​Bangor, Michigan, population 2,113, bills itself as “The Gateway to the Lake.” But the town is anything but laid back lately. Local government officials are speaking loud and clear – prosecutions will continue until morale improves.
 
In January, the Bangor City Council unanimously approved a motion to allow “City Attorney (Scott) Graham to file charges with the court against all parties involved in statements that have caused harm to the city.”
 
The controversy apparently stems from accusations that Bangor resident Justin Weber is receiving two paychecks by virtue of his dual role as city manager and chief of police. City officials deny that this is happening. “This is America,” Bangor Mayor Lynne Farmer said. “You’re free to have your own opinion. But in America, you are not free, under the First Amendment, to keep repeating something that’s false that you knowingly know is.”
 
The city is merely targeting “known untruths,” she said. 
 
Why do so many Americans these days in positions of authority lack an understanding of the First Amendment? Mayor Farmer’s statement should be in law school textbooks as a classic example of getting the First Amendment wrong. As the Foundation for Individual Rights and Expression wrote in a letter to the city, “The First Amendment flatly prohibits government entities from bringing defamation actions, even against speakers who make knowingly false statements.” If it didn’t, as the U.S. Supreme Court decided in 1972, “every criticism of public expenditure, policy, management or conduct of public affairs would place its utterer in jeopardy. It is difficult to imagine anything more destructive of democratic government than the power in the hands of a corrupt government to stifle all opposition by free use of the public treasury to silence critics by suit.”
 
If this standard were overturned, any bureaucrat could decide what is truth and a “known untruth.” If Bangor city officials want redress, they can always file a defamation lawsuit for themselves. But they cannot have the city lean on their critics for them.
 
The Bangor City Council should revoke Graham’s authority to bring suits against its citizens for speaking their mind. Not long ago, Police Chief Weber was caught on camera calling upset residents “pansies.” It should be enough to dismiss that slur as offensive. But if the city council has its way, the prosecutor could go after the police chief because humans, after all, aren’t flowers; therefore, that characterization is knowingly false. Or we could all just take a civics refresher and step away from the ledge.  

​You can get arrested in Moscow, Idaho, where one Rory Wilson was convicted for posting stickers opposing the city’s COVID-19 response without first getting official approval.
 
Moscow City Code Section 10-1-22 prohibits anyone from posting a “notice, sign, announcement, or other advertising matter” on public property “without prior approval, in writing” of the “governmental entity owning or controlling such property.”
 
The U.S. Supreme Court has repeatedly held that such schemes are inherently suspect. In City of Lakewood v. Plain Dealer Publishing Company (1988), the Court held that when the government has “unbridled discretion” to grant someone the right to speak, it constitutes a “prior restraint” that “may result in censorship.” It may also result in self-censorship out of fear of an adverse government action, which should be as much of an anathema to principles of free speech as any overt prohibition.
 
Here, we have an example of a local government blatantly weaponizing the law to crack down on disfavored speech. Prior to Wilson’s arrest, the City of Moscow had never before enforced the code provision in question, and Moscow police admitted they were doing so in this case because they did not “agree” with the stickers’ “messaging.” Prior to the incident with Wilson, government officials had also repeatedly criticized his church for advocating against the city’s COVID-19 restrictions. The city prosecutor, specifically, called Wilson’s fellow congregants “religious idiots.”
 
The Supreme Court has repeatedly addressed similar discretionary permitting schemes. In Saia v. People of State of New York (1948), the Court found unconstitutional an ordinance requiring government permission before relaying “news and matters of public concern” over sound amplification equipment. In Largent v. State of Texas (1943), the Court likewise overturned an ordinance that required the mayor’s approval to sell certain books. And in Kunz v. People of State of New York (1951), the Court struck down an ordinance making “it unlawful to hold public worship meetings on the streets without first obtaining a permit from the city police commissioner.”
 
All of these schemes constituted prior restraints on speech. The present controversy in Moscow is no different. Unfortunately, Idaho courts didn’t see it that way, upholding Moscow’s law in contravention of well-established precedent. As a result, Protect The 1st will file an amicus brief in support of Wilson’s certiorari petition to the Supreme Court of the United States. 
 
U.S. citizens have the right to voice their views in the public square without government approval. It is one of our nation’s longest held traditions, a defining principle of our democratic traditions. Giving the government discretionary power to approve or deny the exercise of that right is an affront to the First Amendment.
 
We’ll follow up soon with our brief.

New York state government came under the scrutiny of the U.S. Supreme Court in 2024 after Financial Services superintendent Maria Vullo pushed Lloyd’s of London and other insurers to cut ties with the National Rifle Association. In a unanimous opinion authored by Justice Sonia Sotomayor, the Court said that “Vullo’s communications with Lloyd’s can be reasonably understood as a threat or as an inducement. Either of those can be coercive.” 
 
The Empire State is at it again, weaponizing New York’s business fraud statutes to bring an enforcement action against 11 crisis pregnancy centers for speaking about “progesterone therapy,” which some studies suggest may be effective in reversing the effects of mifepristone in chemically induced abortions.
 
New York Attorney General Letitia James, who is spearheading the case, has called such centers “fake clinics.”
 
In August, three of those clinics sued in federal court to protect their First Amendment right to speak about progesterone. The court ruled in their favor, issuing a preliminary injunction and writing:
 
“…[T]he ‘very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion.’ To ‘this end, the government, even with the purest of motives, may not substitute its judgment as to how best to speak for that of speakers and listeners; free and robust debate cannot thrive if directed by the government.’ And this is particularly true ‘in the fields of medicine and public health, where information can save lives.’”
 
Now, the attorney general has appealed to the Second Circuit, and groups like Alliance Defending Freedom are stepping up in defense of crisis pregnancy centers and the First Amendment.
 
The attorney general’s actions certainly seem to constitute content and viewpoint-based discrimination. Perhaps conceding that point, General James argues that progesterone-therapy advocacy constitutes false or misleading commercial speech, despite the fact that, to quote ADF’s brief, the non-profit pregnancy centers’ speech “neither proposes a transaction nor bears any relation to the economic interests of the … plaintiffs or the women they serve….” As such, “the speech is wholly noncommercial and entitled to full First Amendment protection.”
 
As for whether or not advocating for progesterone therapy is effective against mifepristone, reasonable minds may disagree – but that doesn’t change the fact that there is peer-reviewed scientific literature supporting the claim. As the Second Circuit itself has held, “to the extent a speaker or author draws conclusions from non-fraudulent data, based on accurate descriptions of the data and methodology underlying those conclusions, on subjects about which there is legitimate ongoing scientific disagreement,” such statements cannot be deemed false under the First Amendment.
 
It seems reasonable, given New York’s recent track record and James’ outspokenness on the issue, to question whether prosecuting crisis pregnancy centers is politically motivated. But our concern at Protect The 1st is not ideological. It is that we cannot allow the use of our justice system to crack down on disfavored speech – and that would apply just as fervently to pro-choice speech in a red state as pro-life speech in a blue one. We will not stop until everyone in government appreciates that when the First Amendment says “shall make no law” prohibiting free speech, it actually means make no law.

​Last week, Miami Beach Mayor Steven Meiner threatened to terminate a lease agreement between the city and an art house film cinema after it screened the pro-Palestine film, No Other Land (which recently won the Oscar for best documentary).
 
In a newsletter to city residents, Meiner said, "I am a staunch believer in free speech. But normalizing hate and then disseminating antisemitism in a facility owned by the taxpayers of Miami Beach … is unjust to the values of our city and residents and should not be tolerated."
 
Meiner introduced a resolution before the city council to cancel the lease for O Cinema, which rents space from the city, and also terminate roughly $80,000 in grant funding that the city agreed to give the theater. The mayor pulled the resolution when only one commissioner supported it, and five opposed it.
 
We congratulate the mayor and the council for ultimately making the right call.
 
Regardless of whether No Other Land constitutes antisemitism (the film depicts the Palestinian experience in the occupied West Bank), Meiner’s stated intentions run directly into the First Amendment’s prohibition on “Congress shall make no law … abridging the freedom of speech.” Supreme Court opinions have long held that the First Amendment applies to government at all levels – federal agencies, states, and yes, city governments.
 
But what happens when government subsidizes speech, as Miami Beach does with its grant to the theater? Government subsidies often lead to the inevitable temptation toward viewpoint discrimination. The issue of restrictions on government-paid speech is one of the thorniest – and most poorly adjudicated issues in First Amendment jurisprudence.

Generally speaking, the government is permitted to “speak for itself” without necessarily being required to do so neutrally. In Rust v. Sullivan, for example, the U.S. Supreme Court held that the government could fund family planning programs while also prohibiting providers from discussing abortions. By contrast, in Legal Services Corp. v. Velasquez, the Court said a government program funding legal representation for indigent parties could not prohibit lawyers from helping those parties challenge welfare laws.
 
Amid these divergent cases, another one seems more on point than others. In Rosenberger v. Rector and Visitors of Univ. of Va, the Court distinguished between government speech and instances in which the government “does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers.”
 
In other words, when the government acts as patron, it may not prefer one lawfully stated view over another. That would seem to be the case here.
 
Initially, O Cinema CEO Vivian Marthell agree to cancel screenings of the film, noting “concerns of antisemitic rhetoric.” She later changed her mind, and it’s a decision which – agree or disagree with it – we support her right to make. ACLU of Florida legal director Daniel Tilley said, "The government does not get to pick and choose which viewpoints the public is allowed to hear, however controversial some might find them.”
 
That’s correct, but the issue of government speech remains tricky, as is the corollary issue of government subsidies for speech. It would help to get additional clarity on such cases in the future. One thing is clear – the best way to oppose a view you dislike is to speak out, not sue.

​In 1927, Supreme Court Justice Louis Brandeis wrote that the best remedy for “falsehood and fallacies,” besides education, “is more speech, not enforced silence.”
 
Almost a century later, enforced silence became the favored solution of government censors, from the FBI to the State Department, who secretly jawboned social media platforms to remove posts the government believed to be disinformation from Russia, misinformation, or dangerous information. As Mark Zuckerberg made clear in his recent interview with Joe Rogan, when a highly regulated industry gets angry calls demanding removal of content from the government, it is not taken as a gentle suggestion. Thus for several years threads of the national discussion were quietly pulled, with millions of social media consumers none the wiser.
 
That era is now over.
 
President Trump’s executive order forbidding censorship and the shuttering of government agencies, like the State Department’s infamous Global Engagement Center, prevent a restart of the government censorship regime, at least for the foreseeable future.
 
But the complex problems of content moderation still remain. The First Amendment restricts government control of speech, but it does not forbid social media companies from moderating the content they host. Meta says it will continue the content moderation for material that is obscene, violent, and extreme. But otherwise, the way is open for controversial speech of all sorts.
 
How, then, will assertions be vetted? Not by third-party fact-checkers. That model, too, is broken. Zuckerberg agreed that the fact-checking process was subjective and often warped by partisan bias. The way forward for Meta’s Facebook, Instagram, and Threads, then, is to promote more speech, by allowing the public to test ideas. Meta is doing this with the incorporation of the same open-source algorithm that powers X’s community notes. That technology is now being tested by Meta across the country, with 200,000 people already signed up to become Community Notes contributors.
 
Crowd-sourced factchecking will undoubtedly be imperfect. Social media platforms will have to be on guard for organized efforts to game the new system. But overall, Community Notes is the superior solution. It follows speech with more speech – and then leaves it up to us to decide what is fair and true, just as we do all the time at the American dinner table.

​Houston’s Discovery Green Park is an urban jewel, a 12-acre site with playgrounds, skating rinks, a jogging trail, a music venue, yoga classes, and more. It has everything, except respect for the free exercise of religion.
 
This park has seen no lack of other kinds of protests, from pro-choice demonstrations to anti-NRA protests. But when Dr. Faraz Harsini and Daraius Dubash dared to hold an educational series about factory farming, they each acquired a pair of shiny new handcuffs. Their crime? They showed eye-catching but harmless images of industrial farming practices.
 
Dr. Harsini’s work on animal rights emerges from his work as a scientist. Dubash’s advocacy springs from the Hindu school of Advaita Vedanta. For him, ahimsa, or nonviolence against other living things, is a holy teaching. His invitation to tell passersby about animal cruelty was an expression of his deeply held religious beliefs.
 
Is such preaching allowed in a public park?
 
That question allowed Protect The 1st and the Harvard Free Exercise Clinic to embark on a historical quest in an amicus brief in support of Daraius Dubash in his appeal before the U.S. Fifth Circuit Court of Appeals. While the Foundation for Individual Rights and Expression and other groups represent Mr. Dubash and Dr. Harsini before the Fifth Circuit, we thought this was an excellent opportunity to do a deep dive into American history and the question of how religion is protected – or not – in public places.
 
This is an issue that hearkens back to the very beginnings of America.
 
We all know that Puritan settlers fled religious persecution to find freedom on the shores of New England. It wasn’t long, however, before the persecuted became the persecutors. Puritans publicly beat Quakers “like unto a jelly,” cutting off their ears, branding them, and putting them in outdoor stockades. Refugees from the theocracy in Massachusetts carried a heightened appreciation for the rights of others. In Quaker Rhode Island and New Jersey, guarantees of “free exercise” and “liberty of conscience” took root. In 1681, King Charles II famously granted William Penn a charter to found the Province of Pennsylvania as a “holy experiment” in tolerance.
 
Later, the itinerant preachers of the First and Second Great Awakenings – religious revivals that bracketed the Founding – spurred a transformation of American public spaces into places where religious expression flourished. One famous traveling proselytizer, George Whitefield, recognized that disaffected believers “who would not come to a church to hear his message would go to a park.” Whitefield drew a record-breaking crowd of 20,000 to Boston Commons, where he spoke within view of the site where Quaker preachers had earlier been hanged.
 
Then came the Methodists, preachers outside the mainstream who spoke on public land because houses of worship and school buildings were closed against them, leaving them only “the street corner, the public parks, or gardens, the fields, or woods.”
 
As public tolerance grew, so did legal protection for preaching in public. Thomas Jefferson provided the model of the natural right of the free exercise of religion in Virginia, later established for the nation in the First Amendment. The Supreme Court in the 20th century would uphold these rights for the Jehovah’s Witnesses in 14 out of 19 cases.
 
Now this right is being tested again, this time for an American preaching ahisma, aided by a portable television, in Houston. We find once again, that when religious expression is violated, the rights of all Americans are at stake. That is our message to the Fifth Circuit.
 
To learn more about the evolution of American law on the free exercise of religion in public places, from colonial times to today, check out our brief.

​President Trump on Tuesday declared on Truth Social:
 
“All Federal Funding will STOP for any College, School, or University that allows illegal protests. Agitators will be imprisoned/or permanently sent back to the country from which they came. Americans students will be permanently expelled or, depending on on [sic] the crime, arrested. NO MASKS! Thank you for your attention to this matter.”
 
There is less to unpack here than there is to fill in. The basic question raised by this post is what the Trump Administration will consider an “illegal protest”?
 
Absolute clarity is needed on this point. A protest on behalf of Gazans, or even in favor of Hamas, is not an illegal protest. It is as fully protected by the First Amendment as would be any protest. Just because we believe an opinion is off-putting, stupid, or vile does not make it a crime.
 
A good example of an illegal protest can be seen in UCLA’s toleration of protesters harassing Jewish students and declaring “Jew-free zones” on campus. Jews were denied access to all parts of the UCLA campus unless they renounced their faith. That protest broke the letter of the law and was fascist in its heart. Federal judge Mark Scarsi told UCLA in no uncertain terms that the university had to act against these illegal protests. The judge said that the attacks on Jewish students were “unimaginable” and “abhorrent to our constitutional guarantee of religious freedom.”
 
Another needed distinction is whether an institution is public or private. The First Amendment only restricts the power of the government to abridge speech. This means that a public university like UCLA has an obligation to lean hard to give maximal space for speech, even vile speech. But go up Highway 101 to Stanford University, and you find a private institution with more leeway to define what is or is not acceptable speech on campus. But just a little. Stanford University accepts federal funds, which comes with some strings about any limits on speech. Moreover, California’s Leonard Law mandates that private schools respect speech that would be protected off campus.
 
So again, what is an illegal protest? It is one in which protesters defy time, place, and manner restrictions of the administration of their college or university to take over a part of a campus, to occupy a building, to engage in violence or destroy property, or to harass students and faculty.
 
We trust that Department of Education Secretary Linda McMahon will instill these distinctions in President Trump’s directive.

​America’s charities face a growing danger of being crushed by onerous regulations and government regulation of their speech.
 
Multiple courts have ruled that “tax-exempt” status constitutes “federal financial assistance,” subjecting non-profit organizations to a host of burdensome, proactive obligations to ensure compliance with: Title VI of the Civil Rights Act, Title IX of the Education Amendments of 1972, The Age Discrimination Act of 1975, Section 1557 of the Affordable Care Act of 2010 … and the list goes on.
 
These are laws with noble intents, but they come with onerous paperwork requirements and the ever-present threat of restrictions on a faith-based group’s speech and doctrines. Most non-profit entities – charities, churches and schools – are ill-equipped to handle the vast compliance burdens reserved that a large university or national NGO would be able to dedicate a whole department of lawyers to handle. 
 
As Philanthropy Roundtable wrote last year, “targeting nonprofit organizations that exist to address community problems and provide assistance for those in need should be off limits on the political battlefield.” We’ll refrain for now from commenting on whether these cases constitute lawfare, but we’ll happily point out why the courts came to the wrong conclusion.
 
In Buettner-Hartsoe v. Baltimore Lutheran High School Association, a federal district court in Maryland found that Concordia Prep’s tax-exempt status constituted “federal financial assistance” for the purposes of Title IX compliance. The Fourth Circuit Court of Appeals disagreed, writing:
 
“Tax exemption is not ‘Federal financial assistance.’ This is not a novel concept. Indeed, since Title IX’s inception over fifty years ago, it has never been applied to organizations based solely on their tax-exempt status. And for good reason.”
 
That reason, of course, has to do with the underlying policy goal of encouraging good works from organizations that are not seeking to make a profit. Placing burdensome requirements on such organizations hinders their ability to express their goals, values, advocacy interests and opinions – to the detriment of their First Amendment rights.
 
Another case from the Central District of California, Herrera v. Valley Christian Academy, however, also found that a non-profit school’s tax-exempt status “is a form of federal financial assistance that would subject the institution to Title IX.” The judge ruled:
 
“[T]he plain purpose of the statute is controlling. Here that purpose is clearly to eliminate discrimination in programs or activities benefitting from federal financial assistance.”
 
Yet legislative references to purely tax-exempt status goes back to at least 1894. According to the Internal Revenue Code, non-profits must merely be: “Organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals …”
 
Requiring non-profits to serve these charitable missions while constantly navigating a vast bureaucratic labyrinth undermines the clear policy aims of the law’s definition. Such requirements could crush smaller organizations that are doing immense social good. These rules also threaten the free speech of charitable groups to hold and express beliefs that offend official sensibilities, whether it is a Christian or Muslim group that advocates traditional marriage, or an environmental group that holds policy ideas that offend this administration or the next one.

Last year, then-Sen. Marco Rubio and Rep. Greg Steube (R-FL) sponsored the “Safeguarding Charity Act” to clarify that tax-exempt status does not qualify as “federal financial assistance.” And if all else fails, the U.S. Supreme Court should strike down these rulings. That might be our fastest way to reform.
 
We’ll keep a close eye on these cases as they pop up, and new legislative efforts by the 119th Congress to protect America’s charities.

​Like a seven-layer gelatin salad in the aftershocks of an earthquake, the European commentariat is still quivering from Vice President J.D. Vance’s tongue-lashing on their abandonment of the principles of free speech. The vice president spoke boldly of “a retreat of Europe from some of its most fundamental values” as “a threat from within.”
 
Dominic Green of The Wall Street Journal nailed it when he said that this is “really, a threat from above.” European governments and the meta government of the European Union in Brussels are imposing a host of policies – from heavy-handed overregulation to mass immigration policies, to speech codes – that are unpopular among European voters.
 
But the disconnects are here in America as well as in Europe. Vance’s critique identified an intellectual short-circuit on the nature of free speech. This disconnect is one suffered not just by progressive European elites, but also American journalists, a celebrated conservative Italian prime minister, and even some in the Trump Administration who would do well to read Vance’s speech and take it to heart.
 
Germany’s Speech Police
 
CBS’s 60 Minutes did an in-depth exploration of Germany’s speech code regulation, interviewing German prosecutor Dr. Matthäus Fink, who said he tells people he arrests for speech violations, “you have free speech as well, but it also has limits.”
 
The German government’s stated concern is that hateful speech can lead to violence. The segment reported that a local German politician, Walter Lübcke, was shot to death in 2019, four years after he gave a speech in favor of immigration. But Lübcke had been the target not just of criticism, but also death threats. In the United States, as in Europe, such explicit threats against individuals are crimes – as well they should be. Beyond that, policing speech becomes not just a slippery slope.
 
It becomes a slope slathered in Crisco for a Vaseline-coated sleigh.
 
Consider: Germans can now be prosecuted not just for violent threats, but also for “public insults against politicians” – “spreading malicious gossip,” “inventing fake quotes,” or even reposting “lies” online. For such “crimes,” Germans can receive fines, suffer the confiscation of their devices, and go to prison.
 
Among the crimes, Dr. Fink told 60 Minutes, are “comments like ‘you’re a son of a bitch,’ excuse me for using, but these words have nothing to do with political discussions or a contribution to a discussion.” Protect The 1st begs to differ. We think that any prosecutor who would put someone in prison for calling a politician an SOB is, himself, an SOB.
 
Did Free Speech Cause the Holocaust?
 
Many commentators have harshly criticized CBS’s Margaret Brennan for explaining in a recent interview with Secretary of State Marco Rubio that “free speech was weaponized to conduct a genocide …”
 
It was left to Secretary Rubio to correct Brennan by noting that the Nazis were the ones who shut down free speech. The shuttering of newspapers, the infiltration and takeover of churches, the dispatching of editors, journalists, intellectuals and academics, along with dissenting pastors, priests and nuns to concentration camps led to a vacuum. In that vacuum-echo chamber, when the Nazis spoke about “the Jewish problem,” there was no one to counter “actually, we have a Nazi problem.”
 
To be fair, Brennan was probably not talking about the Nazi era, but the Weimar Republic that preceded it. If only, she seems to suggest, someone had shut up the Nazis before they gained adherents. But that perspective is also flawed. The Weimar Republic did cancel Hitler speeches, shut down some Nazi publications, and outlawed hate speech. And the Weimar Republic learned what we now seem to have forgotten – that suppressing speech is like squeezing water in your hands. It always slips through your fingers and finds another channel. Indeed, for misfits and outsiders of all sorts, outlawing speech gives it the erotic allure of the forbidden.
 
There’s Still Free Speech Work to Do in Romania, Italy, and at Home
 
The vice president spoke of the recent Romanian election that was cancelled 48 hours before people were set to go to the polls. The reason? It was reported that Russia had invested in Tik Tok videos in support of a presidential candidate who favored withdrawing support for Ukraine. Vice President Vance said, “But if your democracy can be destroyed with a few hundred thousand dollars of digital advertising from a foreign country, then it wasn’t very strong to begin with.”
 
But it isn’t just stripey-pants, tea-sipping progressives who seem to lack a firm grasp of free speech. The decidedly non-progressive prime minister of Italy, Giorgia Meloni, is taking British rocker Brian Molko to court for “contempt for institutions” by calling her a “fascist” during a concert in Turin. The prime minister’s action, to quote Curly from the Three Stooges, says, “Who me? I resemble that remark!”
 
Then there is our own country and Vice President Vance’s administration. President Trump made a clear, powerful statement with his Executive Order “restoring freedom of speech and ending federal censorship.” But not every member of the president’s administration seems to have received the president’s memo.
 
For example, Federal Communications Commission Chairman Brendan Carr is “fast-tracking” a probe of CBS over whether it is guilty of “news distortion” in its editorial decisions on which portions to air from an interview with former Vice President Kamala Harris. The White House press office has even excluded AP from some events for refusing to adopt President Trump’s new moniker for the Gulf of Mexico.
 
Around the world, on the right as well as on the left, the intellectual disconnect is the inability to always accept that a commitment to free speech means allowing speech you find offensive, stupid, and wrong. 
 
Like Fight Club, free speech in a democracy has three rules: I will not attempt to censor people and ideas I don’t like. I will not attempt to censor people and ideas I don’t like. I will not …

​A hearing in the House last week brought to light the dimensions of government censorship in America and around the world. One star witness before the House Judiciary Committee’s Select Subcommittee on the Weaponization of the Federal Government was Matt Taibbi, a key figure in revealing the “Twitter Files” documenting questionable “content moderation,” aka censorship, policies at the social media giant.
 
Taibbi’s remarks on the “Censorship Industrial Complex” emphasized the importance of the present “Alamo moment” for free speech. Drawing from the ongoing controversy regarding USAID, Taibbi pointed out that an organization called Internews received more than $400 million from USAID to train journalists, despite the fact that its chief Jeanne Bourgault argues for actively repressing heterodox journalistic perspectives.
 
The State Department recently disbanded funding for the so-called Global Disinformation Index, a British organization that helps “advertisers and the ad tech industry in assessing the reputational and brand risk when advertising with online media outlets and to help them avoid financially supporting disinformation online." A 2022 report from GDI listed Reason, New York Post, Real Clear Politics, The Daily Wire, The Blaze, One America News Network, The Federalist, Newsmax, The American Spectator, and The American Conservative as among the “riskiest online news outlets.” The U.S. government was thus in the business of pressuring advertisers to shun media outlets based on viewpoint discrimination.
 
These revelations are emblematic of a massive government censorship campaign. As the Trump Administration pumps the brakes on censorship at home, the repression of views is gaining momentum in Europe. The EU’s highly punitive Digital Services Act explicitly allows member nations to threaten platforms into censoring speech. As journalist Michael Shellenberger noted in his own testimony before the subcommittee, “the censorship industrial complex remains almost entirely intact.”
 
Shellenberger added:
 
“The head of NATO, NATO-backed think tanks, the European Commission, former president Barack Obama, former secretary of state Hillary Clinton, Bill Gates, the United Nations, the World Health Organization, the World Economic Forum, influential think tanks at Harvard and Stanford, elements of the DOD, the CIA, the FBI, the National Science Foundation, the Department of Homeland Security and many others have all called for government censorship of so-called misinformation in recent years.
 
“And it’s not just censorship that is the problem. The problem is that deep-state agencies within the U.S. government have for two decades sought to gain control over the production of news and other information around the world as part of ongoing covert and overt influence operations, and that after 2016 multiple actors in several deep-state U.S. government agencies turned the tools of counter-terrorism, counter-insurgency and counter-populism against the American people.”
 
It's abundantly clear that taxpayer dollars are going to pass-through agencies that fund organizations and individuals who actively despise First Amendment values and seek to undermine freedom of speech.
 
Canadian journalist Rupa Subramanya highlighted some of the state-sponsored censorship taking place internationally. Scotland, she noted, now criminalizes anything that “stirs up hatred” against certain protected groups.
 
Subramanya said:
 
“I’m not saying these countries are the same as the fear-based authoritarian societies of North Korea and Iran – not by a long shot. But I am suggesting that some of the free countries are not, in fact, living up to their promises of liberty, and that many allies of the U.S. have gotten in the habit of using the government against political enemies or disfavored companies.”  
 
President Trump last month issued an executive order aimed at restoring freedom of speech and ending federal censorship. We’ll have to wait and see if it has any teeth. The Federal Communications Commission seems to be ignoring the president’s anti-censorship executive order by continuing the speech-repression tradition of the Biden Administration through its ongoing and utterly baseless probe of CBS for “news distortion.”
 
The job of countering government censorship, coercion, and jawboning, which Protect The 1st has covered extensively, will always require eternal vigilance. Let’s hope we’ll all be allowed to keep up the scrutiny of the censorship bureaucrats at home and abroad.  

​Journalist Matt Taibbi testified before the House Judiciary Committee on Wednesday. He noted that many politicians, such as former Senator and Secretary of State John Kerry, are publicly justifying curtailment of free speech, saying that the First Amendment gets in the way of building “a consensus.”

Matt Taibbi told the committee that building “consensus” is not his job as a journalist. He went on to say:

“This is an Alamo moment for the First Amendment. Most of America’s closest allies have already adopted draconian speech laws. We’re surrounded. The EU’s new Digital Services Act is the most comprehensive censorship law ever instituted in a democratic society.

“Ranking member Raskin, you don’t have to go as far as Russia or China to find people jailed for speech. Our allies in England now have an Online Safety Act that empowers the government to jail people for nebulous offenses like ‘false communication’ or causing ‘psychological harm.’ Germany, France, Australia, Canada, and other nations have implemented similar ideas.

“These laws are totally incompatible with our system. Our own citizens have been arrested in some of these countries, but our government hasn’t stood up for them. Why? Because many of our bureaucrats believe in these laws.

“Take USAID. Many Americans are in an uproar now because they learned about over $400 million going to an organization called Internews, whose chief Jeanne Bourgault boasted to Congress about training ‘hundreds of thousands of people’ in journalism. Her views are almost identical to Kerry’s.

“She gave a talk about ‘building trust and combatting misinformation’ in India during the pandemic. She said that after months of a ‘really beautifully unified Covid-19 message,’ vaccine enthusiasm rose to 87%, but when ‘mixed information on vaccine efficacy’ got out, hesitancy ensued.

“We’re paying this person to train journalists, and she doesn’t know the press doesn’t exist to promote ‘unity’ or political goals like vaccine enthusiasm. That’s propaganda, not journalism.

“Bourgault also once said that to fight ‘bad content,’ we need to ‘work really hard on exclusion lists or inclusion lists’ and ‘really try to focus our ad dollars’ toward ‘the good news.’”

“Again, if you don’t know the fastest way to erode ‘trust’ in media is by having government sponsor ‘exclusion lists,’ you shouldn’t be getting a dollar in taxpayer money, let alone $476 million. And USAID is just a tiny piece of a censorship machine Michael and I saw across a long list of agencies. Collectively they’ve bought up every part of the news production line: sources, think-tanks, research, ‘fact-checking,’ ‘anti-disinformation,’ commercial media scoring, and when all else fails, censorship.

“It’s a giant closed messaging loop, whose purpose is to transform the free press into a consensus machine. There’s no way to remove the rot surgically. The whole mechanism has to go.
​
“Is there ‘right-wing misinformation’? Hell yes. It exists in every direction. But I grew up a Democrat and don’t remember being afraid of it. At the time, we didn’t need censorship because we figured we had the better argument.”

​Congress is once again attempting to keep children off of social media. It’s a noble and well-intended effort – but it also implicates the First Amendment in ways that deserve more scrutiny in Congressional debate.
 
The bill, dubbed the “Kids Off Social Media Act,” is a bipartisan effort spearheaded by Sen. Brian Schatz (D-HI) and Sen. Ted Cruz (R-TX). According to a press release on Sen. Schatz’ website, the legislation would ban social media accounts for children under 13 and prohibit algorithmic recommendations to users under the age of 17.
 
A large body of research implicates social media as harmful to child development. Sen. Schatz himself cites an alarming study showing that social media is a leading driver of poor mental health among youth. According to the CDC, 57 percent of high school girls and 29 percent of high school boys felt persistently sad or hopeless in 2021. This social despondency is often attributed to sites like Instagram that proliferate unattainable standards for children in looks, wealth, and travel.
 
As parents ourselves, we do not underestimate the risks social media can pose to children. At the same time, we cannot ignore that children have free speech rights, too. Some digital rights activists have also expressed concern that implementing new rules around social media would cause platforms to collect even more data from consumers. The Open Technology Institute demonstrates that such a law could make it necessary to engage in “the installation and use of AI-powered spyware to surveil students’ online activities during and outside of school hours.”
 
We advise Congress to move with great deliberation in considering this bill – and others like it – to ensure that Congress fully considers its secondary effects like the law’s potential to promote AI surveillance of students. There are few serious problems in America that cannot be made worse by an overly ambitious law and regulatory regime. It’s one thing to want to keep our kids happy and healthy – it’s another to prescribe broad fixes with insufficient detail and safeguards. Members of Congress should think hard about the implications inherent in any bill regulating the speech rights of Americans.
 
Perhaps this debate might spur social media companies to preempt legislation by taking serious steps to address the multitude of problems children face on social media. If social media companies were to create safer, more kid-friendly spaces, Congress may not need to act at all.

​The United States Military Academy at West Point last week ordered all extracurricular clubs centered around gender or race to immediately “cease all activities.” While the directive is likely legal, we might want to take a deep breath to navigate entry into tricky territory.
 
According to a recent memo issued by West Point deputy commandant Chad Foster, such clubs must immediately “unpublish, deactivate, archive, or otherwise remove all public facing content.” All other group activities, meanwhile, have been paused – presumably pending a review. Affected clubs include the Society of Women Engineers, the National Society of Black Engineers Club, the Asian-Pacific Forum Club, the Contemporary Cultural Affairs Seminar Club and the Latin Cultural Club. In total, at least a dozen groups are explicitly required to disband.
 
It's understandable why Defense Secretary Pete Hegseth would want to end DEI programs within our national security apparatus. DEI is an eccentric and extreme ideology that defines people based on their immutable characteristics – permanently branding them as privileged colonizers or oppressed victims. Replacing “equality” with “equity” is not exactly the best way to build unit cohesion in the military, or even to address racial disparities in the civilian world.
 
On the other hand, protecting us against the threat of the West Point chapter of the National Society of Black Engineers seems like overkill. Such affinity groups have traditionally been where minorities go for mutual support. West Point now has 280 women in a class of more than 1,200. It’s perfectly understandable why women might want their own affiliate group in a traditionally male-dominated institution like West Point.
 
Groups that will likely survive the order include gender-oriented clubs centered around athletics, such as women’s boxing and women’s team handball. West Point’s “Clubs and Organizations” web page is currently – and perhaps unsurprisingly – buggy and largely useless.
 
It is not immediately obvious how the First Amendment right to speech and free association should be treated at a military academy. Once a plebe takes the R-Day Oath to the Constitution, they are in a unique zone where some of those constitutional rules no longer strictly apply. It is reasonable to keep military education free of ideological indoctrination. But care must be taken to remove DEI in a way that is neutral in its application.
 
We’ll continue to closely monitor this situation as it develops.

“You mess around with me, and I’ll wipe the floor with you,” Judge Judy told an obstreperous litigant.
 
That’s how judges, even TV judges, run their courtrooms – as monarchs. But the reality is that the inner workings of these little kingdoms are delicate operations, protected from the outside world by stone, marble, X-ray machines, and metal detectors.
 
Courtrooms also need protection from outside protesters using sound-trucks and other devices to try to intimidate jurists or interfere with judicial operations. 18 U.S. Code § 1507 does this by prohibiting “interfering with, obstructing, or impeding the administration of justice” through “pickets or parades in or near a building housing a court of the United States, or in or near a building or residence occupied or used by such judge, juror, witness, or court officer.”
 
At present, the crime is punishable by a maximum prison sentence of up to one year. A new bill introduced in Congress would boost the punishment to five years. Are this law and its proposed amendment precise enough to avoid sweeping in legitimate protest?
 
Respect for the Constitution, of course, requires protecting the deliberations of a courtroom. In recent years, we’ve seen a marked increase in intimidation and even violence against the judiciary. Look no further than the horrifying case of Daniel Anderl, the son of federal judge Esther Salas, who was gunned down in a despicable act of vengeance by culprit – and attorney – Roy Den Hollander.
 
Nor are Justices of the Supreme Court immune from danger. Consider Justice Brett Kavanaugh, who was threatened by an armed gunman outside of his house in Maryland.
 
These are serious concerns, and it is good that we have laws criminalizing threatening conduct. The new bill’s broad penalties, though they arise out of understandable concerns, could have the unfortunate effect of chilling free speech. Moreover, the reach of the federal statute – particularly when coupled with the proposed five-year penalty – could very well be sufficient to scare off law-abiding folks engaged in legitimate, peaceful protest.
 
After all, what exactly constitutes “influencing any judge, juror, witness, or court officer, in the discharge of his duty” through “pickets or parades” near a courthouse? How far away from a courthouse do protestors have to be to be considered legal? When coupled with such a draconian penalty, this law could discourage law-abiding citizens and their publicly aired complaints and criticisms. The U.S. Supreme Court allows such statements on the sidewalk in front of its majestic façade. Where are the lines drawn for other protests for other courts?
 
Our take: Though well-intentioned, the expansion of this bill overshoots the mark. Perhaps both civil libertarians and security-minded senators alike would profit from clarifying the existing law.

​The United Kingdom, birthplace of free speech, is still showing a disturbing trend towards censorship. Look no further than the heated debate over the UK’s grooming gangs, cabals of vile criminals that exploit young women. Though it has become unfashionable to voice basic facts in Britain, the truth is that 83 percent of defendants prosecuted for group-based child sexual exploitation had Muslim names.
 
That’s unfortunate, but true. And we need to be able to talk about it.
 
The Public Order Act of 1986 made it a statutory offense to use threatening, abusive, or insulting words or behavior, or to display any writing, sign, or other visible representation that is threatening, abusive, or insulting. In 2019, then-Labour leader Jeremy Corbyn ushered in the adoption of a form of such threatening speech – “Islamophobia,” which is “a type of racism that targets expressions of Muslimness or perceived Muslimness.”
 
How far did the law go? In 2006, an Oxford man put that law to the test when he was arrested for calling a police horse “gay.” The absurdity of this and similar cases led to Parliament removing “insult” as a crime. But you can still be arrested in Britain for saying “the wrong thing” – or the right thing if you are factual. As Sadanand Dhume points out in the Wall Street Journal, even talking about Islamic men committing crimes is considered jumping on the “far-right bandwagon,” and is thus threatened as forbidden speech.
 
This is nonsense on stilts, designed to shut down discussion of any community with a minority of adults who are creating a problem. We cannot address the reality of, say, America’s Klu Klux Klan without implicating the minority of white men who join that organization. We should not pretend that immigrant- or ethnic-based criminal organizations, whether La Cosa Nostra or the Russian mob, don’t have an ethnic basis. And it is a fact that more than 1,400 girls in the town of Rotherham in Northern England were sexually exploited by a group of British men who were mostly of Pakistani descent.
 
Speaking about this should not be a crime. Yet one father of an abused girl was arrested by the police when he tried to persuade his daughter to leave a brothel. Another was forcefully told by local law enforcement to quiet down about his daughter’s abuse, or else he might cause the community to “erupt.”
 
At the red-hot center of controversy is Elon Musk, who used X to criticize Prime Minister Kier Starmer in harsh terms for his purported failure to fully investigate and prosecute these crimes when he served as the UK’s director of public prosecutions. This prompted UK Justice Minister Heidi Alexander to talk about strengthening sanctions against “misleading and inflammatory statements” in the Online Safety Act, which goes fully into effect this year.
 
Nigel Farage, leader of the UK Reform movement, said Musk had used "very tough terms” about Prime Minister Starmer, but that: “In public life, tough things get said. They get said by both sides of the debate.” Farage said he believed in free speech:
 
“… even if what people say is offensive, if you find it offensive, if most people find it offensive. This man [Musk] happens to be the richest man in the world, but equally, the fact that he’s bought Twitter now actually gives us a place where we can have a proper open debate about many things … We may find it offensive, but it's a good thing, not a bad thing.”
 
In the United States Mark Zuckerberg has recently ended fact-checking by Facebook’s resident arbiters of “truth.” But in London, Prime Minister Starmer seems poised to go for more linguistic crackdowns. One outsider’s perspective in the New Indian Times accurately described the situation:
 
“Many social media videos show British police arresting people holding anti-Hamas placards while violent protestors calling for the death of Jews march free on the roads. British woke culture has a lot to answer for.” 
 
Perhaps Labourites need to break out their Milton. The poet declared: “Let her [Truth] and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?”

​Operator: “Bias hotline.”
 
Puck: “I’d like to report three men who are making remarks that denigrate people’s identities. Some of their remarks have to do with race, some with religion, some with personal characteristics.”
 
Operator: “There are three of them? Are they some kind of gang?”
 
Puck: “Yes, three, obviously some kind of extremist organization, and they are making these remarks in front of large crowds of drunk, jeering people who egg them on.”
 
Operator: “That’s terrible. Do you know who they are?”
 
Puck: “I do. Their names are Dave Chappelle, Chris Rock, and Bill Burr.”
 
Operator: “Can you spell those for me?”
 
At first, we at Protect The 1st didn’t believe it. There are a lot of unsubstantiated allegations floating around; this had to be another crazy internet rumor. The idea that blue states, where more than 100 million Americans live, are operating snitch lines to keep records of unsubstantiated accusations of jokes or remarks that are alleged to show bias had to be an internet myth.
 
It just couldn’t be true, we thought. Surely we are not so far gone from the spirit and letter of the First Amendment that our government is taking down anonymous accusations of bad speech.
 
And yet here we are.
 
California, Illinois, Maryland, New York, Oregon, Rhode Island, and Vermont are running “bias reporting hotlines” that people can call and report bad or hateful speech. Washington State is preparing to launch its own hotline soon.
 
Like many rotten ideas, the bias hotline started out with a commendable concern. Some high schools and then colleges had hotlines through which students who felt bullied could turn for confidential reporting. In America today, however, no good idea goes unperverted. Once adopted by colleges and universities, the bias hotline morphed into an all-purpose receptacle for anything anyone didn’t like.
 
For example, the Foundation for Individual Rights and Expression (FIRE) reports that a “bias incident report” at the University of California, San Diego, was written up about a student humor publication that satirized “safe spaces.”
 
The bias incident hotline concept then migrated to the states, latching on to legitimate hate crimes hotlines, to include offensive jokes or “imitating someone’s cultural norm or practices.” So we went from reporting hate “crimes,” to reporting vague infractions of anything offensive. So much so that in states like Vermont the police are now keeping faithful records of people accused of making statements that are “biased but protected speech.”
 
Why? In some states, authorities can reach out to the purported offender and urge them to seek counseling. In Oregon, self-reported “victims” of “non-crime hate incidents” can receive public assistance for therapy, security cameras, and even ask the state to pay their rent.
 
The worst aspect of these hotlines is that they are easily weaponized. They give a perfect opportunity for an aggrieved person to snitch on their landlord, ex-lover, or the barista who forgot their skim latte order.
 
Worse, the definition of bias – even hate speech itself – is inherently subjective. It is vague enough to encompass the inoffensive, the tasteless, and the despicable. Yet even what reasonable people would agree is hate speech is protected by the First Amendment. That doesn’t make it okay. But it does make it legal.
 
Consider: While the three comedians’ routines are often borderline, they are used to hold up a mirror to society. And they are worth protecting because Chappelle, Rock, and Burr are funny, edging their comedy with humility and humanity. Of course, genuine hate speech is real. But no government agency can change hearts and minds. Only culture, faith, community, and a little bit of public shaming every now and then can do that.
 
But sending authorities to someone’s house to tell them to tone down their language is a recipe for inspiring more hate speech. And dispatching someone with a gun and a badge to police speech, even if no arrests are made, threatens to create a national speech nanny like the one emerging in the United Kingdom.
 
Why don’t these states get this? “If it is not a crime, we sometimes contact the offending party and try to do training so that it doesn’t happen again,” Saterria Kersey, a spokeswoman for the Philadelphia Commission on Human Relations, told The Washington Free Beacon.
 
We say if it’s not a crime, the authorities have no business poking their noses into it. And hey, Saterria, you sound like a nice person. Please give us your home address. We’d love to swing by your house and share our take on the First Amendment.
 
Or not: After we re-read that last paragraph again, it sounded vaguely threatening. We certainly didn’t mean it that way, we swear! But that’s the point.

​King Henry II, after having his royal prerogatives blocked time and again by the Archbishop of Canterbury Thomas à Becket, blurted out “will no one rid me of this troublesome priest?”
 
Some Republicans felt the same when President Trump and his family attended an Episcopal service the other day. The president was subjected to a sermon by Bishop Mariann Edgar Budde of Washington, D.C., who appealed to the new president to “have mercy on the people who are scared now,” including immigrants, refugees, and sexual minorities.
 
President Trump himself took it all in stride (and with a comeback tweet or two). This was all in keeping for a president who had just decisively defended free speech in his inaugural address and then bolstered it hours later with an executive order. But at least one prominent critic of Bishop Budde had a different response. He asked that the bishop be put on the “deportation list.”
 
It would be right and fair to come back at the bishop with some substantive riposte, as the president did. But the Right Rev. Budde, as an American citizen born in New Jersey, cannot – and must not – ever be considered for deportation because of how she chooses to exercise her First Amendment rights. For an American citizen, a threat of deportation is never a good joke.
 
Critics should keep in mind that overreaction tends to valorize rather than intimidate. After King Henry’s call, several followers overreacted to the king’s frustration by drawing their swords and killing Archbishop Becket at the altar.
 
This, of course, led to Becket becoming a saint.

“If we don’t have free speech, then we just don’t have a free country,” Donald Trump declared in a campaign speech. “When I am president, this whole rotten system of censorship and information control will be ripped out of the system at large.”
 
Now President Donald Trump has taken a strong step toward fulfilling that promise. We urge him to continue his defense of free speech by protecting another part of the First Amendment, a free press, by supporting the PRESS Act.
 
But first, let’s celebrate this welcome recognition for the central place of the First Amendment in American life. In his inaugural address, President Trump denounced “illegal and unconstitutional federal efforts to restrict free expression.” He said “never again will the immense power of the state be weaponized to persecute political opponents.”
 
Hours later President Trump issued an executive order that begins by denouncing government trampling of “free speech rights by censoring Americans’ speech on online platforms, often by exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve.”
 
The executive order declares: “Government censorship of speech is intolerable in a free society.” We certainly agree and look forward to such practices ending under the current and all future administrations.
 
Congress prepared the president’s way by defunding the State Department’s Global Engagement Center (GEC) that distributed blacklists of American publications to advertisers. The GEC had coordinated in secret with the FBI, CIA, and the rest of the alphabet to collect content government agents found objectionable, then issued threats to social media companies to censor those views.
 
The GEC shuttered its operation before the beginning of the year. Better to quit than wait around to be fired.
 
The president’s executive order now forbids any officer, employee, or agent to engage in or facilitate any conduct that would unconstitutionally abridge the free speech of any American citizen. The use of the word “agent” is a shrewd choice, since it would cover groups like the UK-based NGO Global Disinformation Index, which received direct State Department grants to compile that enemies list of U.S. publications, including RealClearPolitics, Reason, and The New York Post. This prohibition should stand against any administration’s future violation of these principles.
 
The next order of business, we respectfully suggest, is for President Trump to extend and enforce the Justice Department News Media policy that prevents the government from seizing the notes and sources of journalists. For similar reasons, this is also the moment for President Trump to announce his support for the Protect Reporters from Exploitive State Spying (PRESS) Act, which was passed by a Republican House last year and essentially codifies the Department’s policy.
 
Rule-making is not enough and won’t bind the next administration. Consider: outgoing Attorney General Merrick Garland first formalized the Justice Department’s News Media Policy, forbidding compulsory legal processes to obtain the newsgathering records of journalists in 2022. But this rule did not deter the FBI from raiding the Tampa home of journalist Tim Burke the following year to seize his computer, hard drives, cellphone and all they contain.
 
Clearly, a mere departmental rule is not enough to keep the FBI and some in the Department of Justice from interfering in journalism, just as the GEC interfered with free speech in social media. Surely President Trump appreciates the courageous reporters who revealed IRS persecution of conservative non-profits, the highly politicized FBI investigation of the Trump campaign in 2016, and the truth behind the Hunter Biden laptop. Many of President Trump’s media allies – small, thinly funded independent journalists – have a lot to fear from federal agents pawing through their personal effects.
 
Such protections extend to Donald Trump’s media critics as well as his media fans. That is the essence of free speech. And supporting those measures would be a courageous example for Donald Trump to set and in keeping with his pledge to end the weaponization of the power of the state, whether against him and his supporters, or against his own political opponents.
 
We can’t think of another president who came to the defense of the First Amendment in his inaugural address and then followed up on it with an executive order just hours later. We respectfully suggest that President Trump’s support for the PRESS Act would be a great addition to this legacy.

​Joe Rogan’s recent interview of Mark Zuckerberg was a bro-fest, complete with discussions of the joys of hunting, Nordic curls, and ju-jitsu. The CEO of Meta also recounted how he got boiled by degrees in giving in to the demands of government agencies and the Biden Administration in censoring content.
 
“They pushed us super hard to take down things that honestly were true. Right? I mean they basically pushed us and said, you know, anything that says that vaccines might have side effects, you basically need to take them down. And I was like, we’re not gonna do that …”
 
Zuckerberg pointed to the voluminous report by Chairman Jim Jordan of the Judiciary Committee documenting the government’s efforts to manipulate content. The committee’s analysis and the government’s documents show the reality of government “jawboning” on social media.
 
“I mean basically these people from the Biden Administration would call up our team and like scream at them and curse,” Zuckerberg said. “They want[ed] us to take down this meme of Leonardo DiCaprio looking at a TV talking about how 10 years from now or something, you know, we’re going to see an ad that says, okay, if you took a COVID vaccine, you’re eligible … for this kind of payment, like, some sort of like class action lawsuit type meme. And they’re like, ‘no. You have to take that down.’ We’re not gonna take down humor and satire. We’re not going to take down things that are true.”
 
When Meta resisted some of the persistent demands of the government to remove content, Zuckerberg notes that President Biden in a 2021 press conference accused social media companies of “killing people.” The Federal Trade Commission launched antitrust lawsuits and investigations against Facebook and a number of other big social media outlets. Zuckerberg said, “all these different agencies and branches of government basically just started investigating, coming after our company. And it was brutal.”
 
Any suggestion that jawboning by officials at the White House and in the agencies was purely a matter of advice should be laid to rest by the Judiciary Committee’s analysis and postings, as well as Zuckerberg’s description of being on the receiving end of this treatment. As Zuckerberg said, “you can’t censor that if it’s real legitimate information because it’s not ideologically convenient for you.”

​On Jan. 10 the U.S. Supreme Court will hear oral arguments in TikTok v. Garland to decide whether the First Amendment requires the Court to block the law requiring the social media platform to undergo a forced sale by its Chinese owner, ByteDance, or be shuttered.
 
Many civil liberties organizations have come to TikTok’s defense in recent months, making the point that if the government can silence one social media platform, it can close any media outlet, newspaper, website, or TV channel. And they are right that forcing a private media company to sell or go out of business is a drastic action usually associated with authoritarian rule.
 
President-elect Trump filed an amicus brief with the Court asking the Justices to stay the legislative deadline that falls on Jan. 19, one day before his inauguration. The incoming president wants to be free to negotiate a solution for TikTok that will not require the blunderbuss of a forced sale or closure. His brief seeks “a negotiated resolution that could prevent a nationwide shutdown of TikTok, thus preserving the First Amendment rights of tens of millions of Americans, while also addressing the government’s security concerns.”
 
The president-elect’s brief also contained a nod to the real danger in TikTok’s accumulation of the personal data of its 170 million American users, including 67 percent of U.S. teens. A year-long, bipartisan investigation in the House concluded that TikTok is being used by Beijing to spy on American citizens. The Senate agreed by voting for a bipartisan aid bill that included the “ban-or-sale” measure.
 
The U.S. Court of Appeals for the District of Columbia upheld the law as constitutional, concluding that the measure satisfied strict scrutiny due to the national security necessity of preventing China from secretly collecting the data of United States citizens (and covertly manipulating content, too). As one TikTok official said in a leaked communication, “Everything is seen by China.”
 
As we reported, TikTok also surveils journalists like Emily Baker-White from Forbes. Want a good way to chill speech in America? How about permitting an adversarial nation to spy on reporters and their sources? 
 
With such facts in mind, Judge Douglas Ginsburg, who wrote for the court, declared that the law does not violate the speech rights of users. Nor does it necessarily even curb disfavored speech. Judge Ginsburg wrote:
 
“Content on the platform could in principle remain unchanged after divestiture and people in the United States would remain free to read and share as much [People’s Republic of China] propaganda (or any other content) as they desire on TikTok or any other platform of their choosing.”
 
In short, the lower court has held that the First Amendment should not apply to the corporate subsidiary of a hostile foreign adversary. The D.C. Circuit suggests that since the measure is the narrowly tailored result of considered legislative processes in furtherance of a compelling government interest, it can be allowed.

The court understands that the government could never ban a media outlet for its content. But could it ban an online website that distributes foreign spyware on the computers of its readers? That’s not so far off from what so many have concluded is happening here. Yet forcing the sale or closure of a media outlet is an extreme measure for any democracy to take.
 
The Court will have much to consider. Stay tuned.

​On Thursday, the U.S. Court of Appeals for the Sixth Circuit delivered a stinging rebuke to those who believe social media companies should be treated as common carriers. One of those true believers is Tim Wu, former Biden administration advisor and widely regarded as a thought leader of progressive policy. Wu wrote:
 
“Since its activation, the First Amendment has presupposed an information-poor world, and it focuses near-exclusively on the protection of speakers from government, as if they were rare and delicate butterflies threatened by one terrible monster.”
 
Wu’s quote, in which the monster is the government, comes from a 2018 Michigan Law Review piece entitled “Is the First Amendment Obsolete?” In The New York Times more recently, Wu protests that “liberal as well as conservative judges and justices have extended the First Amendment to protect nearly everything that can be called ‘speech,’ regardless of its value or whether the speaker is a human or a corporation.”
 
The implication here, of course, is that we need smart regulators who can spot the difference between speech that has value, and that which should be discarded. Wu also seems to suggest that corporations – collections of humans that can range from ExxonMobil to the ACLU – shouldn’t have First Amendment rights at all.
 
More than anything, Wu’s conceit is that we should live under a noocracy (rule by the supposed wise, as attested to by their Ivy League degrees). Wu advocates reducing large social media companies to common carrier status, to be regulated by the government.
 
This is all relevant today because it was Wu who coined the term “net neutrality,” a set of rules adopted by the Federal Communications Commission to force all internet service providers to give all content in their pipeline the same priority. The Sixth Circuit in Cincinnati bought none of this when it struck down the FCC’s net neutrality rules.
 
The court’s reasoning was prosaic. Under Loper Bright, a recent Supreme Court opinion that limits (Chevron) deference to government agencies, such sweeping rule-making by the FCC would require authorization by Congress. Transforming social media companies into common carriers to be regulated like railroads or airlines is an act that must be rooted in a statute. Congress has passed no law authorizing common carrier status for social media companies or net neutrality.
 
But issues of grand principle were also protected by the Sixth Circuit. First, the court protected the financial model that incentivizes investors to fund companies like Verizon or Comcast to build out and maintain the national networks of fiber optic cable. Without this incentive, there would be no internet to regulate.
 
Second, and most important, if internet companies become common carriers, then the way in which they handle content can also be regulated. The FCC’s rules would have put speech itself in the hands of regulators. And then the one terrible monster truly would be destroying the butterflies.
 
Protect The 1st salutes the Sixth Circuit for a wise decision that protects speech from those who believe they know which speakers have “value” and which ones don’t.

​“Can we finally say and admit to ourselves that the First Amendment is not this noble principle? It is mostly a … tool, and mostly what it's going to be used to do is to crush the people who are trying to advocate for equality, and it's going to be used to protect the people who are trying to preserve the status quo."
 
So posits celebrated academic and author Mary Anne Franks in a recent interview about her new book, Fearless Speech: Breaking Free From the First Amendment.
 
Franks’ latest effort attempts to draw a distinction between what she dubs “reckless speech … which endangers vulnerable groups” … and “fearless speech … which seeks to advance equality and democracy.” The obvious implication is that we should stop protecting the former and elevate the latter. But who decides what’s reckless and what’s fearless?
 
We’ve written about Franks before when she proposed a rewrite of the First Amendment that would omit the Freedom of the Press clause in order to resolve conflicts between rights “in accordance with the principle of equality and dignity of all persons.” And it’s with this vague prescription that her argument not only fails but leads to the short road to tyranny.
 
This should be obvious for someone who teaches “civil rights law” at a respected law school. This should, in fact, be obvious to anyone who has cracked a book about world history. If you open the door to subjective interpretations of speech that violates someone’s “dignity,” then you inevitably end up with a weaponized First Amendment that could be used to punish comics, satirists, journalists, musicians, and any other speaker whose views offend someone’s sense of dignity. Maybe such censorship will net some bigots, too, but then you’re always going to catch a few fish when you spread dynamite around the lake.
 
Franks’ interpretation of the First Amendment is explicitly rooted in grievance – a belief that America is fundamentally unjust and that our systems of governance protect “racial patriarchy.” (For an in-depth look at what Franks leaves out in her polemical take on American history, Prof. Jacob Mchangama has a great book review in Reason.) Franks’ worldview comes with an automatic list of protected speakers and another list of speakers at risk of violating the law. This framing trashes any idea of the law being viewpoint neutral.
 
And so what happens if an election flips the governing philosophy, as has just happened in November? Is Franks ready for the day when she is defined as part of the illicit governing patriarchy and her speech is forbidden? If Franks had her way, what is and is not permitted would reverse with every election or change in the composition of the Supreme Court – because my fearless speech and your undemocratic speech are subjective and easily weaponized as convenient excuses to persecute each other.
 
Almost every American can agree there is objectively bad speech, like much of the speech of the Ku Klux Klan or neo-Nazis. But such speech doesn’t go away if it is repressed by law. Censorship inevitably leads to black-market samizdat. Once underground, such speech acquires the allure of the illicit and the magnetism of the forbidden.
 
Franks dismisses reverence for the Constitution as “fundamentalist.” This is an odd word choice for a principle that has protected atheists, communists, dissenters, and writers of erotic literature. We are richer today for being able to decide whether or not to read Anaïs Nin, Allen Ginsberg, and Angela Davis. Would society be better off today if someone decided to strike the works of C.S. Lewis, William F. Buckley, and Victor Davis Hanson?
 
The genius of the First Amendment lies in its simplicity and neutrality. The First Amendment offers the same protection for all while permitting reasonable exceptions. For example, the First Amendment couldn’t protect talk show provocateur Alex Jones from handing over his fortune and livelihood after a jury found that he had defamed the grieving parents of children murdered in the Sandy Hook school massacre. And while the First Amendment may shield the occasional extremist, it also ensures that powerful organizations and groups cannot silence men and women of conscience who criticize them.
 
Franks’ ideas are unserious to the point of childishness. (There, saved you an Amazon purchase. Try this one instead.) She seems willing to delegate complex adjudications of social conflicts to people she regards as the smartest and best intentioned. No one – but no one – should be trusted with that kind of power. That’s what the Founders felt in their bones when they wrote:
 
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
 
Many Americans have died for those words. We should not casually toss them aside.

​We recently covered the plight of Sam Brownback – former Kansas governor, U.S. Senator, and ambassador – who learned that the Chase Bank account for the non-profit he heads, the National Committee for Religious Freedom, had been closed with no explanation. In a lengthy back-and-forth with Chase Bank, Brownback learned that he had been defined in regulatory filings as a “politically exposed person.”
 
Allysia Finley in The Wall Street Journal explains the mechanisms behind these actions. She covers the widespread and growing practice of federal agencies’ use of the Bank Secrecy Act to surveil and punish the speech of law-abiding but politically disfavored groups through “debanking.”
 
These Orwellian acts don’t originate with the banks. The banks themselves face penalties that can go into the billions of dollars if they fail to close an account for a customer who is the target of numerous “Suspicious Activity Reports” (SARs), which flag them as “high risk.” Last year, banks filed 4.6 million SARS. Who knows how many customers were debanked as a result? 
 
Victims include former First Lady Melania Trump, and groups targeted by some in government such as firearms dealers, payday lenders, and pawn shops. Now the provision has blocked the Blockchain Association, a trade group for the cryptocurrency industry. Barney Frank, a former Chair of the House Financial Services Committee, says that the FDIC seizes banks “to send a message to get people away from crypto.”
 
Think about that for a moment. The banks were forced not to go after crypto accounts, some of which admittedly could be sketchy, but to go after a trade association (“the collective voice of the crypto industry”) that exercises its First Amendment right to petition the government to argue for pro-crypto legislation.
 
Unraveling the practice of silencing people and organizations by snapping their accounts shut should be high on the list for reform by the incoming Trump administration and the next Congress.

​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.

​What is art?
 
Is D.H. Lawrence’s 1928 novel, Lady Chatterley’s Lover, art? The U.S. Post Office didn’t think so, restricting uncensored versions of it until 1959. Are Jackson Pollock’s messy canvases art, or splattered paint? What about Police Academy 5?
 
Britannica defines art succinctly as “a visual object or experience consciously created through an expression of skill or imagination.” This is an appropriately broad definition, one that leads to the logical conclusion that any restriction on art would be a restriction on speech, forbidden by the First Amendment.
 
Acclaimed art historian and BBC star Sister Wendy Beckett reminds us that as patrons, we are co-creators of the art we view. Sister Beckett said that we should “advance toward a work of art in the loneliness of our own truth. Each of us encounters the work alone, and how much we receive from it is wholly the effect of our will to accept this responsibility.”
 
Which brings us to the pastry and mountain mural painted by high school students in Conway, New Hampshire, above Leavitt’s Country Bakery. It will never be mistaken for Michelangelo’s Sistine Chapel, or even the wall art of your average Italian restaurant in Hackensack, New Jersey. But the mural’s assortment of doughnuts, muffins, and scones in front of a rising sun do a passable job of imitating the contours of the nearby White Mountains.
 
The rub is that the citizens of that town overwhelmingly voted to restrict the size of billboards and signs. Leavitt Country Bakery’s mural is four times larger than the municipal ordinance allows, though we note that it inoffensively fits snugly within the boundaries of that establishment’s roof.
 
When the city ordered Sean Young, the bakery’s owner, to take down the mural, he took them to court for violating his First Amendment rights. Will the city’s attorneys be able to poke holes in his argument? Sprinkle it with doubt? Or will the judge’s eyes glaze over and lead to an outright rejection of Young’s claim?
 
A suggestion: Perhaps the citizens of Conway should set up a fund to fly Sister Wendy Beckett to New Hampshire and let her decide which side she would support as an expert witness. And give her a free doughnut.