​The U.S. Supreme Court spent two hours on Monday debating whether President Trump lawfully fired Rebecca Slaughter, a Democratic member of the Federal Trade Commission. At stake is whether the FTC remains an “independent” agency or becomes fully subject to a “unitary executive.”

Given that Section 5 of the FTC Act empowers commissioners to investigate companies for “unfair or deceptive acts or practices,” including commercial speech, this case holds significant but contradictory First Amendment implications. But first, some background.

Precedent Is “a Dried Husk”

Several Justices questioned a New Deal-era precedent called Humphrey’s Executor, which prevents a president from firing a commissioner except for cause.

• Chief Justice John Roberts told Slaughter’s lawyer that the precedent “is just a dried husk of whatever people used to think it was.”

 

• Justice Neil Gorsuch added it was “poorly reasoned” and asserted that there is “no such thing in our constitutional order as a fourth branch of government that’s quasi-judicial and quasi-legislative.”

Remarks like these led many court watchers to predict that Slaughter is unlikely to reclaim her seat when the Court rules next year.

Who Makes the Laws?

Justice Elena Kagan offered perhaps the most consequential line of the day. Under the unitary executive theory, she said, the president has “control over everything, including over much of the lawmaking that happens in this country.”

Lawmaking?

That candid acknowledgement spotlights the central constitutional tension in this case: the FTC engages in “lawmaking,” despite not being part of the only body charged with writing laws – Congress. This plays into Justice’s Gorsuch’s critique that FTC is a hybrid that exists outside of the Constitution’s delegation of powers. That reality may well prompt the Court’s conservative majority to overturn Humphrey’s Executor and place FTC under presidential control.

Congress designed the FTC, with its five commissioners drawn from both parties – three from the majority party – to inspire constructive debate from opposing sides. With one Republican member resigned, a Democrat not contesting his firing, and Slaughter fired, the FTC currently has only two commissioners, both Republicans. The Justices must now consider whether this original congressional bipartisan design can be wholly discarded.

The separation of powers issues created by the growth of agencies and the modern executive branch require not only holding the president accountable for executive functions, but also rolling back the excessive delegation of legislative power to the executive. A unitary executive that amasses control of both executive and legislative functions is no solution. It is a lopsided response to half the problem – leaving the system even more unbalanced.

Regulating Speech: Risks Under Both Models

But how would overruling Humphrey’s Executive affect the First Amendment? Unfortunately, the risks to free expression run in both directions.

Earlier this year, FTC Chairman Andrew Ferguson launched an investigation into social media censorship. The FTC declared that “censorship by technology platforms is not just un-American, it is illegal.” We’ve often criticized major social media platforms for censoring conservative views. But the law is clear: the First Amendment only forbids government censorship, not private content moderation. Companies can filter, curate, or label content however they want – whether that means putting funny mustaches on every image of President Trump or adding Vulcan ears on Gov. Gavin Newsom.

The FTC does have the power to crack down on fraudulent claims that magic vitamins cure cancer. But it is a profound overreach for government to police a media company simply because regulators want more liberal or conservative content.

As for “un-American,” the Federal Communications Commission – which has some merger authority over media companies – threatened ABC if it did not fire talk show host Jimmy Kimmel. “We can do this the easy way or the hard way,” FCC Chairman Brendan Carr said, prompting Sen. Ted Cruz (R-TX) to compare his threat to that of a Mafioso.

At least under a unitary executive, an administration can be held publicly accountable, as Sen. Cruz demonstrated. Independent agencies, by contrast, can wield vast power with no democratic check. One of the early congressional architects of the FTC promised the agency would take “business matters out of politics.” President Biden’s Chair Lina Khan rejected that view, declaring that “all decisions are political.”

In truth, the FTC’s deliberations have always been influenced by politics. But the recent heightened politicization of the FTC points to a subtler risk created when Congress delegated its lawmaking powers to an independent agency within the executive branch.

A Constitutional Contradiction with No Easy Fix

The best solution might be to scrap the entire model and rebuild it from the ground up. But no one expects the Supreme Court or the Congress to do that.
​
For now, the task falls to the rest of us to call out free speech violations whether they arise from a presidentially controlled FTC or one run by independent ideologues insulated from democratic accountability.

The Fourth Circuit Court of Appeals this week upheld the lengthy prison sentence of a Virginia man for knowingly training a customer who intended to create a weapon to kill federal agents. (Hat tip: Eugene Volokh.)

This case reflects a twist in First Amendment law. The Supreme Court established in Brandenburg v. Ohio (1969) that while one cannot be prosecuted for “hate speech,” one can be prosecuted for inciting “imminent lawless action.” But what if the bad intentions are in the mind not of the speaker, but in the mind of the listener?

The defendant in this case, Christopher Arthur, provided training to “help the average person to be able to defend themselves” against “tyrannical government of our own or an invading tyrannical government.” His online manuals included such handy topics as how to create “Fatal Funnels, Wartime Tactics” and “Improvised Explosives.”

As frightening as this sounds, such speech could be lawful if the intent is to defend oneself in a Red Dawn scenario in which communists (or cartels, or aliens, or a future dictator, etc.) conquer the United States. But Arthur became a target of FBI investigation after one of his customers, Joshua Blessed, was found to have had 14 live pipe bombs in his home identical to those in Arthur’s manual. Blessed also started a shootout with law enforcement, firing at least 29 shots, which ended with him being riddled with bullets.

The FBI investigation of Arthur relied on a confidential informant, codenamed “Buckshot,” who told Arthur that he wanted to kill federal ATF agents. From this, the Fourth Circuit majority concluded that the speech was “integral to criminal conduct.” It was “tantamount to aiding and abetting a crime.”

We cannot disagree. Providing the means to create, in Arthur’s words, “a freaking death box” in which to lure and kill federal agents should not be shielded by the First Amendment.

But a dissent from Judge Roger Gregory (p. 32) reminds us that even in the most clear-cut cases, ambiguities exist that could be twisted out of recognition in future cases. Judge Gregory imagines the following scenario.

“Consider, for instance, [a] university professor … who is scheduled to give a lecture on the physics of combustion, or even simply on the topic of potential energy, which surely constitutes ‘part’ of information about explosives. If the professor had reason to believe a listener would weaponize his information – perhaps a potential attendee sent a letter outlining malicious intentions, or an audience member wore a T-shirt suggesting an affinity for violence – then the professor could conceivably be prosecuted” under a federal statute.

“The same could be said for a publisher of an instructional manual for safe use of explosives in construction and demolition. If the publisher received prior notice of a potential reader’s inclination to weaponize the manual’s information, the publisher would be at risk of prosecution … In both examples, protected and socially valuable speech is stilted because of the possibility that a rogue audience member would misuse the information provided, even if the speaker did not intend such misuse …”

This scenario doesn’t appear to apply to Arthur’s case, who received a candid idea of what his customer intended.
​
But Judge Gregory raises an important point. Today’s reasonable inferences have a way of being stretched to unreasonable extremes tomorrow. Holding speakers criminally responsible for a listener’s intentions risks turning protected instruction into prosecutable speech. That’s a standard the courts – and Congress – should watch with caution.

​Jon Richelieu-Booth, 50, an IT consultant from West Yorkshire, returned home from a trip to Florida with a few harmless souvenirs that included snapshots taken by friends of him shooting what appeared to be semi-automatic shotguns.
 
Richelieu-Booth posted the images on LinkedIn with some routine notes about his work and travel.
 
In the United States, where firing guns on private property is legal, such a post would attract little attention beyond a few “likes.” But this is the UK, where an Irish comedian was arrested this summer for a tasteless joke. So it didn’t take long for West Yorkshire police to show up at Richelieu-Booth’s home. The officers declined to examine evidence that the pictures were taken in Florida; perhaps the semi-tropical foliage and algae-scummed pond in the background were proof enough.
 
Under the UK’s increasingly Orwellian speech laws, however, well enough is rarely left alone.
 
The police returned a few weeks later to arrest Richelieu-Booth. He was held overnight before being released on bail. His phones and digital devices were confiscated, effectively destroying his business and livelihood and launching what he described as “13 weeks of hell.” Officers visited Richelieu-Booth at home three more times before the Crown Prosecutor Service ultimately dropped all charges.
 
“And this is why we have the first and second amendments in America,” Elon Musk posted on X.
 
Reform Party UK leader Nigel Farage has urged Americans to be vigilant lest the speech police take root here. Once again, we should be grateful for our Constitution’s protections against state overreach.

​Wouldn’t it be nice to just get those stupid people who keep advocating for stupid things to just shut up – and if they won’t stop, to get them fired so they will be too busy trying to keep their homes that they will have no time to keep advocating for stupid things!
 
That rant, in a nutshell, characterizes the philosophical depth of the growing practice by leaders at the national and the local level to punish speech by misusing the powers of their office. This is apparently a communicable disease, one that has infected leaders in both parties and Americans across the ideological spectrum.
 
At the national level, President Trump signed executive orders punishing law firms – restricting their access to government contracts and federal buildings (presumably, including federal courthouses) – due to the past political activities of former law firm members. We’ve seen Federal Communications Commission Chairman Brendan Carr misuse his ability to approve corporate mergers to force a multimillion-dollar settlement over a specious legal claim and to try to get a late-night TV host fired.
 
But Democrats play this game as well. At the national level, the Biden administration nurtured a breathtakingly large scheme of political censorship. Efforts ranged from deploying FBI agents to secretly jawbone social media companies into deplatforming disfavored speech, to providing taxpayer funds to an NGO to bully advertisers into boycotting conservative and libertarian news outlets.
 
Enter Bob Mendes, progressive politician and former Nashville city council member. (Hat tip to Eugene Volokh.)
 
The law firm of Baker Donelson serves as Nashville’s outside counsel. Mendes warned that the firm might well lose this account if it allowed one of its lawyers, James DeLanis, to continue to chair the election committee to certify a referendum that opposed a property tax increase. City officials pressured the law firm to keep the referendum off the ballot and to curb DeLanis’s efforts. As a result of official threats, DeLanis was fired by Baker Donelson.
 
Now Sixth Circuit Court of Appeals Judge Jeffrey Sutton, joined by Judge Julia Smith Gibbons, has issued an opinion on the misuse of official power to curb the First Amendment. Two major findings leap out from this ruling.
 
First, private firms can fire people for speech. Under the First Amendment, a business has associational rights. Thus, the judges found: “Baker Donelson, for better or worse, sought to protect its client base, not to punish DeLanis for his speech.” The court also found that the law firm is eligible for qualified immunity in this case, limiting its liability.
 
Second, public officials can be held liable for misusing their powers to curb speech. The court found that “Mendes spearheaded an effort to defeat the citizen tax referendum at issue. He ‘berated’ DeLanis at a Commission meeting for orchestrating ‘pre-baked, political theater.’” The court continues: “When a public official warns a law firm that the city may pull business from it due to the public-office actions of one of its lawyers, that suffices to deter a person ‘of ordinary firmness’ from exercising his First Amendment rights in that office …”
 
The Sixth Circuit reminds us of the limits of official power and the breadth of the First Amendment. This opinion should be required reading for any elected or appointed official.

​The U.S. Supreme Court in 2021 struck down a California law requiring non-profits to disclose their donors to the state. This ruling was aligned with a landmark 1958 Court opinion that safeguarded the identities of private donors to the NAACP from an Alabama law also mandating disclosure.
 
In the Alabama case during the Jim Crow era, donors could have been exposed to harassment or far worse. In California, the state had a history of accidentally leaking the identities of donors to controversial causes. California today is not the Alabama of 1958, but donors in the Golden State have still been doxed, harassed, and fired.
 
The protections of anonymity – a practice in America as old as The Federalist Papers – is consistent with the implied First Amendment right to freedom of association. Curiously, however, these protections are limited under federal law. Under current law, some non-profits must hand over the identities of their largest donors to the IRS.
 
The Buckeye Institute – a public policy think tank in Ohio – went to federal court to successfully challenge this collection of sensitive, personal data by the IRS from Form 990 Schedule B. The district court found that the IRS donor disclosure requirement should be subjected to “exacting scrutiny” – a heightened level of review that courts apply in First Amendment cases. Now Buckeye is defending its victory against an appeal by the federal government before the Sixth Circuit Court of Appeals.
 
In its brief before the Sixth Circuit, Buckeye says it needs to protect donor anonymity because it:
 
“… criticizes the government … weighs in on topics that many people feel strongly about … which makes privacy critical for The Buckeye Institute and its supporters. Many donors (and potential donors) fear retribution from Buckeye’s opponents, and they’re reluctant to financially support The Buckeye Institute if doing so means the IRS has easy access to their personal information.”
 
Buckeye notes that shortly after its educational efforts successfully persuaded the Ohio legislature to reject Medicaid expansion under the Affordable Care Act several years ago, “the IRS’s Cincinnati office initiated a full-field audit of The Buckeye Institute.”
 
The protection of “exacting scrutiny,” upheld by the federal court, does not mean that the government cannot access donor information. The institute notes that “it is a high bar, but not insurmountable.” But exacting scrutiny is a level of protection that would guard against the kind of political persecution of speech that appears to have occurred with the IRS and Buckeye.
 
A supporting amicus brief from Advancing American Freedom, including several pages listing hundreds of supporting organizations, covers the deep principles at stake in this case. AAF’s amicus declares:
 
“Freedom of association is an American tradition and is enshrined in the First Amendment. The government cannot condition participation in benefit programs on sacrificing a constitutionally protected right without that condition facing heightened scrutiny. And the government cannot collect massive amounts of data about Americans merely for its own convenience.
 
“As former Attorney General William Barr observed about the Consolidated Audit Trail, and Securities and Exchange Commission data collection project, ‘If the government can collect this information just in case, that’s the big-brother surveillance state.’”
 
And surveillance, as we have seen time and again, almost always results in attempts to curb free speech.

​“I didn’t seek to be a media sensation,” 61-year-old Larry Bushart told local media after the retired Tennessee police officer spent 37 days in jail and was hit with a $2 million bond – all for reposting a meme on a Facebook thread.

At 11 p.m. on Sept. 21, officers came to Bushart’s Linden, Tennessee, home, handcuffed him, and locked him up for “threatening mass violence at a school.”
Did he?

Consider: Bushart’s post came after the assassination of Charlie Kirk and centered around a vigil in Perry County, Tennessee. The meme included a quote from then-candidate Donald Trump in the aftermath of a school shooting in Iowa, saying: “We have to get over it.”

When we checked candidate Trump’s remarks, we found that this quote was plucked from a longer and more sympathetic statement. But when it comes to taking something out of context, the Perry County Sheriff’s Department is unexcelled. You might find the shared meme highly offensive, or you might nod in agreement. But one thing it is not is a threat of mass violence at a school.

Nevertheless, the arrest affidavit for Bushart states that a “reasonable person would conclude [it] could lead to serious bodily injury, or death to multiple people.” Please tell us, where do we find these “reasonable people”? Probably only in the Perry County Sheriff’s office.

Meanwhile, in the more than five weeks Bushart spent in jail, he missed the birth of his granddaughter and lost a post-retirement job providing medical transportation. The charges against Bushart were finally dropped, but only after the case began to receive national notoriety.

“A free country does not dispatch police in the dead of night to pull people from their homes because a sheriff objects to their social media posts,” said Adam Steinbaugh of the Foundation for Individual Rights and Expression (FIRE), which is representing Bushart’s in his lawsuit to defend his rights.
​
As this case moves forward, these local authorities in Tennessee may well find their infringement on Bushart’s speech to be expensive. Consider that a raid on a small-town newspaper in Kansas recently resulted in a $3 million settlement.

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

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

 

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

 

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

 

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

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

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

 

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

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

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

 

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

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

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

 

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

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

​The rise of virulent, occasionally violent, antisemitism at the extremes of the political spectrum is testing the meaning and durability of the First Amendment.
 
High-Profile Antisemitism on the Right
Let’s start with Tucker Carlson’s recent softball promotion of antisemite and Hitler fan Nick Fuentes, as well as Carlson’s equally promotional interview with Darryl Cooper – who identified Winston Churchill, not Adolf Hitler, as the villain who started World War Two.
 
Victor Davis Hanson has incisively critiqued Carlson for conducting these interviews of two extremists “without cross-examination.” Carlson introduced Cooper as “the best and most honest popular historian in the United States,” though Cooper has no history books or academic articles to his name. When Cooper described the Holocaust as a botched humanitarian response rather than a deliberate act of mass murder, Carlson let that comment slide by without challenge.
Antisemitism on the Left
It was only months ago that left-wing antisemitism was testing the limits of a tolerant society. At UCLA, anti-Israel protesters enforced what they called “Jew-Free Zones.” At Columbia, Jewish students and faculty were physically and verbally harassed. It wasn’t until the Trump Administration dropped the hammer on these institutions of higher learning that administrators began to adequately protect students and faculty from attack.
 
So where does the law actually come down? Under the U.S. Supreme Court’s standard in Brandenburg v. Ohio (1969) speech that incites “imminent lawless action” is prohibited. “True threats” were later proscribed. Ideological thugs who spout true threats at Jews on college campuses are acting outside the law. Their harassment and threats could hardly be excused as mere “speech.”
 
Even speech that is protected by the First Amendment can be limited by reasonable time, place, and manner restrictions. Protesters can shout on the quad at 3 p.m., but at 3 a.m. they cannot bang on dorm room doors or awaken the campus with megaphones. Title VI of the Civil Rights Act prohibits speakers from denying members of one religion equal access to a college campus, as happened at UCLA.
 
So What About Carlson, Cooper, and Fuentes?
They are clearly spreading hate speech. As scholar Richard Weaver famously wrote, “ideas have consequences.” Nazi propagandist Julius Streicher – though he never personally killed anyone – was justly sentenced to death at the Nuremberg tribunal and hanged in 1946 for directly inciting the Holocaust. He espoused true threats and, indeed, violence that had a huge consequence – the deaths of millions.
 
As galling as it may be, however, Fuentes and Cooper so far cannot and should not be punished for their speech. Yes, Fuentes says he’s on “Team Hitler” and that “Hitler was right.” Yes, Cooper has managed to be something worse than a Holocaust denier – he’s a Holocaust rationalizer. Unlike Streicher, neither man is on record calling for violence. Also legal in many circumstances is the widespread chant of campus demonstrators, “from the river to the sea,” which could be taken to mean the replacement, if not the eradication, of Israel. Hate speech might flirt with violence, but the Supreme Court chose – wisely in our estimation – to reject the path of many European governments today that attempt to police speech.
 
Again, hate speech crosses the line only with “true threats” and calls for “imminent lawless action.” This is admittedly an unsatisfactory solution. Perhaps the line between a Fuentes and a Streicher, or many campus protesters and Hamas, is a thin one. But observing that line provides maximum room for freedom of speech for all of us. It prevents travesties like the arrest of a comedian in the UK for tasteless jokes. A government that asserts a right to scrutinize every uttered or posted word for hate is a government that will inevitably become a threat itself.
 
Is Carlson Facing Cancel Culture?
Just because speech is legal, however, does not mean its speaker has a right to be platformed by private parties or to not be criticized by others. Heritage President Kevin Roberts, in his heavily panned defense of Carlson’s interview with Fuentes, said: “I don’t participate in cancel culture.” This is a profound misunderstanding of what free speech is all about.
 
Carlson, Fuentes, and Cooper – the Three Stooges of Antisemitism – have as much right to speak as any other American. But the First Amendment also expresses a right to free association. Think about it – how free would the speech of any organization be if it had to sponsor speakers with views inimical to its own? It is not cancel culture if the Roman Catholic Church chooses not to sponsor an atheist. And it would not be cancel culture if Heritage drops its association with Tucker Carlson.
 
Though not a matter of law, a culture of free speech imposes on us the moral obligation to call out truly bad speech – and to name names.
 
Sen. Ted Cruz made this point before a Federalist Society convention:
“My colleagues, almost to a person, think what is happening is horrible, but a great many of them are frightened, because he [Tucker Carlson] has one hell of a big megaphone,” Cruz said.
“It’s easy right now to denounce Fuentes,” Cruz later said at the convention. “Are you willing to say Tucker’s name?”
 
Sen. Cruz reminds us that timid criticism of bad speech that avoids mentioning the source is insufficient. We have a moral obligation to confront really bad speech – and to name the speakers.
 
Princeton University scholar Robert George, who on Monday announced that he had resigned from the Heritage Foundation board, set out foundational principles on X that liberals, as well as conservatives, should adopt.
 
“… I believe that the conservative movement, though it can and should be a broad tent, simply cannot include or accommodate white supremacists or racists of any type, antisemites, eugenicists, or others whose ideologies are incompatible with belief in the inherent and equal dignity of all. As a conservative, I say that there is no place for such people in our movement …
 
“Is this a call for ‘cancelation’? No. It’s a reminder that we conservatives stand for something – or should stand for something. We have core principles that are not negotiable … I am – notoriously, for some of my fellow conservatives – committed to the principle of free speech for everybody, including people with whom I profoundly disagree on even the most important issues, indeed, including racists and other bigots. But defending their rights does not mean allying with them, welcoming them into our movement, or treating them as representing legitimate forms of conservatism.”
 
Dr. George’s hygienic standard for conservatism is a good guide for people on all sides of the political spectrum and for universities as well.

​The public statements we post on social media are, by definition, available to all. Federal investigators often have good reason to access some of this information from social media, some of the time. How far that power goes is a line for the courts to draw.

However, that line – meaning the First Amendment – is clearly crossed when the government conducts mass surveillance of social media posts not because of a particular suspicion of bad behavior, but to make a case against targeted people.

Taylor Lorenz reports that Immigration and Customs Enforcement (ICE) is building out a massive social media surveillance program. It is searching posts and looking for “speech that, essentially, they feel they can deport people over. They can take lawful, legal speech and convert it into fresh leads for enforcement raids.”

Now add The Intercept’s disturbing report suggesting that ICE is so obsessed with its reputation that it wants to track any “negative” social media discourse directed toward it.

Such a program would scrape a user’s internet history and associations, then use facial recognition to create a dossier composed of a “photograph, partial legal name, partial date of birth, possible city, possible work affiliations, possible school or university affiliation, and any identified possible family members or associates.” Not to mention the possible infringements of the First Amendment. Such surveillance programs deter people from expressing certain ideas. This is precisely the kind of content-based restriction and viewpoint discrimination that courts often treat as presumptively unconstitutional.

Nor should we forget about the right to associate for expressive purposes. Without an utterly compelling justification, government actions cannot “burden association” (in this case, citizens sharing a discourse of critique against the government). Thinking of social media as an electronic sidewalk might help here, making the removal of anti-government apps akin to clearing sidewalks of speech the government doesn’t like.

To quote Taylor Lorenz again, all this amounts to a “mass, automated digital dragnet.” And few acts of surveillance are more anti-constitutional than warrantless dragnets. Dragnets are a symptom of policy enforcement inspired by animus to speech and activism. From a First Amendment perspective, this looks like retaliation. And the fact that social media seems to be increasingly used as the basis of crackdowns amounts to what Lorenz calls the gradual “militarization of our data.”

We live in an era in which our digital and physical selves have become indistinguishable. Government monitoring our social media and internet presence 24/7, then using it to profile us, enables government regulation of speech. Add ICE’s new capability to track us by our location histories, and we have a system not far from tapping phones or raiding homes.
​
Whether the government’s intrusion is analog or digital, it harms free speech.

​The Danish philosopher Søren Kierkegaard wrote about a fire that broke out backstage in a theater: “The clown came out to warn the public; they thought it was a joke and applauded. He repeated it; the acclaim was even greater. I think that's just how the world will come to an end: to general applause from wits who believe it's a joke.”

In our time, deepfake audio calls prompt people to wire their life savings to thieves, change their vote, or pay off sextortionists. One of the worst aspects of AI deepfake technology is that it can put actual authorities in the position of the frantic clown.

Denmark has had enough. The Danish culture minister, Jakob Engel-Schmidt, said: “Human beings can be run through the digital copy machine and be misused for all sorts of purposes and I’m not willing to accept that.”

Danish legislators are now supporting a measure to grant every citizen a right to control uses of their image, likeness, and voice, similar to “right of publicity” laws in many U.S. states that give Americans property rights to commercial uses of their identities. Under a proposal expected to soon pass Parliament, Danes will gain sweeping legal control over any digital recreation. This is important for Americans, because European law often sets standards in the global internet that adjust the policies of U.S. tech companies.

This Danish proposal, at first glance, might seem like overdue privacy armor against criminals, stalkers, propagandists, and hostile intelligence services. If Denmark passes this “right to your likeness,” as it appears poised to do, Danes will be able to demand takedowns and seek compensation. Platforms could face penalties for failing to comply.

But there’s a catch – a threat to free speech if Europeans and Americans are not careful in how such laws are drafted and enforced.

The Danish legislation does include carve-outs for “satire” and “parody,” meant to preserve comedy, creative expression, and political commentary. That is a good step. But these categories don’t explicitly protect other forms of speech. Such laws could easily be used to punish fair uses of AI, from commentary and criticism to historical fiction, docudramas, and much more.

If the parameters of an anti-deepfake law are too narrow, risk-averse platforms and creators will pull back. Algorithms will over-filter, even with exemptions. Studios and satirists will second-guess viral impressions, political cartoons, and docudramas depicting real people. Defamation law already chills speech. A sweeping likeness-ownership regime could freeze it solid.

When this issue came up in the U.S. Congress last year, the Motion Picture Association and civil liberties groups met with Members of Congress to craft a balanced approach. This approach, one with growing bipartisan support, would protect people from outrageous AI abuses – such as having one’s image and voice used for false endorsements, to perpetrate fraud, or for revenge porn – while fully protecting a wide range of AI uses in creative commentary, art, journalism, documentary work, and political speech.

No less important, Americans are learning that the best anti-AI filters are the ones we install in our brains.

Facebook is a great instructor, exposing us to one ridiculous scenario after another. Users are learning to ignore home security footage of rabbits gleefully jumping on backyard trampolines, or wolves and their cat friends ringing doorbells. As we get deeper into this age, we’re learning to relax our fingers and not share the ridiculous, the impossible, and the unlikely.
​
AI challenges our sense of reality. But it is also strengthening our patience and skepticism.

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

The European Union’s Digital Services Act (DSA) doesn’t just have teeth – it has saber-toothed razors.
 
The law, in effect since 2023, imposes draconian content moderation efforts on (mostly American) social media companies, threatening U.S. firms with fines of up to 6 percent of their global revenues. Worldwide fines of this magnitude – again, of revenues, not profits – could easily wreck companies with even the highest valuations.
 
To assess what content is impermissible, the EU relies on “trusted flaggers” – people who recommend content worthy of removal – in other words, censorship. As a report from the House Judiciary Committee on the DSA shows, these European content moderation decisions can also be enforced worldwide.
 
House Democrats criticized the majority HJC report. These Democratic members quoted a European expert saying that trusted flaggers have “no magic delete button.” They assert that platforms themselves would still decide whether to remove the flagged content.
 
John David Rosenthal of Law & Liberty responds:
 
“Regrettably, it is obvious from these remarks that the Democratic members have not done their due diligence on the subject … the ‘trusted flaggers’ are not individuals but rather organizations that are supposed to have relevant expertise in certain areas of the law. 
 
“In some cases, they are prima facie uncontroversial even from an American perspective, since their areas of specialization involve laws that are largely identical on both sides of the Atlantic … (A full list of the 43 ‘trusted flaggers’ named thus far is available from the European Commission here.)
 
“It’s another matter when their area of expertise is speech crimes. Ironically, the expert source quoted by the Democratic members – ‘Trusted flaggers do not have a magic delete button’ – is Managing Director of precisely one such organization: Josephine Ballon of the German organization HateAid. 
 
“In June, the German government – more precisely, the German telecommunications regulator, the Bundesnetzagentur – named HateAid as a ‘trusted flagger.’
 
“The Bundesnetzagentur (or “Federal Network Agency”) serves as Germany’s national DSA implementing authority or ‘Digital Services Coordinator’ (DSC). Moreover, HateAid was not only appointed by the German government, it is also funded by it. According to data in the German government’s Lobby Registry, it received nearly €1.3 million in support from two different government ministries in 2024, for instance.
 
“If Americans would not regard ‘flagging’ of speech for removal by an organization that is appointed and funded by the American government as anything other than government censorship, why should they regard it as something else when the organization is funded and appointed by the German government?” ​

​Gabriel Olivier is an evangelical Christian who regularly preaches to passersby in a public park outside a public amphitheater in the city of Brandon, Mississippi. The city recognized Olivier’s right to speak, but told him he had to stay in a “protest area” far from people heading to the event center.
 
When Olivier approached pedestrians, he was confronted by police. When he explained to the local chief of police that he had a constitutional right to speak, he was arrested for his trouble and charged under a city ordinance. The U.S. Supreme Court will soon hear arguments on Olivier’s claim that the city ordinance violated his First and Fourteenth Amendment rights.
 
At its heart, this is classic forum law: Sidewalks, parks, and other public spaces have long been recognized as traditional fora for speech. But a procedural hurdle is at play as well: the question of whether Olivier should even get his day in court.
 
In Heck v. Humphrey, the Supreme Court held that when a plaintiff seeks restitution from state and local governments for violations of her constitutional rights, she must show that any related conviction or sentence related to that violation has been reversed, expunged, or declared invalid before suing. The Fifth Circuit held that Heck prevented Olivier from proceeding because he was convicted, pled nolo contendere, paid a fine, and chose to file a civil rights lawsuit rather than appeal his conviction.
 
Now the Supreme Court is set to determine if Olivier can bypass Heck and proceed to challenge the ordinance, or whether the procedural bar will remain, denying the merits question and leaving the city free to regulate speech.
 
If Olivier can get past this hurdle, he will have a strong case. The D.C. Circuit Court of Appeals, for example, has repeatedly upheld the rights of citizens to speak freely on the grounds of the U.S. Capitol, rejecting arguments that this is a “special type of enclave” immune from the guarantees of the First Amendment. Surely the prime section of a public park near an event center in Brandon, Mississippi, is subject to the same principle. Local governments often manage sidewalks, parks, plazas, and other public spaces that communities expect to remain open as fora for free speech. Consigning speakers away from intended listeners is not a reasonable restriction.
 
This case gives the High Court a chance to clarify the rules that allow citizens to challenge local restrictions on their constitutional rights. And, for a Court that has not been shy about protecting speech, it is a chance to recognize that in public parks, the roots of the First Amendment run deep.

​In this globalized world, you can enjoy Baskin-Robbins’ 31 flavors in Beijing. But if you are a Chinese online influencer, you had better not ignore the 31 behaviors that have just been banned by the People’s Republic of China.

The new regulations make it clear the state will no longer tolerate (as if it ever did) statements or content deemed “injurious to the reputation” of the Chinese Communist Party or socialism. Nor can Chinese netizens use AI to make deepfake satires ridiculing party or state leaders.

This is just the latest crackdown on speech in China. In 2018 the regime banned Winnie-the-Pooh when Beijing realized to its dismay that the jowly, chubby cartoon bear had become an online meme representing the quite-abundant frame of China’s dictator, Xi Jinping. Now, thanks to this latest round of speech restrictions, Chinese netizens will be shielded from AI images of the Beloved Leader kissing Putin on the lips or being dragged away under arrest.

A New Chinese Rule with an American Echo

Democracies can tolerate every manner of disrespect for our leaders. Lately, our leaders themselves have posted digital displays of disrespect toward each other (not to mention posts in supremely bad taste). With so many digital haymakers being tossed around, we can rest easy that the explicit restrictions of the Chinese government are unlikely to be adopted here.
But another section of Beijing’s new regulations gives us pause.

• The 18-point guideline issued by the Chinese government requires online influencers to have formal “qualifications” – such as the appropriate college degree – to be eligible to comment on law, finance, medicine, and education. Tracy Qu of The South China Morning Post reports that “live-streamers are also forbidden from showing an extravagant lifestyle, such as displaying luxury products and cash.”

Here at home, the U.S. government in recent years has pressured social media companies to deplatform “disinformation” – often just iconoclastic views – that later turn out to be correct. Witness how the consensus opinion that COVID-19 originated in a Wuhan, China, lab was a conspiracy theory – right up until both the directors of the FBI and the CIA told Congress that the virus was more likely than not of artificial origin.

A Bipartisan Appetite for Speech Regulation

• The Federal Trade Commission requires influencers to disclose any payments or free products they’ve received for an endorsement of a product. It is easy to imagine that Washington regulators will one day want to attach a requirement for professional expertise to comment on complicated topics.

 

• A bipartisan bill introduced in the last Congress by Sens. Elizabeth Warren and Lindsey Graham would create a new independent regulator with authority to work with the Department of Justice and the Federal Trade Commission to regulate the behavior of large, online social media platforms.

The intent is to guard Americans’ privacy, protect children, and strengthen national security. Yet it is easy to imagine that such a powerful internet regulatory agency would soon get Washington, D.C., back into the business of regulating content.
​
We can frown on China’s crackdown on influencers, but don’t be so smug as to think it can never happen here. Censorship usually arrives not in jackboots, but with a clipboard and a promise that it’s “for your safety.”

​Love or loathe the colorful protests against the National Guard’s deployments into cities, the speech rights of all protesters are our rights. The right to insult, ridicule, offend, and provoke has been firmly established since President Thomas Jefferson let the Sedition Act – which outlawed “false, scandalous, and malicious” statements against the government, Congress and president – expire.
 
Now Fast Company reports that Sam O’Hara, a resident of Washington, D.C., claims he was “tightly handcuffed” and detained for 20 minutes after ignoring a demand by a National Guard member to stop playing the “Imperial March” theme associated with Darth Vader in Star Wars. O’Hara was playing the music while filming National Guard deployments in Washington, D.C., over the summer. Fast Company reports that O’Hara has received more than one million “likes” for his anti-Darth Vader TikTok posts.
 
The American Civil Liberties Union, which filed a lawsuit against the government for violating O’Hara’s First Amendment rights, told the magazine:
 
“Government conduct of this sort might have received legal sanction a long time ago in a galaxy far, far away. But in the here and now, the First Amendment bars government officials from restraining individuals from recording law enforcement or peacefully protesting, and the Fourth Amendment (along with the District’s prohibition on false arrest) bars groundless seizures.”
 
Michael Perloff, a senior staff attorney for the ACLU in Washington, told Fast Company: “The government doesn’t get to decide if your protest is funny, and government officials can’t punish you for making them the punch line.”
 
That’s true whether your allusion is to Darth Vader or the “Let’s Go Brandon” cry. “No government should be without critics,” Jefferson said. “If its intentions are good, then it has nothing to fear from criticism.”

​The First Amendment has never been a license for Americans to protest whenever they want, however they want. Time, place, and manner restrictions still apply. For example, protesters cannot take over Main Street or a highway whenever they please. They can’t trespass on private property, be as loud as they want, violate capacity restrictions, or bang pots and pans and set off fireworks in the middle of the night.

Common-sense restrictions against such behavior do not deprive us of our constitutional right to free expression. Such restrictions, however, must be reasonable – designed to protect the public from unwarranted disruption, not from ideas. In Ward v. Rock Against Racism (1989), the U.S. Supreme Court held that restrictions must be content-neutral and narrowly tailored. The subject matter of a protest is never the point. Limitations must be specific, not thinly veiled attempts at harassment of disfavored groups or ideas.

Now Texas officials seem to want the scales tipped. In this era of overreach, it’s not surprising that a district court judge found the state went too far in its recent effort to limit expressive activity on university campuses. Remember the whole “middle of the night” issue we mentioned above? Well Texas decided to turn a legitimate concern about street disruption into a ban on “expressive activity” at “any time after dark” (10 p.m. to 8 a.m.) when it enacted S.B. 2972 this summer.

Federal Judge David Alan Ezra was unimpressed, issuing a temporary block of this law:

“The First Amendment does not have a bedtime of 10:00 p.m. The burden is on the government to prove that its actions are narrowly tailored to achieve a compelling governmental interest. It has not done so.”

Texas also went too far in failing to keep its restrictions on subject matter content-neutral. In fact, state leaders went full-tilt the other direction, explicitly banning “any speech or expressive conduct protected by the First Amendment” after 10 p.m.

“Texas’ law is so overbroad that any public university student chatting in the dorms past 10 p.m. would have been in violation,” plaintiff’s attorney Adam Steinbaugh told the Free Speech Center. “We’re thankful that the court stepped in and halted a speech ban that inevitably would’ve been weaponized to censor speech that administrators disagreed with.”

The law, wrote the editorial board of The Daily Texan at the University of Texas at Austin, “protects lawmakers, not students.”
​
In Texas, the stars at night are big and bright – and Texans have never been afraid of the dark, nor of speaking their minds. “I’m from Texas,” Willie Nelson once said, “and one of the reasons I like Texas is that no one is in control.”

​Sen. Mike Lee (R-UT) recently proposed a bill named after the slain conservative activist Charlie Kirk. It would restore a ban designed to prevent the domestic dissemination of government-sponsored propaganda.
 
What is the link between Kirk’s murder and government propaganda? Sen. Lee’s office cited a You.Gov poll that shows that one-quarter “of very liberal Americans find political violence justifiable – a startling revelation on the effects of extremist rhetoric from the ideological left.”
 
The statement continued: “Now, Americans are not only vulnerable to, but likely paying for their own propagandization.” It cited the now defunded National Public Radio and Public Broadcasting Corporation for “incredibly politically biased” content.
 
But the use of tax dollars to fund propaganda is not a strictly left-wing phenomenon. As the U.S. government approached the ongoing shutdown, the Department of Housing and Urban Development posted this bulletin on its landing page.

​Agree or disagree, public employees blaming the “radical left” is nothing like the National Weather Service warning that a hurricane is set to make landfall in the Carolinas at 2 a.m. These statements also seem to violate the Hatch Act, which prohibits government employees from engaging in political activities on government time.
 
What Is Propaganda?
 
The word comes from an office Pope Gregory XV established in 1622 within the Roman Catholic Church during the Counter-Reformation – the Congregatio de Propaganda Fide, or “Congregation for Propagating the Faith.” The missionary office gave modernity a new word that would, in time, take on darker meanings – referring to information that, even when true, is selectively presented to create inflammatory effects.
 
To be fair, the line between truth and propaganda is a thin one. But there are obvious extremes. The National Weather Service example is clearly public safety information. The White House under President Lyndon Johnson telling Congress and the American people that North Vietnam attacked U.S. naval forces on Aug. 4, 1964 (when it manifestly did not) was clearly propaganda. Much else lies in between.
 
So, then, Does the Lee Bill Make Sense?
 
Despite reservations, we believe it does. We endorse it.
 
Sen. Lee’s bill is a necessary effort to prevent government agencies from trying to shape the American people with their tax dollars. In a representative democracy, any shaping should be done the other way around.
 
Sen. Lee’s bill would do this by restoring the original intent of the Smith-Mundt Act, a law passed at the beginning of the Cold War in 1948. The United States was then standing up the Voice of America to broadcast U.S. government-produced news to the world as our truth to counter communist propaganda. Concerned that government-created editorial content could be turned inward, Smith-Mundt banned the U.S. government from influencing public opinion in at home.
 
In 2013, the domestic dissemination ban was repealed by a “modernization act.” The State Department and U.S. Agency for Global Media, which oversaw programming like that of the Voice of America, were permitted to release their content inside in the United States. Some argued the internet made the separation between domestic and foreign audiences all but impossible. The law still forbade “targeting” of Americans for the purposes of “propaganda.”
 
In this vein, we agree with Sen. Lee’s public defunding of NPR and PBS. Government-funded editorializing is never going to be seen as neutral and unbiased. And it always creates the opportunity for mischief, whether of the NPR variety (turning a blind eye to the Hunter Biden laptop story) or of housing officials using a federal website to attack “radical leftists.”
 
Our government must not create “news” or political content for Americans’ consumption. We don’t want our civil servants to issue political opinions – whether they blame the shutdown on left-wing, radical woke Marxists, or right-wing MAGA troglodytes.
 
We, the American people, are sometimes pointlessly divisive and sometimes civil and wise. But we can think for ourselves, thank you very much.

Maryland enacted in 2021 a commercial tax on revenues generated from digital advertising. Affected businesses immediately promised to designate this tax as a line-item on their customers’ bills. Maryland responded by amending the law to gag internet companies to prevent such declarations.

Multiple trade associations sued on First Amendment grounds, but those concerns were dismissed by a district court for lack of jurisdiction. In a reversal, the Court of Appeals for the Fourth Circuit unanimously waved a page from the American Revolution at the state’s lawyers and said: “Not so fast. Ever heard of the Stamp Act?”

A tax is one thing, but restricting how businesses communicate that tax to customers is something else entirely. The right to complain about taxes goes back to the Stamp Act, reasoned the Appeals Court, and it “remains a grand American political tradition.”

The court went straight to the heart of why the First Amendment applies: “As much today as 250 years ago, criticizing the government – for taxes or anything else – is important discourse in a democratic society.”

As it was, the law’s speech provision had the effect of making companies seem responsible for the price increase rather than the state government. This struck the court as inherently unfair: “The pass-through prevents companies from describing the tax in the one setting where the consumer is guaranteed to look: the invoice," the court’s opinion read. “Keeping out of hot water with voters is not among the interests that can justify a speech ban.”

For now, the tax itself remains in place. But now unshackled from legislative sleight of hand, we expect many companies will be updating their customer billing statements in the months ahead.

Perhaps they will include this Annapolis number: 410-841-3000,  labeled: “Maryland General Assembly Switchboard.” Now that would be a major exercise of free speech.

​When the U.S. Supreme Court recently heard Chiles v. Salazar, the justices were confronted with a deceptively simple question: Can a state dictate what licensed therapists may or may not say to their adolescent clients about sexuality and gender? At stake is the speech of every professional – including therapists who affirm same-sex attraction, as well as those who are willing to question it.

Also at stake is nothing less than the First Amendment’s bedrock promise that the government cannot punish expression based on viewpoint.
​
A Law That Bans One Side of a Conversation

Colorado’s law forbids therapists from engaging in any counseling with minors that aims to “change sexual orientation or gender identity,” including talk that seeks to reduce unwanted same-sex attraction or align gender identity with biological sex. Importantly, this law applies even to purely voluntary, conversational therapy – no drugs, no “aversion” techniques, just words between a willing patient and a counselor.

For therapist Kaley Chiles, that law means she is forced to remain quiet with minors who come to her seeking help to live in accordance with their religious or personal convictions about sexuality. She argues that this is unconstitutional censorship on voluntary speech about deeply contested moral, religious, and scientific questions.

Her lawyer, James Campbell, told the justices that if Colorado’s position stands, the state could “transform counselors into mouthpieces for the government.”

Campbell invoked the Court’s 2018 decision in NIFLA v. Becerra, which struck down a California law forcing pro-life pregnancy centers to advertise abortion services. There, the Court held that professional speech still receives First Amendment protection and warned against “censoring private conversations between professionals and their clients.”

The First Amendment in the Therapy Room

The Tenth Circuit had rejected Chiles’s claim, applying the lowest standard of review – rational basis – to Colorado’s speech restriction. That ruling, Campbell told the Court, “gutted” NIFLA. Under such lenient scrutiny, a state could silence any disfavored viewpoint in a counseling session, from advice about divorce to moral discussions about abortion or family life.

Several justices appeared troubled by that possibility. Justice Elena Kagan noted that if one therapist can tell a client “I’ll help you accept that you’re gay,” while another cannot say “I’ll help you change that” – “that seems like viewpoint discrimination.”

Justice Neil Gorsuch pressed Colorado’s lawyer further. He asked that if the state can ban therapy that seeks to align a person’s identity with their biological sex, could a different state ban therapy that affirms a patient’s gay orientation – and justify it under the same rational basis standard?

Colorado’s attorney, Shannon Stevenson, said yes.

That answer underscores the double danger of viewpoint discrimination. What Colorado does today in the name of progress, another state could do tomorrow in the name of tradition.

The federal government, appearing as a friend of the Court on Chiles’s side, made that exact point. Hashim Mooppan reminded the Court that in the 1970s, “it was the standard of care that being gay was a mental illness.” Under Colorado’s theory, a state back then could have outlawed counseling that affirmed a gay identity.

That hypothetical isn’t ancient history; it’s the mirror image of the current case. What one era’s experts deem dangerous, another calls affirming. The Constitution doesn’t trust the government to referee such debates.

Professional Speech Is Still Speech

Colorado’s defense, echoed by Justice Ketanji Brown Jackson, was that Chiles is acting as a medical professional, not a private speaker. Justice Jackson asked why a therapist’s conversation about sexuality should be treated differently from a doctor prescribing medication. Campbell answered: “Because this involves a conversation.”

That distinction matters. The First Amendment protects the exchange of ideas, even those occurring in professional settings. In NIFLA, the Court rejected the notion of a “professional speech doctrine” that would allow the state to regulate speech more freely simply because the speaker is licensed. As Justice Thomas wrote for the majority, “The First Amendment does not permit the government to impose content-based restrictions on speech without satisfying strict scrutiny.”

If Chiles were decided otherwise, it would signal that professional speech – including a therapist’s, a professor’s, or even a lawyer’s – enjoys only conditional protection, subject to the prevailing political winds.

The Slippery Slope of State-Approved Speech

Colorado insists its law protects minors from harm but it has not cited a single study showing harm from voluntary talk therapy of the kind Chiles offers. Nor did the state explore less restrictive alternatives, such as informed-consent requirements or professional guidelines. Instead, it chose to ban speech outright – a blunt instrument aimed not at harm, but at a disfavored idea.

And that is the essence of viewpoint discrimination – when the government’s concern is not the method of communication, but the message. The genius of the First Amendment is its neutrality. It protects speech we find uncomfortable precisely because we cannot predict which ideas will one day fall out of favor.

A Warning from the Court
​
When Justice Kagan and Justice Gorsuch – often ideological opposites – both voiced concern about viewpoint discrimination, it suggests that Chiles’s case may transcend culture-war lines. The Court’s challenge is not to decide who is right about gender or sexuality, but to reaffirm that the government cannot dictate the answer.

​We’ve chronicled the decline of free speech in the European Union, with Germany leading the way.

In Germany, “public insults against politicians,” “spreading malicious gossip,” “inventing fake quotes,” and reposting purported lies online are now crimes. For ridiculing politicians, Germans are being investigated – one case was launched after a social media poster called a politician “fat.” Social media users have been fined, had their devices confiscated, and have even been sent to prison.

California Senate Bill 771 would have similarly restricted speech, this time with million-dollar fines on social media companies if their algorithms promote content that “aids or abets” threats of violence or intimidation. Under the terms of this bill, the state would fine social media companies $1 million per violation if a post is amplified by the platform’s algorithm, even if the content is lawful and fact-based.

The law was drafted to address “rising incidents of hate-motivated harms.” But harassing, assaulting, and harming people are already crimes. Under the Supreme Court’s Brandenburg v. Ohio standard, incitement to violence can also be prosecuted. This bill aims to further punish language that leads to “coercive harassment, particularly when directed at historically marginalized groups.” Section 1 of the bill notes, in one example, speech regulation is needed because anti-Islamic “bias events” rose by 62 percent in 2023.

And yet Oussama Mokeddem of the Council on American-Islamic Relations (CAIR) of California opposed the bill, saying: “This bill opens the door for bad actors to disproportionately pressure online corporations into silencing free speech to reduce their financial liability, with no protections for users against those mechanisms.”

A host of civil liberties groups objected that Senate Bill 771 was a recipe for government regulation of speech.

“In no way shape or form is that accurate,” responded Edward Howard, senior legal counsel for the Children’s Advocacy Institute at the University of San Diego School of Law, who had advised lawmakers in drafting the bill. He told Sacramento’s KCRA: “The First Amendment protects offensive, salacious, insensitive, horrifying, terrible things that people say. The bill is in fact about the right … of every single one of your viewers to be protected from threats of violence in response to his speech if those threats of violence would legitimately and reasonably place a regular old person in fear for their lives or being harmed.”

But Howard was far more precise in his interview than the bill’s language itself, which punishes but does not define “intimidation.” There is no lack of laws against threats of violence. If Gov. Newsom had signed SB 771 into law, it would have necessarily deployed armies of regulators and a range of activist groups armed with dictionaries in trying to discern the threats lurking in mere stinging criticism.

In his veto statement, Gov. Newsom said he shared concerns about the growth of discriminatory threats, violence and coercive harassment online, but found this bill “premature.” He thus kicked the can down the road. The governor wrote that “our first step should be to determine if, and to what extent, existing civil rights laws are sufficient to address violations perpetuated through algorithms. To the extent our laws prove inadequate, they should be bolstered at that time.”

What shape would such bolstering take? Bad ideas never die; they just get repackaged. Such a law in California, as in Germany, would pose global concerns. By regulating speech on world-spanning social media platforms, California would effectively regulate speech for everyone, everywhere.
​
The same technology that brings the world into dialogue can also bring the world under this or that regime’s censorship. Free speech is liberty, the price of which is eternal vigilance.

​Nine universities have received letters from the Trump administration asking them to sign a “Compact for Academic Excellence in Higher Education.” These institutions can receive extra funds in exchange for agreeing to freeze tuition for five years, enforce equality in admissions, adopt institutional neutrality on major issues, bring ideological diversity to hiring, limit international students, combat grade inflation, and bring about “transforming or abolishing institutional units that purposefully punish, belittle, and even spark violence against conservative ideas.”
 
Does the administration’s Compact protect or violate the First Amendment?
 
Marc Rowan, chief executive of Apollo Global Management, took to the pages of The New York Times to mount a vigorous defense of the Compact in the face of a university system that is “broken.”
 
We cannot disagree with his characterization. Rowan writes that the Compact dispenses honey to persuade universities to make common sense changes:
“These are not politically partisan requirements. It is eminently reasonable for the government to expect all this of schools before providing them with public funds.
 
“Critics have charged that the compact threatens free speech. It does no such thing. It places no constraints on individual speech, nor does it intrude on academic freedom. The compact does require schools not to punish, intimidate or incite violence against conservative ideas. Those are not speech restrictions. They are restrictions on the suppression of speech.”
 
Genevieve Lakier of the University of Chicago Law School takes an opposing view.
 
She writes in Divided Argument that the Compact violates the “unconstitutional conditions doctrine, which holds that the government may not condition access to government benefits on the recipient’s agreement to waive their constitutional rights, including the rights protected by the First Amendment.”
Lakier continues:
 
“The First Amendment rights that the Compact asks universities to forego are almost too numerous to mention, but they are many and they are blatant. Consider for example the requirement that universities maintain ‘an intellectually open campus environment, with a broad spectrum of ideological viewpoints present and no single ideology dominant’ … It is a matter of political judgment what constitutes an open and undistorted, as opposed to a closed and distorted, marketplace of ideas – and therefore, the kind of judgment that members of the democratic political community must make for themselves …”
 
Where does Protect The 1st stand? We admit it – we are conflicted.
 
The imposition of speech standards by government funding – even if it broadens the diversity of speech – is an intrusion of government into the speech rights of universities. What constitutes an open versus a distorted marketplace of ideas is an invitation to endless legal and political wrangling. We especially worry that the Compact’s intrusion could one day become a weapon that can be wielded for much more illiberal purposes.
 
At the same time, federal funding has already been used to micromanage higher education for decades now. Would it hurt to use that power for at least some of these purposes? We are beyond frustrated at institutions that are supposed to be safe havens for free inquiry but are instead killing grounds for dissent.
 
Like many things Trump, the execution may be overbroad and overdone, but the challenge itself might have a bracing effect forcing institutions to finally consider long-needed changes.

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

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

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

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

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

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

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

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

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

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

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

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

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

​It is a welcome development that more than 550 Hollywood celebrities have restarted the Committee for the First Amendment. But we also have some reservations about the focus of this group, which we will explain below.

The committee announced on Wednesday: “The federal government is once again engaged in a coordinated campaign to silence critics in the government, the media, the judiciary, academia, and the entertainment industry.”

This is not a controversial statement. It is not interpretation. It is nothing but a recap of recent headlines.

The current administration has used executive orders to target individuals and law firms for past speech. Government funding is now being conditioned on how well universities align with administration priorities. The regulatory power of the Federal Communications Commission has been wielded to force media into paying large settlements over specious defamation lawsuits.

The Committee for the First Amendment was originally formed in the Cold War era to protect the Hollywood Ten, liberals and, to be accurate, actual communists like screenwriter Dalton Trumbo, who were blacklisted and persecuted by the House Un-American Activities Committee during the Joseph McCarthy era. Jane Fonda, whose father Henry was a founding member, said: “I’m 87 years old. I’ve seen war, repression, protest, and backlash. I’ve been celebrated, and I’ve been branded an enemy of the state. But I can tell you this: this is the most frightening moment of my life.”

We are concerned too. So why aren’t we 100 percent thrilled about the rebirth of the Committee for the First Amendment?

Like the parable of the man who sees the splinter in the other man’s eye, but not the log in his own, many on the left – just like so many on the right – only see the violations of their partisan opponents. It is all those evil Republicans, or those evil Democrats (leading MAGA influencers to now pine for the prosecution of George Soros… for what, exactly? Spending money on speech, as he is permitted to do under Citizens United?)

We suggest that Mark Ruffalo, Kerry Washington, Viola Davis, Ben Stiller, Aaron Sorkin, Barbra Streisand, Billie Ellish, and the rest take stock of the truth that for some years now, both parties have tried hard to misuse government power to silence each other. Alphabet/Google has publicly admitted that it buckled to secret pressure from the Biden administration to deplatform conservatives. The State Department secretly used government funds to use an NGO to persuade advertisers to blacklist conservative and libertarian news outlets. White House aides, who wielded tremendous regulatory power, called Mark Zuckerberg to scream at him over Facebook posts they wanted removed.
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The First Amendment is sinking, and the recent actions of the Trump administration have thrown it an anvil when it needs a life preserver. It is good to get angry about the violation of speech rights of those we agree with. But we won’t have the strength to rescue free speech until we are all just as angry about the violation of the speech rights of people we don’t like.

​Many Americans on the right are upset about a recent letter in which Alphabet/Google acknowledged that YouTube did, in fact, censor conservative speech at the behest of the Biden White House. Meanwhile, many Americans on the left are deeply alarmed by how Federal Communications Commission Chairman Brendan Carr inserted himself into the Jimmy Kimmel drama, threatening official retaliatory action if the late-night host stayed on the air.

Both sides are right about the other side, which means, of course, that both sides are in the wrong.

Yet somehow, the concept of a neutral principle that applies equally to everyone has become too hard for even highly educated policymakers to grasp. Wait, are you actually saying that free speech means that people who piss me off can say anything they want?

Yes, as hard as it is for some to grasp, that is what the First Amendment guarantees.

A way out of our current national free-speech debacle may, ironically, come from the universities, where the heckler’s veto has all too often prevailed. Universities are adopting the University of Chicago principles for free speech, which include this declaration:

“[I]t is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Although the University greatly values civility, and although members of the University community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussions about ideas, however offensive or disagreeable those ideas may be to some members of our community.”

Entire state university systems from North Carolina to Texas, as well as Princeton, Stanford, Harvard, Yale, and Johns Hopkins, have embraced the Chicago principles, more than 100 in all.

Now Harvey Silverglate, co-founder of the Foundation for Individual Rights and Expression (FIRE) makes a puckish suggestion in a wide-ranging interview with Tunku Varadarajan in The Wall Street Journal. Silverglate suggests a “Chicago statement for the nation,” declaring “it is not the proper role of the government to shield individuals” from statements and opinions they find objectionable.”
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This is not likely to happen anytime soon, not with the censorship arms race now taking place in Washington, D.C., today. But it took only a few years for the Chicago principles to take hold in academia. Perhaps in a decade, could we see a similar declaration by our government?

​Netta Perkins, assistant basketball coach at the Paso Robles Unified School District in California, allegedly posted the following reaction to the assassination of Charlie Kirk: “God does not like ugly! Charlie Kirk reap wat u sow!” and “White on white crime let them sit in it!”
 
This post was, to put it mildly, a digital advertisement for ignorance and lack of empathy, not to mention poor grammar. The author might want to meditate on the phrase, “God does not like ugly.”
 
Some 145 Americans – including many teachers in high schools and universities – have been fired for posting statements similar to this one. But Perkins was not, and will not be, one of them.
 
The Paso Robles Unified School District announced:
 
“In some cases, you may see employees of private companies face immediate consequences for things they post online. Public schools, however, are public institutions and must follow constitutional protections such as the First Amendment.
 
“In practice, this means that even if a staff member or coach shares something online that many find upsetting, the District cannot legally take disciplinary action based on personal speech alone, unless it affects their ability to do their job or harms students.”
 
Some argue that a teacher should model character for students, especially in public fora. But once we start to evaluate every teacher’s public posts, millions of posts will suddenly become subject to angry, internal debates within school boards over one subjective judgment after another.
 
In a thoughtful piece, the editorial board of The San Luis Obispo Tribune explored the reasons why Perkins should not be fired for her post:
 
“Would we want it any other way? Would we really want to live in a nation where someone can be fired, or worse, for saying something critical of the party in power?”
 
The Tribune recounted the many examples of people on the right, as well as the left, who want to justify censorship because someone’s over-the-top rhetoric is likely to incite violence – while reserving the right to call their opponents “vermin” and “scum,” and, we would add, “fascists.”
 
The Tribune asked all sides to consider the “irony of silencing critics.”
 
“Charlie Kirk – the man whose legacy is being championed by all comers on the right – would have stood against such encroachment on this fundamental American right, because he was a fierce defender of free speech.
 
"You should be allowed to say outrageous things," he said shortly before his death …
 
“Those agitating for the firing – or just the muzzling – of political opponents like Coach Perkins or any of the 145 or so employees who were actually terminated may want to slow down and ask themselves this simple question.
 
“What would Charlie have done?”
 
Many on both sides should consider that the irony of silencing critics is really just another way of acknowledging that karma boomerangs. It is only a matter of time before the silencers become the silenced.