California, known for its progressive values and innovation, is increasingly becoming a battleground over the regulation of speech. The state's regulatory, political, and educational bodies are systematically encroaching on the fundamental right to free expression, attempting to manage and control speech in ways that undermine the First Amendment in the schools and among businesses.
When California sets a precedent, the implications for free speech rights across the country are profound, warranting close scrutiny and robust debate. Yet in California, recent actions reflect a shift towards control and censorship, challenging this essential liberty. Consider the legal battle involving X Corp., formerly known as Twitter. The company has been fighting against surveillance and gag orders that infringe on X’s First Amendment rights while also threatening the Fourth and Sixth Amendment rights of its users. When the government demands access to personal data stored by companies like X Corp. and then issues Non-Disclosure Orders (NDOs) to keep this secret, it coerces companies into acting as government spies, unable to speak to their users about the breaches of their privacy. This case highlights a broader pattern in California's legislative and judicial landscape. One recent law, California Bill AB 587, mandates that social media companies disclose their content moderation practices. Legal scholar Eugene Volokh has argued that this law pressures companies to engage in viewpoint discrimination, reveal their internal editorial processes, and do the government's bidding in managing speech. How would that be different from requiring newspapers to explain their editorial decisions to the government? These laws and regulations are often claimed to be justified as necessary for combating hate speech, misinformation, and harassment; however, they impose significant burdens on companies and threaten to stifle free expression. A court recently ruled against X Corp. in its attempt to block the law requiring it to disclose to the government the internal deliberations of its content moderation policies. While transparency in moderation practices might seem beneficial, the forced disclosure could lead to state-enforced censorship and coercion of private editorial processes, undermining the very principles of free speech the First Amendment is meant to protect. The state's approach to managing speech extends beyond digital platforms. In a recent disturbing case, an elementary school disciplined a first grader for drawing a benign picture with the phrase “Black Lives Matter.” Being young and probably unaware of the larger sensitivities, this elementary school child added: “any life.” The school promptly disciplined the child without telling her parents. This overreaction reflects a broader problem with educational institutions, driven by a hypersensitivity to the perceived (or mis-perceived) demands of political correctness, that end up punishing even innocent expressions of empathy and solidarity. A federal court's support for the school's actions further highlights the precarious state of free speech rights in educational settings, from elementary school up to graduate school, law school, and medical school. California's aggressive stance on speech regulation also manifests in its legal battles over the Second Amendment. A controversial state law tried to impose attorney's fees on plaintiffs challenging gun restrictions even if they win their case, but lose any small portion of their claims. This tactic aims to deter legal challenges and silence dissent, directly contravening First Amendment rights. The law’s similarity to a Texas statute targeting abortion challengers underscores a worrying trend of using financial penalties to stifle constitutional challenges. These cases collectively illustrate a dangerous trajectory in California's approach to managing speech. The state's efforts to regulate and control various forms of expression, whether online, in schools, or through legal deterrents, represent a direct assault on the First Amendment. The complexities and nuances of speech, inherently messy as they are, cannot and should not be sanitized by governmental oversight. Fortunately, the U.S. Supreme Court remains a bulwark against regulations violating the First Amendment. The Court’s decision in AFP v. Bonta, which struck down California's requirement for non-profit organizations to disclose their donors, was a significant victory for free speech. The Court recognized that such disclosure requirements pose a substantial burden on First Amendment rights, particularly by exposing donors to potential harassment and retaliation. This case reinforces the principle that anonymity in association is crucial for protecting free expression and dissent. In the recent NetChoice opinion, a majority of the Court gave a ringing endorsement of editorial freedom, even while sending the case back for a more detailed review of the laws. We remain optimistic the Supreme Court will likewise rein in California’s antagonism toward the First Amendment if, and when, it has the opportunity. The recent session of the U.S. Supreme Court will likely be remembered for two major rulings implicating fundamental separation of powers doctrine: Trump v. United States, establishing presumptive immunity from prosecution for official presidential acts; and Loper Bright Enterprises v. Raimondo, dispensing with the long-established “Chevron Two Step” granting deference to a federal agency’s interpretation of statutes. In both instances, the Court reaffirmed our constitutional system of checks and balances, including protection against encroachment on the powers and privileges of one branch of government by another.
Against the backdrop of those headline-dominating developments, the Supreme Court also took on several important First Amendment cases, with results that were constitutionally sound. Below are the highlights – and summaries – of the Court’s First Amendment jurisprudence released in recent weeks. Food and Drug Administration v. Alliance for Hippocratic Medicine In a unanimous ruling, the Supreme Court rejected a challenge to the Food and Drug Administration’s regulation of the abortion drug mifepristone. Little noticed by the media, the Court’s opinion also firmly nailed down the conscience right of physicians to abstain from participating in abortions and prescribing the drug. Writing for the Court, Justice Kavanaugh said that the Church Amendments, which prohibit the government from imposing requirements that violate the conscience rights of physicians and institutions, “allow doctors and other healthcare personnel to ‘refuse to perform or assist’ an abortion without punishment or discrimination from their employers.” From now on, any effort to restrict or violate the conscience rights of healers will go against the unanimous opinion of all nine justices of the U.S. Supreme Court. Vidal v. Elster The Supreme Court, in another unanimous decision, overturned a lower court ruling that found that the U.S. Patent and Trademark Office’s denial of an application to trademark a phrase including the name “Trump” violated the filer’s First Amendment rights. Writing for the Court, Justice Thomas wrote that “[o]ur courts have long recognized that trademarks containing names may be restricted.” But such trademark restrictions, while “content-based” must be “viewpoint neutral.” This opinion prevents commercial considerations to scissor out pieces of the national debate. While the decision rejected a novel First Amendment claim to a speech-restricting trademark, it affirms sound First Amendment principles and protects the speech of all others who would discuss and debate the virtues and vices of prominent public figures. The Court was right to refuse the endorsement of a government-granted monopoly on a phrase about a presidential candidate. NRA v. Vullo NRA v. Vullo – yet another unanimous opinion – cleared the way for the National Rifle Association to pursue a First Amendment claim against a New York insurance regulator who had twisted the arms of insurance companies and banks to blacklist the group. Maria Vullo, former superintendent of the New York State Department of Financial Services, met with Lloyd’s of London executives in 2018 to bring to their attention technical infractions that plagued the affinity insurance market in New York, unrelated to NRA business. Vullo told the executives that she would be “less interested” in pursuing these infractions “so long as Lloyd’s ceased providing insurance to gun groups.” She added that she would “focus” her enforcement actions “solely” on the syndicates with ties to the NRA, “and ignore other syndicates writing similar policies.” The Court found for the NRA, writing that, “[a]s alleged, Vullo’s communications with Lloyd’s can be reasonably understood as a threat or as an inducement. Either of those can be coercive.” The Supreme Court’s opinion vacates the Second Circuit’s ruling to the contrary and remands the case to allow the lawsuit to continue. As the Court wrote, “the critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries.” And we wholeheartedly agree – censorship by proxy is still government censorship. Moody v. NetChoice In one of two cases involving the nexus of government and social media, the Court seemed to punt on making a final decision on the constitutionality of laws from Florida and Texas restricting the ability of social media companies to regulate access to, and content on, their platforms. Many commentators believed the Court would resolve a split between the Fifth Circuit (upholding a Texas law restricting various forms of content moderation and imposing other obligations on social media platforms) and the Eleventh Circuit (which upheld the injunction against a Florida law regulating content and other activities by social media platforms and by other large internet services and websites). The Court’s ruling was expected to resolve the hot-button issue of whether Facebook and other major social media platforms can depost and deplatform. Instead, the Court found fault with the scope and precision of both the Fifth and the Eleventh Circuit opinions, vacating both of them and telling the lower courts to drill down on the varied details of both laws and be more precise as to the First Amendment issues posed by such different provisions. The opinion did, however, offer constructive guidance with ringing calls for stronger enforcement of First Amendment principles as they relate to the core activities of content moderation. The opinion, written by Justice Elena Kagan, declared that: “On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.” Murthy v. Missouri In what looked to be a major case regarding the limits of government “jawboning” to get private actors to restrict speech, the Court instead decided that Missouri, Louisiana, and five individuals whose views were targeted by the government for expressing misinformation could not demonstrate a sufficient connection between the government’s action and their ultimate deplatforming by private actors. Accordingly, the Court’s reasoning in this 6-3 decision is that the two states and five individuals lacked Article III standing to bring this suit. A case that could have defined the limits of government involvement in speech for the central media of our time was thus deflected on procedural grounds. Justice Samuel Alito, in a fiery dissent signed by Justices Clarence Thomas and Neil Gorsuch, criticized the punt, calling Murthy v. Missouri “one of the most important free speech cases to reach this Court in years.” Fortunately, NRA v. Vullo, discussed above, sets a solid baseline against government efforts to pressure private actors to do the government’s dirty work in suppressing speech the government does not like. Later cases will, we hope, expand upon that base. Secret communications from the government to the platforms to take down one post or another is inherently suspect under the Constitution and likely to lead us to a very un-American place. Let us hope that the Court selects a case in which it accepts the standing of the plaintiffs in order to give the government, and our society, a rule to live by. Gonzalez v. Trevino Protect The 1st has reported on the case of Sylvia Gonzalez, a former Castle Hills, Texas, council member who was arrested for allegedly tampering with government records back in 2019. In fact, she merely misplaced them, and was subsequently arrested, handcuffed, and detained in what was likely a retaliatory arrest for criticizing the city manager. In turn, Gonzalez brought suit. Gonzalez’s complaint noted that she was the only person charged in the past 10 years under the state’s government records law for temporarily misplacing government documents. In 2019’s Nieves v. Bartlett, the Supreme Court found that a plaintiff can generally bring a federal civil rights claim alleging retaliation if they can show that police did not have probable cause. The Court also allowed suit by plaintiffs claiming retaliatory arrests if they could show that others who engaged in the same supposedly illegal conduct, but who did not engage in protected but disfavored speech, were not arrested. The U.S. Court of Appeals for the Fifth Circuit threw out Gonzalez’s case, finding that she would have had to offer examples of those who had mishandled a government petition in the same way that she had but – unlike her – were not arrested. The Supreme Court, by contrast, found that, “[a]lthough the Nieves exception is slim, the demand for virtually identical and identifiable comparators goes too far.” The Court thus made it a bit easier for the victims of First Amendment retaliation to sue government officials who would punish people for disfavored speech. The controversy will now go back to the Fifth Circuit for reconsideration. *** While the Court avoided some potentially landmark decisions on procedural grounds, and offered a mixed bag of decisions concerning plaintiffs’ ability to obtain redress against potential First Amendment violations, the majority consistently showed a strong desire to protect First Amendment principles – shielding people and private organizations from government-compelled speech. It is a rare day that a federal court can get the First Amendment so wrong. But a panel of the First Circuit Court of Appeals managed to do it.
In the 2021 local school board election in Bourne, Massachusetts, candidate Kari MacRae based her campaign on a promise to “fight woke values.” She posted on TikTok that “the reason why I’m taking on this responsibility is to ensure that students, at least in our town, are not being taught critical race theory.” She shared a meme that showed a man wearing a sport’s bra with the caption, “Equality doesn’t always mean equity.” You might deplore or “like” MacRae’s stance. But her comments clearly fall under the category of political speech, which courts have held is the most protected form of speech, subject to strict scrutiny when challenged by government restrictions. Clearly, many residents agreed with MacRae – she won her seat on the school board. That mandate, endorsed by the voters, did not stop the school district from firing her after she was later hired as a schoolteacher and these posts came to light. The First Circuit, in ruling against MacRae, cited precedent in which government employees were sanctioned for statements they made in an official capacity. Judge Ojetta Rogeriee Thompson wrote that “public employees’ First Amendment rights ‘are not absolute,’ and so public employees ‘by necessity must accept certain limitations on [their] freedom.’” The case she cited, Garcetti v. Ceballos (2006) concerned statements by an employee of the Los Angeles district attorney’s office about the veracity of facts in a warrant affidavit. The Supreme Court held that the DA’s office could discipline the employee for publicly contradicting his superiors. But MacRae did not make these statements as a teacher in a classroom. She made them as a private citizen running for office before she was even hired. The Wall Street Journal points out the obvious danger of this ruling: “The First Circuit’s decision delineates no statute of limitation or limiting principle to employee speech that government employers can punish. A teacher could be fired for hanging a ‘Make America Great Again’ flag at home. Political activity during college years could become grounds for dismissal.” Love or hate what McRae says, comments from her political campaign should not be cause for her dismissal as a teacher. The U.S. Supreme Court might find review of this case to be too tempting to ignore. Following the Oct. 7th atrocities committed against Israeli citizens, retaliatory attacks against Hamas with many innocents caught in the crossfire led to protests on campuses nationwide that shut down students’ freedom of movement and learning. Whatever one’s view of that conflict, it is undeniable that many anti-Israel protests turned into antisemitic persecution of students and faculty. Nowhere were these attacks as dark or troubling as those that occurred at the University of California, Los Angeles.
From April 25, 2024, to May 2, 2024, UCLA permitted a group of protestors to set up barricades in the heart of campus, creating what was widely termed a “Jew Exclusion Zone.” Activists locked arms, racially profiled students and faculty presumed to be Jewish, and refused to allow them access to campus or educational buildings unless someone vouched for their belief in the anti-Israel cause. The university, for its part, facilitated this occupation by failing to break up the blockade for a full week. Administrators even went so far as to hire private security to direct Jewish students away from the encampment, where calls for “death to Israel” and “death to Jews” were commonplace. As Chancellor Gene Block testified before Congress, events at UCLA reflected “the disturbing rise of antisemitism across our country since October 7th,” which placed Jewish students in “a state of anxiety and fear.” Now, the Becket Fund, representing three Jewish students from UCLA, is bringing suit against the university. As the plaintiff’s memorandum correctly alleges, the university’s acquiescence to the creation of a disruptive, discriminatory, and dangerous environment right in the heart of campus – in turn, preventing Jewish students from accessing public facilities – constitutes a violation of the Free Exercise Clause, the Free Speech Clause, and the Equal Protection Clause. It also implicates Title VI, which provides that “[n]o person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” The requested preliminary injunction would require that a plaintiff “establish[es] that he is likely to succeed on the merits, that he is likely to suffer irreparable harm” without issuance of an injunction, “that the balance of equities tips in his favor, and that an injunction is in the public interest.” The plaintiffs plainly meet those criteria. Without judicial intervention, there can be no guarantee that Jewish students will be able to safely access the public educational benefits to which they are entitled when they return to campus next month. As Becket Fund president Mark Rienzi said last month in congressional testimony, these episodes sound more like 1930s Germany than 2020s America. But there is a way forward. Rienzi said: “Together, we can defeat the scourge of antisemitism in our institutions of higher learning and society by ‘giving to bigotry no sanction, to persecution no assistance.’ Together, we can live up to George Washington’s promise that in this country, none shall be made afraid on account of his faith or ancestry. And together, we can ensure that the promises of our Constitution and our civil rights laws are kept and safeguarded.” Kudos to the Becket Fund for taking a stand against ignorance and intolerance. We’ll be following this case closely. NetChoice v. Texas, FloridaWhen the U.S. Supreme Court put challenges to Florida and Texas laws regulating social media content moderation on the docket, it seemed assured that this would be one of the yeastiest cases in recent memory. The Supreme Court’s majority opinion came out Monday morning. At first glance, the yeast did not rise after all. These cases were remanded back to the appellate courts for a more thorough review.
But a closer look at the opinion shows the Court offering close guidance to the appellate court, with serious rebukes of the Texas law. Anticipation was high for a more robust decision. The Court was to resolve a split between the Fifth Circuit, which upheld the Texas law prohibiting viewpoint discrimination by large social media platforms, while the Eleventh Circuit upheld the injunction against a Florida law regulating the deplatforming of political candidates. The Court’s ruling was expected to resolve once and for all the hot-button issue of whether Facebook and other major social media platforms can depost and deplatform. Instead, the Court found fault with the scope and precision of both the Fifth and the Eleventh Circuit opinions, vacating both of them. The majority opinion, authored by Justice Elena Kagan, found that the lower courts failed to consider the extent to which their ruling would affect social media services other than Facebook’s News feed, including entirely different digital animals, such as direct messages. The Supreme Court criticized the lower courts for not asking how each permutation of social media would be impacted by the Texas and Florida laws. Overall, the Supreme Court is telling the Fifth and Eleventh to drill down and spell out a more precise doctrine that will be a durable guide for First Amendment jurisprudence in social media content moderation. But today’s opinion also contained ringing calls for stronger enforcement of First Amendment principles. The Court explicitly rebuked the Fifth Circuit for approval of the Texas law, “whose decision rested on a serious misunderstanding of the First Amendment precedent and principle.” It pointed to a precedent, Miami Herald Publishing Co. v. Tornillo, in which the Court held that a newspaper could not be forced to run a political candidate’s reply to critical coverage. The opinion is rife with verbal minefields that will likely doom the efforts of Texas and Florida to enforce their content moderation laws. For example: “But this Court has many times held, in many contexts, that it is no job for government to decide what counts as the right balance of private expression – to ‘un-bias’ what it thinks is biased, rather than to leave such judgments to speakers and their audiences.” The Court delved into the reality of content moderation, noting that the “prioritization of content” selected by algorithms from among billions of posts and videos in a customized news feed necessarily involves judgment. An approach without standards would turn any social media site into a spewing firehose of disorganized mush. The Court issued a brutal account of the Texas law, which prohibits blocking posts “based on viewpoint.” The Court wrote: “But if the Texas law is enforced, the platforms could not – as they in fact do now – disfavor posts because they:
So what appeared on the surface to be a punt is really the Court’s call for a more fleshed out doctrine that respects the rights of private entities to manage their content without government interference. For a remand, this opinion is surprisingly strong – and strong in protection of the First Amendment. Murthy v. Surgeon General: Supreme Court Punts on Social Media Censorship – Alito Pens Fiery Dissent6/26/2024
The expected landmark, decision-of-the-century, Supreme Court opinion on government interaction with social media content moderation and possible official censorship of Americans’ speech ended today not with a bang, not even with a whimper, but with a shrug.
The Justices ruled 6-3 in Murthy v. Missouri to overturn a lower court’s decision that found that the federal government likely violated the First Amendment rights of Missouri, Louisiana, and five individuals whose views were targeted by the government for expressing “misinformation.” The Court’s reasoning, long story short, is that the two states and five individuals lacked Article III standing to bring this suit. The court denied that the individuals could identify traceable past injuries to their speech rights. In short, a case that could have defined the limits of government involvement in speech for the central media of our time was deflected by the court largely on procedural grounds. Justice Samuel Alito, writing a dissent signed by Justices Clarence Thomas and Neil Gorsuch, implicitly criticized this punt, calling Murthy v. Surgeon General “one of the most important free speech cases to reach this Court in years.” He compared the Court’s stance in this case to the recent National Rifle Association v. Vullo, an opinion that boldly protected private speech from government coercion. The dissenters disagreed with the Court on one of the plaintiffs’ standing, finding that Jill Hines, a healthcare activist whose opinions on Covid-19 were blotted out at the request of the government, most definitely had standing to sue. Alito wrote: “If a President dislikes a particular newspaper, he (fortunately) lacks the ability to put the paper out of business. But for Facebook and many other social media platforms, the situation is fundamentally different. They are critically dependent on the protections provided by §230 of the Communications Decency Act of 1996 … For these and other reasons, internet platforms have a powerful incentive to please important federal officials …” We have long argued that when the government wants to weigh in on “misinformation” (and “disinformation” from malicious governments), it must do so publicly. Secret communications from the government to the platforms to take down one post or another is inherently offensive to the Constitution and likely to lead us to a very un-American place. Let us hope that the Court selects a case in which it accepts the standing of the plaintiffs in order to give the government, and our society, a rule to live by. “Is the Liberty Bell all it’s cracked up to be?” Hear Rabbi Dr. Meir Soloveichik, director of the Zahava and Moshael Straus Center for Torah and Western Thought at Yeshiva University and the rabbi at Congregation Shearith Israel in Manhattan, make wisecracks and wise observations in the keynote address at Becket’s recent Canterbury gala. There are tens of thousands of after-hours student groups in high schools across the country – from those celebrating film, music, chess, or drama to those of a more political or religious nature. At Noblesville High School in Indiana, for example, you could join the Young Democrats, the Young Republicans, the Fellowship for Christian Athletes, or the Gender and Sexuality Alliance. The one group students can no longer join is the Noblesville Students for Life (NSFL).
In August 2021 a freshman at Noblesville received initial approval to start a Students for Life chapter, which attracted 30 student sign-ups at the school’s fall activities fair. The following month, the student organizer prepared a poster advertising a club meeting, which featured a photograph of students outside the U.S. Supreme Court holding up life-affirming protest signs. Then Noblesville’s principal “derecognized” the group, calling the poster “inappropriate” and too “political.” Noblesville, apparently, has a policy allowing administrators broad authority to issue prior restraints on student speech, barring “anything political in nature” as well as specific “political stance[s].” What constitutes “political” is entirely undefined and left up the whims of the individual administrator. In December 2021, in coordination with Charitable Allies, the group’s student organizer brought suit against the school district, alleging First Amendment retaliation. The suit also claimed violations of the Equal Access Act, which prohibits discrimination against the political content of student groups meeting outside of class. School administrators have every right to prevent students from engaging in disruptive conduct, but students have every right to express their First Amendment-protected viewpoints after hours. Schools are limited public fora, which may issue viewpoint-neutral restrictions on groups. What they should not do is bar targeted political speech and then make ad hoc, biased determinations of what is unacceptable on a case-by-case basis. How the school found NSFL overly political when the Young Democrats and Young Republicans are permitted to meet and advertise their meetings is unfathomable. The administrators, of course, now claim they derecognized the club because of the student’s behavior, an argument contradicted by the evidence and the many contextual clues pointed out by the plaintiffs. It seems pretty clear that the principal simply doesn’t want the pro-life viewpoint represented at Noblesville High. Ultimately, a District Court bought the school’s argument. Now the student is appealing to the Seventh Circuit, and this case is receiving legal backing from the Alliance Defending Freedom. We hope that the court will recognize that rules must be neutral and that students don’t relinquish their First Amendment rights at the schoolhouse door – no matter how much some administrators might wish it were so. Trademarks support brand integrity in the marketplace, including through certain restrictions on commercial speech. But what about the use of a living person’s name, specifically “Trump Too Small”? (If you don’t know what this means, we’ll let you Google it.) Merchant Steve Elster wanted to register that phrase as a trademark to sell T-shirts. The U.S. Patent and Trademark Office denied his application. A lower court, however, held that the government violated Elster’s First Amendment rights.
The Supreme Court today, in a unanimous decision, overturned that ruling and held that the phrase with the former president’s name cannot be trademarked. “Our courts have long recognized that trademarks containing names may be restricted,” Justice Clarence Thomas wrote for the majority. But such trademark restrictions, while “content-based” must be “viewpoint neutral.” Justice Barrett wrote that the “government can reasonably determine that, on the whole, protecting marks that include another living person’s name without consent risks undermining the goals of trademark.” This is in keeping with a 1946 trademark law that bans the registration of any trademark that uses a living person’s name without their written consent. Justice Sonia Sotomayor in a concurrence wrote that First Amendment considerations should be applied. She emphasized that First Amendment constraints can be respected without undermining traditional trademark rules. Both sides have a point in law and in principle. Not only did the Court protect the name of a living person, it also refused to enforce a government monopoly on a phrase about a presidential candidate. To take a more generic example, suppose someone trademarked a phrase about Trump or Biden being too old, or too extreme, or too apt to take vacations. Imagine the complexities of a marketplace with thousands of products engaging in a national discussion about presidential candidates with select phrases off limits to anyone who didn’t want to pay or seek written permission to use them. The Court was right to prevent commercial considerations from scissoring out pieces of the national debate. As a result of the Court’s decision, the public remains free to debate – in print, on T-shirts, on mugs, or on TV – the Goldilocks question of whether Trump is too small, too large, or just right. Now that is free speech. The double standard in academia is reaching sickening levels.
At Rutgers, as at many universities, students who wear some outward sign of adhering to the Jewish faith, such as a kippah or a Star of David necklace, are often stopped and interrogated by self-appointed ideological vigilantes. At the same time, Jewish students are denied the right to hold a peaceful event on campus – including the forced cancellation of a peaceful, pro-Israel barbecue on the Rutgers University campus – out of fear of provoking violence from pro-Hamas protestors occupying the campus. When rhetoric gets violent and confrontation becomes intimidating, viewpoint discrimination edges into persecution. Yet many elite universities flirt with such danger. We would be justly outraged if a young woman on campus was harassed for wearing a hijab, or a young Sikh man was stopped and interrogated about his turban. Yet administrators at Rutgers and other institutions are often missing in action when the targets are Jewish students. A recently filed lawsuit by student Rebecca Schafer against Rutgers University shines a light on how escalating antisemitism on America’s university campuses shuts down speech and free inquiry. Schafer, an Orthodox Jewish student, sued the university after enduring months of harassment, intimidation, and discrimination, which she claims the administration failed to address. Schaffer recounts that eight days after the October 7th Hamas attacks on Israel, a student meeting at Demarest Hall took a dark turn when a student expressed joy over the high death toll in Israel, a sentiment that was met with approval from others. The dust had barely settled from this attack in which elderly Israelis were murdered and babies killed in their cribs. This disturbing incident was compounded when a mezuzah, a Jewish prayer scroll affixed to the doorposts of Jewish homes for protection and blessing, was torn from a student's door and discarded in a bathroom. Schafer left the meeting scared and shaking, feeling deeply threatened by the aggression toward her faith. Rebecca Schafer next became a personal target when posters with her photograph and pro-Palestinian slogans appeared outside her dorm room. This act of intimidation was terrifying for Schafer, leading to a police investigation and charges against two students. The chilling message was clear: “You aren’t safe anywhere at Rutgers.” At a recent House hearing in which Rutgers University President Jonathan Holloway and the presidents of other universities were grilled by Rep. Elise Stefanik (R-NY) and other Members, it came to light just how frightening campus occupations are for Jewish students. In a particularly egregious incident, a student directed the remark “Hitler would have loved you” at Schafer during an encampment. Schafer recounts that Jewish students were forced to flee out the back door of university buildings to escape the hostile environment. The portrait painted by Schafer’s lawsuit is of a spineless university administration leaving Jewish students to fend for themselves in the face of violent rhetoric and threats. The slow and methodical approach by Rutgers and other universities would never be tolerated if another ethnic or religious group were persecuted in such ways. When the fall semester begins in a few months, parents, students, and donors must demand college administrators react with alacrity to the persecution of Jewish students or be ready to give up their jobs. Protect The 1st will monitor this story as it develops. Heather Smith v. Blue Cross Blue Shield of Tennessee Employment in America is “at will.” This means employers can fire an employee without warning, provided that the action is not based on race, gender, or a few other protected categories. A case in Tennessee tests the premise that Blue Cross Blue Shield of Tennessee was within its rights to fire employee Heather Smith in retaliation for her sending emails to state legislators about her religious objections to her employer’s Covid-19 vaccine mandates.
In short, what happens when the unstoppable force of a woman exercising her First Amendment right to petition the government slams headfirst into the immovable force of America’s at-will doctrine of employment? A district court in Tennessee sided with the immovable force, granting a motion to dismiss out of recognition of the doctrine of at-will employment. The Tennessee Court of Appeals reversed that ruling, upholding Smith’s right to petition. The court found that “firing an at-will employee merely for writing to the Tennessee General Assembly is a bridge too far.” On Thursday, this case was heard by the Supreme Court of Tennessee. (Oral arguments get interesting with the court’s grilling of Smith’s attorney, Steve Duggins, at the 35:30 mark. Credit to the Tennessee Supreme Court, by the way, for holding this case in front of an audience of high school seniors in the Boys State program.) “A democracy cannot properly function if its citizens cannot freely communicate with their representatives,” Duggins told the court. Justice Jeff Bivins asked if the First Amendment protected an employee who bad-mouthed her employer to random people in a town square. Duggins agreed that person could be fired. Duggins based his demonstration on the Tennessee Constitution. He reinforced arguments made by an American Civil Liberties Union amicus brief based on article I, section 23 of the Tennessee Constitution that grants a broad, positive right to petition “their representatives.” But are the First Amendment implications in this case that clear? Courts have found in the language of the First Amendment an implied right to freedom of association. Blue Cross Blue Shield has its own associational and speech rights. Employers thus have a clear right to disassociate themselves from employees who contradict their policies. If the Tennessee Supreme Court sides with Blue Cross, would that mean that the Tennessee Constitution conflicts with the First Amendment? Such cases present a spaghetti-like tangle of conflicting issues. Another example: Protect The 1st Senior Legal Advisor Eugene Volokh recently analyzed the case of a woman who took a selfie in front of the U.S. Capitol before the riots began on Jan. 6, 2021. She posted it on her Facebook account. Her employer in California falsely assumed she was one of the rioters and fired her. Was that an illicit punishment of protected political speech, or a company upholding its associational rights? We look forward to seeing how in this Tennessee case the state Supreme Court untangles such strands. “At the heart of the First Amendment’s Free Speech Clause is the recognition that viewpoint discrimination is uniquely harmful to a free and democratic society.”
This declaration comes from a unanimous opinion, authored by Justice Sonia Sotomayor, that clears the way for the National Rifle Association to pursue a First Amendment claim against a New York insurance regulator who had twisted the arms of insurance companies and banks to blacklist the Second Amendment advocacy group. The NRA was represented by Protect The 1st Senior Legal Advisor Eugene Volokh, as well as the American Civil Liberties Union. Maria T. Vullo, superintendent of New York’s Department of Financial Services, had earlier found that NRA’s affinity insurance benefits for members were constructed and sold in a way that violated New York law. Vullo then pushed beyond her regulatory purview into an attempt to punish speech. Vullo met with Lloyd’s of London executives in 2018 to bring to their attention technical infractions that plagued the affinity insurance market in New York, unrelated to NRA business. Vullo told the executives that she would be “less interested” in pursuing these infractions “so long as Lloyd’s ceased providing insurance to gun groups.” She added that she would “focus” her enforcement actions “solely” on the syndicates with ties to the NRA, “and ignore other syndicates writing similar policies.” Vullo followed up with guidance letters to insurance companies and financial services firms extolling the severance of ties with the NRA as a way for companies to fulfill their “corporate social responsibility.” “As alleged, Vullo’s communications with Lloyd’s can be reasonably understood as a threat or as an inducement,” the Court found. “Either of those can be coercive.” The Court quoted a Seventh Circuit opinion regarding a sheriff who interfered with a website by coercing its payment-services providers: “The analogy is to killing a person by cutting off his oxygen rather than by shooting him.” The core of the Court’s opinion rested on Bantam Books v. Sullivan, which involved a Rhode Island state commission that sought to censor books by prohibiting distributors from moving targeted books to stores. Compliance was assured by police offers dispatched to the distribution companies to check their records. The Supreme Court held that the commission’s actions amounted to censorship. In this case, the Court found: “Ultimately, Bantam Books stands for the principle that a government official cannot do indirectly what she is barred from doing directly: A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf.” The Supreme Court’s opinion vacates the Second Circuit’s reversal of a lower court opinion, and remands it for adjudication under this ruling. When that case is heard again, the judges of the Second Circuit will have these words of this unanimous opinion ringing in their ears: “[T]he critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries.” The House Energy and Commerce Committee recently held a hearing on a bill that would sunset Section 230 of the Communications Decency Act within 18 months. This proposed legislation, introduced by Chair Cathy McMorris Rodgers and Ranking Member Frank Pallone, aims to force Big Tech to collaborate with Congress to establish a new framework for liability. This push to end Section 230 has reopened the debate about the future of online speech and the protections that underpin it.
Section 230 has been a cornerstone of internet freedom, allowing online platforms to host user-generated content without being liable for what their users post. This legal shield has enabled the growth of vibrant online communities, empowered individuals to express themselves freely, and supported small businesses and startups in the digital economy. The bill’s proponents claim that Section 230 has outlived its usefulness and is now contributing to a dangerous online environment. This perspective suggests that without the threat of liability, platforms have little incentive to protect users from predators, drug dealers, and other malicious actors. We acknowledge the problems. But without Section 230, social media platforms would either become overly cautious, censoring a wide range of lawful content to avoid potential lawsuits, or they might avoid moderating content altogether to escape liability. This could lead to a less free and more chaotic internet, contrary to the bill’s intentions. It is especially necessary for social media sites to reveal when they’ve been asked by agents of the FBI and other federal agencies to remove content because it constitutes “disinformation.” When the government makes a request of a highly regulated business, it is not treated by that business as a request. This is government censorship by another name. If the government believes a post is from a foreign troll, or foments dangerous advice, it should log its objection on a public, searchable database. Any changes to Section 230 must carefully balance the need to protect users from harm with the imperative to uphold free speech. Sweeping changes or outright repeal would stifle innovation and silence marginalized voices. Protect The 1st looks forward to further participation in this debate. The U.S. House of Representatives recently passed the Antisemitism Awareness Act, a well-intentioned response to a genuine concern: escalating antisemitism, particularly on college campuses. While the motives behind this bill are commendable, the legislation, as it stands, threatens to infringe upon the free speech rights that are fundamental to American values and academic freedom. We recommend a more nuanced approach. We urge the Senate to refine the bill to effectively combat hateful conduct without compromising constitutionally protected speech – even if that speech is occasionally heinous.
The Antisemitism Awareness Act seeks to update the definition of antisemitism used in enforcing federal anti-discrimination laws, employing the International Holocaust Remembrance Alliance's (IHRA) definition. This definition includes criteria such as “denying the Jewish people their right to self-determination” and “drawing comparisons of contemporary Israeli policy to that of the Nazis.” While these examples identify antisemitic speech and attitudes, their inclusion in legal statutes brings the government squarely into the business of policing and outlawing speech. This act in its current form has the potential to suppress First Amendment-protected speech. The IHRA definition, though useful as a guideline and for private criticism of antisemitic speech, is too expansive for legal application without risking the suppression of protected political expression. Legal scholars and civil rights activists have noted the dangers of such overreach, which could chill discussions on Israel and Palestine, particularly within academic institutions where vigorous debates are necessary. Worse, the act's broad language risks transforming universities into environments in which administrative caution stifles debate and discussion out of fear of legal repercussions. This could have a chilling effect on academic freedom on many subjects, as educators may become reluctant to address or discuss hot topics. From here, what effectively would be the legal suppression of speech would inevitably spread to protect other groups. A private university has the free-association right to fire a professor or suspend a student for intemperate speech. Frankly, there have been some high-profile examples of academics – glorifying the abduction and rape of women and the murder of babies on Oct. 7 – who richly deserve to spend the rest of their academic careers lecturing squirrels in the park. But the broader legal consequences of this bill in all universities for academic inquiry and the free exchange of ideas – cornerstones of higher education in the United States – are profoundly concerning. The Senate should carefully scrutinize this legislation. It is essential that any law aimed at curbing antisemitism be precise enough to target hateful behavior without punishing speech. Senators should consider amendments that clearly distinguish between hateful acts that single out people by religion and speech, no matter how intemperate, ensuring that the legislation protects individuals without compromising the robust civil discourse essential to a free society. While calling out antisemites is vital and necessary, it must not come at the expense of the constitutional rights that define American democracy and academic freedom that defines the university. We urge an approach in the Senate that robustly defends both Jewish students and free speech. And we politely suggest to supporters of the House bill that once you start to police speech, don’t be too surprised when the speech police come for you. Facebook’s independent oversight board is now considering whether to recommend labeling the phrase “from the river to the sea” as hate speech. The slogan – often considered antisemitic – serves as a pro-Palestine rallying cry that calls for the creation of a unified Palestinian state throughout what is currently Israeli territory. What would happen to the millions of people who live in Israel today is, post Oct. 7th, the crux of the controversy.
However one feels about that phrase and its prominent, often uninformed, use by courageous keyboard warriors, it is appropriate that any debate about censoring it takes place in the open. This is particularly important for what is still a central social media platform, Facebook. Like X/Twitter, Instagram, and a few other media platforms, Facebook is an important venue for robust public debate. And while these private companies have every First Amendment right to moderate speech on their platforms on their own terms, because of their size and centrality we believe they nonetheless ought to be as open as possible about how they approach content moderation. Like all prominent thought leaders – individuals and companies alike – they can play an important role in reinforcing societal norms on matters of free expression, even if not legally obliged to do so. Still, at the end of the day, it’s their call. And make a call they did. According to the company, Meta analyzed numerous instances of posts using the phrase “from the river to the sea,” finding that they did not violate its policies against “Violence and Incitement,” “Hate Speech” or “Dangerous Organizations and Individuals.” This in contrast with the U.S. House of Representatives, which recently passed a resolution last month, 377-1, condemning the slogan as antisemitic. The House has a right to pass resolutions. But the opinions and sentiments of the government should not inform, and constitutionally cannot control, what we see on our news feeds. Already, we see too many instances of federal influence over social media platforms’ internal decisions, apparently done behind the scenes and always backed by an implied and sometimes expressed threat of coercion for highly regulated tech companies. Such government “censorship by surrogate” is inappropriate and inconsistent with the First Amendment. That’s why Protect the 1st opposes laws in Florida and Texas that would regulate how social media platforms police their own content. It’s simply not the place of government to use its power and influence to pressure private companies to remove posts or tell them how to make editorial choices. In this same spirit, we urge any decisions by Facebook to remove content to be done with full transparency, especially when that content is of a political nature. No law requires this, nor should it, but transparency is a sensible approach that provides clarity to consumers and reformers about societal norms regarding free expression and association. Hats off to Meta for allowing its advisory board to review and to potentially overrule its decision. During his 2020 presidential campaign, Joe Biden made a bold promise to be the most pro-union president in history. According to analysis by Tom Hebert in The Washington Times, this pledge has translated into a troubling reality. Biden has weaponized federal regulations to suppress free speech within workplaces, all to increase the strength of unions. This manipulation of regulatory power underscores a stark departure from advocating for workers' rights, veering instead towards serving union agendas at the expense of free expression.
Leading the charge in this regulatory shift is the National Labor Relations Board (NLRB). Traditionally, employers have been able to hold meetings, known as employer meetings on unionization (EMUs), to discuss unionization transparently with employees. These meetings, which have been uncontroversial since the 1940s, compensate employees for their time and educate them on their rights. The NLRB’s recent recommendation to ban EMUs marks a significant policy reversal. This move is a strategic attempt to leave workers uninformed and sway them toward union membership. This aggressive stance against EMUs has been echoed in several states, pushing to restrict these meetings despite their longstanding acceptance and the fair context in which they were traditionally held. A specific example of the NLRB's controversial approach involves Amazon CEO Andy Jassy, who faced allegations of labor law violations based on paraphrased comments from public interviews, rather than direct quotes. Jassy discussed the benefits of non-unionized workplaces, specifically noting their agility in making improvements without the bureaucratic hurdles posed by unions. However, these comments were interpreted by the NLRB as threats to workers, lacking objective evidence and direct quotes. This method of interpretation demonstrates how regulatory bodies might stretch interpretations to silence employer perspectives during union drives. Legislative initiatives like the Protecting the Right to Organize (PRO) Act underscore a growing disregard for free speech in the workplace. As Hebert says, “one little-known PRO Act provision would force employers to hand over sensitive employee contact information – including phone numbers, email addresses, home addresses and shift times – to union bosses during organizing drives. If the act became legal, workers on the fence about unionization could get a 3 a.m. knock on the door from organizers attempting to “help them make up their minds.” This provision effectively silences any counter-narrative to unionization at a critical decision-making moment, highlighting a troubling shift toward limiting open dialogue and enhancing union influence under the guise of worker protection. The ongoing crackdown on free speech in the workplace not only threatens the foundational rights of employees and employers but also reflects a larger governance trend where union interests are prioritized over open dialogue and workers' rights. The challenge lies in balancing these interests without undermining the principles of workplace democracy and freedom of expression, ensuring that all voices can be heard and respected in the critical conversations about unionization. Protect The 1st emphasizes the importance of free and open discourse in any decision-making process about unions. We look forward to further developments in this story. Sometimes it seems as if the left and the right are in a contest to see which side can be the most illiberal. With each polarity defining the other as a “threat to democracy,” restrictions on political opponents are rationalized away as a necessary act of public hygiene. Recent events in Europe, from Budapest to Brussels, should serve as a warning to Americans who want to use police power to make their opponents shut up.
In December, the U.S. State Department warned that a new Sovereign Defense Authority law in Hungary “can be used to intimidate and punish” Hungarians who disagree with Prime Minister Viktor Orbán and his ruling party. No less an observer than David Pressman, the U.S. ambassador in Budapest, said: “This new state body has unfettered powers to interrogate Hungarians, demand their private documents and utilize the services of Hungary’s intelligence apparatus – all without any judicial oversight or judicial recourse for its targets.” So how are left-leaning critics responding to the rise of the Europe right? By also using intimidation to shut down speech. In Brussels, police in April acted on orders from local authorities by forcibly shutting down a National Conservatism conference. This event, which was to host discussions among European conservative figures, including Prime Minister Orbán and former Brexit champion Nigel Farage, was terminated hours after it began. The cited reasons for the closure included concerns over potential public disorder linked to planned protests. Such a policy, of course, gives protesters pre-emptive veto power over controversial speech, backed by the police. The conference had earlier faced official meddling to prevent the selection of a venue. Initial plans to host the event at the Concert Noble were thwarted due to pressure from the Socialist mayor of Brussels. Subsequently, a booking at the Sofitel hotel in Etterbeek was canceled after local activists alerted that city’s mayor, who pressured the hotel to withdraw its support. Finally, the organizers settled on the Claridge Hotel, only to encounter further challenges including threats to the venue’s owner and logistical disruptions orchestrated by local authorities, culminating in the police blockade that effectively stifled the conference. The good news is public response to the shutdown of the National Conservatism conference was vocal and critical. Belgian Prime Minister Alexander De Croo voiced a strong objection, stating that such bans on political meetings were unequivocally unconstitutional. British Prime Minister Rishi Sunak also responded that canceling events and de-platforming speakers is damaging to democracy. The closure in Brussels is particularly ironic given the city's status as the capital of the European Union, a supposed bastion of liberal democratic values. The forced closure, threats to cut electricity, and the barring of speakers are tactics that betray a fundamental disrespect for democratic norms. What transpired was a scenario more befitting a "tinpot dictatorship," as Frank Füredi, one of the event's organizers, put it. Speech crackdowns seem to be a European disease. This aggressive move to silence a peaceful assembly under the guise of preventing disorder echoes the same illiberal impulses driving Scotland's Hate Crime and Public Order Act. That law broadly criminalizes speech under the expansive banner of “stirring up hatred.” Americans would do well to look to Europe to see what cancellation and criminalization of speech looks like. As the cities and campuses of the United States face what promises to be a hot summer of protest over Gaza, Americans need to keep a relentless focus on protecting speech – even speech one regards as heinous – while preventing tent city invasions, vandalism, and violence that compromises the rights of others. Where to Draw the Line on Speech? As student pro-Palestine protests evolved into harassment and shut-downs of the University of Southern California and Columbia University campuses, the University of Texas was presented with a Gordian knot of free-speech issues. When University of Texas protesters planned a march through campus, administrators said they had intelligence that non-student activists were planning on leading students to occupy the campus with a tent city (sleeping on the campus lawn is against university rules). This could have shut down the university.
With the backing of Gov. Gregg Abbott, police chose to simply cut the knot by arresting 57 peaceful protesters on campus. That event leaves us with hard questions about the limits and protections of speech rights within the academy. In late March, Texas Gov. Greg Abbott ordered public universities to revise their free speech policies, specifically targeting antisemitic rhetoric. The governor’s response is understandable after lax concern shown by the former presidents of Harvard and other institutions about on-campus antisemitism. But viewpoint-based bans on rhetoric rather than behavior had the practical effect of targeting pro-Palestine student groups, which are often wellsprings of intemperate speech. The governor’s executive order put the University of Texas in an awkward position. The First Amendment applies specifically to the federal government, and the states via the Fourteenth Amendment. Courts have held freedom of speech and assembly to apply to public universities as well. Under both the U.S. and Texas Constitutions, the University of Texas cannot unduly restrict these rights. While the law allows for “reasonable time, place, and manner” restrictions to ensure public safety and order, these must be neutrally applied, without viewpoint discrimination. Despite this, many of the recent arrests of the protesters at the University of Texas were arguably necessary, given the warnings on which they were based. Columbia University demonstrated that laxity about existing time, place, and manner restrictions led to students living in tents, shutting down live instruction, and violently taking over a building. Columbia finally demanded students leave or face suspension. Some who broke into and occupied an academic building will likely face expulsion. At USC, potentially violent protests have shut down that school’s commencement. In light of events at other universities, it is easy to see the UT administrators’ dilemma. Should they have stood by to see if their intelligence regarding planned disruptions was correct, acting only if the worst came to pass? This might have led to the same worst-of-both-worlds scenario we saw at Columbia, where classrooms and open discourse were shut down and the school still had to rely on police to clear out the occupiers. At such a point, how many cracked skulls would it have taken to clear the University of Texas? For their part, students, faculty, and advocacy groups argue that the arrests of peaceful protesters who announced their march in advance was disproportionate. They also point to a 2019 Texas state law that designates common outdoor areas on public university campuses as traditional public forums. Supported by Gov. Abbott and conservative lawmakers, this law protects broad expressive activities, provided they do not disrupt campus functions or break the law. But before we cue the petards to be hoisted, consider that a planned occupation would definitely have disrupted instruction and broken the law. But did their evidence of a planned occupation meet the standard of a “clear and present danger? This tension at the University of Texas reflects the larger national debate about the complex nature of speech rights, especially in academic settings where the free and open exchange of ideas is to be encouraged, not quelled. There is a legitimate need to maintain order and safety on campus. There is also a constitutional imperative to protect free speech, including speech many find offensive. Gov. Abbott’s crackdown on campus antisemitism reflected commendable concern. But hate speech laws are notoriously overbroad and often unworkable. “True threats” are a legitimate (and necessary) reason for authorities to intervene. Most likely, fighting words and incitement to violence likewise can be restricted and punished. But some latitude is needed for more ambiguous chants like “from the river to the sea” – the plain meaning of which is the violent abolition of Israel but could be taken by a student as merely a call for freedom or a criticism of “colonialism.” Never mind how doubtful you may find that interpretation or blinkered you may find that tired trope. The First Amendment protects all speech, including stupid speech. Thus, any intrusion into speech rights that Abbott permits today could enable further restrictions down the line (and restrict in directions the governor may not like). Misunderstandings about the First Amendment are at the core of such dilemmas. It is odd that elite private universities, Columbia, Yale, and USC, which have more latitude in enforcing discipline, stood by in stupefied inaction at the harassment of Jewish students and disruption of classroom learning. One protester at Yale stabbed a Jewish student in the eye with a Palestinian flag. True threats and fighting words have a way of becoming acts of violence, which is why Columbia finally did bar a student who said “Zionists don’t deserve to live.” Universities, public and private, must never forget the imperative that universities remain centers of free inquiry and discussion, reflecting the constitutional rights and values they are built to impart. They must also protect their students and classrooms. Like all dilemmas, this one at least contains teachable moments. Where better to teach these intricacies of the First Amendment? Can a protest organizer be held civilly liable for the unlawful actions of another at a demonstration? That’s the question at issue in McKesson v. Doe, one with significant implications for protected speech.
The case’s circuitous journey through the courts started in 2016, when an anonymous Louisiana law enforcement officer was struck with a “rock-like” object hurled by an unknown person at a Black Lives Matter protest. This was a despicable act of violence that was in no sense expressive speech. Those who commit such acts of violence must be prosecuted to the fullest extent of the law. But what is the liability of those who organize a peaceful protest that is infiltrated by the violent? Plaintiff John Doe brought suit against activist DeRay McKesson, who organized the event, on the theory that McKesson’s role as the event organizer encompassed a duty to protect everyone present. In 2020, the U.S. Supreme Court vacated the Fifth Circuit’s decision against McKesson, which upheld a novel theory from Doe of “negligent protest.” The Court remanded the case to the Louisiana Supreme Court, instructing it to analyze whether state law actually provides for negligence liability in such situations. This decision seems to ignore precedent in NAACP v. Claiborne Hardware, which held that “[c]ivil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence.” The Louisiana Supreme Court ultimately reached the conclusion that state tort law does, in fact, provide Doe with a cause of action. As a result, the Fifth Circuit reinstated its ruling and the case returned again to the highest court in the land. Notably, the Supreme Court ruled in the intervening years in Counterman v. Colorado that a subjective, mens rea standard (meaning specific intent, not just negligence) is required for a finding of liability in lawsuits that seek to punish speech. Justice Kagan wrote that the “First Amendment precludes punishment, whether civil or criminal, unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.” Accordingly, in an order rejecting certiorari in the McKesson case earlier this month, Justice Sotomayor strongly implied that the Court has already settled this question of law. She wrote, “Although the Fifth Circuit did not have the benefit of this Court’s recent decision in Counterman when it issued its opinion, the lower courts now do. I expect them to give full and fair consideration to arguments regarding Counterman’s impact in any future proceedings in this case.” The Supreme Court clearly wants to allow some deference to state law. However, it seems entirely reasonable to require a showing of intent in situations involving the random outbreak of violence at protests. Failure to do so could have a significant, chilling effect on political speech. If civil liability can be assigned for merely organizing an event, then we’re likely to see a lot less civil discourse in the future. Journalists have similar concerns. As the Reporters Committee for Freedom of the Press explains, protecting against liability for the “uncoordinated,” lawless actions of others “is a critical safeguard for reporters who attend tumultuous events where violence may break out — political rallies, say, or mass demonstrations — in order to bring the public the news.” It remains possible the Fifth Circuit may reevaluate its ruing in light of Counterman, but it’s disappointing that the Supreme Court declined to weigh-in in a meaningful way. When states start imposing low liability thresholds on protestors, it jeopardizes First Amendment protections for all of us. Can a government regulator threaten adverse consequences for banks or financial services firms that do business with a controversial advocacy group like the National Rifle Association? Can FBI agents privately jawbone social media platforms to encourage the removal of a post the government regards as “disinformation”?
As the U.S. Supreme Court considers these questions in NRA v. Vullo and Murthy v. Missouri, a FedSoc Film explores the boundary between a government that informs and one that uses public resources for propaganda or to coerce private speech. (“Nice social media company you have there. Shame if anything happened to it.”) Posted next to this film, Jawboned, on the Federalist Society website is Protect The 1st’s own Erik Jaffe, who in a podcast explores the extent to which the government, using public monies and resources, should be allowed to speak, if at all, on matters of opinion. Is the expenditure of tax dollars to push a favored government viewpoint a violation of the First Amendment rights of Americans who disagree with that view? Jaffe thinks so and argues why this is the logical conclusion of decades of First Amendment jurisprudence. Furthermore, when the government tells a private entity subject to its power or control what the government thinks it ought to be saying (or not saying), Jaffe says, “there’s always an implied ‘or else.’” And even the government’s own public speech often has coercive consequences. As if to underscore this point, Jawboned recounts the story of how the federal Office of Price Administration during World War Two lacked the authority to order companies to reduce prices but did threaten to publicly label them and their executives as “unpatriotic.” That was a very real threat in wartime. Imagine the “or else” sway government has today over highly regulated firms like X, Meta, or Google. In short, Jaffe argues that a line is crossed when “the power and authority of the government” is invoked to use “the power of office to coerce people.” But it also crosses the line when the government uses its resources (funded by compelled taxes and other fees) to amplify its own viewpoint on questions being debated by the public. Such compelled support for viewpoint selective speech violates the freedom of speech of the public in the same way compelled support for private expressive groups and viewpoints does. Click here to listen to more of Erik Jaffe’s thoughts on the limits of government speech and to watch Jawboned. Now that the bill to force the sale of TikTok has passed the U.S. Senate, and its signature by President Biden is certain, Protect The 1st as a First Amendment organization must speak out.
We believe the bill – soon-to-be-law – is reasonable. Many of our fellow civil liberties peers make the valid point that if the government can silence one social media platform, it can close any media outlet, newspaper, website, or TV channel. We would oppose any such move with forceful public protest. But this is a compelled divestiture, which seems like the least restrictive way to protect the speech rights of TikTok’s American users while protecting their data. TikTok’s content is not the issue. The issue is one of ownership and operations. The fundamental problem, of course, and the problem that gave rise to this legislation, is that TikTok is obligated by Chinese law to share all its data with the People’s Liberation Army, the military wing of the Chinese Communist Party. Under President Xi Jinping, Beijing has crushed democracy in Hong Kong, and silenced a newspaper – Apple Daily – while imprisoning its publisher, Jimmy Lai. Xi’s regime also frequently expresses malevolent intentions toward the United States. It arms Russia’s imperialist war to conquer Ukraine, a democracy. And it frequently advertises its own imperialist plan to conquer Taiwan, another democracy. It doesn’t make sense to treat a publication utterly beholden to a regime that shutters newspapers, imprisons publishers, and supports wars on democracies as if it were just another social media platform. Caution is warranted. A crisis between the United States and China is growing increasingly likely. TikTok gives China the means to dig into the private data of 150 million Americans, including families with parents working in the U.S. military, government, and business. To mandate a sale to an owner outside of China would begin the protection of Americans’ data, while allowing TikTok to remain the popular and vivid platform that people enjoy. For more background on this issue, check out this recent PT1st post. Just before folding up its presidential bid, No Labels won its court battle to block candidates from using its ballot line to run for office in Arizona. No Labels is a “centrist” political party that had been gearing up for a potential third-party presidential campaign to take on Joe Biden and Donald Trump. Despite No Labels collapse, this decision is a big win for the freedom of association – held by the U.S. Supreme Court to be the logical outcome of the First Amendment’s rights of free speech, assembly, and petition.
No Labels in October sued Adrian Fontes, the Secretary of State for Arizona, in an effort to keep potential down-ballot contenders from running as No Labels candidates without authorization. This should not have been necessary since No Labels did not plan to run congressional candidates. No Labels filed suit shortly after Richard Grayson, a man who has run for office at least 19 times, announced he would run as candidate for a minor state office under the party’s banner. Under Arizona law, this would have forced the fledgling movement to reveal its donors. Some Democrats have accused No Labels of being a spoiler that will poach votes from Biden, helping to pave the way for Trump to return to the White House. “I will use the campaign to expose the scam of No Labels (and to) excoriate the selfish and evil people who have organized this effort and their attempt to make sure that Donald Trump wins in November,” Grayson said. Courts have long recognized that for the freedom of association to mean anything we must respect its flip side – the freedom to refuse association. Both rights are subject to reasonable limitations, but such reciprocity is necessary in any relationship. Dr. Benjamin F. Chavis, Jr., a No Labels national co-chair, and former Missouri Gov. Jay Nixon, the group’s director of ballot integrity, said in a statement that, “Our ballot line cannot be hijacked. Our movement will not be stopped.” Just like Vivek Ramaswamy could not automatically declare himself Trump’s running mate, a No Labels party member should not be able to unilaterally declare himself or herself a candidate on the ballot with no input from party leaders. Federal Judge John J. Tuchi ruled that to enable Grayson to run as a No Labels candidate without prior authorization from the party would violate the party’s chosen structure and rights. “The Party has substantial First Amendment rights to structure itself, speak through a standard bearer, and allocate its resources,” Judge Tuchi wrote. Protect The 1st strongly supports Judge Tuchi’s ruling. This clear stand for association rights is a significant reaffirmation of the Constitution, regardless of any political implications. A House hearing on the protection of journalistic sources veered into startling territory last week.
As expected, celebrated investigative journalist Catherine Herridge spoke movingly about her facing potential fines of up to $800 a day and a possible lengthy jail sentence as she faces a contempt charge for refusing to reveal a source in court. Herridge said one of her children asked, “if I would go to jail, if we would lose our house, and if we would lose our family savings to protect my reporting source.” Herridge later said that CBS News’ seizure of her journalistic notes after laying her off felt like a form of “journalistic rape.” Witnesses and most members of the House Judiciary subcommittee on the Constitution and Limited Government agreed that the Senate needs to act on the recent passage of the bipartisan Protect Reporters from Exploitative State Spying (PRESS) Act. This bill would prevent federal prosecutors from forcing journalists to burn their sources, as well to bar officials from surveilling phone and email providers to find out who is talking to journalists. Sharyl Attkisson, like Herridge a former CBS News investigative reporter, brought a dose of reality to the proceeding, noting that passing the PRESS Act is just the start of what is needed to protect a free press. “Our intelligence agencies have been working hand in hand with the telecommunications firms for decades, with billions of dollars in dark contracts and secretive arrangements,” Attkisson said. “They don’t need to ask the telecommunications firms for permission to access journalists’ records, or those of Congress or regular citizens.” Attkisson recounted that 11 years ago CBS News officially announced that Attkisson’s work computer had been targeted by an unauthorized intrusion. “Subsequent forensics unearthed government-controlled IP addresses used in the intrusions, and proved that not only did the guilty parties monitor my work in real time, they also accessed my Fast and Furious files, got into the larger CBS system, planted classified documents deep in my operating system, and were able to listen in on conversations by activating Skype audio,” Attkisson said. If true, why would the federal government plant classified documents in the operating system of a news organization unless it planned to frame journalists for a crime? Attkisson went to court, but a journalist – or any citizen – has a high hill to climb to pursue an action against the federal government. Attkisson spoke of the many challenges in pursuing a lawsuit against the Department of Justice. “I’ve learned that wrongdoers in the federal government have their own shield laws that protect them from accountability,” Attkisson said. “Government officials have broad immunity from lawsuits like mine under a law that I don’t believe was intended to protect criminal acts and wrongdoing but has been twisted into that very purpose. “The forensic proof and admission of the government’s involvement isn’t enough,” she said. “The courts require the person who was spied on to somehow produce all the evidence of who did what – prior to getting discovery. But discovery is needed to get more evidence. It’s a vicious loop that ensures many plaintiffs can’t progress their case even with solid proof of the offense.” Worse, Attkisson testified that a journalist “who was spied on has to get permission from the government agencies involved in order to question the guilty agents or those with information, or to access documents. It’s like telling an assault victim that he has to somehow get the attacker’s permission in order to obtain evidence. Obviously, the attacker simply says no. So does the government.” This hearing demonstrated how important Fourth Amendment protections against unreasonable searches and seizures are to the First Amendment’s guarantee of freedom of the press. If Attkisson’s claims are true, the government explicitly violated a number of laws, not the least of which is mishandling classified documents and various cybercrimes. And it relies on specious immunities and privileges to avoid any accountability for its apparent crimes. Two proposed laws are a good way to start reining in such government misconduct. The first is the PRESS Act, which would protect journalists from being pressured by prosecutors in federal court to reveal their sources. The second proposed law is the Fourth Amendment Is Not For Sale Act, which passed the House this week. This bill would require the government to get a warrant before it can inspect our personal, digital information sold by data brokers. And, of course, these and other laws limiting government misconduct need genuine remedies and consequences for misconduct, not the mirage of remedies enfeebled by improper immunities. A group of pro-Palestine student activists recently hijacked a private dinner at the home of Erwin Chemerinsky, dean of Berkeley Law School, disrupting one of several such events intended to honor the graduating class of 2024. It’s a lesson in decorum, which these students clearly lack. More importantly, it’s a lesson that Chemerinsky himself might cover in one of his constitutional law classes or legal tomes: You have no First Amendment right to public speech on private property.
Chemerinsky himself summarized the disruption in a written statement: “On April 9, about 60 students came to our home for the dinner. All had registered in advance. All came into our backyard and were seated at tables for dinner. While guests were eating, a woman stood up with a microphone, stood on the top step in the yard, and began a speech, including about the plight of the Palestinians. My wife and I immediately approached her and asked her to stop and leave. The woman continued. When she continued, there was an attempt to take away her microphone. Repeatedly, we said to her that you are a guest in our home, please stop and leave. About 10 students were clearly with her and ultimately left as a group.” Alarmingly, the incident followed the publication and display of a poster calling for a boycott of the dinner events, with accompanying cartoon imagery depicting the dean holding a knife and fork covered with blood. The caption read: “No dinner with Zionist Chem while Gaza starves.” The link between Chemerinsky and Israel’s military campaign in Gaza is nebulous, to say the least. Chemerinsky is an American constitutional scholar, not an Israeli war planner. The only inference to be made is that the dean was targeted solely due to his Jewish heritage. For their part, the protestors (seen here in a video of the incident) asserted a First Amendment right to their interruption. To parse the legitimacy of such claims, we might turn to an actual First Amendment scholar, Eugene Volokh, who wrote about the dinner in a recent The Volokh Conspiracy post. He wrote: “Some people have argued that the party was a public law school function, and thus not just a private event. I’m not sure that’s right – but I don’t think it matters. “Even if Berkeley Law School put on a party for its students in a law school classroom, students still couldn’t try to hijack that for their own political orations. Rather, much government property is a ‘nonpublic forum’ – a place where some members of the public are invited, but which is ‘… not by tradition or designation a forum for public communication.’ (Minnesota Voters Alliance v. Mansky (2018) ...” Outside of the protestors’ erroneous legal argument, one might also consider the efficacy of their outburst. Above the Law founder David Lat contrasted the Berkeley protestors’ behavior with that of protestors at the University of Virginia, who recently turned out against a speech by Justice Jay Mitchell of the Alabama Supreme Court (author of the infamous IVF case). There, the protestors “didn’t heckle or harass Justice Mitchell, me, or anyone else who went into his talk. They stood outside the room, quietly holding signs. And once his talk got underway, they left to attend a counter-event …” How refreshing. Inasmuch as the protestors got it wrong here, Berkeley (for once) got it right. In a statement to Law 360, UC Berkeley Chancellor Carol T. Christ said: “I am appalled and deeply disturbed by what occurred at Dean Chemerinsky's home last night. I have been in touch with him to offer my support and sympathy. While our support for free speech is unwavering, we cannot condone using a social occasion at a person's private residence as a platform for protest.” UC Board of Regents Chair Rich Leib, meanwhile, said: “The individuals that targeted this event did so simply because it was hosted by a dean who is Jewish. These actions were antisemitic, threatening, and do not reflect the values of this university.” Berkeley’s reputation as the home of the Free Speech Movement (the name became somewhat Orwellian), continues a decidedly spotty record in recent years. The university’s unequivocal embrace of actual, settled First Amendment doctrine in this instance represents an encouraging development. Naturally, the protestors have since hoisted the banner of victimhood, claiming “pain, humiliation, trauma, and fear” following the incident. With time, we hope they learn the lesson that, in the words of Ronald K.L. Collins in a FIRE blog: “the First Amendment is a shield against government suppression. It is not an ax to swing at compassionate and freedom-loving people in their own homes.” Law schools might further promote First Amendment education by turning to disciplinary action for law students who refuse to learn the nuances of this central principle of American life. Donald Trump’s hush money trial is bringing new meaning to the term “hush” following Justice Juan Merchan’s issuance of a gag order to protect his and the prosecutor’s family members from attack.
Trump recently posted a photo of the judge’s daughter on Truth Social claiming that she “has just posted a picture of me behind bars, her obvious goal, and makes it completely impossible for me to get a fair trial.” According to the court, the Twitter account in question is not hers. A court spokesperson said of the account: “It is not linked to her email address, nor has she posted under that screenname since she deleted the account. Rather, it represents the reconstitution, last April, and manipulation of an account she long ago abandoned.” Whether Trump knew his post was untrue or just didn’t care is uncertain. Even assuming Justice Merchan’s daughter is likely no fan of Trump -- she works for a Democratic consulting firm – there are limits to how far one can go in attacking family members of those involved in a criminal trial. Defendants are limited in what they can say all the time out of concern for the integrity of the trial process and the safety of its participants. Trump should not receive special treatment – neither more nor less restrictive – than any other defendant. Following the seemingly false and inflammatory statements targeting his daughter, Justice Merchan issued an expanded gag order against Trump, noting (vehemently) that: “It is no longer just a mere possibility or a reasonable likelihood that there exists a threat to the integrity of the judicial proceedings. The threat is very real. Admonitions are not enough, nor is reliance on self-restraint. The average observer, must now, after hearing defendant's recent attacks, draw the conclusion that if they become involved in these proceedings, even tangentially, they should worry not only for themselves, but for their loved ones as well. Such concerns will undoubtedly interfere with the fair administration of justice and constitutes a direct attack on the Rule of Law itself.” While such concerns must indeed factor into the analysis of any gag order, a delicate balancing act is needed for court-ordered restrictions on speech. Courts uphold free speech and the First Amendment, yet they are themselves not venues for free speech, but rather islands of due process, less free-wheeling and more deliberative than the public square. When the raucous freedom of the public square intrudes upon the judicial process, limited and narrowly tailored protections to safeguard the judicial process can be necessary. This is an odd point of tension between competing constitutional and legal principles in the American system, but it is one necessary for the proper functioning of our judicial system. As with so many issues these days, this case is fraught with dilemmas. On the one hand, it is extremely problematic for a presidential candidate to face a judicial gag order. On the other hand, harshly (and perhaps falsely) attacking a judge’s family member is one of those situations – like falsely yelling “fire” in a crowded theater – where “imminent lawless action,” and an imminent threat to the integrity of the judicial proceeding in question, could arguably materialize. Whatever you think of this case against Donald Trump – some would characterize it as “lawfare” against him, some might flip the characterization around in the other direction – Donald Trump crossed a line. A limited – very limited – gag order is an acceptable response in a society that values the impartial administration of justice as well as speech. Judge Merchan should nonetheless remain vigilant to keep his own emotions in check, not be provoked into over-reacting, and give as much leeway as possible to the sometimes-hyperbolic speech inherent in the political process while still ensuring the integrity of the judicial process. |
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