​The U.S. House recently passed the End Woke Higher Education Act. This bill, part of the GOP’s broader push against ideological bias, aims to limit increasingly Orwellian Diversity, Equity, and Inclusion (DEI) control over speech and hiring in higher education. It passed by a 213-201 vote and now faces a tough battle in the Democratic-controlled Senate.
 
This bill would regulate the role accrediting bodies play in determining whether colleges qualify for federal funding. Currently, accrediting organizations often require institutions to align with certain DEI initiatives to maintain their status. The End Woke Act would block these requirements, ensuring that schools don’t have to adhere to any political or ideological viewpoint to stay accredited.
 
We ask: Why should private accrediting bodies have such influence over public funding in the first place? Accreditation has become a bureaucratic tool, often favoring particular ideologies. The government should not outsource funding decisions to external organizations, much like courts and legislatures should not be beholden to the advice of the private American Bar Association.
 
The bill also incorporates the Respecting the First Amendment on Campus Act, which takes cues from the University of Chicago’s 2014 principles on free speech. These principles emphasize that universities should be arenas for open debate, where no idea is off-limits, even if offensive to some. This legislation would require colleges to disclose their free speech policies and ensure students and faculty are aware of their rights to free expression.
 
However, we must also be cautious about how such attempts to liberate speech can wind up restricting it. Florida’s Stop WOKE Act is an example of how well-intentioned laws can overreach. Its broad restrictions on how race and gender can be taught in higher education have made professors afraid to even discuss certain topics. This same chilling effect could result from overly detailed regulations in the End Woke Act.
 
This bill commendably opposes political litmus tests in hiring and promotion. In recent years, some colleges have required applicants to submit statements affirming their commitment to DEI as part of the hiring process. The result is that faculties in the humanities are monolithically left-wing. The bill seeks to ban such requirements, arguing that they suppress intellectual diversity. Protect The 1st agrees. Whether someone supports or opposes DEI or any other political or partisan stance should not determine their eligibility for academic positions.
 
Any ban on litmus tests, however, that restricts the free associational choices of private colleges and universities, as opposed to public institutions, undermines rather than promotes First Amendment rights. This is true even if it is done in the name of promoting First Amendment values. A private Catholic university should have the right to hire faculty who uphold its religious values. Similarly, a private liberal arts college committed to the Constitution, or a private sustainability-focused institution, may want professors who actively promote these ideals. There is little overlap between the communities of Hillsdale and Oberlin colleges. This bill could prevent such schools from ensuring faculty align with their institutional identities and core missions.
 
This last point gets to a serious shortcoming in this legislation. It uses access to federal funds to impose these rules on private universities and colleges as well as public ones. Those who want to use these strings to outlaw “woke” instruction in private institutions of higher learning are paving the way for government to dictate instruction of all kinds, including religious schools. If this approach were to become law, you shouldn’t be surprised if some future administration tells a Catholic college that its teachings on traditional marriage or abortion are not allowed. Once you meddle with speech, you create a weapon that can be pointed in any direction.
 
We applaud the thrust of this bill – absurd ideological demands, like requiring DEI statements, are anathema to academic freedom. However, there has to be a better way to restore ideological diversity to the academy than to give the government the power to approve curricula and compel instruction at private universities.
 
We urge the bill’s authors to return with a more targeted approach to opening public institutions of higher learning to true intellectual openness and vigorous debate on wide-ranging ideas.

​Boise State University is on the hook for $4 million in damages after a jury found the school liable for violating a coffee shop owner’s First Amendment rights. It’s another in a trend of free speech verdicts at higher-education institutions, and a reminder of just how expensive suppressing speech is becoming.
 
The lawsuit, resolved last month, stemmed from a controversy surrounding a business called Big City Coffee, which opened its doors at Boise State in September 2020 in the wake of the George Floyd protests. After opening, the shop’s owner – then engaged to a former police officer paralyzed from a gunfight with a fugitive – displayed a “thin blue line” sticker near the door to her establishment.
 
It was not, to say the least, well received by all.
 
Soon, students angry from the summer’s heated discourse turn their discontent on the small display of police support. This ignited social media back-and-forth that – according to accounts – quickly snowballed into acrimony. One student posted on Snapchat: "I hope y’all don’t go there if you truly support your bipoc peers and other students, staff and faculty.” When the shop’s owner saw the post, she responded with an explanation for her support of the police. So far, both sides had exercised their rights to free speech under the Constitution.
 
Them the university got involved. The details of the discussions that took place between the coffee shop and the university are disputed. What’s undisputed is that the coffee shop’s contract with Boise State was terminated. The owner sued, and a jury found in her favor, awarding $3 million in compensatory damages and another $1 million in punitive damages.
 
This case in Boise recalls another not-too-distant controversy concerning Oberlin College, in which students and administrators boycotted a local bakery after an employee there caught a student attempting to shoplift bottles of wine.
 
In that instance, Oberlin officials joined with students in protest outside the bakery, where flyers distributed among the crowd accused the store of being a “RACIST establishment with a LONG ACCOUNT OF RACIAL PROFILING and DISCRIMINATION.”
 
A jury sided with the boycotted business in the Oberlin case, too, finding the university liable for intentional infliction of emotional distress, intentional interference with a business relationship, and libel. The verdict included a whopping damages figure of $36.5 million. (The shoplifter, for what it’s worth, pled guilty.)
 
Recognizing that such disputes are often of a “(s)he said, they said” nature, it’s clear that it doesn’t often pay for a university to take sides against local businesses, particularly when facts are at issue, or the situation is subject to enflamed passions.
 
Higher education institutions must tread carefully in such cases, which is why many colleges and universities are now adopting viewpoint neutrality policies which prohibit administrators from speaking out on issues of public concern that don’t directly implicate university functions.
 
When universities are confronted with controversy, their best course of action is to stand back, do what they can to ensure safety, and let others do the talking. Being an arbiter of social justice can be costly.

​The First Amendment ratified first for a reason. The founders recognized that the right to speak, free of government interference, is the foundational rule of a democracy. Before anything else, free speech is the one principle that all Americans should know – and cherish – by heart.
 
That many Americans don’t understand the First Amendment is regrettably not surprising, given the erosion of what used to be called civics education in our public schools. What is shocking is how America’s political leaders – tasked with defending the Constitution – are showing a lack of basic understanding of the First Amendment.
 
In the vice-presidential candidates’ debate, Gov. Tim Walz told his opponent Sen. J.D. Vance: “You can’t yell ‘fire’ in a crowded theater. That’s the test. That’s the Supreme Court test.” Too bad J.D. Vance, Yale Law School graduate, didn’t take the opportunity to correct this widespread misperception.
 
Gov. Walz’s reference came from an opinion written by Justice Oliver Wendell Holmes in Schenck v. United States, which upheld the conviction of one Charles Schenck under the Espionage Act for distributing flyers appealing to draft age men to resist induction into World War One. Justice Holmes upheld the man’s conviction. In peacetime, Holmes wrote, such criticism can be allowed. In wartime, however, criticizing the government of the United States is akin to his metaphor of “falsely shouting fire in a theater.” (Popular imagination later added “crowded” to this quote. Sixties activist Abbie Hoffman offered his own memorable twist, defining free speech as having the right to “shout ‘theater’ in a crowded fire.”)
 
Thus, Justice Holmes declared, opposition to America’s war effort justified “a clear and present danger” test for speech. Schenck went to prison and criticism of the war became a crime.
 
Gov. Walz seems unaware that in 1969 the Supreme Court in Brandenburg v. Ohio overturned this “clear and present danger” test. It narrowed the exception to language meant only to direct or incite “imminent lawless action.”
 
The Brandenburg standard protects all speech – even what any fair person would call “hate speech” – so long as it does not call for imminent violence.
 
Another remark from John Kerry, former U.S. Senator and Secretary of State, also garnered a lot of criticism about the need to “curb” some media entities. He told an audience at the World Economic Forum: “But look, if people only go to one source, and the source they go to is sick, and, you know, has an agenda, and they’re putting out disinformation, our First Amendment stands as a major block to the ability to be able to just, you know, hammer that out of existence.”
 
Some have defended Kerry by saying he was merely explaining to an audience with foreigners that the First Amendment prevents the government from blocking disinformation, in this instance about climate change. TechDirt’s Mike Masnick writes: “He appears to be explaining reality to a questioner from the audience who wants to suppress speech.” Perhaps. But then Kerry immediately pivoted to the need to “win the ground, win the right to govern, by hopefully winning enough votes that you’re free to implement change.” What else could that mean but a landslide election that could justify government “hammering” unapproved speech out of existence?
 
Finally, there is Donald Trump. In the recent presidential debate, ABC News factchecked Trump, but not Vice President Harris. Still, Trump’s response to this biased treatment gives us pause. Donald Trump said of ABC News: “To be honest, they’re a news organization – they have to be licensed to do it. They ought to take away their license for the way they did that.”
 
No, no and no. No, you don’t have to have a license to be a news organization. All you need is a printing press or a broadcast studio. No, ABC News does not need a broadcast license – the FCC grants those to local stations, not to networks. And no, you cannot punish a news organization for legal content.
 
Politicians of all stripes need to understand that biased reporting, hateful comments, and “disinformation” are all protected speech. There is no “they” who can take away someone’s license to speak. And any attempt to regulate social media content that is or is not “disinformation” is to inevitably create a Ministry of Truth.
 
The generous space the First Amendment leaves for speech still allows laws that curb incitement to violence, defamation, false advertisement, and obscenity. For almost two and half centuries, Americans have left it to juries to decide such cases within strict guidelines. Let’s leave it that way.
 
In the meantime, perhaps all candidates for federal office would do well to check out this excellent video from Publius No. 86.

​An odd fellows coalition of left-wing supporters of Israel and Palestinians succeeded in forcing an Israeli lawmaker to retreat to Zoom to complete his remarks before the UC Berkeley School of Law.
 
The target was Simcha Rothman, a controversial right-wing member of Israel’s Parliament, who was invited to the law school as a guest of the conservative Federalist Society. Rothman had become a partisan lightning rod in Israel when he proposed a bill to give the Knesset greater oversight over Israel’s judicial system.
 
When Rothman tried to speak at Berkeley, he was hit with a barrage of criticism in Hebrew from members of UnXeptable, a group of liberal Israelis expats. He was next interrupted by a group of pro-Palestinian hecklers. The two groups turned on each other, heckling and jeering across the room. Rothman was rushed out of the room by security. Those who had reserved tickets to attend the event had to go home and watch Rothman on Zoom, losing a chance for personal interaction with the speaker.
 
Erwin Chemerinsky, dean of UC Berkeley law school, is no stranger to such controversies. In April, we reported on his ejection of protestors who mistakenly had imagined they had a right to disrupt a private dinner in the dean’s home. Dean Chemerinsky told the media that any students who were part of the disruption of Rothman’s talk would be punished. “It cannot be in an academic institution that we only hear those messages that aren’t shouted down,” he wrote.
 
We applaud Dean Chemerinsky’s willingness to deal with such a mess afterwards. But we respectfully suggest that campus security would be better used to remove the disruptors rather than the disrupted from the room. That is really the only way the heckler’s veto is going to stop.

​The University of Pennsylvania is punishing law professor Amy Wax with suspension and half-pay for her off-campus speech.
 
Wax has reportedly said in a podcast interview that “as long as most Asians support Democrats and help to advance their positions, I think the United States is better off with fewer Asians and less Asian immigration.” She also reportedly said that “Given the realities of different rates of crime, different average IQs, people have to accept without apology that Blacks are not going to be evenly distributed throughout all occupations. They’re just not, and that’s not a problem. That’s not due to racism.”
 
Wax is certainly provocative to a fault. Some see her statements as Socratic provocation, others as racist. For these infractions in her speech outside of the classroom, Wax has been given that one-year suspension at half pay as well as stripped of an academic chair in her name.
 
What is our take? Let us quickly admit that our ideal law professor would not be such an academic version of Don Rickles. But two things bother us about this case.
 
First, does academia deal with troubling remarks with an even hand? Would anyone in today’s academy have raised an eyebrow if Wax had instead said that America has too many Jews influencing U.S. foreign policy? Or if she had called for the end of Israel, as some professors have done?
 
Compare Wax’s treatment to that of Carol Christine Fair, the Georgetown law professor who in 2018 called for conservative Supreme Court Justices to die “miserable deaths” while being laughed at by feminists as “they take their last gasp.” Fair called for the dead Justices to then be castrated and to have their corpses fed to swine. Fair tweeted that she was merely trying to provoke thought by making people “UNCOMFORTABLE.” Georgetown reacted by dispatching Fair on an international journey for “university research” while things cooled down. Fair is now back teaching at Georgetown’s School of Foreign Service where, presumably, she is not making the men in her class UNCOMFORTABLE. By comparison, after scholar Ilya Shapiro issued an ill-worded tweet about President Biden considering only black women to fill a Supreme Court seat.
Georgetown responded by squeezing out Shapiro for an offer to lead the Georgetown Center of the Constitution.
 
Secondly, the principle of academic freedom should confer broad protection for speech outside of the classroom. The Academic Freedom Alliance recently warned against the dangers of this kind of “selective protection of academic freedom” and urged Penn not to sanction Wax. We agree. Penn’s Statutes of the Trustees permits discipline for “flagrant disregard of the standards, rules, or mission of the University, or the customs of scholarly communities.” The Statutes also say that “when speaking or writing as an individual, the teacher should be free of institutional censorship or discipline.” Wax’s provocations should fall well outside of the university’s wide standard.
 
Such controversies highlight the need for university and college leaders to quit hiding behind their desks and be bold in standing for free speech and academic freedom – even when it means defending the disagreeable.

​Most state constitutions allow for the issuance of Executive Orders (EOs) only for disasters and emergencies, but not to create policies. The reason is obvious – such orders are not passed by the people’s elected representatives, or easily subjected to judicial review.
 
A change of policy by EO is an especially harmful path when it skirts constitutional boundaries. But that’s the case with an executive order issued by Gov. Josh Shapiro (D) of Pennsylvania, who penned new restrictions prohibiting public employees from engaging in “scandalous or disgraceful conduct, or any other behavior, on or off duty, which may bring the service of the Commonwealth into disrepute.” The revision not only invokes conduct but speech, as the governor’s introductory recitals make clear.
 
Banning “scandalous or disgraceful” conduct is vague to the point of unenforceability – which the Foundation for Individual Rights and Expression (FIRE) pointed out to the Shapiro administration back in August. In a letter to the governor’s office, FIRE stated:
 
“The executive order and management directive violate the First Amendment because they unduly limit employees’ right to speak as citizens on matters of public concern, discriminate against speech based on viewpoint, and fail to give employees adequate notice of what speech is prohibited.”
 
Indeed, while government employers are within their rights to oversee employees’ on-the-job speech, government employees still retain First Amendment rights in their private lives – particularly on matters of public concern (whether the election, the Middle East conflict, or the guilt or innocence of Sean “Diddy” Combs).

Applying the Supreme Court’s decision in United States v. National Treasury Employees Union, in order to regulate an employee’s speech, the government “must make two showings: first, that it has identified ‘real, not merely conjectural’ harms; and second, that the ban as applied […] addresses these harms in a ‘direct and material way.’” Obviously, “scandalous or disgraceful” conduct is conjectural in the extreme – not to mention subject to the whims of unelected bureaucrats. The new order is neither narrowly tailored nor viewpoint neutral. To add a touch of hypocrisy, any number of elected officials at the state and federal level cannot clear the scandalous or disgraceful standard.
 
Unfortunately for all parties – especially the thousands of government workers in Pennsylvania prospectively targeted by this EO – the Shapiro administration failed to respond to FIRE’s good faith offer to help rewrite the directive and avoid a lawsuit. Now, FIRE is publicly calling for Pennsylvania state employees to contact them. They write:
 
“This isn’t a close call. Pennsylvania’s expansive restriction on state employees is unconstitutional. If the executive order is not promptly amended, FIRE looks forward to challenging it in court to defend public workers’ crucial First Amendment rights.”
 
Expect this EO to lead to a thousand abuses and ultimately terrible stories for Gov. Shapiro. Protect The 1st also looks forward to a court challenge, a necessary check on the expansive power of the executive pen.

Stanford University, the University of Pennsylvania, and the University of Wisconsin have all embraced a viewpoint neutral stance that refrains from speaking out on the issues of the day. Protect The 1st hopes they will become national trendsetters for higher education.
 
The pitfalls of the old approach were made clear when the University of Wisconsin-Milwaukee, bedeviled by pro-Palestinian protests, cut a deal to end the protests in May. The administration agreed to consider severing ties with Israeli firms and to put the university’s prestige behind a call for a ceasefire in Gaza.
 
This was only a recent example of how university administrations became opinion factories, spitting out one declaration after another on the issues of the day. For example, the University of Pennsylvania put out a statement denouncing the U.S. Supreme Court’s ruling that overturned Roe v. Wade. Stanford spoke out on Israel and Gaza.
 
The outspokenness of universities to take positions on the crisis of the day was a hard turn from the standards of the 1967 University of Chicago Kalven Report, forged in the crucible of the Vietnam era. The Kalven Report advocated that universities be true to their stance as fora for free speech by refraining from commenting on issues that don’t affect them as institutions.
 
This is partly out of concern for allowing maximum range for free thought and free speech on campus. A professor, after all, might legitimately believe that Israel has the right to prosecute the war against the terrorists of Hamas, or that the Supreme Court’s Dobbs decision was correctly decided.
 
There are costs when universities negate opinions, as they did with their stance on Israel. These costs can be tangible when they offend the sensibilities of donors, as well as lawmakers who approve budgets for public universities. In the case of UW Milwaukee, the administration seemed panicked into trying to appease groups that used force to seize part of the campus. Such appeasement often encourages more pressure, turning the university into a mouthpiece for anyone willing to take over a quad or university building. It is no coincidence that Harry Kalven, who chaired the committee that produced the University of Chicago’s report on university neutrality, also coined the term “heckler’s veto.”
 
Appeasing the most animated and sometimes violent activists on campus with official statements is a guaranteed way to get more of the same. The challenge for universities is to be neutral without seeming heartless.
 
“The neutrality of the university as an institution arises then not from a lack of courage nor out of indifference and insensitivity,” the Kalven Report declared. “It arises out of respect for inquiry and the obligation to cherish a diversity of viewpoints. And this neutrality as an institution has its complement in the fullest freedom for its faculty and students as individuals to participate in political action and social protest.”
 
Here’s a tip for administrators: When a university is confronted with the next burning moral question, the best answer – after making clear that the university is a neutral forum – is have at the ready a list of professors and student groups willing to speak to the media. Let the university community speak out on the issues of the day. And let them disagree.

In a major win for free speech, a federal judge reinstated Maud Maron to the Manhattan Community Education Council 2 after she was removed for speaking against an anonymous student article she deemed antisemitic. Judge Diane Gujarati ruled the regulation used to remove her was unconstitutional, stating, “Securing First Amendment rights is in the public interest.”
 
Maron’s removal followed her public criticism of that anonymous student article that ran in a school publication, which she called antisemitic in an interview with The New York Post. Her comments, made as a concerned parent, drew the ire of Schools Chancellor David Banks, who invoked Chancellor’s Regulation D-210 to justify her ousting. Banks claimed her statements crossed a line, but Judge Gujarati found this regulation itself overstepped constitutional bounds by suppressing free speech.
 
The ruling also overturned another rule that prohibited parents from criticizing the conduct of school officials, affirming their right to speak freely at board meetings and online. Maron, celebrating the decision, declared: “Free speech rights protect parents when they speak up about our children’s education — on matters routine and controversial.”
 
The case highlights how policies like Chancellor's Regulation D-210 have been used to suppress dissent under the guise of maintaining order. Introduced during New York City’s de Blasio administration, these regulations have been criticized as overly broad and punitive toward those challenging the status quo.
 
By ruling in Maron's favor, the court affirmed that parents and community members must be free to discuss and debate educational policies. The decision is a reminder that such discourse is protected by the First Amendment, which allows open discussion on issues impacting children’s education.
 
Maud Maron's case sends a powerful message to school boards and education officials across the country: in America, the right to speak freely, even when the speech is uncomfortable or controversial, is fundamental. For those in authority, the lesson is clear — silencing critics isn’t maintaing order. It’s undemocratic and unconstitutional.

​The recent wave of government actions against social media platforms — from Brazil’s suspension of X to France’s charges against Telegram’s CEO — reveals a downward global trend in official respect for free speech in the digital age. Framed as efforts to protect public safety, national security, or the democratic process, governments around the world are increasingly bold in controlling what can be said and who can speak online.
 
While some actions target harmful content, many governments (including, as Meta CEO Mark Zuckerberg attests, our own) risk outright censorship that stifles dissent and restricts access to information.
 
Exhibit A is Brazil, in which the Supreme Court, led by Justice Alexandre de Moraes, ordered a nationwide block on X, formerly Twitter, after the platform refused to appoint a legal representative in the country. This decision follows confrontations over X’s refusal to remove content and block accounts linked to “disinformation” and “extremism” – even though some of the blocked accounts are those of a Brazilian senator and prominent critics of the current administration. X’s Elon Musk understandably is concerned that such “regulation” could be used to censor dissent and control public discourse. So he refused to appoint a legal representative who almost surely would be arrested and prosecuted.
 
Justice de Moraes frames his efforts as a battle against misinformation, citing X's failure to comply with directives as evidence of its disregard for Brazilian law. But Elon Musk, a "free speech absolutist," correctly portrays these actions as overreach by an authoritarian judge.
 
France recently charged Telegram CEO Pavel Durov with failing to prevent illicit activities on his platform. Some argue that pressure from the U.S. Congress and Biden Administration for TikTok to divest from its Chinese parent company is also censorship, though many (Protect The 1st included) have concerns about TikTok’s threats to the data privacy of 170 million Americans and national security.
 
What is clear is that governments are more aggressively regulating platforms they see as threats to public order or sovereignty. Each presents a mix of justifications and overreach. Brazil's crackdown on X is seen by some as necessary to safeguard democracy, while others view it as an overreaction that threatens rights. France’s prosecution of Durov is an overreach if it criminalizes encryption and undermines privacy. Concerns over the data practices of TikTok, its parent ByteDance, and the Chinese government are legitimate, while cracking down on perceived “Chinese-friendly” content would be a clear First Amendment issue.
 
It is true that social media platforms wield considerable power to shape public discourse and influence the conduct of elections; however, methods to counter these threats risk stifling dissent, restricting information, and setting dangerous precedents for censorship. For example, targeting Starlink, Musk's satellite internet provider, for X’s fines seems excessive. Similarly, arresting Durov risks conflating the platform with the actions of Telegram’s users.
 
Is there a better path? Regulators should focus on transparency, accountability, and due process rather than outright bans. Overregulation risks losing a vibrant, open digital space where even controversial ideas can be freely exchanged. If not carefully calibrated, efforts to protect will become efforts to suppress.
 
It won’t be easy, but democratic governments must both defend against illegal content and protect principles of free speech and the robust sharing of information – even when that information is deemed to be wrong.

​Earlier we compared the First Amendment records of Sen. J.D. Vance and Gov. Tim Walz, finding the two vice presidential candidates problematic with notable bright spots.
 
So how do the two candidates at the top of the ticket compare on defending speech? Answer: Even more problematic, but also with some bright spots.
 
Vice President Kamala Harris
 
As a U.S. Senator, Harris in 2017 co-sponsored an amendment with her fellow Californian and leading Democrat, the late Sen. Dianne Feinstein, that would have required federal agencies to obtain a probable cause warrant before the FISA Court could allow the government to review the contents of Americans’ emails. Protecting Americans from warrantless surveillance of their private communications concerning personal, political, and religious lives is one of the best ways to protect speech.
 
As a senator, Harris also defended the First Amendment rights of social media platforms to moderate their content. This is not surprising given that she was from California and big tech is one of her best backers. The Washington Post reports that Karen Dunn, one of Google’s top attorneys in against the Biden administration’s antitrust case, is a top Harris advisor. This closeness suggests a danger that a Harris administration might lean heavily in support of using friendly relations with big tech as a backdoor way to censor critics and conservative speech.
 
Consider that Harris once called for the cancellation of former President Donald Trump’s then-Twitter account, saying:
 
“And the bottom line is that you can’t say that you have one rule for Facebook and you have a different rule for Twitter. The same rule has to apply, which is that there has to be a responsibility that is placed on these social media sites to understand their power … They are speaking to millions of people without any level of oversight or regulation. And that has to stop.”
 
Why does it have to stop? Americans have spoken for two centuries without any level of oversight or regulation. You might find the speech of many to be vile, unhinged, hateful, or radical. But unless it calls for violence, or is obscene, it is protected by the First Amendment. When, exactly, did liberals lose their faith in the American people and replace it with a new faith in the regulation of speech?
 
Worse, as California Attorney General, Harris got the ball rolling on trying to force nonprofits to turn over their federal IRS Form 990 Schedule B, which would have given her office the identities of donors.
 
Under Harris’s successor, this case went to the U.S. Supreme Court. Protect The 1st was proud to submit an amicus brief, joined with amici from a coalition of groups from across the ideological spectrum. We demonstrated that the likely exposure of donors’ identities would result in various forms of “cancellation,” from firings and the destruction of businesses, to actual physical threats. A Supreme Court majority agreed with us in Americans for Prosperity Foundation v. Bonta in 2021 that the same principle that defended Alabama donors to the NAACP extends to all nonprofits.
 
The Biden-Harris administration has also been mum on worldwide crackdowns on speech, from a Brazilian Supreme Court Justice’s cancellation of X, to hints from the French government that this U.S.-based platform might be the next target after the arrest of Telegram CEO Pavel Durov.
 
Former President Donald Trump
 
This is a harder one to judge. It’s long been said that Donald Trump wears better if you turn the sound off.
 
On the plus side, President Trump took a notably strong approach in supporting surveillance reform. A victim himself of illicit surveillance justified by the FBI before the FISA Court with a doctored political dossier and a forged document, President Trump was sensitive to the First Amendment implications of an overweening surveillance state. To his credit, he nixed the reauthorization of one surveillance authority – Section 215, or the so-called “business records provision.”
 
During the pandemic, Trump issued guidance in defense of religious liberty. He said: “Some governors have deemed liquor stores and abortion clinics essential but have left out churches and houses of worship. It’s not right. So I’m correcting this injustice and calling houses of worship essential.” He backed up his defense of religious liberty by appointing three Supreme Court Justices – Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh – who have been strong defenders of religious liberty.
 
But turn the sound back on and you will hear Donald Trump call the American press “the enemy of the people.” Call the media biased, corrupt, in the bag for the Democrats, whatever you like … but “enemy of the people?” Trump’s rhetoric on the media often edges toward physical hostility. As president, he mocked a CNN reporter who was hit with a rubber bullet while covering the 2020 riots in Minneapolis. “Remember that beautiful sight?” Trump asked.
 
At a time when journalists are under threat in America and around the world, this is a decidedly un-American way to confront media bias.
 
Donald Trump has also called for a loosening of the libel laws to allow elected officials to more easily pursue claims against journalists without having to meet the Supreme Court’s “actual malice” standard. We agree that there is room for sharpening libel law in the age of social media amplification, but allowing wealthy politicians to sue news outlets out of business would be one effective way to gut the First Amendment.
 
So what should we conclude? Both Harris and Trump have mixed records. Both have taken bold stands for speech. Both have treated the opposition as so evil that they do not deserve legal protections. Both seem capable of surprising us, either by being more prone to censorship or to taking bold stands for free speech.
 
Whatever your political leanings, urge your candidate and your party to lean on the side of the First Amendment.

​The ever-astute Ayaan Hirsi Ali details the decline of free speech in Britain in a way that perfectly delineates the American distinction between incitements to violence (“fighting words”) and speech that is merely ugly.
 
“After the recent [anti-Muslim] riots, people were given prison sentences for posting words and images on social media. In some cases, the illegal incitement to violence was obvious. Julie Sweeney, fifty-three, got a fifteen-month sentence for a Facebook comment: ‘Blow the mosque up with the adults in it.’ Lee Dunn, fifty-one, on the other hand, got eight weeks for sharing three images of Asian-looking men with captions such as ‘Coming to a town near you.’”
 
Ali writes in The Spectator that a “triple whammy” at the end of the century ended a long period of liberalization in the UK’s speech laws – the arrival of fundamentalist Islam in the West, the rise of far-left critical theories of social justice and the advent of the internet as the public square. The UK’s Online Safety Act, passed by the Tory government, could serve as a “censor’s charter” because of its “inclusion of the phrase ‘legal but harmful’ to characterize certain content.”
 
“The losers in all this are not the hapless fools languishing in jail because of their crude online posts,” Ali writes. “The losers are the millions of people who believe the government exists to protect us from foreign enemies and criminals, not to prohibit ideas, words or images that might offend.”

​When a professional association makes a political statement that some members disagree with – and membership in that association is compulsory – are the First Amendment rights of the dissenting members violated? The answer, according to the Ninth Circuit is … well, it’s complicated. 
 
Oregon attorney Daniel Crowe filed suit against the Oregon State Bar (OSB) following publication of the April 2018 issue of the “Bulletin,” the state Bar’s dedicated publication. In that issue, the Bar published two statements on “White Nationalism and [the] Normalization of Violence.”
 
The first statement, emblazoned with OSB’s logo and signed by six OSB officers, responded to the 2017 white supremacist rally in Charlottesville, condemning violence and “the proliferation of speech that incites such violence.” So far, not much a decent person could disagree with there.
 
The second statement, featured on the opposite page and signed by the presidents of seven Oregon Specialty Bar Associations, built on the first statement and criticized President Trump’s actions in “allow[ing] this dangerous movement of racism to gain momentum.”
 
You don’t have to be a Trump supporter to see the shoehorning of members in the service of a debatable political proposition.
 
Crowe, joined by other attorneys as well as a non-profit called Oregon Civil Liberties Attorneys, filed suit against OSB, arguing that the organization’s use of mandatory dues for activities not “germane” to its purpose violates Crowe’s right to freedom of speech and freedom of association.
 
The case so far has taken a meandering path.
 
First, a federal judge dismissed Crowe’s lawsuit, finding that OSB’s activities were in fact “germane to improving the quality of legal services.” Crowe appealed.
 
Then, the Ninth Circuit upheld the dismissal of Crowe’s freedom of speech claim (noting he had received a refund for his portion of the costs of the “Bulletin” publication, thus satisfying any injury). At the same time, the court found that Crowe’s freedom of association claim could proceed.
 
Finally, the lower court, on remand, held that OSB’s predominantly non-partisan, germane activities precluded the freedom of association claim.

Still with us?
 
Back to the Ninth Circuit, which upon another appeal has now found in Crowe’s favor. Writing for the court, Judge Michelle T. Friedland said:
 
“Crowe has demonstrated an infringement on his freedom of association because he objects to certain communications by the Bar that would reasonably have been imputed to the Bar’s members. We also hold that the infringement was not justified because the communications in question were not related to the Bar’s regulatory purpose.”
 
A related question – whether the OSB is entitled to sovereign immunity as an arm of the state – was also addressed. The court found that it is, though Crowe’s claims against individual officers may now proceed.
 
This is a complicated case. But the simplest solutions are to either scale back or eliminate mandatory membership in the Bar altogether, or for the Bar to refrain from making political statements on behalf of its members.
 
OSB published a statement condemning violence right next a statement condemning Trump’s role in promoting violence. If it isn’t an explicit endorsement of that particular statement, it’s close enough to seem so to a reasonable observer.

​Daron Djerdjian is a popular economics professor at Occidental College in Los Angeles, highly rated by students on online review sites. He is also reportedly the last full-throated proponent of free-market economics at Occidental. And yet Djerdjian was, after years of exemplary reviews, released from his contract.
 
This is just one more sign of how, at many leading universities, an ideological monoculture has taken root. This is not to say that academics with conservative or “classically liberal” views are being routinely expelled from the academy, as Djerdjian was. In the economics, law, and humanities departments of many leading universities, conservatives have simply not been hired in the first place.
 
More than one-third of Americans identify as “conservative.” Yet the best jobs in academia are off limits to them. Liberals, no less than conservatives, should find this replacement of intellectual diversity by an ideological monoculture a sign of moral and intellectual rot in higher education. But what to do about it?
 
Indiana lawmakers believe they have the solution. Indiana has passed a new law that requires professors to demonstrate “intellectual diversity” in order to retain tenure at public universities and colleges. This law relies on university trustees, often politically appointed, to enforce this vague mandate. This approach is rooted in the state's argument that professors lack First Amendment rights in their classrooms because their speech is “government speech.” This law not only won’t have the intended effect. It is as misguided as it is dangerous.
 
Defenses of this law echoes similar arguments made in Florida, where that state seeks to control university curricula through legislative measures like the Stop WOKE Act, which restricts discussions about gender and race. Despite their stated aims of promoting diversity of thought, such laws ultimately threaten to erode the very foundation of academic freedom. By framing professors’ classroom speech as merely “government speech,” the state reduces educators to mouthpieces for the state, stripping them of their role as independent thinkers.
 
The Indiana law, much like Florida’s Stop WOKE Act, risks creating a chilling effect on academic discourse, where professors may self-censor to avoid jeopardizing their careers. This would not only harm educators but also deprive students of the robust education that comes from engaging with challenging and diverse ideas.
 
There are better ways to counter ideological uniformity in academia than through constitutionally questionable laws that undermine academic freedom. First, efforts should focus on protecting faculty and students, designating campuses as open for expressive activity of all kinds, as New Hampshire just did.
 
Occidental College is a private, liberal arts institution. If it were located in Indiana, it would be unaffected by this new law. But it is perfectly valid for donors, both wealthy individuals and institutions, to press private universities and colleges, as well as the fundraising arms of public universities, to accept more intellectual diversity in the hiring of professors.
 
The university ideological monoculture cannot – and should not – be strongarmed out of existence. The answer to the policing of speech on campus in not more policing.
 
Protect The 1st will keep an eye on this Indiana law and how it unfolds.

​The resignation of Minouche Shafik as president of Columbia University closes the tumultuous months since the congressional hearing that has now led to the resignations of three Ivy League presidents. Many conservatives, led by Rep. Elise Stefanik, accused Shafik of foot-dragging in her response to violent campus protests.
 
But there is much more to this story. And it is not what many conservatives think.
 
Inside Higher Education reports that the real catalyst for Shafik’s resignation was not timidity in the protection of free speech. It was a faculty backlash over Shafik’s recent conciliatory remarks before Congress and her eventual crackdown on students violently occupying buildings. In doing so, Shafik upheld the rule of law and the openness of the Columbia campus to all but was condemned by those prioritizing ideological conformity over free speech.
 
The irony here is stark. The very people who purport to defend free speech have effectively silenced a university president for enforcing the law in defense of free speech. This contradiction is reminiscent of the twisted logic that characterized the 1960s Berkeley “Free Speech” Movement. Originally, this movement began as a fight for the rights of students to engage in political activities on campus. But the Free Speech Movement quickly turned to speech coercion.
 
Today, Columbia’s situation shows how this mentality has morphed into a bizarre inversion of free speech principles. Apostates are silenced or threatened. Physical intimidation and the disruption of university operations – effectively silencing the speech and association rights of the many in the service of the few – are now tolerated or even celebrated as legitimate forms of expression. This shift is not just confined to Columbia.
 
Universities, once bastions of free inquiry, are now becoming environments where only certain viewpoints are deemed acceptable. This creates a chilling effect, where students and faculty may feel pressured to conform to prevailing ideologies or risk facing social or professional consequences. The very essence of academic freedom – exploring, challenging, and debating diverse perspectives – is being eroded in favor of a narrow, ideologically driven discourse.
 
This troubling development reflects the growing influence of Herbert Marcuse’s “Repressive Tolerance,” an essay that has increasingly shaped contemporary academic thought. Marcuse argued that true tolerance should not be extended to ideas or actions that reinforce the status quo, and that society must suppress regressive elements to allow for progressive change.
 
The forced resignation of Shafik appears to be a real-world application of this philosophy. “I am still an employee of Columbia University, and she’s not,” one faculty member crowed on X. By ousting a leader who defended law and order, as well as the proper functioning of the university, Columbia’s faculty has, in effect, endorsed a selective approach to free speech – one that tolerates only those forms of expression that align with their ideological preferences.
 
Shafik’s subtly forced departure represents a loss for the fundamental principles of free expression and academic freedom. The fact that she was pressured to leave for doing the right thing – cracking down on students breaking the law – shows how far the academy has strayed from its commitment to open discourse.
 
Her departure is not a victory for free speech. It is a clear manifestation of the Orwellian doublethink that now pervades higher education.

​How far can a judge go in imposing speech-related restrictions on a convicted person? That’s the question in U.S. v. Goodwyn, a case that tests the boundaries of judicial authority and the First Amendment.
 
In this instance, Daniel Goodwyn, who was present in the January 6, 2021, attack on the Capitol, found himself subjected to stringent computer monitoring as a condition of his supervised release. This condition was imposed despite his relatively minor offense – being inside the Capitol for only 36 seconds without engaging in the mob’s violence or destruction. A federal judge imposed the condition that software would be installed on Goodwyn’s computer to monitor it for any signs that he is engaging in “disinformation,” or that (being defended by Tucker Carlson on his show) Goodwyn should use digital sites for fundraising on the off chance he might invest funds in future crimes or try to rehabilitate himself on “extremist media.”
 
This situation demands careful reflection on the role of the judiciary in regulating speech, especially speech that is politically charged. The First Amendment guarantees freedom of expression, including the right to espouse unpopular or even controversial (and yes, outright stupid) views. PT1st Senior Legal Advisor Eugene Volokh notes that the imposition of conditions that monitor and restrict speech based on its content raises serious constitutional concerns. Volokh emphasizes that while the judiciary has the authority to impose conditions on those under supervised release, these conditions must be narrowly tailored and must not infringe upon fundamental freedoms.
 
Parallels between Goodwyn’s case and the U.S. v. Burroughs case (2010) further illustrate how far the court overreached. In Burroughs, a federal court rejected a computer monitoring condition for a far more serious offense than Goodwyn’s, one involving sexual crimes against a minor. The D.C. Court of Appeals in that case reasoned that the mere potential for future criminal conduct over the internet did not justify such a broad restriction. If monitoring was deemed excessive in a case involving serious and ongoing criminal behavior, how can we justify a similar condition for an individual convicted of a non-violent, one-time offense like Goodwyn’s?
 
The First Amendment jurisprudence sets a high bar for restricting speech, even when that speech is false or advocates for controversial ideas. The court’s broad prohibition against spreading “disinformation” about January 6th appears to run afoul of these precedents. As Volokh notes, the language of the political arena is often harsh and imprecise, but that is precisely the type of speech the First Amendment is designed to protect.
 
While the events of January 6th deserve appropriate legal responses, we must ensure that these responses do not encroach on the fundamental freedoms that define our nation. The judiciary has a responsibility to balance the need for public safety with the need to protect constitutional rights. In U.S. v. Goodwyn, this balance seems to have tipped too far in favor of restriction. We look forward to further developments in this case.

​We’ve already heard a lot of rowdy speech from the two vice-presidential candidates, Democratic Minnesota Gov. Tim Walz and Republican U.S. Sen. J.D. Vance. Would they be as generous in applying the First Amendment to others as they do to themselves?
 
Tim Walz, who, despite correct opinions regarding the tragedy of Warren Zevon being left out of the Rock and Roll Hall of Fame, hasn’t been as on the money when it comes to which types of speech are protected and which are not. In 2022, Walz said on MSNBC:
 
“There's no guarantee to free speech on misinformation or hate speech, and especially around our democracy. Tell the truth, where the voting places are, who can vote, who's able to be there….”
 
As PT1st senior legal advisor Eugene Volokh points out in Reason: “Walz was quite wrong in saying that ‘There's no guarantee to free speech’ as to ‘hate speech.’ The Supreme Court has made clear that there is no ‘hate speech’ exception to the First Amendment (and see here for more details). The First Amendment generally protects the views that the government would label ‘hateful’ as much as it protects other views.”
 
Legal treatment of misinformation is more complicated. In United States v. Alvarez, the Supreme Court held that lies “about philosophy, religion, history, the social sciences, the arts, and the like” are largely constitutionally protected. Libel, generally, is not – though, in a defamation case, a public official can only succeed in their claim if they can show that a false statement was published with “actual malice” – in other words, “with knowledge that it was false or with reckless disregard of whether it was false or not.” Categories of intentional misinformation that are patently not protected include lying to government investigators and fraudulent charitable fundraising.
 
Walz may be on firmer ground when it comes to lies about the mechanics of voting – when, where, and how to vote. Thirteen states already ban such statements. As Volokh writes, “[I]f limited to the context that Walz seemed to have been describing – in the Court's words, ‘messages intended to mislead voters about voting requirements and procedures’ – Walz may well be correct.”
 
On freedom of religion, Walz’s record as governor is concerning. During the pandemic lockdowns, the governor imposed particularly harsh restrictions on religious gatherings, limiting places of worship to a maximum of ten congregants, while allowing retailers to open up at 50 percent capacity. An ensuing lawsuit, which Walz lost, resulted in an agreement granting religious institutions parity with secular businesses.
 
Walz also signed a law prohibiting colleges and universities that require a statement of faith from participating in a state program allowing high school students to earn college credits. As the bill’s sponsor conceded, the legislation was intended in part to coerce religious educational institutions into admitting students regardless of their beliefs – diluting their freedom of association. That controversy is currently being litigated in court. Little wonder the Catholic League declared that “Tim Walz is no friend of religious liberty.”
 
The Knights of Columbus might agree – at least as pertains to the broader ticket. In 2018, during the federal judicial nomination hearing for Brian Buescher, then-Sen. Kamala Harris criticized the organization for its “extremist” (read: traditional) views on social issues. Harris also sponsored the “Do No Harm” Act, which would have required health care workers to perform abortions in violation of their religious beliefs. 
 
Regarding Vance, the former Silicon Valley investor is hostile to the speech rights of private tech companies (who certainly enjoy the same First Amendment protections as any other person or group). In March, the senator filed an amicus brief in support of the State of Ohio’s lawsuit against Google, which seeks to regulate the company as a common carrier. In his brief, Vance argues Google’s claim that it creates bespoke, curated search results that directly conflict with its past claims of neutrality. Sen. Vance writes:
 
“[Google’s] functions are essentially the same as any communications network: it connects people by transmitting their words and exchanging their messages. It functions just like an old telephone switchboard, but rather than connect people with cables and electromagnetic circuits, Google uses indices created through data analysis. As such, common carrier regulation is appropriate under Ohio law.”
 
Vance’s argument creeps in the direction of Texas and Florida laws that seek to regulate social media companies’ internal curation policies. Both laws were found wanting by the Supreme Court. The Court in a strongly worded remand on both laws wrote:
 
“[I]t is no job for government to decide what counts as the right balance of private expression – to ‘un-bias’ what it thinks is biased, rather than to leave such judgments to speakers and their audiences.”
 
Yet Vance also attempts to “un-bias” social media platforms, leaving little to no room for independent curatorial judgment.

On the plus side, Vance has cosponsored numerous bills aimed at curtailing government censorship, including the “Free Speech Protection Act,” which prohibits government officials from “directing online platforms to censor any speech that is protected by the First Amendment.” He also sponsored the PRESERVE Online Speech Act, which would force social media companies to disclose government communications urging the censoring or deplatforming of users.
 
As the election season progresses, we can hope for more clarity on the candidates’ positions regarding our First Amendment freedoms. It is already clear, however, that both candidates are far from purists when it comes to protecting other people’s speech.

​Aristotle wrote that anybody can get angry. The hard task is to “be angry with the right person, and to the right degree, and at the right time, and for the right purpose.”
 
We don’t know if Judge Mark Scarsi of the U.S. District Court for the Central District of California is a student of Aristotle. But when he issued a preliminary injunction on Tuesday ordering UCLA to not allow parts of its campus to be off-limits to Jewish students, his order came out hot. Judge Scarsi wrote:
 
“In the year 2024, in the United States of America, in the State of California, in the City of Los Angeles, Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith. This fact is so unimaginable and so abhorrent to our constitutional guarantee of religious freedom that it bears repeating. Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith.”
 
The plaintiffs in the case are Jewish students who have a religious belief about the importance of the State of Israel. Several students, under threat of violence, were barred from the path to UCLA’s Powell Library. Others could not access the university’s  Royce Quad because to do so they would either have to denounce their faith or meet those who promised violence.
 
As the judge notes, UCLA does not dispute these facts. Instead, it argues that it has no responsibility to protect the religious freedom of its Jewish students because the exclusion was engineered by a third party, in this case student and off-campus protesters angry about the tragedy in Gaza.
 
Judge Scarsi responds: “But under constitutional principles, UCLA may not allow services to some students when UCLA knows that other students are excluded on religious grounds, regardless of who engineered the exclusion.”
 
A preliminary injunction is usually a tell about where a court is going. In this case, it is more like a bullhorn.

​Many free speech advocates were disappointed by the U.S. Supreme Court’s opinion Murthy v. Missouri, which could have defined the limits of government “jawboning,” or informal coercion of social media platforms’ content management. The opinion turned out, instead, to be a procedural kicking of the can down the road. True to form, the FBI followed up on this opening by announcing it will continue to highlight misinformation and disinformation for social media companies during the election season. The good news is that the FBI is now at least committed to keeping the public somewhat informed about government communications with private tech companies.
 
Murthy v. Missouri involved well-supported allegations of covert efforts by the government to influence social media content moderation during the Covid-19 pandemic. Under pressure from federal and state actors, social media companies engaged in widespread censorship of disfavored opinions, including those of medical professionals commenting within their areas of expertise.
 
As we wrote of that opinion, “When pressure to moderate speech is exerted behind the scenes – as it was by 80 FBI agents secretly advising platforms what to remove – that can only be called censorship.” Yet the Supreme Court ultimately declined to rule on the merits of the case, finding that the plaintiffs’ grievances against the government were too attenuated to constitute standing. With the 2024 presidential election on the horizon – and with it the likelihood of disinformation efforts by U.S. adversaries abroad – the issue of government jawboning and content moderation is back in a big way.
 
According to a recent memo issued by the Department of Justice, the FBI “will resume regular meetings in the coming weeks with social media companies to brief and discuss potential [Foreign Malign Influence or FMI] threats involving the companies' platforms.” The government promises to develop new policies to “ensure that the public is aware that DOJ’s sharing of information with social media companies about potential FMI threats to national security, including election interference, is undertaken pursuant to carefully calibrated protocols that protect First Amendment rights.”
 
The plan also calls for an explicit promise that the FBI will tell social media companies that it is offering an advisory opinion. It will not, we are told, compel them to act.
 
The FBI’s specific plans for keeping Americans informed of its efforts are anemic, but a sign of progress. The plan references making new standard operating procedures public and accessible online, as well as creating a new website to “collect and highlight in a single location relevant resources, guidance, and other materials …” We’ll have to wait and see just how comprehensive such a repository can be against the backdrop of national security.
 
Still, the FBI is at least moving in the direction of transparency. We’ve long held that transparency has always been the missing link in the government's approach to its communications with social media platforms. We won’t rest until misinformation or disinformation is identified publicly, rather than through the quiet direction of social media platforms. Flagging posts on the FBI’s open website would respect the public's intelligence, the principle of free expression, while showcasing how democracy works. The government's role should be clear and open, fostering an environment where informed decisions are made before the public.
 
Ideally, content moderation decisions might look something like context annotations that offer some degree of explanation for why a particular post might be flagged or removed. That way, Americans can see for themselves why a decision was made – and whether it related to an actual Foreign Malign Influence effort versus a fringe or disfavored opinion put forth by someone’s eccentric uncle.
 
None of this reduces the need for the Supreme Court – or Congress – to establish a rule by which we can all live when it comes to communications between the government and tech platforms on content. In the meantime, we can only hope that the controversy sparked by recent litigation will eventually lead to actual transparency.

​Sam Brownback – the former U.S. Senator, Kansas governor, and ambassador – describes the day in May 2022 when Chase Bank refused to allow him to make a deposit on behalf of the nonprofit organization he now leads, the National Committee for Religious Freedom. He was told that account had been cancelled.  
 
When Brownback asked why, he was only told that the decision was made by “corporate.” Two weeks later, Brownback and his nonprofit received a formal notification from Chase that the account had been formally closed. Brownback then undertook a prolonged attempt to persuade Chase to explain its decision. He received multiple answers. At one point the bank asked Brownback to disclose all of his committee’s donors.
 
“You don’t require that of other people,” he replied to a bank official. “We’re not going to do that.”
 
A few months later, Sam Brownback was told that something about this organization had crossed the bank’s tripwires indicating a possible domestic threat of terrorism. Brownback himself was, he was told, defined as “a politically exposed person,” a legal term in international finance that could involve a government official connected to corruption, money-laundering, and terrorism financing.
 
Brownback’s experience is one of the most prominent cases in a disturbing trend in financial services: “debanking” law-abiding organizations that strike some people as too ideological, too controversial, or in someone’s eyes “hateful.” These actions seem to emerge from an overwrought emphasis on the “reputational risk” of serving groups ideologically disfavored by Fortune 500 C-Suites. The list of debanked organizations runs the gamut from conservative activist groups to traditional Christians to companies that extract oil and gas, make guns and ammunition, and run private prisons.
 
Why is this happening? Banks, large and small, and other financial institutions are being jawboned by NGOs about the reputational and other risks of serving controversial groups and businesses. Some of the jawboning comes from the government.
 
Sen. Tim Scott, (R-SC) in a letter earlier this year to U.S. Treasury Secretary Janet Yellen, wrote about Treasury sending guidance to financial institutions “instructing them to search and filter Americans’ transaction-level financial data using specific keywords, search terms, and particular merchant category codes.” These keywords include common political slogans, the legal purchase of firearms (making “Dick’s Sporting Goods” one such term), as well as “the purchase of books (including religious texts) and subscriptions to other media containing extremist views.”
 
“Bank executives hear a lot of noise in their left ear,” Sen. Kevin Cramer (R-ND), who sits on the Senate Banking, Housing and Urban Affairs Committee, told a recent Federalist Society discussion. “Conservatives are not good at making noise.”
 
Regardless of your personal views about conservative ideas or traditional morality, demonizing and isolating the traditional beliefs of virtually every major world religion seems more like a First Amendment violation than a smart way to filter out people who are truly dangerous. Little wonder that Brownback says these decisions feel like they are being made “to suffocate people of faith.”
 
What can be done in response? Sen. Cramer is gathering a large number of cosponsors for his Fair Access to Banking Act, which forbids discrimination on the basis of “subjective political reasons, bias, or prejudices.” Cramer also suggests that an effective response is to make noise in the other ear of bank executives.
 
Brownback is doing just that. He says he is working overtime to persuade smaller organizations, often embarrassed and frightened at being debanked, to find comfort in numbers by joining other debanking victims in public. The more groups that come forward, the more banks and other financial institutions will have to give up on using access to the financial system as a way to bully ideologically disfavored groups.
 
Consider the group of debanked organizations that sued to force Chase to allow a vote on a shareholder proposition in 2023 against ideological debanking. That move did the trick. Soon after, WePay, which processes payments for Chase, removed its “social risk” policy which applied “hate” and “intolerance” standards against Christian and conservative organizations. J.P. Morgan pledged to provide “financial services for individuals and industries across geographies – regardless of political, social, or religious viewpoints.”
 
The threat against disfavored groups mirrors a recent case of direct government bullying, National Rifle Association v. Vullo, that was resolved by the U.S. Supreme Court. In that case, a government regulator in New York strongarmed financial and insurance companies to debank the Second Amendment advocacy organization. The Supreme Court ruled against the government regulator. Perhaps the justices will get the chance to declare that it is no more acceptable for big financial institutions to band together to exclude, and thereby financially harm, groups whose viewpoints they dislike.
 
You don’t have to be a conservative or an evangelical Christian to be offended by this institutional effort to bully nonprofits over speech. As liberal Justice Sonya Sotomayor wrote in the Vullo decision:
 
“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.”
 
That principle logically applies as much to private banking decisions as to governmental discrimination.

​We begin this piece with a trigger warning. You might want to shut the door and draw the blinds. Steel yourself to read something distressing: Bruce Gilley, a Portland State University professor, was blocked from a Twitter account owned by his employer because he – we warned you – posted: “All men are created equal.”
 
This was his response to an “interrupt racism” thread of the university’s Division of Equity and Inclusion in 2022. Gilley sued over the university’s decision to remove him from its twitter thread. The university lost a motion to dismiss. On Tuesday, federal Judge Marco Hernandez slapped the university with a temporary injunction from “hiding, muting, or deleting posts by @Bruce Gilley on the @UOEquity X account.” The judge’s action is based on a substantial likelihood that Gilley would prevail on the merits.
 
Gilley was deposted because the account’s university administrators found his messages, somehow, constituted racism. Gilley is, to be fair, provocative in his lashing critiques of post-colonial ideology and DEI imperatives. (By the way, universities once delighted in academics who provoked debate, and “provocative” was considered a compliment.)
 
The university clearly violated its own social media guidelines for employees, the first of which is:
 
“As a public university that values freedom of speech and a robust exchange of ideas, you should err on the side of letting people have their say when commenting on social media properties. When appropriate, engage with commenters and repliers, even if it’s just to like or reply to their comments or to acknowledge their criticism. Don’t delete comments or block users because they are critical or because you disagree with their sentiment or viewpoint.”
 
The university’s social media guidelines do allow the removal of comments if they are “violent, obscene, profane, hateful, or racist or otherwise use offensive or inappropriate language.”
 
Gilley successfully argued that the First Amendment would protect even actual hateful and racist speech. Judge Hernandez issued the temporary injunction holding that the university cannot depost Gilley’s messages because they are found to be “hateful,” “racist,” “otherwise offensive,” or “out of context.” The judge’s use of quotes is clearly aimed at the slippery standards the university’s DEI office applied to Gilley’s views – and this injunction only applies to Gilley. It would be a mistake to extrapolate from this that even a public university, which must show maximal respect for the First Amendment, is prevented from issuing a viewpoint neutral policy of excluding racial slurs.
 
The root issue here is not just about the law. It is an intellectual one, the inability of so many today to use common sense to distinguish between messages that are clearly racist and those that can only be construed as racist by inference or mind-reading. There’s no judicial fix for that one, only better education.

​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.

​When 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:
 

• support Nazi ideology;
• advocate for terrorism;
• espouse racism, Islamophobia, or anti-Semitism;
• encourage teenage suicide and self-injury;
• discourage the use of vaccines;
• advertise phony treatments for disease;
• advance false claims of election fraud.”

 
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.