​Student journalists and their supporters across the United States are celebrating the eighth annual Student Press Freedom Day. This year’s theme, "At the Forefront," emphasizes the resistance of student journalists and the challenges of prior restraint, censorship, and even the threat of arrest they face. How these challenges are met today will shape the future of tomorrow’s journalism, already facing stiff challenges from collapsing business models and social media fragmentation.
 
Student Press Freedom Day, organized by the Student Press Law Center, brings together students, educators, and press freedom advocates to raise awareness about the struggles of student journalists. Participants advocate for legal reforms, such as “New Voices” laws, which safeguard student journalists from administrative censorship.
 
Consider how the University of Northern Iowa handled student journalists, imposing unconstitutional prior restraint by requiring resident assistants to obtain approval before speaking to the media. The student newspaper, The Northern Iowan, exposed this policy, leading to its revocation and earning the publication the First Amendment Award at the Iowa College Media Association Awards.
 
Student Press Freedom Day also shines a light on precedents that threaten student press freedom.
 
The 1988 Supreme Court decision in Hazelwood School District v. Kuhlmeier weakened protections for high school journalists by allowing administrators to censor school-sponsored publications if they could justify doing so for “legitimate pedagogical concerns.” Though the ruling was meant to apply to K-12 institutions, its logic was later extended to colleges in Hosty v. Carter in 2005. In that case, the Seventh Circuit Court ruled that a university could exert prior review over a student newspaper if it was not designated a public forum.
 
Courts have also upheld the rights of college journalists. Over the past four decades, more than 60 cases have addressed censorship in public college and university student media, with decisions consistently affirming that the First Amendment prohibits most administrative censorship of student-edited publications.
 
The challenges faced by student journalists are not limited to administrative censorship. In 2024, Stanford University student journalist Dilan Gohill was arrested while covering a protest after following demonstrators into the university president's office. Despite wearing a press pass and acting in his capacity as a reporter, Gohill faced potential disciplinary action and criminal charges. After seven months of uncertainty and advocacy from First Amendment groups, Stanford President Jonathan Levin confirmed there would be no disciplinary action from the university.
 
With changing business models and a polarized society, quality, independent journalism struggles to exist. Whether or not quality journalism can continue will require, at the very least, cultivating young reporters and editors who are free to learn their chosen profession by practicing it without restraint.
 
Protect The 1st is pleased to join student journalists in celebrating Student Press Freedom Day.

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

​You might like, laugh at, or deplore the renaming of the Gulf of Mexico to the Gulf of America. One thing that cannot be disputed is that the administration’s new designation has spawned the sale of innumerable T-shirts.
 
Private organizations are free to adopt or not adopt the administration’s terminology. Google, for its part, enacted a diplomatic solution. Use Google Maps in the United States and you will find that it reflects the new name – Gulf of America. But Google Maps users in Mexico will find that the old name, the golfo de méxico, is intact.
 
The AP news organization does not have the luxury of splitting names in its reportage. It stuck with the old name, as do most Americans. This makes sense, given that Mexico’s Gulf coastline is longer than that of the United States. Now AP says the White House has informed the news organization that because AP “did not align its editorial standards” with the executive order renaming the Gulf of Mexico, “AP would be barred from accessing an event in the Oval Office.” An AP reporter was later blocked from an executive order signing.
 
AP says that these actions violate its First Amendment rights. It remains to be seen whether courts will hold that this action violates the letter of the First Amendment. AP can argue that the White House is engaged in viewpoint discrimination, even if about access to a limited public forum. This kind of petty play and attempts to direct editorial policy from above is a violation of the spirit, if not the letter, of the First Amendment.
 
Those who advocate such a muscular approach to press relations were the first to protest attempts by the recent progressive administration to strongarm corporations, universities, and media into language policing. We were told to refer to America’s Latino population as “Latinx” (which most Latinos hated), to women as “birthing persons,” and to pronoun policing. The Trump press office would do well to discontinue the tradition of heavy-handed language control.

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

One reason why Donald Trump won his second presidential term – against the expectations of notable mainstream commentators and respected pollsters – is that a small, independent group of influencers and online conservative news outlets went around the mainstream media to keep Americans informed of the candidate’s policy responses to the failures of the Biden Administration.
 
The 2024 election announced the arrival of the small, independent journalistic outfit, from Breitbart on the right to the streaming Young Turks show on the left. These independent voices have their slant on the news and their biases about candidates, but they have been effective in challenging the monolith of reporting from mainstream news organizations.
 
Protecting this ecosystem of independent, pluralistic voices is one reason why soon-to-be President Trump should support the Protect Reporters from Exploitive State Spying (PRESS) Act.
 
Without reporters relying on whistleblowers, we might never have learned about many recent scandals, ranging from the Fast and Furious gun-walking scandal under the Obama Administration to the IRS targeting of conservative non-profits under the direction of Lois Lerner, to the FBI’s highly politicized secret surveillance of Carter Page and the Trump campaign, to the truth behind the Hunter Biden laptop scandal. In each instance, brave whistleblowers came forward to set the record straight, often as sources for independent journalists.
 
“If you cannot offer a source a promise of confidentiality as a journalist, your toolbox is empty,” celebrated investigative journalist Catherine Herridge told members of a House Judiciary subcommittee. “No whistleblower is coming forward, no government official with evidence of misconduct or corruption. And what that means is that it interrupts the free flow of information to the public ...”
 
Herridge is currently fighting for her freedom in the face of a contempt charge regarding an investigative piece she did for Fox News concerning the possible penetration of U.S. higher education by Chinese intelligence. During the Obama administration, government lawyers also issued a search warrant for the emails of Fox News journalist James Rosen. Such aggressive legal tactics threaten to shut down the media’s ability to hold the federal government accountable.
 
It is for reasons like these that Republicans supported the PRESS Act, which this year passed the House with the sponsorship of Republican Rep. Kevin Kiley (R-CA) and the enthusiastic support of conservatives such as House Judiciary Chairman Jim Jordan (R-OH), as well as with the bipartisan support of many House Democrats. The PRESS Act also has the support of Sens. Lindsey Graham (R-SC) and Mike Lee (R-UT).
 
Catherine Herridge can rely on the generosity of Fox News for supporting her defense in facing down contempt charges. But few independent outlets have such deep pockets. A federal prosecutor seeking their sources would force a blogger or small outlet to immediately decide whether to rat out whistleblowers or spend every last dollar of their savings mounting a defense in court and still possibly go to prison.
 
President-elect Trump, supporting the PRESS Act in this Congress or the next would be a way for you to stand by the small, independent, online journalists and commentators who got your campaign appeals to the American people. To oppose the PRESS Act would be to score a goal for those who want to use this power to silence these voices. 

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

​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.

​Award-winning journalist Catherine Herridge, who is being pressed by a federal judge to reveal her source for an investigative journalism series, has a lot on her plate.
 
She is walking the marbled halls of the U.S. Senate advocating passage of a bill, the PRESS Act, that would protect journalists and their sources. She is doing this while also facing the possibility of an $800 a day fine and jail time for not revealing the source behind her series of stories for Fox News in 2017.
 
Now Herridge is asking President-elect Trump to hear her out on why Senate passage of the PRESS Act is so important to independent, non-mainstream journalists who were so prominent in the last election. This new, rising sector of independent journalists, lacking the deep pockets of a newspaper or a network, are particularly vulnerable to government harassment. They are perhaps the most in need of a limited right to refuse demands from government prosecutors to reveal their sources. Here’s what Herridge told NewsNation:

​In the minds of many Americans, including some in high office, the First Amendment is synonymous only with free speech. It is easy to forget that freedom of speech is only one of the five freedoms guaranteed by the First. The others are freedom of religion, freedom of assembly, the right to petition the government… and freedom of the press.
 
Lawyer and legal scholar Floyd Abrams is consulting with historians, media lawyers, and journalists in a Yale Law School project to assess whether one of these freedoms – that of the press – has been protected to the extent that freedom of speech has been. Abrams reports in The Wall Street Journal on many issues we’ve covered, such as reporters being arrested for violating curfews to report on protests and civil unrest, and the exposure of confidential sources “who provide information about government misconduct or other sensitive information.”
 
In his piece, Abrams looks to the Supreme Court to bring the same force and clarity for press freedoms that it has brought to protecting speech overall. We agree and look forward to his forthcoming report. But there is another way forward.
 
This year, for the fourth time, with strong bipartisan support, the U.S. House of Representatives passed the PRESS Act, which shields the confidential sources and notes of reporters from the prying eyes of prosecutors. This bill allows for reasonable exceptions for emergencies. The PRESS Act is now before the U.S. Senate. With a little leadership from the Senate Judiciary Committee, it could be well on its way to becoming the law of the land before the end of the year.
 
So we don’t have to wait for the right cases to appear before the Supreme Court, at least as far as the protection of reporters’ confidential sources are concerned, we can contact our senators now and demand they pass the PRESS Act in the coming lame duck session.

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

​A new longform piece from ESPN documents the story of Anna Wolfe, whose Pulitzer Prize-winning reporting revealed a $77 million welfare scandal involving former Mississippi governor Phil Bryant and former NFL quarterback Brett Favre. Shortly after Wolfe’s Pulitzer win, Bryant sued the reporter and her paper, Mississippi Today, for defamation – demanding in the process the release of all confidential source material.
 
The story in question details how Bryant played a role in a program that misallocated state funds intended for welfare recipients. Those dollars ended up in a variety of business and sporting venues, with much of the money going to Favre’s concussion drug company and a volleyball facility at his alma mater.
 
In May, a circuit court judge ordered Mississippi Today to hand over privileged materials as part of the discovery process. Wolfe and her co-defendant fellow employees refused and are now appealing to the Mississippi Supreme Court.
 
This is set to be a case of first impression in Mississippi, which is one of the few states in the country without a formal “shield law” that protects reporters from giving up confidential sources. Such protections are critical for newsgathering efforts, enabling whistleblowers to come forward and helping journalists bring to light malfeasance and hidden crimes that otherwise would have continued.
 
Defamation suits like Bryant’s, meanwhile, can slowly drain the coffers of small papers that may not be able to afford protracted legal battles – even where the claims are baseless. As the Committee to Protect Journalists wrote about this case:
 
“Defamation, whose purpose is to protect an individual’s reputation from false statements, is being weaponized globally to shield powerful individuals from criticism. Legal attacks on journalists – often dubbed lawfare – are often effective in compromising their safety, silencing public interest reporting, and eroding trust in the press.”
 
We hope that the Mississippi Supreme Court will enshrine a precedent protecting the notes and sources of journalists. The state legislature should follow up by passing statutory protections for reporters’ sources, with reasonable exceptions for emergencies.
 
Reporters run such risks at the hands of federal prosecutors, similarly unrestrained by the lack of a national press shield law. Many journalists have faced the prospect of being sent to prison for refusing to expose a source. Most recently, famed journalist Catherine Herridge is at risk of facing prison for refusing to betray a source.
 
This is why Protect The 1st advocates for the passage of the Protect Reporters from Exploitive State Spying (PRESS) Act, passed by the U.S. House, which establishes protection for reporters and their sources against federal prosecutors and other federal actors.

​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.

​Who qualifies as a journalist? Do you have to work for a mainstream media outlet? If you don’t have the imprimatur of an award-winning newspaper like The New York Times or Washington Post, does that negate your right to gather and convey information?
 
That seems to be the case in certain parts of Texas, where police have twice recently arrested private citizens for committing the crime of journalism. In 2021, the Fort Bend County Sheriff’s Office arrested and strip-searched Justin Pulliam – who posts on the YouTube channel Corruption Report – for filming police during a mental health call. Despite following police instructions to stand away from the interaction, Pulliam was charged with “Interference with Public Duties,” a Class B misdemeanor under Texas state law.
 
It wasn’t the first time Pulliam had been legally harassed – earlier that year he was ejected from a press conference because authorities said he did not qualify as a journalist.
 
A similar situation happened back in 2017, when Laredo police arrested citizen journalist Priscilla Villareal under a statute prohibiting the solicitation of nonpublic information where there is “intent to obtain a benefit.” AKA journalism. The Fifth Circuit initially sided with Villareal, with Judge Ho writing:
 
“If the First Amendment means anything, it surely means a citizen journalist has the right to ask a public official a question, without fear of being imprisoned. Yet that is exactly what happened here: Priscilla Villarreal was put in jail for asking a police officer a question. If that is not an obvious violation of the Constitution, it’s hard to imagine what would be.”
 
Unfortunately, the full court backtracked during an en banc appeal, finding that city officials had qualified immunity. As we wrote at the time, that ruling set a terrible precedent for freedom of the press – sending a message that reporters should be wary of arrest and reprisal for daring to ask questions of government officials.


Now, Pulliam’s case is up before the Fifth Circuit too, following a Texas district court’s rejection of the defendants’ qualified immunity argument. We’ll see whether the judges get it right this time and acknowledge that Corruption Report constitutes a “legitimate” media outlet. In Villareal’s case, Judge Edith Jones suggested that her Lagordiloca page was not.
 
We respectfully disagree. Courts should not be in the business of determining who is and who is not a “legitimate” reporter according to platform or reporting style. The changing technological landscape has enfranchised a new class of citizen journalists no less deserving of respect and the protections of the First Amendment than their more well-heeled counterparts.
 
Offering a step in the right direction, the Protect Reporters from Exploitive State Spying (PRESS) Act, introduced by Sen. Ron Wyden and Rep. Jamie Raskin, brings all sorts of journalists into the fold and provides a shield for reporters’ notes and sources from prying prosecutors. The PRESS Act defines a covered journalist as someone who “gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns news events or other matters of public interest for dissemination to the public.” That would certainly include Pulliam and Villareal.
 
The House passed the PRESS Act by unanimous voice vote earlier this year. The Senate should follow up and send it to the president’s desk for signature.
 
As for the Fifth Circuit, the Pulliam case is a great chance to revise its stance and catch up with the evolution of the fourth estate.

​Reporters Without Borders dropped the United States 10 places on its annual rankings from last year, from 45th to 55th place out of 180 countries in its 2024 World Press Freedom Index. This is part of a trend. This NGO has downgraded the United States, which enshrines freedom of the press in our Constitution, from 17th best for press freedom in 2002 to that 55th place now.
 
To be fair, some of the organization’s metrics are questionable. For example, Argentina fell from 40th place last year to 66th place in 2024 after newly elected President Javier Miliei shuttered news outlet Télam and put its 700 journalists on the street. It should be noted, however, that Télam was a money-losing, state-funded news agency founded by Juan Perón and known for being a government and Peronista mouthpiece under previous administrations.
 
So how fairly did Reporters Without Borders treat the United States? It seems overkill to us to rank the United States below the Ivory Coast, where reporters are routinely called in by prosecutors and newspapers are suspended – or Romania, where a prominent journalist who investigated the government had her personal images hacked and uploaded to an adult website.
 
At the same time, while we can take issue with the overall ranking of the United States, this NGO is correct on what the British call the direction of travel. Protect The 1st has reported what Reporters Without Borders states: “In several high-profile instances, local law enforcement has carried out chilling actions, including raiding newsrooms and arresting journalists.” We would add to that the lack of a federal press shield law also leaves reporters vulnerable to being wiretapped and worse.
 
The good news is that protections for reporters have a strong basis of public support in the United States. A recent survey by the Pew Research Center reveals robust support among Americans for the principle of press freedom, underscoring its vital role in our democracy. It’s heartening to note that nearly three-quarters of U.S. adults (73 percent) consider the freedom of the press — enshrined in the First Amendment — extremely or very important to the well-being of society.
 
Still, we have reason for caution. While a significant majority of Americans acknowledge the importance of a free press, many are concerned about threats to journalistic freedom. Notably, a substantial portion of the population believes U.S. media is influenced by corporate and political interests — 84 percent and 83 percent respectively. In our polarized society, partisan differences color these perceptions of press freedom. Republicans and Independents consistently express greater concern over media restrictions and the influence of political interests compared to Democrats.
 
Equally concerning is the broader debate over the balance between safeguarding press freedom and curbing “misinformation.” Approximately half of the American population is torn between the necessity to prevent the spread of false information and the imperative to protect press freedoms, even if it means some false information might circulate.
 
While it's encouraging to see strong support for journalistic freedoms among Americans, local authorities must understand that raids and legal threats against reporters is intolerable under our Constitution and under the press shield laws of 49 states. And we need a federal press shield law – the PRESS Act, which recently passed the U.S. House – to reduce the shadow the Department of Justice can cast over the free exercise of journalism.
 
We’ve got work to do.

​Like many declarations of the United Nations, the 31st anniversary of World Press Freedom Day is more aspirational than reality in many UN member countries.
 
In some countries, journalists are routinely killed for reporting on corrupt politicians and police agencies. UN Secretary-General Antonio Guterres’ says that violence is also common among journalists covering local environmental issues like illegal mining, logging, poaching and other acts of “environmental vandalism.”
 
Much of the repression comes from sophisticated state actors. In China, imprisoned Hong Kong publisher Jimmy Lai stayed in that jurisdiction to bravely stare down official repression after his newspaper, Apple Daily, was shuttered. In Russia, Evan Gershkovich of The Wall Street Journal remains held on specious charges of spying for the CIA by Vladimir Putin’s judicial puppets.
 
“Journalism should not be a crime anywhere on the earth,” President Biden declared today. We agree and would only add, for unfortunately necessary emphasis, “including the United States.”
   
While 49 U.S. states have press shield laws, there is no federal law that protects the notes and sources of a journalist from being seized by a federal prosecutor. Many U.S. reporters have gone to jail rather than bow to a prosecutor’s demand to reveal his or her sources. All the more reason to celebrate World Press Freedom in America by asking Congress to get behind the PRESS Act, which would extend these basic protections to the federal government.
 
“If you cannot offer a source a promise of confidentiality as a journalist, your toolbox is empty,” celebrated investigative journalist Catherine Herridge told members of a House Judiciary subcommittee. “No whistleblower is coming forward, no government official with evidence of misconduct or corruption. And what that means is that it interrupts the free flow of information to the public … Journalism is about an informed electorate, which is the bedrock of our democracy.”
 
We urge Congress to honor the First Amendment and the freedom of the press by passing the PRESS Act.

​Can a protest organizer be held civilly liable for the unlawful actions of another at a demonstration? That’s the question at issue in McKesson v. Doe, one with significant implications for protected speech.
 
The case’s circuitous journey through the courts started in 2016, when an anonymous Louisiana law enforcement officer was struck with a “rock-like” object hurled by an unknown person at a Black Lives Matter protest. This was a despicable act of violence that was in no sense expressive speech. Those who commit such acts of violence must be prosecuted to the fullest extent of the law. But what is the liability of those who organize a peaceful protest that is infiltrated by the violent?
 
Plaintiff John Doe brought suit against activist DeRay McKesson, who organized the event, on the theory that McKesson’s role as the event organizer encompassed a duty to protect everyone present. In 2020, the U.S. Supreme Court vacated the Fifth Circuit’s decision against McKesson, which upheld a novel theory from Doe of “negligent protest.” The Court remanded the case to the Louisiana Supreme Court, instructing it to analyze whether state law actually provides for negligence liability in such situations. This decision seems to ignore precedent in NAACP v. Claiborne Hardware, which held that “[c]ivil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence.”
 
The Louisiana Supreme Court ultimately reached the conclusion that state tort law does, in fact, provide Doe with a cause of action. As a result, the Fifth Circuit reinstated its ruling and the case returned again to the highest court in the land.
 
Notably, the Supreme Court ruled in the intervening years in Counterman v. Colorado that a subjective, mens rea standard (meaning specific intent, not just negligence) is required for a finding of liability in lawsuits that seek to punish speech. Justice Kagan wrote that the “First Amendment precludes punishment, whether civil or criminal, unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.”
 
Accordingly, in an order rejecting certiorari in the McKesson case earlier this month, Justice Sotomayor strongly implied that the Court has already settled this question of law. She wrote, “Although the Fifth Circuit did not have the benefit of this Court’s recent decision in Counterman when it issued its opinion, the lower courts now do. I expect them to give full and fair consideration to arguments regarding Counterman’s impact in any future proceedings in this case.”
 
The Supreme Court clearly wants to allow some deference to state law. However, it seems entirely reasonable to require a showing of intent in situations involving the random outbreak of violence at protests. Failure to do so could have a significant, chilling effect on political speech. If civil liability can be assigned for merely organizing an event, then we’re likely to see a lot less civil discourse in the future.
 
Journalists have similar concerns. As the Reporters Committee for Freedom of the Press explains, protecting against liability for the “uncoordinated,” lawless actions of others “is a critical safeguard for reporters who attend tumultuous events where violence may break out — political rallies, say, or mass demonstrations — in order to bring the public the news.” 
 
It remains possible the Fifth Circuit may reevaluate its ruing in light of Counterman, but it’s disappointing that the Supreme Court declined to weigh-in in a meaningful way. When states start imposing low liability thresholds on protestors, it jeopardizes First Amendment protections for all of us.

​A House hearing on the protection of journalistic sources veered into startling territory last week.
 
As expected, celebrated investigative journalist Catherine Herridge spoke movingly about her facing potential fines of up to $800 a day and a possible lengthy jail sentence as she faces a contempt charge for refusing to reveal a source in court. Herridge said one of her children asked, “if I would go to jail, if we would lose our house, and if we would lose our family savings to protect my reporting source.”
 
Herridge later said that CBS News’ seizure of her journalistic notes after laying her off felt like a form of “journalistic rape.”
 
Witnesses and most members of the House Judiciary subcommittee on the Constitution and Limited Government agreed that the Senate needs to act on the recent passage of the bipartisan Protect Reporters from Exploitative State Spying (PRESS) Act. This bill would prevent federal prosecutors from forcing journalists to burn their sources, as well to bar officials from surveilling phone and email providers to find out who is talking to journalists.
 
Sharyl Attkisson, like Herridge a former CBS News investigative reporter, brought a dose of reality to the proceeding, noting that passing the PRESS Act is just the start of what is needed to protect a free press.
 
“Our intelligence agencies have been working hand in hand with the telecommunications firms for decades, with billions of dollars in dark contracts and secretive arrangements,” Attkisson said. “They don’t need to ask the telecommunications firms for permission to access journalists’ records, or those of Congress or regular citizens.”
 
Attkisson recounted that 11 years ago CBS News officially announced that Attkisson’s work computer had been targeted by an unauthorized intrusion.
 
“Subsequent forensics unearthed government-controlled IP addresses used in the intrusions, and proved that not only did the guilty parties monitor my work in real time, they also accessed my Fast and Furious files, got into the larger CBS system, planted classified documents deep in my operating system, and were able to listen in on conversations by activating Skype audio,” Attkisson said.
 
If true, why would the federal government plant classified documents in the operating system of a news organization unless it planned to frame journalists for a crime?
 
Attkisson went to court, but a journalist – or any citizen – has a high hill to climb to pursue an action against the federal government. Attkisson spoke of the many challenges in pursuing a lawsuit against the Department of Justice.
 
“I’ve learned that wrongdoers in the federal government have their own shield laws that protect them from accountability,” Attkisson said. “Government officials have broad immunity from lawsuits like mine under a law that I don’t believe was intended to protect criminal acts and wrongdoing but has been twisted into that very purpose.
 
“The forensic proof and admission of the government’s involvement isn’t enough,” she said. “The courts require the person who was spied on to somehow produce all the evidence of who did what – prior to getting discovery. But discovery is needed to get more evidence. It’s a vicious loop that ensures many plaintiffs can’t progress their case even with solid proof of the offense.”
 
Worse, Attkisson testified that a journalist “who was spied on has to get permission from the government agencies involved in order to question the guilty agents or those with information, or to access documents. It’s like telling an assault victim that he has to somehow get the attacker’s permission in order to obtain evidence. Obviously, the attacker simply says no. So does the government.”
 
This hearing demonstrated how important Fourth Amendment protections against unreasonable searches and seizures are to the First Amendment’s guarantee of freedom of the press. If Attkisson’s claims are true, the government explicitly violated a number of laws, not the least of which is mishandling classified documents and various cybercrimes. And it relies on specious immunities and privileges to avoid any accountability for its apparent crimes.
 
Two proposed laws are a good way to start reining in such government misconduct. The first is the PRESS Act, which would protect journalists from being pressured by prosecutors in federal court to reveal their sources. The second proposed law is the Fourth Amendment Is Not For Sale Act, which passed the House this week. This bill would require the government to get a warrant before it can inspect our personal, digital information sold by data brokers. And, of course, these and other laws limiting government misconduct need genuine remedies and consequences for misconduct, not the mirage of remedies enfeebled by improper immunities.

​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.

​Reporters treat promises of confidentiality to potential sources as sacred for a reason. The promise of anonymity is the bedrock upon which investigative journalism rests. This promise is so central to a free press that a bill to codify its protection is currently wending its way through Congress. The PRESS Act would protect journalists and their sources by granting a privilege to shield confidential news sources in federal legal proceedings.
 
CBS went one step further after it terminated investigative journalist Catherine Herridge: the news division reportedly seized her files, including private information about privileged sources. Lawyer Jonathan Turley writes CBS is “moving toward a resolution,” with some reports indicating CBS has already returned the files. But the initial action, which sparked widespread concern among CBS employees, is instructive about the need to protect reporters and sources.
 
Turley in The Hill wrote that the “the timing of Herridge’s termination immediately raised suspicions in Washington. She was pursuing stories that were unwelcomed by the Biden White House and many Democratic powerhouses,” which landed her in hot water with CBS executives. After she was terminated, the network seized her notes and files, informing her that it would decide what would be released to her.
 
Such an action defied established media tradition.
 
“Journalists are generally allowed to leave with their files,” Turley writes. “Under the standard contract, including the one at CBS, journalists agree that they will make files available to the network if needed in future litigation. That presupposes that they will retain control of their files.” CBS also suggested that it would allow unnamed individuals to look through Herridge’s files to determine what she would have been allowed to keep.
 
A former CBS manager said that he had “never heard of anything like this.” The Screen Actors Guild-American Federation of Television and Radio Artists union (SAG-AFTRA) has raised the issue with CBS, noting the effect of this action could have on journalistic practices and source confidentiality. If this issue is, in fact, not resolved as reported, the union could well take this to court to test Herridge’s claim to her notes.
 
Why did CBS News risk tarnishing its own legacy? It shouldn’t matter if Herridge’s investigation is of Hunter Biden’s laptop, Donald Trump, Robert F. Kennedy Jr., or the My Pillow Guy. By originally suggesting that CBS will unilaterally decide the fate of Herridge's files, including those originating from her tenure at Fox News, the network risked undermining the willingness of sources to come forward with sensitive information for all news gatherers.
 
This is one more reason why Protect The 1st stands firmly in favor of The PRESS Act. As we wrote last November, ironically about Catherine Herridge in a different context, the PRESS Act would have made a difference when she was ordered by a federal judge to reveal the identity of confidential sources she used for a series of 2017 stories published while she worked at Fox News.
 
If CBS did hold on to the files, it could easily lose control of them through a leak or litigation. If ordered by a court to reveal these documents, would executives have risked jail time like Herridge has done? Although the First Amendment does not apply to a private company, CBS News should not be less supportive of a free press than the government.

​The Fifth Circuit Court of Appeals just dealt a serious blow to the freedom of the press, endorsing immunity for arresting a reporter for simply asking questions of the government and publishing the answers. The case, Villarreal v. City of Laredo Texas, arose when Facebook vlogger-journalist Priscilla Villarreal, who goes by the self-deprecating nickname Lagordiloca (“crazy, fat woman”) was detained for her coverage of a traffic accident and the suicide of a U.S. Border Patrol employee in Laredo.
 
Villarreal swore that she corroborated the names of the deceased individuals in the suicide and traffic accident with a source in the Laredo Police Department – taking this step after independently verifying these identities. In response to her reporting, Villarreal was detained and charged with violating a Texas law that makes it a crime to solicit nonpublic information from a public servant “with intent to obtain a benefit.” During the booking process, officers surrounded Villarreal, mocked her, and took cellphone photos of her while she was being fingerprinted.
 
The case had already appeared before the Fifth Circuit Court of Appeals in 2022, when a panel of judges originally sided with Villarreal. Judge Ho, writing for the court, held that “if the First Amendment means anything, it surely means that a citizen journalist has the right to ask a public official a question, without fear of being imprisoned.” The en banc appeal, which was decided recently, held that city officials were entitled to qualified immunity and that “Villarreal sought to capitalize on others’ tragedies to propel her reputation and career.” Such weaponized language could easily be leveled against any news outlet in the country.
 
This case sets a bad precedent for the freedom of the press if reporters can’t ask government officials questions without fear of arrest and other reprisals, with the police inflicting such injury held immune for any consequences. Consider one case in November, when reporter Hank Sanders was cited for persistently asking Calumet City officials for a comment about flooding in the town. The citation was ultimately dropped after city officials realized that enforcing the citation would prove to be more of a hassle than simply responding to Sanders and his questions.
 
Or consider the rural Kansas police department that ransacked the offices of the Marion County Record in execution of a search warrant to track down an informant. The leaked information? A local restauranteur’s DUI record that the newspaper had already decided not to print. Computers were seized, cell phones were snatched, all just to bully the press.
 
We have long counted on a judicial buffer to correct local abuses. Thanks to the Fifth Circuit’s expansive view of qualified immunity, and seemingly narrow view of First Amendment rights, that buffer just became thinner.
 
If the same standard that the Fifth Circuit endorsed were to be adopted across the country, journalists would be left with little recourse when law enforcement comes crashing through their doors, but ultimately declines to prosecute them. In his dissent in the Villarreal case, Judge James Graves wrote that the Fifth’s opinion means journalists “will only be able to report information the government chooses to share” lest they face arrest and other harassment. Villarreal has already declared her intent to appeal to the U.S. Supreme Court.
 
Protect The 1st supports Villarreal’s appeal and looks forward to her vindication for the sake of all American journalists.