve – at least when it comes to views disfavored in certain circles.
 
“Just ask the Christian Legal Society. Members of the CLS chapter at the Hastings College of Law sought to exercise their First Amendment right to associate with fellow believers who share their Biblical views on marriage and sexuality … But university officials chose to expel CLS – and only CLS – from campus. And the Supreme Court sided with university officials over CLS.”
 
Judge Ho quotes the Supreme Court’s insistence from this 2010 case that the First Amendment must be analyzed differently “in light of the special characteristics of the school environment,” in which “judges lack the on-the-ground expertise and experience of school administrators.”
 
With his trademark bluntness, Judge Ho writes: “This is all bunk, of course.”
 
He blasted the Court’s opinion for its deference to “academic ‘experts’” who “advocate policies that violate our nation’s most cherished principles.” Judge Ho adds:
 
“CLS contradicts all these principles. But only the Supreme Court can overturn its own precedents. So until the Court itself overturns CLS, we’re bound to follow it.”
 
Judge Ho’s logic oddly aligns with the majority opinion. Judge Southwick chips away at precedent, while Judge Ho insists on rigorously applying it – though with the shoe now on the other ideological foot. Both suggest CLS is flawed and that viewpoint discrimination has no place in public universities.
 
One unfortunate result of this opinion – a real drag, if you will – is that this case will not give the Supreme Court a chance to revisit CLS. But given the state of America’s colleges and universities, there should be no shortage of cases to test that precedent.

​Does the First Amendment’s protection of free speech extend to non-citizens? To paraphrase Avril Lavigne’s old hit, it’s complicated.
 
In this era of rising immigration enforcement, the speech rights of legal visitors to the United States have suddenly become an acute issue. The latest test case comes from The Stanford Daily and two unnamed legal resident noncitizens and student journalists who are suing Secretary of State Marco Rubio and Secretary of Homeland Security Kristi Noem for what they see as the chilling effect administration policies are having on their freedom of expression.
 
“As an independent student paper whose mission is to represent the voices of the Stanford community, this fear of the government directly impacts the quality of our work,” the editors declared. Given that a foreign student could be arrested and expelled from this country and have his or her education terminated, that is a real and palpable fear.
 
The Foundation for Individual Rights and Expression (FIRE) is representing the student newspaper of Stanford University (here is the full complaint and this description of the lawsuit and its background). FIRE has also published a full-throated response to critics in defense of this lawsuit. It’s part civics lesson, part philosophical exposition, and well worth reading.
 
Given, however, that this suit is at the intersection of First Amendment rights and laws concerning foreign policy this case is, as we said, complicated.
 
The courts have periodically wrestled with the extent to which constitutional rights apply to non-citizens since the 1880s. Foreign visitors can certainly have their constitutional rights violated, as in the case of Tufts Ph.D. student Rümeysa Öztürk’s right to due process. After this student from Turkey added her name to an opinion-editorial that made moderate criticisms of Israel, Öztürk was arrested by a group of masked federal agents dressed in all black who whisked her off, for a time, to a detention facility in Louisiana.
 
Understandably, the young woman at first thought she was being kidnapped, not arrested.
 
Öztürk was later released by an international outcry (including from 27 Jewish groups, whose amicus brief accused the government of using antisemitism “as pretext for undermining core pillars of American democracy, the rule of law, and the fundamental rights of free speech and academic debate”).
 
Thanks to cases like this, overreach may end up being the Oxford English Dictionary’s Word of the Year for 2025. It’s happened in Öztürk’s case and elsewhere, and FIRE’s lawsuit suggests it may be happening again. Yet FIRE’s Stanford Daily case is less clear cut.
 
It’s complicated in part because the suit isn’t about a specific incident. Instead, the focus is the interpretation of two foreign policy provisions that have been in place for 60 years, since the passage of the Immigration and Nationality Act:

• One provision allows Secretary Rubio to deport noncitizens if he “personally determines” their speech “compromises a compelling foreign policy interest.”

 

• The other enables the secretary to revoke the visa of a noncitizen “at any time” for any reason.

FIRE’s lawsuit seems to be aiming for a declaration of unconstitutionality if the reason for deportation is clearly protected First Amendment speech. And therein lies another complication: Unlike citizens, non-citizens can be deported if their speech is deemed to fall into one of the categories historically unprotected by the First Amendment, such as incitement, true threats and obscenity.
 
Finally, protected categories of speech are simply less robust in reach when it comes to noncitizens:
​

• Immigration law can weaponize otherwise lawful speech against non-citizens, depending on whether the expression is interpreted as advocating for terrorism or anti-U.S. policies. Consider Secretary Rubio’s justification for arresting protestor Mahmoud Khalil, for posing “potentially serious adverse foreign policy consequences for the United States.”

 

• As the Freedom Forum points out, “The Constitution does not specify whether the First Amendment applies only to citizens. Rather, those who wrote it talked about ‘the people.’”

Columbia’s Knight First Amendment Institute offers an exhaustive analysis of these points. In sum, the law governing potential actions against resident aliens grants the government sweeping power. With such power comes the responsibility to use it with wisdom and restraint.

​Police in Allentown, Pennsylvania, have long drawn the scrutiny of civil libertarians over claims of excessive force and occasional brutality. Since 2015, the city has paid out more than $2 million in police misconduct claims.
 
Phil Rishel, a 25-year-old Allentown resident, is determined to drive home Allentown’s lack of training in the First Amendment for its police force. He has often filmed police to demonstrate the point that he has a constitutional right to do so. In one of his recent posts, in which Rishel filmed a police garage through widely spaced bars from a public sidewalk, an officer sternly told him that “filming is not a First Amendment right.”
Courts have long held the opposite – that a citizen’s right to film in public is a vital form of public oversight, as seen in the arrest of a citizen-journalist who dared to film a public hearing in Texas. (Here’s a good guide on your rights and suggestions on how to film the police from the ACLU.)
 
Rishel’s recent posts have blown up the internet in which he has an insulting interaction with a police officer in the garage. In that recent video, the officer loses his cool and drives his police car down the sidewalk toward Rishel, who gleefully films him. When the officer inadvertently bangs the side of his car against a sidewall, Rishel responds with profane insults about the officer’s intelligence.

​Rishel has beaten charges of “verbally abusing, harassing, and screaming obscenities on the public street.” Local courts have recognized that swearing and even flipping the middle finger amount to constitutionally protected speech. Now the Foundation for Individual Rights (FIRE) is backing Rishel in his First Amendment lawsuit to protect his right to film and criticize police activities.
 
As Rishel tells an officer in his video, “there is no purer form of protest than on a public sidewalk.”
 
Well put. But can the same be said for Rishel’s pointed insults? They almost certainly fall far short of the Supreme Court’s “fighting words” threshold for what would constitute an actionable offense.
 
One likely – and commendable – result of this incident will be enhanced First Amendment training for Allentown police. Still, we don’t feel like breaking out the champagne over this one. Yes, the U.S. Constitution protects Phil Rishel’s right to act like an insulting jerk who provokes police officers into overreacting. But provoking police officers in a very personal way – who are, after all, human – is not a good way to test the boundaries of the First Amendment.

Should the Roman Catholic sacrament of confession be turned into a form of law enforcement surveillance?
 
That is exactly what a new Washington State law does, requiring Roman Catholic priests to report any knowledge of child abuse that emerges during confession.
 
The author of this law, state Sen. Noel Frame, said she could not “stomach any argument about religious freedom being more important than preventing … abuse,” that it was “traumatizing to have colleagues … tell me to my face that religious freedom is more important than protecting children,” and “you never put somebody’s conscience above the protection of a child.”
 
An eloquent brief before a federal court in Tacoma, Washington, from Catholic bishops makes both a passionate and practical case demonstrating why Sen. Frame’s argument and this new law is wrong-headed. It harms both the First Amendment’s guarantee of the free exercise of religion while taking away the prime means the Church has of disciplining and stopping child abusers.
 
As a law intended to protect children, it scores an own goal. Here are a few choice excerpts from the bishops’ brief.
 
The Washington State law presents priests with a “Hobson’s choice” between eternal damnation and criminal prosecution.
 
“A priest who directly violates the sacramental seal incurs a latae sententiae excommunication – i.e., automatic excommunication – thereby risking eternal damnation. Accordingly, the historical record is replete with examples of Catholic priests choosing death as martyrs rather than succumbing to government demands that they violate the sacramental seal.”
 
It overturns a principle recognized in American law for more than 200 years.
 
The new law “runs directly counter to longstanding caselaw recognizing the confessional seal as part of the Catholic Church’s autonomy protected by the First Amendment. For example, in People v. Philips, one of the earliest-known religious freedom cases in the United States, the Court of General Sessions of New York City refused to force a Catholic priest to testify in a criminal case about what he heard in the Sacrament of Confession …
 
“As that court observed, ‘The sinner will not confess, nor will the priest receive his confession, if the veil of secrecy is removed.’”
 
The new law violates the First Amendment’s free exercise clause by replacing church governance with government regulation.
 
“The Sacrament of Confession and the meting out of penance is one of the means by which the Catholic Church disciplines its members. By requiring that Catholic priests disclose what they hear in confession, Washington is directly intruding upon, and chilling, that form of discipline.”
 
It singles out priests while exempting lawyers, law school clinics, and others.
 
In addition to lawyers, the new law exempts parents, domestic partners, and family members. It simply targets priests.
 
Above all, the new law will hurt, not help, the reporting of child abuse and rescue of children from dangerous situations.
 
“Moreover, when the priests in each diocese, including all Plaintiffs, hear confessions involving sins of child abuse or neglect, they could counsel the penitent to self-report and obtain the necessary temporal intervention and help.
 
“And priests in each diocese, including all Plaintiffs, who suspect based on what is disclosed during confession that the penitent is suffering from abuse or neglect, the penitent has engaged in abuse or neglect, or some third party has engaged in abuse or neglect, could invite the penitent for counseling outside of the Sacrament of Confession and, if the penitent agrees to that counsel, the priest must report any information learned in that counseling session required to be reported by diocesan policies …”
 
When the law requires priests to report child abusers to the police, no child abuser will confess. And without a confession, no priest can impose discipline by requiring the penitent to go to counseling and to turn himself into the police. It is the Washington State law that removes those tools to protect children that should make one sick to the stomach.

​Federal Judge Beryl Howell made a necessary call Wednesday when she issued a temporary restraining order blocking parts of the March 6 executive order that sanctioned the entire Perkins Coie law firm.
 
“We can’t recall a similar White House order from any president,” The Wall Street Journal opinion editors wrote. We can’t either. If the massive enforcement powers of the federal government can be used for such blunderbuss political retaliation, it would violate the First Amendment rights of law firm personnel and harm the due process rights of their clients. It would also set a precedent that conservatives and MAGA supporters would surely live to regret whenever a progressive administration returns to office.
 
To be fair to the White House, some former Perkins Coie lawyers attracted justifiable criticism for facilitating the dubious dossier and false reports to the FBI general counsel that cast then-candidate Donald Trump as a Russian agent. An investigation by the Justice Department Inspector found that the dossier was a sloppy, gossip-laden compendium of misstatements, used by the FBI (which knew the dossier was unreliable) to obtain four warrants to surveil Trump campaign advisor Carter Page, and through him, the campaign itself.
 
Still, this doesn’t begin to justify an executive order that bars more than 1,000 Perkins Coie lawyers from entering federal buildings and restricts government contractors from working with their firm. The vast majority (if not all) of the current Perkins Coie attorneys working on thousands of cases today had nothing to do with the controversies surrounding the Trump-Russia accusations. And the two Perkins-Coie partners who were responsible for the creation and spreading of these accusations left the firm in 2021. So the executive order plainly overreaches.
 
Indeed, if the full executive order had been kept in place, Perkins Coie lawyers would have been barred from all federal buildings, harming their ability to represent clients. And if the order included courthouses, it would have essentially disbarred them as litigators – all without any legal process to determine whether any particular lawyer merited such punishment. Such orders harm not just the firm’s lawyers, but also their thousands of clients who depend on them for effective representation.
 
All Americans deserve representation. And law firms – even if you detest their politics – have a First Amendment right to lean woke, MAGA, libertarian, or vegetarian.
 
This controversy brings to mind Paul Giamatti’s portrayal of John Adams, in HBO’s magnificent series of the same name. Giamatti portrayed Adams stepping forward to defend British soldiers standing trial for murder after the Boston massacre. When challenged by Sam Adams that “this is a time for choosing sides,” John Adams replied, “I am for the law, cousin. Is there another side?”

​Freedom of speech, of course, comes immediately to mind. Then there is the other one, and the one after that, and then those other two… maybe the right to free home food delivery during the college playoffs?
 
If you cannot remember them all, you’ve got lots of company. Consider Justice Amy Coney Barrett. On the high bench for four years, she has already made her mark as an incisive and independent thinker on the U.S. Supreme Court. Yet Barrett could only name four of the rights protected under the First Amendment while under the pressure of her nomination testimony. When asked to enumerate them by then-Sen. Ben Sasse, Barrett got a puzzled look on her face and asked, “What else am I missing?”
 
Of course, this this was just a momentary lapse on the part of someone whose early career included clerking for Justice Antonin Scalia. Four out of five is for most people a pretty good score. The Annenberg Public Policy Center performed a survey in September that revealed that only one-third of Americans could name a majority of three of the five rights. Only 7 percent could name all five.
 
So what are the five specific rights guaranteed under the First Amendment? And what are the percentages of Americans in Annenberg’s poll who got them right?

• Freedom of speech (74 percent)
  
  
• Freedom of religion (39 percent)
  ​
  
• Freedom of the press (29 percent)
  

 

• Right to assembly (27 percent)

 

• Right to petition the government (11 percent)

 
In her hearing, which one did then-Judge Barrett suffer a temporary memory lapse about? The last one, the right to petition the government for a redress of grievances.
 
Annenberg’s poll also shows that less than two-thirds of Americans can name all three branches of government. These are, of course, igneous, metamorphic, and sedimentary. No wait, Moe, Larry, and Curly? The good, the bad, and the ugly maybe? Thank goodness for Wikipedia. Even better, let’s restore a solid civics education to American high schools. If virtually every American child can learn all the cartoon characters on Bluey, we can instill the basics of our constitutional order.

​Of all the things Americans expressed thanks for last Thursday, Protect The 1st is so grateful for the First Amendment that we adopted it as our namesake. The First Amendment in the Bill of Rights is a simple guarantee of our constitutional right to speak freely, enshrined in our written constitution. It provides a bulwark against the encroaching tide of censorship that has eroded free expression in other countries.
 
The importance of a written guarantee of free speech is demonstrated in the alarming decline of free speech in Anglophone countries, long seen as bastions of liberty, that lack such a constitutional guarantee. Recent examples from the United Kingdom, Canada, and Australia underscore the importance of this uniquely American right.
​
The United Kingdom, the birthplace and champion of free speech, has increasingly succumbed to policing and punishing speech deemed offensive. Its 1986 Public Order Act made it a criminal offense to use “threatening, abusive, or insulting” words that might cause someone “harassment, alarm, or distress.” While the law’s language seems aimed at curbing harm, it effectively outlawed the mere act of offending someone. This led to absurd prosecutions, such as a man arrested for calling a police horse “gay” and a teenager detained for labeling Scientology a cult. These cases illustrate how the power to define “insult” can be wielded arbitrarily, stifling legitimate expression.
 
More recently, the UK has seen the rise of "non-crime hate incidents," where individuals are investigated for actions or speech perceived as offensive but not criminal. These incidents are recorded by the police and can affect individuals’ records, impacting their job prospects and social standing. For example, Essex Police investigated journalist Allison Pearson in 2024 over a year-old social media post allegedly inciting racial hatred. Although no charges were filed, the investigation drew backlash and raised concerns about the chilling effect of such probes on free expression.
 
Peaceful personal actions have also come under scrutiny. In 2024, Army veteran Adam Smith-Connor was convicted for silently praying outside an abortion clinic in Bournemouth. Despite the deeply personal nature of his prayer, he was ordered to pay significant prosecution costs. Similarly, Isabel Vaughan-Spruce was arrested in 2022 for silently praying near an abortion clinic in Birmingham, allegedly violating a local “buffer zone” order. Although she was later acquitted, her case sparked widespread concern over the criminalization of private thought and peaceful expression.
 
Canada, too, has seen troubling encroachments on free speech. The country’s human rights commissions have famously prosecuted individuals for “hate speech” under laws that are broad and subjective. One high-profile example involved comedian Mike Ward, who faced years of legal battles and was fined for making a joke about a disabled public figure. Such cases illustrate how speech, particularly humor (admittedly offensive) and dissenting opinions, can be punished when legal protections are weak or absent. The mere existence of these tribunals demonstrates a willingness to prioritize “dignity” over free expression, a choice that would be untenable under the First Amendment.

In Australia, free speech has also come under threat. In 2019, that country’s High Court upheld the dismissal of a public servant who criticized government policies anonymously on social media. The court ruled that such comments breached the Australian Public Service Code of Conduct, highlighting the limited protections for free speech, especially for government employees.
 
These examples from countries that share the common law tradition reveal a stark contrast. Britian gave us foundational texts like John Milton’s Areopagitica, a powerful argument for the liberty of unlicensed printing. Canada, with its Charter of Rights and Freedoms, has nevertheless allowed subjective interpretations of “hate speech” to override open debate. Australia, lacking a constitutional free speech guarantee, has seen judicial decisions that limit public discourse. By comparison, the United States’ written Constitution, fortified by a judiciary that has generally stood firm in defense of free speech, has proven to be a fortress against these trends.
 
Americans benefit from a legal framework that assumes offensive speech is not a bug but a feature of free expression. The U.S. Supreme Court has consistently upheld this principle, most notably in cases like Brandenburg v. Ohio, which protects even inflammatory speech unless it incites imminent lawless action. This robust protection enables a marketplace of ideas where good and bad arguments alike are subject to public scrutiny, not state suppression.
 
The comedian Rowan Atkinson of Mr. Bean fame has eloquently defended free speech, calling it “the most precious thing in life.” He warned that outlawing insult empowers orthodoxy to silence dissent and argued that “more speech” is the strongest weapon against hateful ideas. As we eat the last of our Thanksgiving leftovers, let us give thanks for the First Amendment, which guards the liberty to speak, argue, and dissent without fear. It is a fortress that protects us all.

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

​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.

​California, known for its progressive values and innovation, is increasingly becoming a battleground over the regulation of speech. The state's regulatory, political, and educational bodies are systematically encroaching on the fundamental right to free expression, attempting to manage and control speech in ways that undermine the First Amendment in the schools and among businesses.
 
When California sets a precedent, the implications for free speech rights across the country are profound, warranting close scrutiny and robust debate. Yet in California, recent actions reflect a shift towards control and censorship, challenging this essential liberty.
 
Consider the legal battle involving X Corp., formerly known as Twitter. The company has been fighting against surveillance and gag orders that infringe on X’s First Amendment rights while also threatening the Fourth and Sixth Amendment rights of its users. When the government demands access to personal data stored by companies like X Corp. and then issues Non-Disclosure Orders (NDOs) to keep this secret, it coerces companies into acting as government spies, unable to speak to their users about the breaches of their privacy.
 
This case highlights a broader pattern in California's legislative and judicial landscape. One recent law, California Bill AB 587, mandates that social media companies disclose their content moderation practices. Legal scholar Eugene Volokh has argued that this law pressures companies to engage in viewpoint discrimination, reveal their internal editorial processes, and do the government's bidding in managing speech. How would that be different from requiring newspapers to explain their editorial decisions to the government?
 
These laws and regulations are often claimed to be justified as necessary for combating hate speech, misinformation, and harassment; however, they impose significant burdens on companies and threaten to stifle free expression. A court recently ruled against X Corp. in its attempt to block the law requiring it to disclose to the government the internal deliberations of its content moderation policies. While transparency in moderation practices might seem beneficial, the forced disclosure could lead to state-enforced censorship and coercion of private editorial processes, undermining the very principles of free speech the First Amendment is meant to protect.
 
The state's approach to managing speech extends beyond digital platforms. In a recent disturbing case, an elementary school disciplined a first grader for drawing a benign picture with the phrase “Black Lives Matter.” Being young and probably unaware of the larger sensitivities, this elementary school child added: “any life.” The school promptly disciplined the child without telling her parents. This overreaction reflects a broader problem with educational institutions, driven by a hypersensitivity to the perceived (or mis-perceived) demands of political correctness, that end up punishing even innocent expressions of empathy and solidarity. A federal court's support for the school's actions further highlights the precarious state of free speech rights in educational settings, from elementary school up to graduate school, law school, and medical school.
 
California's aggressive stance on speech regulation also manifests in its legal battles over the Second Amendment. A controversial state law tried to impose attorney's fees on plaintiffs challenging gun restrictions even if they win their case, but lose any small portion of their claims. This tactic aims to deter legal challenges and silence dissent, directly contravening First Amendment rights. The law’s similarity to a Texas statute targeting abortion challengers underscores a worrying trend of using financial penalties to stifle constitutional challenges.
 
These cases collectively illustrate a dangerous trajectory in California's approach to managing speech. The state's efforts to regulate and control various forms of expression, whether online, in schools, or through legal deterrents, represent a direct assault on the First Amendment. The complexities and nuances of speech, inherently messy as they are, cannot and should not be sanitized by governmental oversight.
 
Fortunately, the U.S. Supreme Court remains a bulwark against regulations violating the First Amendment. The Court’s decision in AFP v. Bonta, which struck down California's requirement for non-profit organizations to disclose their donors, was a significant victory for free speech. The Court recognized that such disclosure requirements pose a substantial burden on First Amendment rights, particularly by exposing donors to potential harassment and retaliation. This case reinforces the principle that anonymity in association is crucial for protecting free expression and dissent. In the recent NetChoice opinion, a majority of the Court gave a ringing endorsement of editorial freedom, even while sending the case back for a more detailed review of the laws.
 
We remain optimistic the Supreme Court will likewise rein in California’s antagonism toward the First Amendment if, and when, it has the opportunity.

The recent session of the U.S. Supreme Court will likely be remembered for two major rulings implicating fundamental separation of powers doctrine: Trump v. United States, establishing presumptive immunity from prosecution for official presidential acts; and Loper Bright Enterprises v. Raimondo, dispensing with the long-established “Chevron Two Step” granting deference to a federal agency’s interpretation of statutes. In both instances, the Court reaffirmed our constitutional system of checks and balances, including protection against encroachment on the powers and privileges of one branch of government by another.
 
Against the backdrop of those headline-dominating developments, the Supreme Court also took on several important First Amendment cases, with results that were constitutionally sound. Below are the highlights – and summaries – of the Court’s First Amendment jurisprudence released in recent weeks.
 
Food and Drug Administration v. Alliance for Hippocratic Medicine
 
In a unanimous ruling, the Supreme Court rejected a challenge to the Food and Drug Administration’s regulation of the abortion drug mifepristone. Little noticed by the media, the Court’s opinion also firmly nailed down the conscience right of physicians to abstain from participating in abortions and prescribing the drug.
 
Writing for the Court, Justice Kavanaugh said that the Church Amendments, which prohibit the government from imposing requirements that violate the conscience rights of physicians and institutions, “allow doctors and other healthcare personnel to ‘refuse to perform or assist’ an abortion without punishment or discrimination from their employers.”
 
From now on, any effort to restrict or violate the conscience rights of healers will go against the unanimous opinion of all nine justices of the U.S. Supreme Court.
 
Vidal v. Elster
 
The Supreme Court, in another unanimous decision, overturned a lower court ruling that found that the U.S. Patent and Trademark Office’s denial of an application to trademark a phrase including the name “Trump” violated the filer’s First Amendment rights.
 
Writing for the Court, Justice Thomas wrote that “[o]ur courts have long recognized that trademarks containing names may be restricted.” But such trademark restrictions, while “content-based” must be “viewpoint neutral.” This opinion prevents commercial considerations to scissor out pieces of the national debate. While the decision rejected a novel First Amendment claim to a speech-restricting trademark, it affirms sound First Amendment principles and protects the speech of all others who would discuss and debate the virtues and vices of prominent public figures.
 
The Court was right to refuse the endorsement of a government-granted monopoly on a phrase about a presidential candidate.
 
NRA v. Vullo
 
NRA v. Vullo – yet another unanimous opinion – cleared the way for the National Rifle Association to pursue a First Amendment claim against a New York insurance regulator who had twisted the arms of insurance companies and banks to blacklist the group.
 
Maria Vullo, former superintendent of the New York State Department of Financial Services, met with Lloyd’s of London executives in 2018 to bring to their attention technical infractions that plagued the affinity insurance market in New York, unrelated to NRA business. Vullo told the executives that she would be “less interested” in pursuing these infractions “so long as Lloyd’s ceased providing insurance to gun groups.” She added that she would “focus” her enforcement actions “solely” on the syndicates with ties to the NRA, “and ignore other syndicates writing similar policies.”
 
The Court found for the NRA, writing that, “[a]s alleged, Vullo’s communications with Lloyd’s can be reasonably understood as a threat or as an inducement. Either of those can be coercive.”
 
The Supreme Court’s opinion vacates the Second Circuit’s ruling to the contrary and remands the case to allow the lawsuit to continue.
 
As the Court wrote, “the critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries.” And we wholeheartedly agree – censorship by proxy is still government censorship.
 
Moody v. NetChoice

In one of two cases involving the nexus of government and social media, the Court seemed to punt on making a final decision on the constitutionality of laws from Florida and Texas restricting the ability of social media companies to regulate access to, and content on, their platforms.
 
Many commentators believed the Court would resolve a split between the Fifth Circuit (upholding a Texas law restricting various forms of content moderation and imposing other obligations on social media platforms) and the Eleventh Circuit (which upheld the injunction against a Florida law regulating content and other activities by social media platforms and by other large internet services and websites).
 
The Court’s ruling was expected to resolve 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 and telling the lower courts to drill down on the varied details of both laws and be more precise as to the First Amendment issues posed by such different provisions. The opinion did, however, offer constructive guidance with ringing calls for stronger enforcement of First Amendment principles as they relate to the core activities of content moderation.
 
The opinion, written by Justice Elena Kagan, declared that: “On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.”

Murthy v. Missouri
 
In what looked to be a major case regarding the limits of government “jawboning” to get private actors to restrict speech, the Court instead decided that Missouri, Louisiana, and five individuals whose views were targeted by the government for expressing misinformation could not demonstrate a sufficient connection between the government’s action and their ultimate deplatforming by private actors.
 
Accordingly, the Court’s reasoning in this 6-3 decision is that the two states and five individuals lacked Article III standing to bring this suit. A case that could have defined the limits of government involvement in speech for the central media of our time was thus deflected on procedural grounds.
 
Justice Samuel Alito, in a fiery dissent signed by Justices Clarence Thomas and Neil Gorsuch, criticized the punt, calling Murthy v. Missouri “one of the most important free speech cases to reach this Court in years.” Fortunately, NRA v. Vullo, discussed above, sets a solid baseline against government efforts to pressure private actors to do the government’s dirty work in suppressing speech the government does not like. Later cases will, we hope, expand upon that base.
 
Secret communications from the government to the platforms to take down one post or another is inherently suspect under 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.
 
Gonzalez v. Trevino
 
Protect The 1st has reported on the case of Sylvia Gonzalez, a former Castle Hills, Texas, council member who was arrested for allegedly tampering with government records back in 2019. In fact, she merely misplaced them, and was subsequently arrested, handcuffed, and detained in what was likely a retaliatory arrest for criticizing the city manager. In turn, Gonzalez brought suit.
 
Gonzalez’s complaint noted that she was the only person charged in the past 10 years under the state’s government records law for temporarily misplacing government documents. In 2019’s Nieves v. Bartlett, the Supreme Court found that a plaintiff can generally bring a federal civil rights claim alleging retaliation if they can show that police did not have probable cause. The Court also allowed suit by plaintiffs claiming retaliatory arrests if they could show that others who engaged in the same supposedly illegal conduct, but who did not engage in protected but disfavored speech, were not arrested.
 
The U.S. Court of Appeals for the Fifth Circuit threw out Gonzalez’s case, finding that she would have had to offer examples of those who had mishandled a government petition in the same way that she had but – unlike her – were not arrested. The Supreme Court, by contrast, found that, “[a]lthough the Nieves exception is slim, the demand for virtually identical and identifiable comparators goes too far.” The Court thus made it a bit easier for the victims of First Amendment retaliation to sue government officials who would punish people for disfavored speech.
 
The controversy will now go back to the Fifth Circuit for reconsideration.
 
***

While the Court avoided some potentially landmark decisions on procedural grounds, and offered a mixed bag of decisions concerning plaintiffs’ ability to obtain redress against potential First Amendment violations, the majority consistently showed a strong desire to protect First Amendment principles – shielding people and private organizations from government-compelled speech.

​The growth of the surveillance state in Washington, D.C., is coinciding with a renewed determination by federal agencies to expose journalists’ notes and sources. Recent events show how our Fourth Amendment right against unreasonable searches and seizures and our First Amendment right of a free press are inextricable and mutually reinforcing – that if you degrade one of these rights, you threaten both of them.
 
In May, we reported that the FBI raided the home of journalist Tim Burke, seizing his computer, hard drives, and cellphone, after he reported on embarrassing outtakes of a Fox News interview. It turns out these outtakes had already been posted online. Warrants were obtained, but on what credible allegation of probable cause?
 
Or consider CBS News senior correspondent Catherine Herridge who was laid off, then days later ordered by a federal judge to reveal the identity of a confidential source she used for a series of 2017 stories published while she worked at Fox News. Shortly afterwards, Herridge was held in contempt for refusing to divulge that source. This raises the question that when CBS had earlier terminated Herridge and seized her files, would network executives have been willing to put their freedom on the line as Herridge has done?
 
In response to public outcry, CBS relented and handed Herridge’s notes back to her. But local journalists cannot count on generating the national attention and sympathy that a celebrity journalist can. Now add to this vulnerability the reality that every American who is online – whether a national correspondent or a college student – has his or her sensitive and personal information sold to more than a dozen federal agencies by data brokers, a $250 billion industry that markets our data in the shadows.
 
The sellers of our privacy compile nearly limitless data dossiers that “reveal the most intimate details of our lives, our movements, habits, associations, health conditions, and ideologies.” Data brokers have established a sophisticated system to aggregate data from nearly every platform and device that records personal information to develop detailed profiles on individuals. To fill in the blanks, they also sweep up information from public records. So if you have a smartphone, apps, or search online, your life is already an open book to the government. In this way, state and federal intelligence and law enforcement agencies can use the data broker loophole to obtain information about Americans that they would otherwise need a warrant, court order, or subpoena to obtain.
 
Now imagine what might happen as these two trends converge – a government hungry to expose journalists’ sources, but one that also has access to a journalist’s location history, as well as everyone they have called, texted, and emailed. It is hardly paranoid, then, to worry that when a prosecutor tries to compel a journalist to give up a source through legal means, purchased data may have already given the government a road map on what to seek. 
 
The combined threat to privacy from pervasive surveillance and prosecutors seeking journalists’ notes is serious and growing. This is why Protect The 1st supports legislation to protect journalistic privacy and close the data broker loophole. The Protect Reporters from Exploitive State Spying, or PRESS Act would grant a privilege to protect confidential news sources in federal legal proceedings, while offering reasonable exceptions for extreme situations. Such “shield laws” have been put into place in 49 states. The PRESS Act, which passed the House in January with unanimous, bipartisan support, would bring the federal government in line with the states.
 
Likewise, the Fourth Amendment Is Not For Sale Act would close the data broker loophole and require the government to obtain a warrant before it can seize our personal information, as required by the Fourth Amendment of the U.S. Constitution. The House Judiciary Committee voted to advance the Fourth Amendment Is Not For Sale Act out of committee with strong bipartisan support in July. The Judiciary Committee also reported out a strong data broker loophole closure as part of the Protect Liberty Act in December. 
Now, it’s up to Congress to include these protection and reform measures in the reauthorization of Section 702.
 
Protect The 1st urges lawmakers to pass measures to protect privacy and a free press. They will rise or fall together.

​Censorship controversies made many headlines throughout 2023. We’ve seen revelations about heavy-handed content moderation by the government and social media companies, and the looming U.S. Supreme Court decisions on Florida and Texas laws to restrict social media. Behind these policies and laws is a surprising level of public support. A Pew Research poll offers a skeleton key for understanding the trend.
 
According to Pew, a majority of Americans now believe that the government and technology companies should make more concerted efforts to restrict false information online. Fifty-five percent of Pew respondents support the federal government removal of false information, up from only 39 percent in 2018. Some 65 percent of respondents support tech companies editing the false information flow, up from 56 percent in 2018.
 
Most alarming of all, Americans adults are now more likely to value content moderation over freedom of information. In 2018, that preference was flipped, with Americans more inclined to prioritize freedom of information over restricting false information – 58 percent vs. 39 percent.
 
Pew doesn’t editorialize when it posts its findings. For our part, these results reveal a disturbing slide in Americans’ appreciation for First Amendment principles. Online “noise” from social media trolls is annoying, to be sure, but sacrificing freedom of information for a reduction in bad information is anathema to the very notion of a free exchange of ideas. What is needed, instead, is better media literacy – not to mention a better understanding of what actually constitutes false information, as opposed to opinions with which one may simply disagree.
 
Still, the poll goes a long way toward explaining some of the perplexing attitudes we’re seeing on college campuses, where polls show college students lack a basic understanding of the First Amendment and increasingly support the heckler’s veto. These poll results also speak to the increasing predilection of public officials to simply block constituents with whom they disagree. And it perhaps explains some of the push-and-pull we’re seeing between big, blue social media platforms and big, red states like Florida and Texas, where one side purports to protect free speech by infringing on the speech rights of others.
 
While these results are interesting from an academic perspective, the suggested remedies raise major red flags. Americans want private technology companies to be the arbiters of truth. A lesser but still significant percentage wants the federal government to serve that role. Any institution comprised of human beings is bound to fail at such a task.
 
Ultimately, if we want to protect the free exchange of information, that role must necessarily fall to each of us as discerning consumers of news. The extent to which we are unable to differentiate between factual and false information is an indictment of our educational system. And, as far as content moderation policies are concerned, they must be clear, standardized, and include some form of due process for those subjected to censorship decisions.  
 
More than anything, Americans need to relearn that if we open the door to a private or public sector “Ministry of Truth,” we will eviscerate the First Amendment as we know it. You might be on the winning side initially, but eventually we all lose.

​A recent podcast featuring Prof. Eugene Volokh, Senior Legal Advisor to Protect The 1st,  looks at restraining orders and their potential for overbreadth – particularly when they deal with speech (and not conduct) in the digital age.
 
Volokh joined the California Appellate Podcast with Tim Kowal and Jeff Lewis on December 19 to tackle the issue, about which the professor has written extensively. As Volokh points out, criminal harassment and restraining order laws are gradually undergoing a curious evolution: where once they largely (and constitutionally) restricted unwanted speech to a particular person, now many orders restrict speech about a particular person. It’s the latter category of orders that implicate the First Amendment and could potentially constitute unlawful prior restraints. 
 
Volokh discusses this issue at length in the podcast, though it is perhaps best summarized by a hypothetical he posits in a 2022 article he wrote for the Harvard Journal of Law and Public Policy:
 
“Donna is publicly criticizing Paul. So Paul sues her, and gets an injunction such as this: ‘[Defendant] is permanently enjoined from publishing… any statements whatsoever with regard to the plaintiff.’
 
“It’s hard to reconcile such an injunction (whether entered in a libel case or as a ‘personal protective order’) with First Amendment precedents. The injunction isn’t limited to speech within a First Amendment exception, such as libel or true threats. It is far from ‘narrowly tailored,’ which is often set forth as a requirement for the rare content-based anti-speech injunctions that are permitted.”

Even so, as of last year Volokh had found over 200 such injunctions – many involving cyberstalking and other online conduct, a particularly murky area with outsized potential to implicate protected speech. As Volokh points out, this trend threatens the imposition of liability not just on criminal libel and falsehoods but also, potentially, on true statements and opinions. 
 
One such case is Chan v. Ellis, in which poet Linda Ellis sued website author Matthew Chan for criticizing Ellis’ copyright enforcement practices. There, the Supreme Court of Georgia reversed a lower court ruling ordering Chan to delete “all posts relating to Ms. Ellis” from his website, finding that the posts were not sufficiently directed to Ellis. Rather, they were merely opinion-based assessments about her.
 
The California Appellate Podcast is, in large part, oriented around practical advice for practicing attorneys on issues of public importance. Here, the hosts urge lawyers to look closely at restraining orders for the “to/about” dichotomy. We’d second that and recommend the podcast to anyone interested in how judicial reactions to changing technologies can result in First Amendment backslides.

​They say, “misery acquaints a man with strange bedfellows,” and to most followers of the national discourse, no pair of institutions could make for an odder couple than the National Rifle Association and the American Civil Liberties Union. Yet in keeping with its principles, the ACLU has decided to represent the NRA before the Supreme Court, and it’s causing some consternation within the group.
 
The ACLU of Texas announced on December 15 that it would not join with its national organization in siding with the NRA’s suit against New York’s Department of Financial Services. They join the New York Civil Liberties Union, who said in a statement: "The NRA is among the most powerful advocacy organizations in the country, with resources to secure the nation’s finest lawyers. It does not need the ACLU to volunteer for that job."
 
The case, National Rifle Association v. Vullo, asks whether former New York State Department of Financial Services Superintendent Maria Vullo violated the First Amendment by encouraging banks and insurance companies to stop doing business with the NRA following the 2018 Parkland, Florida high school shooting. The U.S. Court of Appeals for the Second Circuit ruled against the NRA, arguing that “government officials have a right — indeed, a duty — to address issues of public concern.”
 
The NRA, which is also represented by Brewer Attorneys and Counselors as well as constitutional scholar and Protect the First Senior Advisor Eugene Volokh, believes the case was erroneously decided. In their certiorari petition, they write:
 
“The Second Circuit’s opinion below gives state officials free rein to financially blacklist their political opponents – from gun-rights groups to abortion-rights groups, to environmentalist groups, and beyond. It lets state officials ‘threaten[] regulated institutions with costly investigations, increased regulatory scrutiny and penalties should they fail to discontinue their arrangements with’ a controversial speaker, on the ground that disfavored political speech poses a regulable ‘reputational risk.’ … It also permits selective investigations and penalties targeting business arrangements with disfavored speakers, even where the regulator premises its hostility explicitly on an entity’s political speech and treats leniently, or exempts, identical transactions with customers who lack controversial views.”
 
For their part, the ACLU has made clear that they disagree with the NRA’s overarching policy goals. In a statement, they said: “The ACLU does not support the NRA or its mission. We signed on as co-counsel because public officials shouldn’t be allowed to abuse the powers of the office to blacklist an organization just because they oppose an organization’s political views.”
 
We could not agree more, and the NRA makes a compelling argument that Vullo overstepped her bounds. In fact, the Supreme Court has already ruled in Bantam Books v. Sullivan from 1963 that the government violates fundamental First Amendment rights when it targets an organization through “informal sanctions,” including “coercion, persuasion and intimidation.”
 
We applaud the ACLU for standing up for what’s right, even – and especially – when it’s hard to do so. We look forward to further developments in this case.

​The Freedom of the Press Foundation reports a disturbing trend at the county and municipal levels: governments pulling official notices from local papers in retaliation for unfavorable reporting.
 
In Delaware County, New York, the board of supervisors dropped local newspaper The Reporter as the official county paper for printing local laws and notices in 2022, citing increased prices for advertising. A year later, however, the board wrote a letter to The Reporter’s publishers to complain about its coverage, specifically stating the true reason for the county’s decision: displeasure over certain elements of the paper’s reporting. The New York Times picked up the story. Days later, the Delaware County Attorney issued a gag order on all county employees prohibiting them from speaking to The Reporter at all.
 
Now, the paper is suing, alleging First and Fourteenth Amendment violations. In addition to police raids of newsrooms and arrests of journalists by local governments, the defunding movement is gaining steam against already financially stressed local newspapers across the country.
 
In Putnam County, New York, the local government terminated The Putnam County News and Recorder’s contract to publish county legal notices following supposedly critical coverage of the newly elected county executive. As in Delaware County, it seemed a blatant attempt to use the power of the purse strings to manipulate local media.
 
Similarly, in Kansas, the attorney general issued an advisory opinion suggesting that local governments could exempt themselves from a state law requiring official notices to be published in a designated newspaper. Since then, the cities of Hillsboro and Westmoreland have done exactly that, creating heightened concerns about a lack of government transparency in the process.
 
In Ohio, the state passed a little noticed new law in its 6,000-page budget permitting cities and towns to publish notices on their official websites rather than in local papers. (A similar action also took place in Florida.) There are benign explanations for this move. But these new standards give local governments new ammunition to employ against newspapers in an effort to control the narrative.
 
It’s a storied tradition for municipalities to post public notices in newspapers (in fact, most cities and towns have laws requiring them to do so). The purpose is to keep residents and voters informed of official government actions – local meetings, land sales, zoning changes, and the like. And while failing to uphold this practice does not violate the Constitution, government retaliation against newspapers based on their reporting certainly does. Gagging county employees willing to speak on matters of public concern, moreover, violates both the newspapers’ First Amendment rights and those of the prospective speakers and whistle-blowers. 
 
We applaud the Freedom of the Press Foundation’s efforts to support local papers and fight back against officials more concerned with consolidating power than protecting speech.

​“The First Amendment guarantees the public a qualified right of access to judicial proceedings and documents that is rooted in the understanding that public oversight of the judicial system is essential to the proper functioning of that system and, more generally, to our democratic system of self-governance.”

A hearing last week before the Fourth Circuit Court of Appeals includes this quote from an amici brief by the Reporters Committee for Freedom of the Press and 38 other media organizations including the Associated Press, Atlantic Monthly Group, Axios, McClatchy, the National Press Club, the New York Times and The Washington Post. At issue is Virginia’s Officer of the Court Remote Access (with the charming acronym of OCRA) system, which allows attorneys and certain government agencies online access to non-confidential civil court records from participating circuit courts in the state (105 courts out of 120 in the Commonwealth).

Those not allowed online access to court records through OCRA include, well, everyone else – but most notably members of the press, who are forced to travel to each circuit court individually, in person, during weekday business hours in order to obtain documents and properly report on proceedings of public concern.

Virginia’s practice stands in contrast with the policies of at least 38 other states that allow unfettered online access to court records for all members of the public.

Accordingly, one media outlet, Courthouse News Service, filed a complaint in the U.S. District Court for the Eastern District of Virginia against a Virginia court clerk and the administrator of OCRA, alleging that the “Non-Attorney Access Restriction” constitutes an unconstitutional speaker-based restriction on speech.

Although the district court initially rejected the defendants’ motion to dismiss, it ultimately granted summary judgment, finding that the attorneys-only rule was a content-neutral time, place, and manner restriction and thus did not require a strict scrutiny analysis. Courthouse News subsequently appealed to the Fourth Circuit.

The defendants argue that limiting online access to lawyers and certain government agencies allows the courts to better prevent against fraud and misuse of “private, sensitive information let out into the world and limiting the potential for widespread data harvesting which is often done by bots.”

On its surface, this seems a noble argument, but it fails to consider that: 1) the information online is already non-confidential in nature, with any sensitive information required to be redacted by filers of the documents; 2) any member of the public can already access these documents in person; and 3) openness has worked well for the 38 other states that have functional, non-compromised online systems in place that allow widespread public access.

Protect The 1st is particularly sensitive to the protection of online data – but, as the amici point out, Virginia’s argument is speculative at best, showing no evidence of data harvesting by bots or anyone else. Restricting access to OCRA based on assumptions about how certain non-favored speakers may use that information is plainly not content-neutral. Instead, as amici contend, it “amounts to unconstitutional speaker-based discrimination that demands strict scrutiny.”

Further, as other courts show, less restrictive means of protecting information in court documents obviously exist – certainly less restrictive than denying access to public documents.
Most importantly, fundamental press freedoms are at stake here. “…[I]n denying the press and the greater public access to OCRA,” amici write, “the Non-Attorney Access Restriction infringes the public’s presumptive constitutional right of contemporaneous access to civil court records.”

Journalists depend on remote, online access to report on cases of public concern in a timely manner. “If not reversed,” the brief declares, “the District Court’s order will hamper the ability of the news media to report on court proceedings of public interest in Virginia and around the country.”
​
Courthouse News Service, the Reporters Committee for Freedom of the Press and their fellow amici are right in urging the Fourth Circuit to overturn the lower court’s grant of summary judgment in this case. We’ll be following future developments closely.

​Much digital ink has been spilled about the arrest of a small-town publisher and reporter in Atmore, Alabama, for reporting on a grand jury leak about the alleged mishandling of COVID relief funds in the local school district. But events surrounding the arrests of these two journalists should be of even greater concern to First Amendment advocates.
 
While Alabama law makes it a crime for grand jurors, witnesses, and others directly involved in a grand jury proceeding to disclose information from these secret hearings, this prohibition does not include journalists. Moreover, a long line of U.S. Supreme Court precedents, harking back to the Pentagon Papers, make it clear that journalists can report leaks, even when the leak is illegal. This is judged necessary for freedom of the press. Time and again, such reporting has broken loose the logjam of secrecy, incompetence, and inside-dealing that often hardens inside powerful institutions.
 
But the plain facts and the law did not stop Escambia County District Attorney Stephen Billy from charging Atmore News publisher Sherry Digmon and reporter Don Fletcher with a felony charge of reporting grand jury information, carrying a penalty of between one to three years imprisonment and a fine of $5,000.
 
Worse, from a constitutional perspective, are bail terms that prohibit the journalists from reporting on “ongoing criminal investigations.” In this one brilliant move, District Attorney Billy ventured from criminalizing reporting into the worst offense against free speech – prior restraint.
 
“The bail terms would be unconstitutional even if they only restricted the journalists from further reporting on the grand jury investigation of the school district, especially when there was no legal or constitutional basis to punish that reporting in the first place,” said Seth Stern, director of advocacy at the Freedom of the Press Foundation. “That overbreadth turns an already flagrantly unconstitutional gag order into a fundamentally un-American attempt at retaliatory censorship to silence the free press. Everyone involved should be ashamed of themselves.”
 
The Atmore News today posts a straightforward, factual account of the arrests of its publisher and reporter. Could that be construed by the district attorney as a bail violation? It is not clear. And when legal standards are not clear, the free practice of journalism suffers.
 
In a separate action, District Attorney Billy dispatched sheriff’s deputies with search warrants to seize the cellphones of four members of the Escambia County Board of Education who voted not to renew the contract of the local school superintendent. One of the board members was publisher Sherry Digmon. The stated purpose of the raid was to investigate a possible telephone violation of Alabama’s Open Meetings Law by the four board members, even though violations are a civil matter under Alabama law. It is not a crime.
 
It would be easy to dismiss this case as an outlier by a bumbling local district attorney. As the Dude says in The Big Lebowski, “this aggression will not stand, man!” It is all but certain District Attorney Billy and his case will not fare any better than did that of the small-town police chief in Kansas who raided the local newspaper and seized all its equipment over the reporting of a local businesswoman’s DUI record.
 
But even when intimidation fails, the hassle and embarrassment of an arrest and the confiscation of phones and equipment cannot be far from the minds of local journalists these days.
 
That such cases are beginning to pop up around the country is one more sign that America is drifting away from our constitutional moorings.

The Ninth Circuit Court of Appeals in March issued a controversial opinion in Twitter v. Garland that the Electronic Frontier Foundation calls “a new low in judicial deference to classification and national security, even against the nearly inviolable First Amendment right to be free of prior restraints against speech.”
 
X (née Twitter) is appealing this opinion before the U.S. Supreme Court. Whatever you think of X or Elon Musk, this case is an important inflection point for free speech and government surveillance accountability.
 
Among many under-acknowledged aspects of our national security apparatus is the regularity with which the government – through FBI national security letters and secretive FISA orders – demands customer information from online platforms like Facebook and X. In 2014, Twitter sought to publish a report documenting the number of surveillance requests it received from the government the prior year. It was a commendable effort from a private actor to provide a limited measure of transparency in government monitoring of its customers, offering some much-needed public oversight in the process. The FBI and DOJ, of course, denied Twitter’s efforts, and over the past ten years the company has kept up the fight, continuing under its new ownership.
 
At issue is X’s desire to publish the total number of surveillance requests it receives, omitting any identifying details about the targets of those requests. This purpose is noble. It would provide users an important metric in surveillance trends not found in the annual Statistical Transparency Report of the Office of the Director of National Intelligence.
Nevertheless, in April 2020, a federal district court ruled against the company’s efforts at transparency. In March 2023, the Ninth Circuit upheld the lower court’s ruling, sweeping away a substantial body of prior restraint precedent in the process.
 
Specifically, the Ninth Circuit carved out a novel exemption to long established prior restraint limitations: “government restrictions on the disclosure of information transmitted confidentially as part of a legitimate government process.”
 
The implications of this new category of censorable speech are incalculable. To quote the EFF amicus brief:
 
“The consequences of the lower court’s decision are severe and far-reaching. It carves out, for the first time, a whole category of prior restraints that receive no more scrutiny than subsequent punishments for speech—expanding officials’ power to gag virtually anyone who interacts with a government agency and wishes to speak publicly about that interaction.”
 
This is an existential speech issue, far beyond concerns of party or politics. If the ruling is allowed to stand, it sets up a convenient standard for the government to significantly expand its censorship of speech – whether of the left, right or center. Again, quoting EFF, “[i]ndividuals who had interactions with law enforcement or border officials—such as someone being interviewed as a witness to a crime or someone subjected to police misconduct—could be barred from telling their family or going to the press.”
 
Moreover, the ruling is totally incongruous with a body of law that goes back a century. Prior restraints on speech are the most disfavored of speech restrictions because they freeze speech in its entirety (rather than subsequently punishing it). As such, prior restraint is typically subject to the most exacting level of judicial scrutiny. Yet the Ninth Circuit applied a lower level of strict scrutiny, while entirely ignoring the procedural protections typically afforded to plaintiffs in prior restraint cases. As such, the “decision enables the government to unilaterally impose prior restraints on speech about matters of public concern, while restricting recipients’ ability to meaningfully test these gag orders in court.”
 
We stand with X and EFF in urging the Supreme Court to promptly address this alarming development.

​In May, Iowa Gov. Kim Reynolds signed into law Senate File 496, a landmark parental rights bill that, among other things, requires schools to remove books that depict a “sex act.” The expansive reach of this law is leading school districts to toss out thought-provoking books and classics of Western literature. The Bible, if it could be admitted to a public school library, might face a similar fate over the Song of Solomon.
 
The Iowa City Community School District removed 68 books to comply with the law, including James Joyce’s Ulysses and Jodi Picoult’s Nineteen Minutes, Margaret Atwood’s The Handmaid’s Tale, and Toni Morrison’s The Bluest Eye. Among the hundreds of other books removed by other Iowa school districts are George Orwell’s 1984, Aldous Huxley’s Brave New World, Kurt Vonnegut’s Slaughterhouse-Five, and Winston Groom’s Forrest Gump. These books have enriched the reading lives of high school students for decades.
 
Let us propose one test for any content restriction law: if your bill bans 1984, you might be a little too much like the book.
 
In Arkansas, plaintiffs before a federal court are contesting two provisions in the state’s Act 372. One provision creates a misdemeanor criminal liability for librarians and booksellers, and even parents, who “[furnish] a harmful item to a minor.” The second creates a process by which any citizen can challenge the appropriateness of any book and have it removed from a school or other public library, applying local community standards, with final decision-making power in the hands of local county quorum courts or city councils.
 
As the plaintiffs assert, the first provision would result in either the widespread removal of books or an outright ban on young people under 18 from entering libraries or bookstores. The second one, they argue, would allow vocal minorities to tell entire communities what they can and cannot read. The judge in this case found the plaintiffs likely to succeed in both claims on the merits based on the overbreadth of these provisions.
 
If prohibitions, such as the elimination of “sex” from literature is too broad, what kinds of content should be legitimately challenged by parents? As if to answer this question, the Montgomery County Board of Education in Maryland maintains as part of its elementary school curriculum requirements controversial readings of sexually charged subjects, such as gender transition, and fetish topics like leather and drag queens.
 
A balance is needed. Our laws have always recognized the need to delineate age-appropriate materials. But laws that are overly broad and vague risk trampling on legitimate First Amendment interests, degrading the educational experience of students, and will only result in costly legal battles.
 
When legislators stick to crafting laws that support appropriate content curation for school libraries and avoid doomed efforts at censorship, everyone is better off. Legislators would save themselves the embarrassment of having their laws invalidated by courts when they pass messaging bills that are clearly unconstitutional. Parents can be assured their children will be protected from inappropriate content. And students can enjoy the best works from the best writers.

​California’s efforts to run roughshod over the Second Amendment by violating the First is hitting a wall in the courts.
 
Readers may remember that in 2022, PT1st reported that the state had passed AB 2571, which prohibits the marketing of firearms or related products in a manner that “reasonably appears to be attractive to minors.” This law banned advertising for youth groups that promote firearms as a sport, with safety instruction every step of the way. Nominally intended to tackle soaring rates of gun violence, the law had only succeeded in taking down those youth groups and sporting activities.
 
California tried to inoculate itself against legal challenges by passing another law that would make plaintiffs who attempt to test the constitutionality of California’s strict gun laws in court and then lose to have to pay all attorneys’ fees and costs. So, not only was the state going to trample over plaintiffs’ constitutional rights, but they were going to make them suffer for challenging them. Things got dicey for California when the state Attorney General Rob Bonta said he “won’t defend the validity” of the law, a step in the right direction.
 
In September, the U.S. Court of Appeals for the Ninth Circuit enjoined enforcement of the state’s ban on firearm advertisements to minors, holding that it was likely to violate the First Amendment in the upcoming case, Junior Sports Magazines, Inc. v. Bonta. The district court had denied plaintiff’s request for a preliminary injunction, but the Ninth Circuit, no conservative bastion itself, reversed the lower court’s ruling.
 
In that decision, the Ninth Circuit held that AB 2571 “does not directly and materially advance California’s substantial interests in reducing gun violence and the unlawful use of firearms by minors.”
 
Circuit Judge Kenneth Lee writes, “There is no evidence in the record that a minor in California has ever unlawfully bought a gun, let alone because of an ad. Nor has the state produced any evidence that truthful ads about lawful uses of guns—like an ad about hunting rifles in Junior Sports Magazines’ Junior Shooters—encourage illegal or violent gun use among minors … Junior Sports Magazines has shown a likelihood of success on the merits …”
 
In sum, the state Attorney General has declared he won’t defend punitive measures meant to punish constitutionally minded litigants.
 
California’s gun-advertising restrictions have been blocked, pending a final decision by the Ninth Circuit. And the Ninth Circuit itself has stated that firearm sporting enthusiasts are likely to win on the merits. PT1st is pleased to see this sharp turn in fortunes for California and we hope these events encourage the state to reverse course.