Journalist Judith Miller recently published an op-ed in The Wall Street Journal recounting her 2005 incarceration for protecting confidential sources. She says that her experience 21 years ago and the recent Air Force One subpoena drama involving The New York Times starkly illustrate that, then as now, internal Justice Department policies are not enough.

“Reporters – and the public,” she writes, “need a federal shield law” to protect confidential sources. In short, we need the PRESS Act.

Miller points out that “Justice Department guidelines call for issuing subpoenas to journalists only as a last resort and after a thorough investigation fails to determine the source of the leak,” she notes. Yet those guidelines were ignored: “These subpoenas were issued two days after the paper published the first of two stories about the Qatari-donated plane.”

The House unanimously passed the Act in 2024, but it died ignominiously in the Senate. Miller writes that current objections to the legislation are nothing new – and nothing to fear, because the PRESS Act fully accounts for them:

1. As for compromising information vital to national security, the Act “would permit subpoenas to journalists to identify a perpetrator of terrorism, or to prevent a threat of terrorism, imminent violence, significant bodily harm or death.”
   
   
2. Miller admits that a second concern is a more daunting problem to solve in the digital era – defining who is a “journalist.”
   
   

She writes that the PRESS Act mirrors state shield laws and defines “journalist” as broadly and democratically as possible, as “someone who ‘regularly gathers, prepares, collects, photographs, records, writes, edits, reports, investigates, or publishes news or information that concerns local, national or international events or other matters of public interest for dissemination to the public.’”

It’s a much-needed evolution that prevents government foxes from guarding the chicken coop and deciding “who qualifies and who doesn’t.” Just as importantly, Miller adds, the Act “excludes earlier definitions that required a journalist to earn a living from reporting or be employed by an institutional news organization.”

Finally, she issues an important reminder: press shields need not come in either Republican red or Democratic blue, as administrations from both parties are equal-opportunity offenders, particularly when it comes to using subpoenas as political weapons.
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It would therefore be a mistake, Miller writes, to see the need for the PRESS Act and other protections “as a response to Mr. Trump’s obvious disdain for reporters. President Obama, who had promised to run the most ‘open’ and ‘transparent’ government possible, prosecuted more leak cases than all previous administrations combined.”

Well, that didn’t take very long.

The Trump administration has withdrawn subpoenas demanding that three New York Times reporters reveal information about confidential sources for stories concerning the Qatari-donated presidential aircraft.

That retreat is welcome. But the underlying investigation continues, and prosecutors have left open the possibility of issuing new subpoenas. The episode demonstrates once again why Congress needs to pass the PRESS Act.

The dispute began after The Times reported that President Trump departed Turkey aboard the older Air Force One rather than the Qatari-donated Boeing 747 because the newer aircraft lacked antimissile and other defensive systems. The reporting relied on anonymous sources. But the underlying facts about the plane would have been visible to adversarial nations in photos of the new aircraft.

The government characterized the disclosures as a substantial national-security concern occurring amid hostilities with Iran. Protecting genuinely classified operational information is a legitimate and serious responsibility. Government employees are not free to disclose national-defense secrets merely because a journalist asks.

But the government’s response went far beyond investigating its own personnel. Prosecutors subpoenaed the journalists and sought telephone records belonging to the reporters and some of their relatives. According to NPR, the records sought included those of a reporter’s mother and the spouses of journalists.

At a hearing, U.S. District Judge Arun Subramanian sharply questioned the government’s handling of the matter. Prosecutors acknowledged that they had failed to notify the reporters about separate demands for their telephone records, as required by Justice Department rules. After roughly 90 minutes of questioning, the government agreed to withdraw the subpoenas, although it reserved the option to try again. Reuters reports that the leak investigation remains active.

Confidential sources are essential to journalism about national security, misconduct, corruption, and abuse of power. If officials can identify those sources by collecting reporters’ communications records – or those of their families – many potential whistleblowers will remain silent.

This episode shows that internal Justice Department policies are not enough. Such policies can be weakened, disregarded, or rewritten by any administration. The bipartisan PRESS Act would establish statutory protections against compelling journalists to disclose confidential sources or surrender sensitive newsgathering records, while retaining carefully drawn exceptions for genuine emergencies.

This legislation is not about favoring The New York Times or shielding unlawful leaks. It is about safeguarding the institutional independence of the American press with limited protections for journalists’ notes and sources.
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The administration made the right call by withdrawing these subpoenas. Congress should now ensure that the next administration – of either party – cannot so easily turn reporters and their families into investigative targets.

What happens when another government decides for Americans which news organizations deserve be the gatekeepers of the truth?

That is the question raised by a new proposal from the United Kingdom that would require social media platforms to give preferential treatment to media outlets deemed “trustworthy” by standards set in London. This scheme would elevate some news outlets to the top of users’ feeds while relegating independent journalism to a lower tier.

House Judiciary Committee Chairman Jim Jordan (R-OH) did not wait long to fire off a letter to U.K. Secretary of State Lisa Nandy. Chairman Jordan warns that the proposal would create a “tiered information system in which media outlets that are supported and legitimized by the British government are at the top, with all other outlets and independent journalists below them.”

He also argues that requiring platforms to make government-approved outlets “prominent” and “easy to find” amounts to “a form of gatekeeping that stifles independent and smaller outlets.”

For Americans, this debate extends well beyond Britain's borders. The companies affected are overwhelmingly American platforms serving hundreds of millions of American users. Changes made to satisfy London would easily reshape what Americans see online.

Protect The 1st has long warned that government officials should never become the arbiters of which speech deserves amplification. The First Amendment rests on a different principle: let the citizen-reader decide.

History repeatedly demonstrates this wisdom of this approach.

Many of the most important stories of the last several years did not originate with large, establishment news organizations. For example, the New York Post's reporting on Hunter Biden's laptop was suppressed by major social media platforms in 2020, only to be authenticated over time. Public health skeptics and smaller publications that questioned whether COVID-19 resulted from a laboratory leak were branded as spreaders of “misinformation” before the Biden-era FBI and CIA concluded that a lab leak was a likely explanation for the pandemic.

On the left, Mother Jones revealed in 2015 the dangerous contamination of drinking water in Flint, Michigan, a story long ignored by the mainstream media.

Throughout history, major investigations have often begun with small publications, local reporters, whistleblowers, or journalists working outside the media establishment. Under Britain's proposal, tomorrow’s independent investigative reporter would find it much harder to reach the public simply because he or she lacks a government seal of approval.

Jordan’s letter also highlights another troubling aspect of the proposal.

British officials argue that governments must combat “misinformation and disinformation.” Jordan notes, “European regulators have repeatedly used terms like disinformation and misinformation to exercise greater control over online expression and limit the distribution of politically disfavored speech.” He further warns that the proposal specifically contemplates greater government control over information during “times of social unrest or crisis” – precisely the moments when vigorous public debate is most essential.
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The solution to bad journalism has never been government-approved journalism. The First Amendment has a superior approach, to trust free people – not governments – to decide whom to believe.

​If you ever had the chance to get close to one of the standard U.S. Air Force Boeing 747s that often fly under the call sign Air Force One, you might have noticed some odd features you wouldn’t find on a commercial airliner.

Strange, iridescent lenses shimmer under the wings. Bulbs protrude from the lower body and wings. Weird antennas stick out here and there.

These are defensive measures meant to protect the president, his staff, and Air Force personnel from aerial assassination. The planes on which the president flies are equipped with infrared sensors that direct lasers to zap incoming missiles, as well as chaff and flare dispensers that can divert heat-seeking missiles away from the plane.

On Thursday, The New York Times reported that the new 747, gifted to the administration by Qatar, lacks much of the defensive suite found on the rest of the Air Force One fleet. It has also been reported that the plane is lacking much of the secure communications suite that would be critical in a global emergency.

Many of the new plane’s shortcomings are obvious.

The Times reported: “Different parts of the defensive systems are visible on the old Air Force One, under the wing of the plane and on its tail. They are not observable in photographs of the new Qatari plane.” The Times attributed this observation to an Air Force official who requested anonymity.

The Times also broke the story that President Trump, after attending a summit in Ankara, Turkey, was forced to fly on one of the older Air Force One models at the insistence of the Secret Service. Ankara is little more than an hour’s flight from Turkey’s border with Iran, whose regime has vowed to kill the president in retaliation for his strikes on its leadership.

On Friday, the administration reacted to this story by dispatching federal agents to the homes of four New York Times reporters who produced the story. They delivered subpoenas requiring the journalists to testify about their sources before a federal grand jury on Wednesday.

“The appearance of federal law enforcement agents on the doorstep of news reporters should shock the conscience of any American who believes in the Constitution and press freedom it protects,” The Times quoted its newsroom lawyer, David McCraw, in a statement.

Protect the First’s Take on the Story

As an organization that defends the First Amendment, we find the unusual delivery of subpoenas to the homes of journalists heavy-handed, even goonish.

As this case proceeds, count us skeptical that the four subpoenaed Times reporters revealed information that eluded foreign adversaries. We presume that foreign intelligence analysts can compare photos of the new and older planes. We also presume that foreign intelligence agencies understood exactly why the president was forced to change planes to return home.

This story is a textbook example of why we need a free press to reveal government incompetence and malfeasance. If the president has been flying around the world on an unsafe plane, and hundreds of millions of taxpayer dollars have been spent upgrading a Qatari plane that is still unsafe, that is information that the American people need to know.

Legal Jeopardy Remains

From the standpoint of the law, however, the position of the journalists is far from clear. If anything, this ongoing story reveals vulnerabilities in how federal law treats the press.

Under existing law, these reporters might face legal jeopardy if they received classified information about the security details of the plane. It is likely that they will refuse to divulge the names of their sources to the grand jury in New York on Wednesday. And if that happens, they will be subject to imprisonment. If you doubt this, consider the plight of former Times reporter Judith Miller, who spent 85 days behind bars.

What we take from this story is the need for a federal law, modeled after those in most U.S. states, that grants journalists limited protection for their confidential sources. The Protect Reporters from Excessive State Suppression Act is a bipartisan bill that has unanimously passed the U.S. House of Representatives. As with the state statutes, it would shield the confidential sources and notes of reporters from the prying eyes of prosecutors, with reasonable exceptions for emergencies.
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Passage of the PRESS Act would not grant blanket protection to reporters who divulge classified information that endangers national security. But it would level the playing field, so that the government doesn’t hold all the cards, showing up on reporters’ doorsteps to play the heavy.

​Amid the recent protests at Newark’s Delaney Hall ICE detention facility, numerous reporters came to document a hunger strike by detainees over conditions inside. As Adam Rose writes in his essay for The Guardian, it was a bad day in a bad week for the First Amendment. To wit:

• An officer declared, “If you are press, you got the opportunity right now – and that’s it – to leave. If you don’t leave out here in an orderly fashion, you are coming with us.”

• He then pointed at someone in the crowd, which was composed mostly of journalists, and declared: "You are not press.”

• The previous Friday, police ordered WNBC reporters out of their vehicle and into a cloud of tear gas that had been deployed against protesters.

• Multiple photojournalists have been injured by police while trying to cover the protests.

It seems that the individual the officer declared by fiat to be a non-journalist was a livestreamer, one of many people at the scene who are playing an increasingly important role in modern journalism. This is especially true as the news divisions of local television stations cut their budgets and reduce news coverage.

Police were apparently unhappy because despite their obvious efforts to block access to traditional crews and cameras, the independents were prevailing. Rose points out that there were five live video feeds near the Delaney Hall protests a few nights earlier and that “none came from traditional TV cameras.”

Multiple livestreaming journalists have been arrested at Delaney Hall. One was injured and taken to a hospital. Three others were held in custody for a day and denied access to counsel. One was handcuffed despite having an ID badge around his neck and a blue vest with “PRESS” emblazoned on it. “Like the injured journalist,” noted Rose, “he was a member of the National Press Photographers Association.” They were all told their credentials hadn’t been “verified,” which is authoritarian-speak for “nothing to see here.”

But there was, as it turns out, quite a bit to see – and film. The injured livestreamer saw two arrested protesters when he was at the hospital, but in the absence of independent cameras, how they came by their injuries – or when – was impossible to determine. Was it during the initial clash with police, or while they were being detained?

The Founders didn’t have video, but they would have understood that the surest way to keep the public from learning how people are treated is to make sure nobody is making a record.
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A free press isn’t free if it requires the state’s permission to operate. That thoroughly authoritarian impulse was the very one the framers of the First Amendment most wanted to rein in.

​We earlier reported on the $3 million payout Marion County, Kansas, made to The Marion County Record after that newspaper was illegally raided by the sheriff’s office and its editor’s home was ransacked. The editor’s distraught 98-year-old mother, a co-owner of the paper, died shortly afterward.
 
Now a county and a sheriff in Tennessee are receiving another expensive lesson – this time to the tune of $835,000 – for holding a retired law enforcement officer in jail for 37 days for posting a meme. Here’s the report from the Foundation for Individual Rights and Expression (FIRE), which helped represent the plaintiff, Larry Bushart, in a federal civil rights lawsuit. FIRE reports:
 
“After the September 2025 assassination of conservative activist Charlie Kirk, Larry commented on a Facebook post promoting a vigil in nearby Perry County by sharing a meme that accurately quoted Donald Trump’s statement after a school shooting: ‘We have to get over it.’
 
“That meme – which Larry didn’t create or alter – included a reference to the 2024 school shooting at Perry High School in Perry, Iowa. But that did not stop Weems from seeking and obtaining a warrant for Larry’s arrest, based on the absurd notion that the meme could be interpreted as a threat against Perry County High School in Tennessee ...
 
“Weems admitted in a later interview that he knew at the time of the arrest that Larry’s Facebook post was a pre-existing meme that referred to an actual shooting that took place in a different state, over 500 miles away. But Weems and Morrow left out that extremely important context from their warrant application. Not that it should have mattered; the Supreme Court has long held that heated political rhetoric is fully protected by the First Amendment.
 
“Larry spent over a month behind bars on a $2 million bond. Perry County released him from jail only after his plight went viral nationwide and prompted outrage. During his stay in jail, Larry lost his post-retirement job and missed his anniversary – as well as the birth of his grandchild. After his release, he teamed up with FIRE to hold those who violated his constitutional rights accountable.”
 
Kudos to FIRE for helping Bushart stand up to this bullying. As many Americans are being arrested for exercising their First Amendment rights – whether by making controversial posts, reporting public information, or recording the police – they are pushing back in the courts. We hope local officials will learn that trashing their citizens’ First Amendment rights is hard on the résumé and the wallet.

​Two years ago, the U.S. Supreme Court handed down one of the most consequential administrative-law decisions in decades: Loper Bright Enterprises v. Raimondo. The Court dismantled the Chevron doctrine, under which federal agencies could stretch vague statutes into blank checks for regulatory power. The message from the Court was unmistakable: agencies are not mini-legislatures, and courts must independently determine the limits of agency authority.

This was widely seen as a blow against government bureaucrats expanding their power to enact progressive policies. It is far from clear, however, whether courts will now rely on Loper Bright to rein in the expansion of agency power by so-called conservatives.

As Ed Whelan reports in National Review, judges on the D.C. Circuit are now probing whether the Federal Communications Commission is attempting to evade meaningful judicial review. This case centers on whether the FCC under Loper Bright can manipulate procedural timing and administrative maneuvering to shield its actions on a merger from court scrutiny. Similar – but far more urgent – questions should be tested on another, more fundamental issue:

When will the courts finally rein in the FCC and FTC for abusing the First Amendment? And will Loper Bright help them do it?

These questions arise because these agencies are increasingly acting as though “public interest” regulation includes the power to intimidate, pressure, and discipline disfavored speech.

Consider the FCC’s escalating flirtation with speech regulation. FCC Chairman Brendan Carr’s threats over ABC’s broadcast licenses have been invoked to try to force late-night host Jimmy Kimmel off the air. Sen. Ted Cruz aptly compared Carr’s rhetoric to a mob threat from Goodfellas: “Nice bar you have here. It’d be a shame if something happened to it.” 

The FCC has no lawful authority to police “bias,” ideological tone, or political content. The First Amendment does not empower bureaucrats to decide whether broadcasters are too liberal, too conservative, too vulgar, too partisan, or too offensive. Indeed, the whole point of the First Amendment is to deny government officials that authority.

And yet the FCC increasingly behaves as though broadcast licenses are contingent on political obedience.

The FTC under Chairman Andrew Ferguson has been moving in a similarly dangerous direction. As we previously reported, the FTC is attempting to weaponize consumer-protection laws against news organizations and media-rating firms whose viewpoints or editorial decisions offend those in power. The FTC’s theory appears to be that editorial judgments can somehow become “deceptive practices” subject to federal oversight.

That is exactly the kind of expansion of agency authority – with no statutory justification – that Loper Bright sought to restrict.

The danger of speech regulation transcends party. Republicans may enjoy seeing pressure applied to progressive media figures today. Democrats may applaud investigations into conservative outlets tomorrow. But once government acquires the habit of regulating speech indirectly through licensing threats, merger leverage, investigations, or administrative harassment, everyone’s freedoms become contingent on who currently controls the bureaucracy.

Fortunately, courts can use the standards of Loper Bright to stop the creation of a permanent administrative state increasingly detached from constitutional limits. This precedent can end the use of the phrase “public interest” as a magical incantation that authorizes speech control.

The FCC was not created to supervise political dialogue. The FTC was not established to referee journalism. Neither agency possesses constitutional authority to pressure Americans into acceptable speech. Nor should courts permit agencies to evade review through procedural gamesmanship, as the D.C. Circuit now appears increasingly skeptical of permitting. 
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The judiciary has begun reclaiming its role in policing administrative overreach. But reclaiming that role means more than narrowing Chevron deference. It requires judges willing to tell Brendan Carr and Andrew Ferguson that the First Amendment means what it says.

Jacob Mchangama and Jeff Kosseff, authors of The Future of Free Speech, have a colorful piece in The Volokh Conspiracy about a foundational free speech case that you probably have never heard of – Near v. Minnesota – but without which America might have taken a dark turn.

The case involves a Minneapolis writer and editor, Jay Near, who published The Saturday Press in the 1930s. This publication was dedicated to muckraking – and it spewed muck by the gallons. For starters, it was intensely antisemitic, conflating the crimes of a local Jewish gangster – believed to have ordered the shooting of Near’s co-editor – with all Jews: “If the people of Jewish faith in Minneapolis wish to avoid criticism of these vermin whom I rightly call ‘Jews’ they can easily do so BY THEMSELVES CLEANING HOUSE.” Near also asserted that 90 percent of crimes were perpetrated by Jews.

If the local Jewish community was alarmed, local officials were livid, angered by Near’s accusations that they were in cahoots with gangsters. The chief of police worked with a state attorney to use a state law to shut down The Saturday Press. They based their case on a statute that made it a crime to publish “a malicious, scandalous and defamatory newspaper, magazine or other periodical.”

When the case landed before the Minnesota Supreme Court, the judges upheld the law: “It was never the intention of the Constitution to afford protection to a publication devoted to scandal and defamation.” But the U.S. Supreme Court reversed the state court and struck down the state statute as unconstitutional in 1931. Chief Justice Charles Evans Hughes found that the Minnesota law amounted to prior restraint, which he called “the essence of censorship.”

But the Court’s ruling was close, a 5-4 decision.

Mchangama and Kosseff note that if “one more justice” had sided against Chief Justice Hughes, “governments across the nation would have been free to shut down publications they deemed sufficiently ‘scandalous.’”

That narrow victory for the First Amendment made all the difference. Near v. Minnesota became so foundational that it was cited by the Court in its 1971 opinion rejecting prior restraint in the publication of the Pentagon Papers.

This case is worth keeping in mind today. Antisemitic rhetoric and conspiracy theories are once again in vogue, spread across the internet by the likes of Tucker Carlson and Candace Owens. The means to stop these speakers cold – through deplatforming and other forms of cancellation – are much more sophisticated and powerful than the clumsy legal efforts of Depression-era law enforcement.
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The temptation to shut up vile speech with these means is strong. But such censorship is self-defeating. It amplifies the speech it would curtail. It endows the Jay Nears of the world with the glamor of martyrdom, while encouraging the spread of their message through alternate channels. The maxim of Justice Louis Brandeis remains as true as ever: “Sunlight is the best disinfectant.”

The Justice Department has succeeded in persuading a grand jury to indict former FBI director James Comey for posting an image of seashells arranged to read “86 47” on his Instagram account.

The 47 part is a clear reference to Donald Trump, the 47th (and once 45th) president. According to the New Deal era columnist Walter Winchell, “86” was a slang term that originated with soda jerks to mean that a soda fountain was out of something and thus should be “86ed” from the menu. Over time, it has come to mean “get rid of” people as well – as in, “it’s time to 86 that rowdy customer.”

Merriam-Webster’s dictionary notes that the term has been used occasionally to mean “kill,” but “we do not enter this sense, due to its relative recency and sparseness of use.” Even if the word “kill” itself is ambiguous – as in “kill that story” or “kill that light.”

These linguistic nuances did not dissuade the Justice Department from charging Comey with two felony counts: one count of making threats to kill or harm the president and a second count of transmitting that threat publicly.

Two full days before a gunman stormed the White House correspondents’ dinner, Jimmy Kimmel recorded a joke about Melania Trump outliving her husband because she has that “expectant widow glow” – based solely on the fact that she is 24 years younger than her husband. It was not a joke about assassination given that Kimmel is a comedian, not a prophet, with no ability to know what would happen.

And yet Federal Communications Commission Chairman Brendan Carr is threatening the broadcast licenses of ABC affiliates for running Kimmel’s joke.

What is not fair is to twist language into criminal meanings and intent where none was intended. “I didn’t realize some folks associate those numbers with violence,” Comey said later. “It never occurred to me, but I oppose violence of any kind, so I took the post down.”

Actually, we’d say that no one in their right mind would associate Comey’s seashells with violence.

Moreover, even a joke that was actually about assassination – as long as it was not a direct incitement to violence – would likely be protected speech under the U.S. Supreme Court’s Brandenburg v. Ohio standard. That Court opinion protects even inflammatory speech so long as it does not call for imminent lawless action.

We agree with the observation that the coarsening of American discourse is dangerous. But using criminal law and heavy-handed regulation to persecute critics of an administration is a short path to a banana republic. And those who stretch the law should be wary of how their speech may one day be criminalized when the other party is in power.
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Our advice to this administration is to 86 this indictment and deep-six the regulatory threats.

Tragedy was narrowly averted in a park in Miami when a reporter assailed Miami-Dade Mayor Daniella Levine Cava with an impertinent question about $60 million in public funds spent on electric buses that are not working. Fortunately, before the mayor could have been fatally embarrassed in front of a local TV news camera, a valiant plainclothes Miami-Dade County deputy sheriff intervened. Without identifying himself or flashing a badge, he physically confronted the reporter, pushing him backward.

While this incident prevented the impertinent question from being asked, we cannot yet say that the danger of these kinds of confrontations is over. There are an estimated 80,000 reporters, news analysts, and journalists running loose in America, putting all sorts of unpredictable and potentially embarrassing questions to officials about how public funds are being spent, with far too few law enforcement officers on the spot to shut them up by pushing them around and threatening them with arrest.

​Freedom of expression withers when governments are always watching. Our First Amendment freedoms to think, speak, publish, and worship as we choose are strengthened by the privacy protections of the Fourth Amendment.

For this reason, defenders of the First Amendment have much at stake in the looming reauthorization debate over Section 702 of the Foreign Intelligence Surveillance Act (FISA). This surveillance authority, which Congress enacted to allow the surveillance of foreign threats on foreign soil, has been used extensively by the FBI to conduct warrantless surveillance of Americans millions of times in the last five years.

Section 702 was last reauthorized with a two-year extension in April 2024 under the Reforming Intelligence and Securing America Act (RISAA). It is now up for a reauthorization by April 20. Will the U.S. House reauthorize Section 702 the right way – by installing robust constitutional guardrails? Or will the House choose a “clean” reauthorization – rejecting all reform amendments – and continue to allow Americans’ personal communications to be swept up in a web of warrantless, at-will surveillance?

Protect The 1st General Counsel Gene Schaerr described how disregard of the Fourth Amendment has directly undermined the pillars of the First Amendment in testimony before Congress:
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• Freedom of Religion: Under Section 702, the FBI illegally searched the communications of religious leaders who applied to the FBI's “Citizens Academy.” The FBI has shown an appetite to spy on the religious, from surveillance of “traditional radical Catholics” to Americans who attend their local mosque. If federal agencies can use collected data to generate comprehensive “religious dossiers” on every American, what’s next?

• Freedom of the Press: The expansion of what is called the “make-everyone-a-spy provision” under RISAA allows the government to force providers of office space, including landlords for media organizations, to facilitate warrantless surveillance. The FBI’s searches of journalists’ and political commentators’ communications have become a recurring practice.

• Freedom of Speech and Political Expression: “Backdoor searches” are another favorite FBI tactic – and when used to illegally surveil presidential campaigns and transitions, they amount to interference in political expression. Not to mention the warrantless search of the communications of 19,000 donors to a congressional campaign. “Political dossiers,” anyone? Better watch what you post on social media.

• Freedom of Assembly and Association: By purchasing sensitive digital data from brokers, the government acquires information that reveals Americans’ political activities and associations. Case in point: The FBI searched (without a judge-approved warrant) the communications of individuals participating in mass gatherings, specifically Black Lives Matter and January 6 protesters.

• The Right to Petition the Government: In a direct affront to citizens interacting with the justice system, the FBI conducted warrantless searches of victims who approached the Bureau to report crimes. The FBI also spied on a state judge who reported suspected civil rights violations committed by a local police chief.

As these examples illustrate, attempted reforms like RISAA in 2024 offered little in the way of meaningful guardrails on Section 702 operations. Congress has one more chance to get this right. The House must legally require government agents to obtain a warrant to search through Americans’ communications, with reasonable exceptions for emergencies.

Given that 80 percent of Congress’s constituents want these changes to become law, it seems like it should be easy. This is the time to reinforce that the “consent of the governed” still matters.

We briefly wondered if Brendan Carr, chairman of the Federal Communications Commission, was having a bad day when he threatened ABC if it did not fire late-night host Jimmy Kimmel. “We can do this the easy way or the hard way,” he told a podcaster, suggesting the regulatory options available to the FCC to punish the network.

Carr also used his authority over media mergers to force Paramount into paying a $16 million settlement to the Trump library project. Paramount, then seeking to complete a merger, was forced to settle the president’s nuisance complaint against its CBS News division for how it edited an interview with former Vice President Kamala Harris.

On Saturday, Chairman Carr left no doubt where he stands on censorship – he is for it and he is the would-be censor. He doubled down by threatening to revoke broadcasters’ licenses if they do not stop the “hoaxes and news distortions” about the Iran war. If they want to stay in the good graces of the FCC, Carr wrote that broadcasters must “correct course” and toe the administration’s line or risk losing access to the airwaves.

One can argue that networks have focused too much on the blowback to U.S. actions against Iran. This is perhaps more of a matter of proximity than of bias. It is much more visually compelling to show an Iranian drone strike on the Dubai International Airport than it is to show a map of Iran with an explosion emoji designating a strike on an Iranian airfield.

It is also true that the media is sometimes sensational and biased. Consider the recent story about Defense Secretary Pete Hegseth “blowing” millions of dollars on lobsters and steaks. What was left out in many accounts is that the U.S. Department of Defense has made such expenditures for decades – as an occasional morale booster for deployed troops who often subsist on the preserved food of Meals Ready-to-Eat.

All of these are fair points. Similar criticisms can be made about much of the current war coverage.

But would we be better off if these content decisions were made by the FCC? Is the “public interest” standard of the FCC Act too easily defined as the agenda of whichever party is in power? Would officially sanctioned coverage be more objective or trustworthy? Ask the people of Russia, of China, and of Iran.

The threat in Carr’s message is unmistakable. Some of the strongest objections to Carr’s attempts at censorship come from conservatives. Sen. Ted Cruz, who oversees the FCC as Chairman of the Senate Commerce Committee, likened Carr’s statements to a mobster’s threat – “nice bar you have here… it’d be a shame if something happened to it.”

Conservatives, who were victimized by secret acts of censorship by the Biden administration, should be especially wary. If the power of the FCC to punish networks for content becomes institutionalized, Fox News, Newsmax, and other conservative outlets are sure to be targeted by a future Democratic administration.

We expect Russia to crack down on media for spreading “distortions” and undermining national unity. We do not expect to see the idea of licensed speech in America.

Chairman Carr: the First Amendment protects speech that you find disagreeable, biased, or wrong. It exists to protect all speech and a free press. The government does not supervise or license journalism. Period.
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Conservatives who were righteously angry about the ham-handed jawboning of the Biden administration should be furious about this far-greater abuse of the First Amendment, and the roadmap it creates for future administrations. These breaches of principle, as Sen. Cruz said, “are dangerous as hell.” They are also profoundly un-American.

Censorship is making a comeback as extremists in both parties try to use the mechanisms of government to shut down the bad speech of all those stupid people who just won’t shut the @#%$*& up!
 
On the left, the Biden administration engaged in an official censorship program by deploying 80 FBI agents to secretly jawbone social media companies into shadow-banning and removing conservative content. It also had a State Department program that quietly funded efforts through a London-based NGO to scare off advertisers from conservative news outlets.
 
On the right, Andrew Ferguson, Chairman of the Federal Trade Commission, apparently determined to leave no bad idea behind, is flirting with censorship by asserting the right of his agency to regulate the editorial decisions of a journalistic enterprise and a media rater.
 
We could credit Ferguson with doing publicly what the Biden administration did secretly. But the brazen, public assertion of FTC authority over private, journalistic enterprises is perhaps the greater danger – one that if accepted by the public and the courts would transform the United States from a First Amendment society into a semi-free, authoritarian country like Hungary.
 
Apple News and Journalistic “Deception”

The previous FTC chair, the progressive Lina Khan, gave a broad interpretation to Section 5 of the FTC Act that empowers the agency to bring legal actions against private actors for “unfair or deceptive practices.” Her predecessors in both parties interpreted this vague authority with modesty, choosing to go after phony claims of cancer cures or the selling of worthless swamp land. Khan used it freely to investigate businesses.
 
But not even Khan asserted that this vague authority gave her the ability to regulate news outlets. That bit of pioneering belongs to Ferguson. He recently fired off a “warning letter” to Apple CEO Tim Cook accusing Apple News of violating its terms of service and the “reasonable consumer expectations of tens of millions of Americans.”
 
Apple News is an aggregator that features content from outlets ranging from Politico to The Wall Street Journal to USA Today. Ferguson accuses Apple News of favoring liberal content while ignoring stories from conservative media – which to be clear, the First Amendment would protect even if true.
 
What about Ferguson’s “terms of service” claim? We pored over the terms of service for Apple News (so you don’t have to) and found that this document eschews any promises about quality, neutrality, balance, or editorial fairness. It’s not even as if its marketing catchphrase is “Fair and Balanced,” or “All the News that’s Fit to Print.” In fact, this document explicitly disclaims responsibility for content accuracy or quality arising from Apple News’s curated, third-party material. And apart from any disclaimer, accusations of editorial slant or an assumed obligation of balance or good judgment ultimately boil down to matters of opinion – of the editors and the readers – not government diktat.
 
Quite simply, Ferguson is attempting to extend consumer protection laws to allow the government to regulate the editorial decisions of a news organization and impose its own editorial slant on organizations it dislikes. That is not consumer protection. It is phony concern about terms of service to promote terms of censorship.
 
FTC Seeks to Ransack the Files of Media Rater
​
The FTC also issued a civil investigative demand related to an antitrust investigation, requiring NewsGuard – a for-profit organization that rates the credibility of news organizations – to produce all its documents. This order includes any documents NewsGuard created or received since its founding in 2018, including reporters’ notes and lists of subscribers.
 
Many conservatives had their suspicions raised when they learned that this business received $25,000 in 2020 from the Pentagon and the State Department to identify hoaxes about COVID-19. On the other hand, as The Wall Street Journal has noted, NewsGuard rates Fox News ahead of MS Now, and National Review above CNN.
 
Of course, even if one thinks it is biased, NewsGuard and its viewpoints are protected by the First Amendment. NewsGuard understandably responded to the FTC’s actions by suing the government for attempted censorship.
 
Regardless of whether you privately agree with Ferguson’s underlying point about overall media bias against conservatives, that is a private opinion for you to make and others to reject. That opinion can control your choices about which media to follow, praise, or criticize, but other individuals get to make those same choices for themselves. Giving the government the means to regulate editorial decisions, and to constrain those choices from on high, guarantees abuse and censorship. Conservatives should be the first to recognize this. If Ferguson’s tactics stick, they will surely be used against conservatives tomorrow just as they are being used against allegedly biased news organizations today.
 
More and more, leaders on the right and the left seem dedicated to living out what Ray Bradbury predicted in 1953 in his dystopian novel, Fahrenheit 451: “There is more than one way to burn a book. And the world is full of people running about with lit matches.”

The Bill of Rights, the first ten amendments to the U.S. Constitution, has an underlying architecture in which each principle and right rests on – and reinforces – the others.

We hope that when the U.S. Supreme Court considers Chatrie v. United States, the Justices will see that surveillance, privacy, and expressive freedom are all facets of human liberty. At stake isn’t merely the correct application of the Fourth Amendment’s warrant requirement – that a neutral magistrate must find probable cause and specify the persons or places to be searched – but also the very conditions under which Americans can think, speak, and publish freely.

In Chatrie, the question is concrete: whether a geofence warrant – a broad data dragnet that compels companies to disclose the location information of all devices within a specific place and time – satisfies the Fourth Amendment. But the constitutional implications extend to conditions essential for our First Amendment freedoms to flourish.

Why the Supreme Court Should Not Try to Untangle Americans’ First and Fourth Amendment Rights

In an amicus brief, the Project for Privacy and Surveillance Accountability (PPSA) urges the Supreme Court to rein in geofence warrants. PPSA explains that these are “digital general warrants” incompatible with the Constitution because they invert the Fourth Amendment’s core design. Instead of naming a person or place based on individualized suspicion, they authorize the government to sift through massive data sets to identify potential suspects after a crime has occurred. This practice is not targeted policing. It is suspicionless data mining. 

These “reverse warrants” are consequential for more than location privacy. The same digital dragnets now being used to capture location data are being deployed in other contexts – keyword warrants, genetic data searches, and other forms of “reverse” searches that sweep up innocent Americans’ information merely because they intersected with a place, word, or characteristic.

The chilling effect is real – when people know that their movements, associations, or digital footprints can be turned over to the government without particularized cause, they think twice before seeking information, attending meetings, joining protests, or talking to journalists.

Thus, the Fourth Amendment’s privacy protections are not some narrow procedural right that disappears in the face of convenience. A world in which the government can collect comprehensive data about who attended a political rally or who was near a place of worship at a given time – without a warrant – is a world in which expressive liberty is chilled.

The Chatrie First Amendment Amici Make This Connection Explicit

The amicus brief filed by the Reporters Committee for Freedom of the Press, the Knight First Amendment Institute at Columbia University, and the Foundation for Individual Rights and Expression (FIRE) drills down on the point that Fourth Amendment privacy protections are also about protecting the informational foundations of a free society.

“Few investigative tools are more invasive than those that allow government to identify who met with a reporter,” Mara Gassman of the Reporters Committee for Freedom of the Press said in a statement. “There are longstanding safeguards designed to prevent law enforcement from intruding on confidential newsgathering because those intrusions endanger sources and impair public interest reporting.

“Dragnet location searches bypass those protections and threaten the independence of the press far beyond a single investigation,” Gassman said.

Without the Fourth Amendment’s requirement for particularized description of the targeted person or place, sweeping digital dragnets become the default – location data, communications, browsing behavior, social associations, and even journalists’ sources become vulnerable.

And when that happens, the law becomes a tool for monitoring who is where, talking to whom, and concerned about what. Even the perception of surveillance can dampen speech. When combined with the real potential for government access to rich troves of data, the effect is even greater.

The Constitutional Order Must Be Preserved

The Founders tied the First and Fourth Amendments together because a free society depends on privacy from arbitrary governmental intrusion and liberty of thought, speech, and press. When courts dilute the requirements for probable cause and particularity – as the Fourth Circuit did in Chatrie – they undermine that constitutional order. 
​
Chatrie presents the Supreme Court with a chance to reaffirm the Fourth Amendment’s historic protections and avoid acquiescing to a surveillance state.

​When federal agents clamped handcuffs on independent journalist Don Lemon at the Beverly Hills Hotel as he prepared to cover the Grammys, this made-for-headlines arrest immediately raised a serious question: Do journalists enjoy First Amendment protections when they are embedded in an unlawful protest?

Lemon was arrested after covering an anti-ICE demonstration that disrupted a Sunday worship service in St. Paul, Minnesota, on Jan. 18. This case exposes questions about the constitutional boundaries separating worshippers, protesters, and journalists.

Can you protest during a church service?

The protesters entered Cities Church, shouting “Justice for Renée Good!” This church was apparently targeted because one of its pastors, David Easterwood, heads an Immigration and Customs Enforcement (ICE) field office in that city. At least two of these protesters have been arrested, along with Lemon.

A federal indictment naming Lemon and other defendants portrays the protesters entering the church in a “coordinated, takeover-style attack” that caused congregants to flee and children to panic. The indictment claims one protester told two crying children: “Do you know your parents are Nazis? They’re going to burn in hell.”

The protesters might be found guilty of violating the Freedom of Access to Clinic Entrances (FACE) Act, a federal law from the Clinton era that protects both abortion clinics and churches from interference by protesters. Does the First Amendment, which is the supreme law over any statute, override the statute and protect these protesters on the basis of free speech?

Short answer: No.

Of course, churches are open to all. The protesters had every right to enter, just like anyone else. But if a church official considered them disruptive and told them to leave – and they didn’t – they were trespassing and also possibly guilty of a FACE Act violation. A first offense carries a penalty of up to six months in prison and a $10,000 fine.

Wait, how is the FACE Act not a violation of the First Amendment’s free speech clause?

If anything, the First Amendment protects the church, not the protesters.

While the “right of expressive association” is not explicitly articulated in the U.S. Constitution, the Supreme Court has held that this right of expressive association is inherent in the First Amendment’s protection of free speech. And it is likewise inherent in the First Amendment’s protection of the free exercise of religion. Indeed, if the government were to make a church exception to the enforcement of ordinary trespass laws, that would be blatant discrimination against religion in violation of the free exercise clause.

Think of it this way: How could any group of people, banding together for the same expressive or religious purpose, enjoy any associational and collective speech or religious rights if anyone could storm in and shout them down?

This principle applies to mosques, synagogues, churches, private university classrooms, board meetings, award ceremonies, and even Don Lemon’s online show.

So Lemon is in big trouble, right?

It depends on whether the allegations in the indictment hold up.

The federal government charges that Lemon met with other defendants at a shopping mall to plan the entry into the church. It also alleges that Lemon stood close enough to the pastor to restrict his freedom of movement in an effort to “oppress and intimidate” him. Did he do that, or was it an attempt to interview the pastor that he perceived as an attack?

What we can see online is that Don Lemon went into the service with a camera and interviewed both protesters and worshippers. Walking around a church sanctuary interviewing people is potentially disruptive, but it will take a trial to test the government’s allegations. Did Don Lemon lead or follow the protesters into the church? If he merely followed the protesters, he may have been reporting on a newsworthy disruption, not causing it. But if the government’s portrayal of Lemon being involved in planning the protest is proven, Lemon faces legal jeopardy.

C’mon, Lemon is a left-wing activist himself. Now he’s a “journalist”?

Lemon, who was fired by CNN for alleged rudeness and misogynistic remarks, is no Walter Cronkite. He’s an opinion journalist with a leftward, progressive slant. He is undoubtedly sympathetic to the protesters and their cause. That still makes no difference in this case.

A thought experiment brings home the principle protecting Lemon: Imagine if a Fox News reporter had been at Cities Church to cover the trashing of its service for an outraged audience. That hypothetical reporter’s sympathy in favor of the church would leave no one questioning his First Amendment rights (unless, of course, he was asked to leave and didn’t).

The same applies to Lemon and his sympathies. As long as he didn’t plan the protest – but merely followed up on a tip that there was a story brewing at the church – and did not ignore a proper request to leave the premises, he is likely protected as a journalist.

What will be the practical effects of this arrest?

U.S. Attorney General Pam Bondi said Lemon was arrested at her direction, posting: “WE DO NOT TOLERATE ATTACKS ON PLACES OF WORSHIP.”

That’s all well and good, with the all-caps warranted. But to convict Lemon, the government will need to prove its allegations.

If the government’s allegations don’t hold up in court, and Lemon is acquitted, it would hard be to imagine a greater gift AG Bondi could have granted a left-wing, web-based, independent journalist than to arrest him as an anti-ICE, free speech martyr in the very epicenter of his progressive base of viewers.
​
What we can definitively say is that the losers will be anyone – including Lemon – properly found guilty of violating the FACE Act. Tip to the protest community: Wrecking a church service is not a good look for you, nor a help to your cause. It’s also against the law.

On January 14, FBI agents raided the home of Washington Post reporter Hannah Natanson and seized her phone, two laptops, and a Garmin watch.

This story has brought the Privacy Protection Act (PPA) of 1980 back into focus. In theory, that law protects journalists from having their notes or “work product” seized unless they themselves are criminal suspects. And while the affidavit has yet to be unsealed, Natanson and The Post were told that they are not targets of the government’s probe. Yet clearly, she is being targeted as if she were a criminal. First Amendment watchdogs are understandably barking mad.

As Chris Cillizza recounts in his concise summation of recent history on the law and past raids on reporters, the PPA has inspired creative ways by administrations of both parties to circumvent it. The government doesn’t like it when a reporter knows more about a crime than the Department of Justice does. In such cases, what’s an administration to do? In the case of Fox News reporter James Rosen, Obama’s Justice Department in 2013 declared Rosen a co-conspirator with an actual criminal in order to confiscate that reporter’s notes. Then-Attorney General Eric Holder later admitted he never suspected Rosen of an actual crime.

To quote Cillizza, after the Obama Administration “stretched the rubber band” on First Amendment press protections, it “never went back.” The First Trump Administration stretched the rubber band some more. So did the Biden Administration. And now the second Trump Administration appears to be giving the method for getting around the law even more elasticity. Gabe Rottman of Reporters Committee has meticulously chronicled the long struggle between free press advocates and these successive administrations.

It is not a tale that inspires hope. Consider how the Department of Justice embraced an internal policy of protecting reporters, only to violate its own policy, then rescind it altogether.

As dysfunctional as the media may sometimes be, it still performs a vital role in national hygiene – bringing to light corruption and malfeasance in government. Time after time, we’ve seen administrations act under the banner of “national security,” when they are in fact seeking primarily to avoid political embarrassment.

This worsening trend in press freedom in recent years suggests that the Privacy Protection Act is an insufficient guarantor of journalistic rights. As aggressive and overreaching as Attorney General Bondi’s move against Natanson was, it is the logical continuation of the policies of the last four presidential administrations.
​
Only by passing the Protect Reporters from Exploitive State Spying (PRESS) Act – a genuine press shield law – will the feds respect the role of journalists in a First Amendment society.

​A three-judge panel of the 11th Circuit Court of Appeals denied President Trump’s lawsuit against CNN for saying that his claims about the 2020 election were a “Big Lie.”

What’s the big deal about the Big Lie?

That propaganda term was coined by Adolf Hitler in the 1920s to describe a technique in which many people – who might doubt a small, unfounded accusation – are apt to believe an absurd, outlandish falsehood. Say that your opponent is beholden to special interests, and people shrug. Say that he sacrifices stray dogs to the Roman God Mars, and a surprising number of people will believe it must be true.

Why do some react this way? Hitler wrote in Mein Kampf that it is because most people believe that no one “could have the impudence to distort the truth so infamously.”

So, when CNN ran a story accusing Trump of peddling the “Big Lie” that the 2020 election was stolen, the president was understandably offended by the comparison. He sued. But was he correct in telling the court that audiences would assume that he was doing exactly what “Hitler did in his monstrous, genocidal crimes against humanity”?

A cursory search shows that the “big lie” trope has been watered down by commonplace usage. During President Trump’s first term, then-Attorney General William Barr described the allegations that Trump’s 2016 victory occurred with an assist from Putin as a “big lie.” Sen. Mitch McConnell, then-Minority Leader, accused Democrats of pushing a “big lie” about Republican proposals for voter IDs. President-elect Joe Biden castigated Sen. Josh Hawley for being “part of the big lie” about the 2020 election.

The term “big lie” might have been defamatory in 1938. By 2025, it has been used so often and so elastically that it has surely lost much of its sting. That is one reason why the appeals court panel ruled:

“To be clear, CNN has never explicitly claimed that Trump’s ‘actions and statements were designed to be, and actually were, variations of those [that] Hitler used to suppress and destroy populations.’”

Two of the three judges were Trump appointees. The judges harked back to failed defamation cases in which one plaintiff was described as a “fascist” and another as “an outspoken proponent of political Marxism.” Courts found that such terms were, in the ruling on the first case, “so debatable, loose and varying that they were insusceptible to proof of truth or falsity.”
​
Courts have long recognized that political speech deserves the widest latitude when it comes to defamation. Politics is not for the easily bruised. Still, with great freedom comes great responsibility. We would all be better off as a country if politicians and journalists alike were to dial back the rhetoric and stick with the facts.

The Pentagon is no longer content to manage information. According to a lawsuit filed by The New York Times, it now wants to control the press itself.
 
In a sweeping First Amendment challenge, The New York Times and national security reporter Julian E. Barnes have sued the Department of War over a new press-access policy that would allow Pentagon officials to revoke journalists’ credentials for publishing stories the government disfavors – even when those stories rely on unclassified information obtained entirely outside of the Pentagon complex.
 
At the center of this case is a new rule for PFACs – Pentagon Facility Alternate Credentials – the badges that have allowed reporters to move around the building and cover briefings, hallway encounters, and day-to-day operations for nearly 80 years. From World War II to 9/11 to Iraq and Afghanistan, that access has been essential to independent reporting on the military.
 
Under the new rule, Pentagon officials can immediately suspend and ultimately revoke a journalist’s PFAC if they conclude the reporter has “solicited,” received, or published “unauthorized” information – even if the information is unclassified and the newsgathering happened entirely outside the building.
 
Such punishments would have clearly aimed to prevent The Washington Post’s scoop that a secondary missile strike killed survivors on a presumed drug-smuggling vessel. This is a revelation so disturbing that some leaders of the Republican-controlled House and Senate are demanding public disclosure of an unedited video of the boat strike.
 
Would the public and Congress be better off not knowing about these strikes? That sort of “unauthorized” – read: embarrassing – journalism appears to be precisely what this policy is designed to deter.
 
Even routine acts of reporting are swept into the danger zone. Asking questions of Defense Department employees, or publicly posting a call for tips on social media, can be deemed “solicitation” and used as grounds for revoking a reporter’s credentials.
 
Worse still, this policy authorizes officials to pull access for vaguely defined “unprofessional conduct that might serve to disrupt Pentagon operations.” The Times says this gives Pentagon leadership “unbridled discretion” to punish disfavored reporters and outlets – exactly the sort of standardless power courts have repeatedly said violates both the First and Fifth Amendments.
 
The Pentagon compounded the crackdown on the media by demanding that reporters sign an “acknowledgment” stating they had read and “understood” the policy. Journalists from nearly every major news organization refused, warning that signing would legitimize a system that punishes routine newsgathering. As a result, they turned in their PFACs and lost day-to-day access to the building.
 
The New York Times, perhaps predictably, criticized the Pentagon’s inclusion of the “next generation of the Pentagon press corps” – which includes, commendably, new and wider media. But, as The Times notes, it also includes influencers friendly to the administration. The lawsuit argues that this is not a neutral security policy, but a viewpoint-based press-access regime.
 
If the policy takes hold, The Times warns, the longstanding adversarial tension between press and government will collapse. It will be replaced by a system in which only approved narratives are permitted, forbidding stories like the missile strike on survivors of a sunken boat, conducted in the name of the American people.
 
That would not be press oversight. That would be press censorship.

​The University of Alabama shut down two student run-magazines – one for women, one for Black students. Why? The university holds that these publications’ targeting of readers among its 43,000 students constitutes unlawful discrimination on the basis of race and sex.

The theory suggests that the university is acting to protect Crimson Tide men who are writhing in pain from their exclusion from Alice, “the University of Alabama’s fashion and lifestyle magazine.” The same can be said for all the white, Asian, and Latino students who are in agony over their exclusion from Nineteen Fifty-Six, a publication dedicated to “Black culture, Black excellence, and Black student experiences.”

In other words, the university is singling out these publications for directing content to women and African-American students, which sounds a lot like – and is – viewpoint discrimination. “You cannot have a more blatant First Amendment violation here,” Mike Hiestand, senior legal counsel for the Student Press Law Center, told the student-run The Crimson White.

We would add that it would be hard to have a more profoundly stupid violation, either. This ranks up there with the decision by the U.S. Naval Academy to protect its non-Black students by removing Maya Angelou’s autobiography, I Know Why the Caged Bird Sings from its library.

Why is this happening? Universities have an understandable desire to stay on the right side of the Trump administration’s crackdown on diversity, equity, and inclusion initiatives. To be fair, DEI ideology and administrative departments had become domineering presences in campus culture and speech, threatening academic careers over faux pas and linguistic misdemeanors. A correction was certainly needed, but we are now veering into overcorrection.

The University of Alabama is acting on its interpretation of a July 29 memo from Attorney General Pam Bondi. That memo included “non-binding suggestions” to help institutions that receive federal funds avoid “unlawful proxies” and “ostensibly neutral criteria that function as substitutes for explicit considerations of race, sex, or other protected characteristics.”

Somehow, that has become a directive to avoid any channelization of communication or free association between Black Americans (12 percent of both the U.S. and the University of Alabama population), and women (51 percent of the U.S. population and 56.5 percent of that university’s population). Taken literally, any lawful interest magazine would have to cater to everyone, of all races, both genders, of all backgrounds, faiths, and national origins. Maybe Fencepost magazine, courtesy of the American Fence Association, fits the bill. (Although some might find its “modern wood designs that keep us coming back” a tad bit risqué.)

The bottom line is that the university’s actions constitute blatant viewpoint discrimination – one of the clearest violations of the First Amendment imaginable.

We draw this conclusion from the U.S. Supreme Court in Rosenberger v. Rector, which slammed the University of Virginia in 1995 for denying standing to a Christian-based student publication. The Court majority’s abiding concern was viewpoint discrimination, not that somehow non-Christians would be discriminated against by the publication’s existence.

A society based on free speech is one that respects pluralism – Christians, Muslims, Jews, atheists, women, men, gays and non-binary folk, fashionistas, sci-fi geeks, and football fanatics. An effort to enforce an artificial homogeneity is not anti-discriminatory. It is just a new form of discrimination: viewpoint discrimination.
​
We would not be surprised if between the time we post this piece and you read it the university will have listened to its lawyers and reversed these twin cancellations rather than face these students in court. As Nick Saban said, it’s never okay to lose a game.

Enraged by The Marion County Record’s reporting on a public document about a restaurateur’s DUI, officers of the Marion, Kansas, police department and the local sheriff’s department raided the newspaper, and seized its computers, servers, and cellphones. Editor Eric Meyer had his home raided while his 98-year-old mother Joan – a former editor – watched the police ransack her home in great distress.
 
Joan Meyer died the next day.
 
Marion County has now agreed to pay a total of $3 million to the victims of this raid in 2023 and to Joan Meyer’s estate. The Marion County Sheriff’s Office, for its part in the raid, issued an apology as well as a check:
 
“This likely would not have happened if established law had been reviewed and applied prior to the execution of the warrants.”

The Freedom of the Press Foundation responded by saying:
 
“You think? Any police officer or judge with half an understanding of the First Amendment should’ve known better than to ask for or sign off on the raid on The Record and the home of owners Eric and Joan Meyer.
 
“But apparently, police don’t always read the law, and judges may need a refresher, too. Let’s break down the flashing red lights any judge or cop should heed before storming a newsroom.
 
“The First and Fourth Amendments strongly protect against searches of journalists and newsrooms.
 
“Under the Fourth Amendment, a search warrant must be supported by probable cause, which means a likelihood that contraband or evidence of a crime will be found at a particular place. The government must also specify the place to be searched and the thing to be seized.
 
“When a search warrant targets materials protected by the First Amendment — like notes, recordings, drafts, and materials used or created by journalists — the Fourth Amendment’s requirements must be scrupulously followed, the Supreme Court has said.
 
“This means that judges must be extra strict in applying the Fourth Amendment’s requirements when a search impacts First Amendment rights, which it will any time it involves a journalist or newsroom. What judges should never do is allow overly broad searches where police rifle through journalists’ desks and computer files willy-nilly in the hopes of turning up something ‘incriminating.’”
 
The Freedom of the Press Foundation also noted that Kansas, like most states, has a press shield law that would have required a court hearing before law enforcement could rifle through journalists’ confidential sources. The federal Privacy Protection Act of 1980 requires law enforcement to obtain a subpoena, not just a warrant, thereby giving The Record an additional opportunity to challenge the demand in court.
 
The Freedom of the Press Foundation concluded:
 
“Journalists also have a right to publish information given to them by a source, even if the source obtained it illegally, as long as the journalist didn’t participate in the illegality. That means that if a source gives a journalist a document or recording that the source stole, the journalist can’t be punished for publishing it.
 
“Because these things are not crimes, it also means that accessing publicly available information or publishing information that a source illegally obtained can’t be the basis for a raid on a newsroom or search of a journalist’s materials.
 
“Next time, think before you raid.”

​The history of American journalistic liberty begins about 350 years ago, in the era of the Massachusetts Bay Colony. When the British Crown gave the censorious Puritans a taste of their own medicine by ending their theocratic rule, printed dissent began to take root in the colony. Eventually, patriots like James Franklin and his younger brother, Benjamin, would push these ideas even further.

Massachusetts thus became the birthplace of America’s free press. No less than six anti-crown publications existed there on the eve of the Revolutionary War in 1775. At first, they were propelled by courage alone, but by 1791 a free press had become a foundation of the new republic. The Founders feared that without formal protections, freedom of the press wouldn’t mean much – and was therefore unlikely to last.

Which is why we're glad the inheritors of that rich tradition – the editorial board of The Boston Globe – recently pointed out a stinging historical irony: Massachusetts has failed to enshrine into law a fundamental journalistic right – the protection of confidential sources, the identity of whom prosecutors often demand. In fact, the board observes, a proposed press protection law hasn't even come to a floor vote in the state legislature for fifteen years. The Globe hopes this year will be different:

“The free press in a democratic society should not be expected to be a tool of the criminal justice system. It defies logic that prosecutors should feel the need to obtain reporters’ notes when they have vastly more power – via subpoenas and other means – to obtain information on their own.”

Libel and defamation laws will continue to protect us from shoddy journalism, they note to critics. Protecting confidential sources isn't simply a shield anyway – it's also an enabler of ethical reporting:

“Sound journalism requires that confidential information be verified in other ways – and when done properly, such reporting can reveal vital secrets about government, business, and other powerful institutions that the public has a right to know.”

Here's hoping Massachusetts remembers its proud history of press freedom and joins the 40 other states that have already protected confidential sources by statute. And wouldn't it be great if the federal government joined this little statutory party and passed the Protect Reporters from Exploitive State Spying (PRESS Act)?
​
Journalists have no protections in federal court from prosecutors seeking their notes and sources. If Massachusetts adopts a press shield, would Washington continue to remain far behind the states? Probably. But sometimes revolutions occur in small steps. Let the next step be in Massachusetts.

​The walkout over the Pentagon’s restrictive new press rules continues. On Tuesday, Fox locked arms with ABC, CBS, CNN, and NBC to declare in a joint statement:

“We join virtually every other news organization in declining to agree to the Pentagon’s new requirements, which would restrict journalists’ ability to keep the nation and the world informed of important national security issues. The policy is without precedent and threatens core journalistic protections. We will continue to cover the U.S. military as each of our organizations has done for many decades, upholding the principles of a free and independent press.”

As CNN’s Aaron Blake points out, Fox’s participation also represents a deeply symbolic rebuke of the former Fox News commentator: “This is Hegseth’s own former employer saying he’s undermining freedom of the press.”

It’s not like Secretary Hegseth was all that chatty anyway. As many outlets have reported, he has only given two briefings during his time in office:

“We're barely getting any information at all from the Pentagon,” wrote NPR’s Tom Bowman, a 28-year veteran of the Pentagon press pool, adding: “And there have been virtually no background briefings, which were common in the past whenever there has been military action anywhere in the world.”
​
Even the ever-acerbic Donald Rumsfeld, noted Bowman, gave press briefings twice a week. And, we might add, he was an actual wartime secretary.

​Et tu, Newsmax? 

We’ve held off writing about the Department of Defense’s restrictive new rules for Pentagon-beat reporters, waiting to see the results of intensive negotiations between the Department and journalists.

Now we know the results of those negotiations – by Monday afternoon, CNN, The Associated Press, The New York Times, The Washington Post, The Atlantic, and NPR said adios to the E-Ring. Even Newsmax – not known as a bastion of mainstream media critics of President Trump – rejected the First Amendment-killing terms of the Pentagon’s new policy for beat reporters.
​

• The original policy issued Sept. 18 would have required journalists to sign a pledge acknowledging that they had to secure the Pentagon’s permission before publishing any information, including unclassified reports.

 

• A new version issued on Oct. 6 clarified that journalists do not, in fact, have to submit their writings for Pentagon approval. But it did warn journalists against “solicitation” – a word normally used by police when arresting johns for prostitution.

 

• The policy read: “Solicitation may include direct communications with specific (Defense) personnel or general appeals, such as public advertisements or calls for tips encouraging (Defense) personnel or general appeals, such as public advertisements or calls for tips encouraging (Defense) employees to share non-public (Defense) information.”

This language essentially forbids journalists from asking what, from an official standpoint, are “wrong questions.” Angela Fu of Poynter reported:

“In essence, the new memo shifts from attacking journalists’ ability to publish the news to attacking their ability to gather it, experts say. From a press freedom standpoint, the dangers of the revised version are ‘clearly no better’ than the ones in the initial version, said PEN America journalism and disinformation director Tim Richardson.”

Worse, restricting unclassified and politically sensitive information amounts to… oh, what is that phrase? Oh yes, “prior restraint” – the cardinal crime against the First Amendment.
​
Now a wide spectrum of journalistic outfits will be turning in their credentials and reporting from outside the building. In response, Defense Secretary Pete Hegseth posted a goodbye emoji:

​We applaud these news organizations, left, right, and center, for standing up to a demand to only publish approved news. We further predict this will turn out not to be a bright move for Secretary Hegseth. These journalists will no longer be seen walking the halls and checking in with the Pentagon’s press offices to get the official scoop. Instead, they will work their stories with smartphones, using encrypted messaging apps to cultivate insiders willing to dish out stories the Pentagon would probably prefer to keep under wraps.
​
We cannot think of a better way to encourage the kind of bad press that leads to trouble. We’ll see who gets the final bye-bye.