​Al Gore wrote in 1992 about predictions that within the next few decades “up to 60 percent of the present population of Florida may have to be relocated” due to rising seas caused by global warming.

Kyle Smith, a columnist for The Wall Street Journal, noted that far from shrinking, Florida’s population has grown from 13 million in 1992 to 23 million today. Should Al Gore be liable for a multibillion-dollar judgment in a lawsuit for getting the science wrong?

If the answer is no, then the same principle should apply when states and localities sue fossil fuel companies not merely for what they produce, but for the scientific claims they’ve made about this highly contested issue of global warming.

Others have focused on the issue of whether the city and county of Boulder, Colorado, should be able to launch a lawsuit that effectively drives policy for other states and the nation. Protect The 1st is weighing in with an amicus brief before the U.S. Supreme Court that details the First Amendment principles at stake in Suncor v. Boulder County.

One problem with punishing scientific claims is that the history of science is replete with loudly dismissed claims later proved to be right.

Our brief tells the story of the 19th-century Hungarian physician Ignaz Semmelweis, whose advocacy of handwashing dramatically reduced maternal deaths. But Dr. Semmelweis’s theory was harshly rejected by much of the medical establishment because of its “inclination to adhere to established norms and resist new ideas that challenge them,” a tendency in science now known as the “Semmelweis reflex.” The brief asks readers to imagine a world in which Semmelweis or Joseph Lister, who advanced the understanding of the importance of sterile conditions for surgery, had been sued for questioning the scientific orthodoxy of their times.

Our brief tells the Court that “if history teaches anything, it is that today’s consensus may be tomorrow’s cautionary tale.”

While the Suncor case is often framed as a dispute over environmental policy, we are telling the Court that such lawsuits pose a much broader threat to free speech and open scientific inquiry.

After all, the First Amendment does not permit government officials or private litigants to use lawsuits to penalize speakers for expressing views on matters of public concern. Nor does it allow government officials to favor one side of a debate while burdening the other.

The danger in such climate lawsuits is that they target particular speakers because of who they are. “These theories are dripping with textbook speaker-based discrimination,” we wrote. “Respondents have singled out Petitioners – fossil-fuel producers and sellers – and seek to impose on them special burdens that no other industry, environmental group, or renewable-energy advocate faces.”

Would a climate-change NGO be held liable for prompting a community to build a seawall it doesn’t need? The brief warns that such selective targeting undermines a core constitutional principle. As Justice Neil Gorsuch has observed, “the First Amendment does its real work in giving voice to those a majority would silence.”

Likewise, the brief notes that our scientific understanding of climate issues is still evolving. Although the plaintiffs contend that catastrophic climate consequences of greenhouse gases (GHGs) were known decades ago, our brief points out that in 2001 the Environmental Protection Agency still stated that “a [causal] linkage between the buildup of [GHGs] in the atmosphere and the observed climate changes during the 20th century cannot be unequivocally established.”
​
Just a few days ago, the United Nations removed the worst-case scenario from its global warming predictions. Who knows which directions the science will go in the future? The lesson is that scientific inquiry should remain free and unpunished.

​The Federal Communications Commission under Brendan Carr is winning a special place in American history – for mounting the most serious effort to impose government control of Americans’ speech since President John Adams used the Sedition Act to imprison writers for making disrespectful statements about the president and the government.
 
The victim this time is ABC’s The View, of Whoopi Goldberg and Joy Behar fame.
 
We know, we know… You might love it – 2.5 million viewers do. You might be a conservative who finds The View utterly biased. Or you might be a fan of Saturday Night Live and find The View supremely ridiculous. Wherever you land, you should find this latest foray into speech regulation deeply troubling.
 
Carr first rankled many, including principled conservatives, when he tried to use his regulatory authority to force ABC to remove a late-night talk show host. Now he’s using his regulatory authority over broadcast television to open an investigation of Disney-ABC Television and The View for, well, its viewpoint.
 
Carr’s ire was raised when the program invited James Talarico, a Democratic candidate for the U.S. Senate in Texas, on the show in February. For some programs, this could have been a violation of the “equal-time” rule – which originated in the Radio Act of 1927 and requires candidates to get equal access to the airwaves. Recognizing that this requirement was chilling news coverage, Congress added an exemption for news programming in 1959. The View, which has enjoyed such a news exemption for decades, suddenly found this status being questioned by the government and ABC affiliates bombarded with demands by the FCC’s Media Bureau to file their license renewal applications early.
 
Former U.S. Solicitor General Paul Clement, a Republican, is representing Disney-ABC in a petition with the FCC against these actions. He argues that the Commission’s aggressive regulatory approach threatens “critical protected speech” and could chill political coverage ahead of the 2026 elections. The filing states that the FCC’s current posture risks interfering with “editorial discretion” and could force broadcasters to alter political programming out of fear of regulatory retaliation.
 
Clement’s filing notes that the FCC is not going after stations that aired the conservative Mark Levin Show in which that host interviewed Dan Patrick, who is running for re-election as the lieutenant governor of Texas. Nor did it investigate the Glenn Beck Program for its interview of a Republican candidate for Texas attorney general. Why, then, did the FCC only investigate The View over Talarico?
 
For a conservative administration, this selective, let-me-see-your-papers approach to regulatory enforcement is a decidedly unconservative act. The Disney-ABC filing quotes conservative commentator Ben Shapiro:
 
“I do not want the FCC in the business of telling local affiliates that their licenses will be removed if they broadcast material that the FCC deems to be false. Why? Because one day the shoe will be other foot … I know a lot of people on the Right are saying, ‘The shoe will never be on the other foot, and if it is, the Left will just do it anyway.’ But preemptively breaking things because you believe that the Left is going to break the things still makes the things broken – and you can’t unbreak them.”
 
We would like to add just one more point – it is time to toss the equal-time rule entirely. It is a vestige of laws that hark back to the era of flappers and Model-Ts, when broadcast was king. Streaming and cable today make up about 70 percent of television viewing. Media today is multi-dimensional – full of short videos, websites, influencers, social media platforms, streaming shows, and now AI. Worrying about a candidate getting scarce “airtime” in this environment is an increasingly antiquated concern.
 
Worse, it gives government regulators too much room to meddle in speech. Congress should send the equal-time rule to the scrap heap.

​When College Democrats invite speakers to campus, they usually aren’t forced to include Republicans for “balance.” Nor are conservative campus groups generally required to include liberals in their discussions. Yet the Catholic University of America is imposing this oppressive standard on its Students Supporting Israel (SSI) chapter (hat tip to Sara Weissman at Inside Higher Ed).

SSI tried twice to invite speakers Catholic University apparently considered too controversial and had their requests for an event on campus denied. In each instance, the group was told the university would reconsider approval “for this topic and speaker as long as there is a balanced presentation,” and asked SSI to kindly “restructure the event and resubmit a request to have speakers representing both sides of this issue.”

How many “sides” must a pro-Israel student group be required to invite to its pro-Israel – and by definition anti-antisemitic – event? And what exactly are the other “sides” that need consideration? A pro-Hamas speaker, many of whom defend the barbarity of Oct. 7?

For what it’s worth, it would be just as obnoxious for an event critical of Israel’s actions in Gaza or the West Bank to be forced to include speakers defending Israel’s current policies.

Whatever happened to free expression on campus, including the right to ask any invited speaker really tough questions? Or to protest peacefully outside the event? That’s the American way. And that’s exactly what happened last fall when the university approved SSI’s request to bring two Israeli Defense Force soldiers to campus. Difficult questions were asked and peaceful protesters showed up.

Catholic University’s new approach is now as inconsistent as it is capricious, which makes its administrators’ rationalizations in this case read more like recriminations. The university’s vice president for communications told Inside Higher Ed that the school wanted to hear from a greater variety of voices about how to fight antisemitism – beyond the ones that SSI chose to invite.

Fine, if so, then the university should sponsor its own event.
​
In an interview with Jewish News Syndicate, SSI chapter president Felipe Avila discussed the letter to CUA that the organization sent in response. It’s a refreshing (and much-needed) crash course on the First Amendment and we’ll close with one line from it. The university’s decision, it reads, is “not an exercise in academic freedom. It is forced speech.”

​“Hi … Stacy … This is the Social Security Administration. We will be suspending your Social Security Number because we found some suspicious activities on your Social Security Number …
 
“If we do not hear from you, we will have to file a case against you and your assets will be frozen. Please call back immediately.”
​
The above transcript is a scam – the Social Security Administration never sends phone messages like this – from a real robocall script posted in a warning from the Federal Trade Commission. Even when such calls are not fraudulent, they are always intrusive and bothersome.
 
Little wonder that Americans are understandably frustrated by scam calls, spoofed numbers, and relentless solicitations that invade daily life and often pressure people into buying products, disclosing sensitive information, or taking actions they otherwise would not take. Businesses do not have a First Amendment right to anonymously bombard consumers with unwanted commercial solicitations. Reasonable regulation of robocalls is both necessary and constitutional.
 
At the same time, some critics worry that aspects of the FCC’s proposed response could go too far and unintentionally burden lawful speech and legitimate anonymous communication. Mike Pearl at Gizmodo reports that the FCC’s proposed cure “might be worse than the disease” when it comes to broader civil liberties concerns.
 
The commission reportedly plans to require telecom providers to adopt stringent “Know Your Customer” rules. According to telecom law firm Wiley, the proposed changes could require customers to present government IDs and provide physical addresses, legal names, and alternate phone numbers. “High-volume” customers could face additional scrutiny, including disclosure of IP addresses and statements regarding the intended use of their phones.
 
Critics are particularly troubled by the idea that large-volume callers could be required to explain their “intent” before obtaining access to a communications device or service. This may not be a sketchy outfit selling solar panels that don’t exist or insurance you don’t need. It could be a public interest organization seeking to generate grassroots support to change a law, a candidate seeking to reach voters, or some other expression that impacts core First Amendment rights. While the government collects information related to certain types of political advocacy for campaign finance reporting, this broadscale exploration of “intent” expands the government’s interest from campaign finance law into the monitoring and oversight of viewpoints.
 
There is an important distinction between regulating anonymous commercial robocalls and preserving the ability of ordinary people to communicate anonymously for lawful reasons. Anonymous commercial solicitations can legitimately be restricted because they are intrusive and frequently deceptive. The government certainly has a legitimate interest in tracking behavior – such as cyberstalking, child pornography, and extreme forms of harassment – that is clearly unlawful. But anonymous communication itself is legal. It has long played an important role in American civic life (consider The Federalist Papers). Political advocacy, whistleblowing, journalism, religious outreach, and unpopular or dissenting speech have often relied on the ability to communicate without fear of retaliation or public exposure.
 
Americans generally do not have to justify in advance why they wish to speak, organize, advocate, or associate with others. Requiring telecom providers to collect statements about intended use risks creating vague standards that could chill lawful speech or discourage controversial but constitutionally protected expression.
 
As Ken Macon wrote for Reclaim the Net, the FCC’s proposal could create “an identity-verification regime covering one of the last semi-anonymous communication tools available to ordinary Americans.” While the government plainly has authority to target fraud, scams, and abusive robocalling practices, regulations should be carefully tailored so that they do not burden lawful anonymous speech protected by the First Amendment.
 
The challenge is finding the right balance. Americans deserve meaningful protection from robocalls and phone scams. Regulators should aggressively pursue fraudsters and deceptive telemarketers. But efforts to stop bad actors should avoid creating broad rules that sweep in lawful communications or require citizens to disclose and justify their intended speech activities in advance.
 
We can combat robocalls without undermining longstanding American principles protecting anonymous expression and freedom of association.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

​As Ken Klippenstein reports, the FBI is planning to create a new center to proactively track the social media posts of Americans who may be “domestic terrorists.” The dangers to privacy and the Fourth Amendment associated with such extensive surveillance are obvious. But when one considers the list of proposed categories, George Orwell’s notion of “thoughtcrime” leaps to mind rather than anything resembling actual terrorism.

The FBI’s suspect categories include:

• Three varieties of “anti”: anti-Americanism, anti-capitalism, and anti-Christianity
• Three varieties of extreme: concerning migration, race, and gender
• Three varieties of hostility: toward traditional American families, religion, and morality

It’s a perfectly malleable list, capable of being repurposed according to what antagonizes whoever is in power. Today it’s atheists, agnostics, and Bernie Sanders supporters. (Good thing Thomas Paine, the anti-Christian patriot who helped spark the American Revolution, did not live to fall under suspicion from this list.) But tomorrow the government could just as easily cast suspicion on gun owners or perhaps once again target “radical traditional Catholics.”

According to the budget request that Klippenstein highlighted, airing your opinions on social media seems like the best way to get included in the new database:

“Domestic terrorists exploit a variety of popular social media platforms, smaller websites with targeted audiences, and encrypted chat applications. They use these platforms to recruit new adherents, plan and rally support for in-person actions, and disseminate materials encouraging radicalization and mobilization to violence.”

Terrorists do, in fact, use social media. They also use mobile phones, get around in cars, and eat at restaurants. Similarly, most of us use social media, and often use encrypted apps to protect our privacy. Once again, the government is using the broadest of brushes to make everyone a potential suspect.

In other words, warns Klippenstein, under such a regime we should all be officially “on notice.” The Biden administration had convinced itself that the First Amendment did not protect speech it regarded as disinformation or misinformation. Now the Trump administration is ready to use nebulous categories to render people suspect, from your local atheist to the anti-ICE protester.
​
More than ever before in our history, the federal government seems ready to demonize what citizens think. These are the times that try men’s souls.

Ever wonder where the phrase “Hobson’s Choice” comes from?
 
Thomas Hobson was an Elizabethan-era owner of a large stable in Cambridge, England, with 40 horses. This led new customers to believe they had a choice of mounts. Once they had put down the princely sum of four pounds, they discovered that the only horse they could choose was the one that Hobson had placed in the stable nearest the door. 
 
Hobson would fit right in with the state of Colorado, a repeat offender when it comes to testing the limits of the First Amendment with phony choices, only to get smacked down by the courts. The most-recent smackdown occurred when the Supreme Court ended Colorado’s attempt to control the speech of therapists. The Court’s ruling was 8-1, with a concurrence from liberal Justices Elena Kagan and Sonia Sotomayor.
 
A new controversy out of the state’s court system suggests Colorado hasn’t learned the lesson.
 
Jimmy Sengenberger of The Denver Gazette reports that Colorado’s judicial branch imposed a certification requirement on attorneys using its e-filing system – one that many lawyers say forces them into a compelled statement tied to the state’s policy agenda. It requires them to make a binding agreement – under “penalty of perjury” – that they will not use personal information from the system to cooperate with, participate in, or assist federal immigration enforcement.
 
Attorneys report that they could not access court filings unless they clicked “accept,” even after trying to decline. That puts lawyers in an impossible bind:

• Accept a government-imposed statement they may disagree with

 

• Or fail in their ethical duty to represent their clients

 
In the end, there is no choice. As one attorney put it, his professional obligations forced him to comply – even over his personal objection. That’s not consent. That’s coercion.
 
Compelled Speech, By Another Name

The First Amendment protects not only the right to speak – but the right not to speak. The U.S. Supreme Court has repeatedly held that the government cannot force individuals to endorse messages they do not believe.
 
Yet here, the state conditions access to the courts on agreement with a state-mandated certification. Critics say the rule is “blatantly content- and viewpoint-based,” raising serious constitutional concerns. 

Worse, the statutory authority cited for the rule reportedly does not clearly authorize such a requirement, leaving “considerable ambiguity” about its scope. When the government compels speech without clear authority – and ties it to access to justice – it crosses a dangerous line.
 
Lawyers are officers of the court, but they are also citizens with First Amendment rights. When the state pressures them to adopt specific positions – particularly on politically charged issues – it risks turning advocates into instruments of government policy.
 
Colorado has a choice – to continue down the road of speech control and add another loss to its record, or to finally embrace the principle that in America, the government does not get to script what we say.

When the Founders drafted the First Amendment, they were not writing on a blank slate. They were responding to a long, bitter history of governments punishing disfavored speakers – especially critics of official power.

That history is not abstract. It is the core of a new amicus brief filed by Protect the First Foundation and its co-amici – Neutral Principles and the Center for Individual Rights – challenging four executive orders targeting law firms that have drawn the ire of President Trump. It warns that what is happening now has happened before. And the warning comes with a remedy – the Founders’ gift of the First Amendment to protect speech.

At issue are executive orders that impose penalties on law firms because of the clients they represent, the lawyers they have hired, and the arguments they have made. That is not just politics. It is viewpoint discrimination – government retaliation for disfavored speech and association.

The Founders Knew This Playbook

Long before the American Revolution, English rulers used licensing systems to control who could speak and publish. Printers needed government approval. Critics were denied licenses. Dissenters were punished. And the secret Star Chamber enforced these rules without juries or meaningful safeguards. Its purpose was simple – to punish opposition.

America’s Founding generation saw this clearly. As the brief explains, these systems were “among the very evils they identified as threats to the freedoms they would later enshrine in the First Amendment.” What mattered was not just outright censorship. It was targeted punishment – the government’s ability to choose who could speak and publish, and who could not.

That same dynamic is at work today when the government uses its power to deny contracts, revoke access, or impose regulatory burdens on disfavored speakers.

The Stamp Acts – Regulation as Suppression

The British Crown did not always silence critics directly. Sometimes it taxed them into submission. The Stamp Acts imposed costs on newspapers and pamphlets, especially those used to spread political dissent. Meanwhile, pro-government publications were spared or supported. The result was predictable – critics were marginalized, and government-approved voices flourished.

The Founders understood this as a direct assault on the freedom of the press. As the brief notes, even indirect burdens – when applied selectively – were understood as assaults on freedom. 

That principle matters today. You don’t need to ban speech outright to violate the First Amendment. You can burden it, isolate it, and punish it through the selective use of government power. Witness the attempts by Federal Communications Commission Chairman Brendan Carr and Federal Trade Commission Chairman Andrew Ferguson to punish journalists and commentators.

Or consider the executive orders that would have stripped lawyers of the ability to obtain security clearances, do any kind of business with the government, or enter a federal building – perhaps including a courthouse.

“Seditious Libel” – Punishing the Critics

The clearest historical parallel is the doctrine of seditious libel – the crime of criticizing the government. Under British law, even truthful criticism could be punished. As one formulation had it, “the greater the truth, the greater the libel.”

The colonial trial of John Peter Zenger in 1735 became a turning point. Prosecuted for criticizing a royal governor, Zenger was acquitted by a jury that rejected the idea that government could punish its critics.

The Zenger case underscored for the Founders, who would later write the Constitution, that a government that can punish its critics is a government without limits.

The amicus brief draws a direct line from that history to today, noting that punitive actions against lawyers for representing unpopular clients or advancing disfavored arguments were understood as classic violations of core freedoms. 

Executive Power Was Meant to Be Limited

The danger is compounded when such actions are justified as exercises of executive discretion. The Founders had just fought a revolution against a king who claimed broad, unchecked authority. They determined not to allow any form of Caesarism in their new country.

As the brief explains, the Constitution’s grant of “executive Power” was understood to be narrow – focused on carrying out the law, not creating new authorities and punishing political opponents. Unchecked discretion was not a feature of the new system. It was the very abuse the Constitution was designed to prevent.

The Modern Echo

We have seen in the Biden Administration’s attempts to secretly censor “disinformation” on social media, and now in the Trump Administration’s attempt to punish speech, a return of concepts like licensing regimes, the Stamp Act, and seditious libel in modern form.

The Founders did not trust government – or anyone – to police speech fairly. That is why they wrote a rule, not a suggestion, forbidding the government from abridging the freedoms of speech, press, or association. Full stop.

It doesn’t matter what you think of a journalist, a law firm, or a commentator. An authority that can be used against them can one day be used against you.

If the punishment of speech is allowed to return, the First Amendment becomes not a shield for dissent – but a relic of a freedom we once had.

The Founders saw this danger clearly. The question now is whether we still do.

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

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

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

Protect The 1st General Counsel Gene Schaerr described how disregard of the Fourth Amendment has directly undermined the pillars of the First Amendment in testimony before Congress:
​

• Freedom of Religion: Under Section 702, the FBI illegally searched the communications of religious leaders who applied to the FBI's “Citizens Academy.” The FBI has shown an appetite to spy on the religious, from surveillance of “traditional radical Catholics” to Americans who attend their local mosque. If federal agencies can use collected data to generate comprehensive “religious dossiers” on every American, what’s next?

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

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

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

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

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

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

​On Thursday, the Finnish Supreme Court found parliamentarian Päivi Maria Räsänen and Lutheran bishop Juhana Markus Pohjola guilty of “hate speech” for “making and keeping available to the public a text that insults a group.”
 
What was this insidious document? It was a church pamphlet from 2004 in which they upheld traditional views on marriage and criticized homosexuality. Räsänen had later shared this pamphlet on social media.
 
Whether you are an atheist, agnostic, or believer – whether you are straight or gay – there is no place in a free society for what is essentially a secular blasphemy law.
 
Conservative views on sexual relations are held by all the traditional forms of Christianity, Jewish Orthodoxy, Islam, and many traditions within Hinduism and Buddhism. Agree or disagree with those views – criminalizing them, which Finland’s Supreme Court did, means criminalizing the traditional forms of the great world religions.
 
While Räsänen was acquitted of another charge regarding a past tweet, this conviction is no less serious a criminalization of speech and religious liberty – for a church pamphlet!
 
“You can cite the Bible, but it is Räsänen’s interpretation and opinion about the Bible verses that are criminal,” the Finnish state prosecutor told the court. In other words, it is up to the state to determine what is – and what is not – an acceptable interpretation of the Bible.
 
Räsänen, a former Finnish interior minister, physician, and mother of 12, said: “I am shocked and profoundly disappointed that the court has failed to recognize my basic human right to freedom of expression.” So should we all. Räsänen is considering an appeal to Europe’s top human rights court.
 
Such an appeal would only highlight an absurd situation. If Europe declines to hear her case, will it signal that even the speech of Pope Leo XIV is “hateful” and therefore outside the law? The idea that speech should be criminalized because people within a church or some other group hold one view that others find insulting is a never-ending quest for busybody persecution of speakers.
 
Europe, once again, reminds us why we are so fortunate to have the First Amendment, which not only guarantees freedom of speech but also the free exercise of religion – to believe in this doctrine or that, or not to believe at all, regardless of what other people think.
 
Thank you, once again, James Madison.

Can police arrest a journalist simply for asking questions? The U.S. Supreme Court on Monday declined to say “no.”

The plight of journalist Priscilla Villarreal began with her arrest in 2017, with Laredo, Texas, police clearly out to use the law to punish her. She was followed throughout the booking process by police officers, who humiliated her by jeering and snapping pictures of her during the booking process.

What was Villarreal’s crime? She had asked questions.

Under the moniker “La Gordiloca,” Villarreal has amassed a large following for her coverage of events in Laredo on her Facebook page. Her reporting has long irked local officials, from live-streaming Laredo Police Department officers choking an arrestee, to criticizing the Webb County District Attorney for not charging a relative with a crime, despite evidence that the relative had abused animals.

Following up on two stories – a Border Patrol agent who had committed suicide, and family involved in a fatal car crash – Villarreal confirmed the names of these victims with a Laredo Police Department officer before reporting them. Months later, she was charged under a Texas statute forbidding the “misuse of official information.” This law held that it was illegal to solicit information from a public official to obtain a “benefit.”

Under this rubric, any journalist could be charged for seeking to obtain the “benefit” of a scoop.

After a national outcry, these absurd and abusive charges were dropped. But what about the thuggish behavior of the Laredo Police Department? It is often said in law that a right without a remedy is no right at all. Villarreal filed a civil rights lawsuit against the police, seeking damages for her clearly unconstitutional mistreatment.

Villarreal won her case before the Fifth Circuit Court of Appeals, only to lose on appeal before the full bench. That court held that the doctrine of qualified immunity, a judge-created doctrine that shields officials from being held liable for constitutional violations, protected the Laredo police. This shield applies unless officials violate “clearly established law.”

Did that not happen?

When the U.S. Supreme Court refused to grant certiorari in Villarreal’s case, the Laredo Police Department got off scot-free. The First Amendment suddenly became not quite as clearly established as we thought it was.

“It should be obvious that this arrest violated the First Amendment,” Justice Sonia Sotomayor wrote in a dissent, calling the Court’s refusal to take up the case “a grave error.”

Judge James Ho, in Villarreal’s initial win, wrote for the court that “if the First Amendment means anything, it surely means that a citizen journalist has the right to ask a public official a question, without fear of being imprisoned.”
​
We have seen time and again, from the raid of a newspaper by police in Kansas, to arbitrary arrests of people peacefully filming ICE officers, a growing appetite to arrest reporters for doing their jobs. It is only a matter of time before an even more egregious abuse of the First Amendment brings a new test to the doctrine of qualified immunity.

​The Department of Justice had troubling deciding whether to defend the administration’s unprecedented campaign against disfavored law firms or retreat from it. That hesitation betrays something important, that department lawyers recognize just how constitutionally dangerous this effort is.
 
This campaign began with President Trump issuing executive orders to try to punish, if not destroy, law firms in retribution for the political activities of their past associates. When DOJ announced earlier this month that it had decided to drop its appeal of four cases brought by affected law firms, Daniel Barnes of Politico observed that doing so made good legal sense: cut your losses (0-4) and regroup.
 
Which is why it surprised Barnes and nearly everyone else when DOJ announced a day later that the appeal would proceed as originally planned. What's not surprising is the anemic logic of the appeals brief the department ultimately filed that Friday, which not even more than 90 pages of window dressing could cure. 
 
It only takes one court, however, to accept these weak arguments to render them dangerous. There are multiple constitutional threats in play here to the First Amendment. None of these threats was lost on District Judge Richard Leon, appointed by President George W. Bush, when he found for one of the four affected large-law firm plaintiffs last May. He wrote, in an exclamation-point-filled opinion in U.S. District Court in Washington, D.C.:

“The cornerstone of the American system of justice is an independent judiciary and an independent bar willing to tackle unpopular cases, however daunting. The Founding Fathers knew this!”

To let President Trump’s order stand, Leon wrote, “would be unfaithful to the judgment and vision of the Founding Fathers!”
​
Here are some of the most notable flaws in the government’s case that emerged from Judge Leon’s opinion: 
 
Retaliation for Protected Speech: The First Amendment prohibits the government from punishing people for exercising their right to free speech.
 
A law firm representing clients in court is certainly a form of protected expression. Stripping security clearances and restricting access to federal buildings – simply because a president dislikes the causes and clients the firm represents – directly punishes the firm. Pulling security clearances and denying access to federal buildings, including possibly federal courts, is a death penalty for firms that do business in Washington.
 
Curtails the Right to Petition: The Constitution guarantees the right to take grievances to court to resolve disputes, whether in the District of Columbia or the Dakotas. Blocking D.C.-centric lawyers from entering federal buildings is designed to stop those firms from bringing future cases.
 
Viewpoint Discrimination: It is illegal for the government to suppress speech just because it disagrees with the specific opinion or "viewpoint" being shared. The executive orders in question unlawfully weaponize government power to target and threaten the firms specifically because of their legal advocacy and political viewpoints.  
 
Freedom of Association: The First Amendment protects the right of people and businesses to freely associate with one another. The executive orders against the law firms violate this protection by forcing federal contractors to declare if they do any business at all with the named firms, and threatening to cancel their government contracts if they do not sever ties.
 
DOJ’s do-over is more than a bad look – it is a warning. When the government claims the power to punish lawyers for their advocacy, it threatens every American’s right to speak, to associate, and to seek justice in court. The courts, always our last line of defense for constitutional rights, must make it clear – the right to speak and to petition the government is never subject to political retaliation.

What is left is right, and what is right is left – and both are getting it all wrong.

A convergence is taking place between the philosophies of some on the new right and the progressive left that treats social media as a “product” that must be regulated in the best interests of the American people, sweeping aside quaint concerns about the First Amendment guarantee of free speech.

We recently covered attempts by the Trump chairmen of the Federal Trade Commission and Federal Communications Commission to regulate journalism by overriding the First Amendment with appeals to consumer protection and airwave regulation.

This dovetails nicely with a recent New York Times op-ed by Tim Wu – who led the implementation of progressive policies from inside the Biden White House – arguing that social media is “a defective, hazardous product” that must be regulated “as a matter of public health.”

He echoes the reasoning of trial lawyers seeking to hold Meta, Google, Snap, and TikTok liable for harming youth. Wu lists a parade of horribles – “algorithmic recommendations, infinite scroll, auto video play and intermittent reinforcement (in which likes, comments, and refreshed content are rewarded unpredictably rather than consistently).”

Put aside, for a moment, the obvious lack of utility of a social media platform that doesn’t guide users to what they want to see, or that requires manual intervention to get something to play. Wu’s point here is that “the very design of social media is intentionally engineered to create compulsions and habits of overuse, regardless of the content provided.”

He adds: “Lofty platitudes about free speech ring hollow in the face of teenage depression, self-harm and suicide.”

Thus the circle squares, from Trump FTC Chairman Andrew Ferguson, who wants to apply consumer product regulation to Apple News, to Wu, who wants public regulation of social media to make it less harmful.

Wu is, to say the least, less than an ardent defender of free speech. He achieved notoriety with an essay that asked, “Is the First Amendment Obsolete?” (Short answer from Wu: yes.) There is also a more thoughtful side to Wu. He is right that American teens are too absorbed by social media, many dangerously so. But the solution, if there is one, could never come from government control of speech.

Several years ago, Elizabeth Nolan Brown in Reason magazine summed up the problem with blaming all the ills of the world on algorithms – which are, after all, a way to give users control of the content they see. Brown wrote:

“It's no secret that tech companies engineer their platforms to keep people coming back. But this isn't some uniquely nefarious feature of social media businesses. Keeping people engaged and coming back is the crux of entertainment entities from TV networks to amusement parks.

“Moreover, critics have the effect of algorithms precisely backward. A world without algorithms would mean kids (and everyone else) encountering more offensive or questionable content.”

Brown quoted Meta’s former vice president of Global Affairs, Nick Clegg, who said that without the news feed algorithm, “the first thing that would happen is that people would see more, not less, hate speech; more, not less, misinformation; more, not less, harmful content.”

Algorithms pluck what users follow out of a torrent of billions of global messages. Without them, that torrent would hit us all in the face.

For reasons spelled out by Brown, Wu’s idea of turning over algorithmic control – and thus speech control – to law enforcement and trial lawyers has no hope of working. The same is true of the efforts of FCC Chairman Brendan Carr and FTC Chairman Andrew Ferguson to force journalists to adhere to their idea of greater ideological balance.

If either side ever succeeds in putting their schemes into action, they are sure to be disappointed when their controls fail to deliver the intended results. The obvious answer, to them at least, will be that even more control is needed. Then more.

Both ideological extremes are in a race to the bottom. Defenders of the First Amendment must be bolder than ever in declaring that speech is not a product – it is a human right.

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

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

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

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

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

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

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

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

The Chatrie First Amendment Amici Make This Connection Explicit

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

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

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

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

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

The Constitutional Order Must Be Preserved

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

Protect The 1st's general counsel, Gene Schaerr, examines how the ongoing persecution of heroic dissident Jimmy Lai exemplifies how capitalism and civil liberties reinforce one another in the National Review. 

​While missiles are flying and bombs detonating in the Middle East, domestic political rhetoric has predictably become progressively more bombastic and incendiary. As in all wars, the First Amendment will be tested by the desire to shut down speech judged to be warmongering, unpatriotic, or just plain stupid.

It was off to the races after New York Mayor Zohran Mamdani called President Trump’s strikes on Iran “a catastrophic escalation in an illegal war of aggression,” adding: “I want to speak directly to Iranian New Yorkers: you are part of the fabric of this city – you are our neighbors, small business owners, students, artists, workers, and community leaders. You will be safe here.”

When we read this we had the same thought as millions of other Americans – yes, they will be safe here. No sanctioned religious police will cuff Iranian-American women about the ears if they appear in public without a headscarf on Lexington Avenue, or rape them in a police station if they are arrested. Iranian-American students, artists, and community leaders need not fear being slowly strangled to death by having a steel cable put around their necks before being lifted into the air by a crane.

Masih Alinejad, an Iranian-American journalist in New York, shot back at the mayor: “I don’t feel safe in New York listening to someone like you, Mamdani, who sympathizes with the regime that killed more than 30,000 unarmed Iranians in less than 24 hours.”

We would add that if Iran’s ambition to build a nuclear bomb is not arrested, then no New Yorker will be safe. But let us leave that point and examine how the First Amendment comes into this debate.

We predict that before the cherry blossoms bloom around Washington’s Tidal Basin, official threats will be leveled against the speech rights of critics of the attack on Iran. We also expect a few lonely voices in Hollywood, academia, and other centers of monolithic opinion will be hounded, harassed, and threatened if they dare break with the received views of the cultural cognoscenti.

With rhetorical bombs bursting in air, we should keep in mind that the United States has a history of government trying to crack down on “unpatriotic” speech on one side, and violence to end participation in a war on the other. During World War One, the Woodrow Wilson administration secured a 10-year prison sentence against presidential candidate Eugene Debs of the Socialist Party for criticizing America’s entry into that conflict. During the Nixon years, the Weather Underground planted more than two dozen bombs to protest the Vietnam War.

In the face of a new war, we should keep in mind that the First Amendment protects speech that is stupid, false, unpatriotic, warmongering, and ungrounded in fact. The hot exchange between Mayor Mamdani and Alinejad shows that speech and counter-speech can be pointed, polemical, and angry – hallmarks of American political speech since before we were a country – without resorting to laws or mob action to punish the speaker for speaking.
​
President Trump said on Monday that the military action against Iran could last for weeks. As events roll forward, we should keep our emotions in check and respect the speech rights of all – even if we have no respect for what is said.

Sometimes it takes an athlete competing for an authoritarian regime to remind Americans why the First Amendment matters.

Eileen Gu, winner of the gold medal in freeskiing in the recent Milan Cortina Winter Olympics, is an American-born Stanford University student who chose to compete for the People’s Republic of China. It was, as soccer star Megan Rapinoe said on her podcast, an “excellent business decision.” Gu reportedly earned an estimated $23 million in partnerships with mostly Chinese companies, as well a reported $6.6 million from the Beijing Municipal Sports Bureau in 2025.

The government underwriting her wealth stands accused by the U.S. State Department, as well as by the United Kingdom and Canada, of committing genocide in the persecution of Uyghurs and other predominantly Muslim minorities in Xinjiang. Well-documented crimes against humanity in the region include concentration camps, slavery, forced sterilization, sexual abuse, and cultural eradication.

Asked by Time magazine about China’s persecution of minorities, Gu declined to take a position. “It’s not like I can read an article and be like, ‘Oh, well, this must be the truth.’ I need to have a ton of evidence. I need to maybe go to the place, maybe talk to 10 primary source people who are in a location and have experienced life there.

“Then I need to go see images. I need to listen to recordings. I need to think how history affects it. Then I need to read books on how politics affects it. This is a lifelong search. It’s irresponsible to ask me to be the mouthpiece for any agenda.”
​
To which we reply – what an excellent idea! Ms. Gu could do a lot to illustrate the state of free speech and inquiry by “going to the place” to talk to the ten primary source people, see the images, listen to the recordings, and read the books – inside China! Please do that, Ms. Gu, if you think China will actually let you get to the actual sources. You could even make it your senior capstone project at Stanford… if China ever lets you return.

Anonymity online can be a mask that allows people to say ugly, hateful or untrue things without taking responsibility for them. But it can also be a shield that protects women hiding from abusers, whistleblowers one step ahead of their pursuers, journalists reaching out to confidential sources about wrongdoing, and consumers searching online for answers to questions about their health that they’d rather not have anyone know about.

This is why the current effort by the Immigration and Customs Enforcement (ICE) agency to use emergency subpoenas to force Big Tech companies to reveal the identities of Americans who make critical posts about ICE is so dangerous. If this practice sticks, it will likely migrate to other federal agencies and erode anonymity online.

But the shedding of anonymous speech might come by a different route – not from executive-branch meddling or legislative mistakes, but from lawsuits claiming harms from child internet “addiction.”

Dan Frieth of the digital anti-censorship advocacy group, Reclaim The Net, listened to five hours of Meta CEO Mark Zuckerberg’s testimony in a Los Angeles civil case and distilled it to a jarring and important warning – the age of anonymity could be coming to an end at the hands of the trial bar.

Zuckerberg testified in one of 1,600 lawsuits over internet addiction. In this case, a woman claimed that at age nine Meta’s Instagram addicted her, plunging her into a hell of anxiety, body dysmorphia, and suicidal thoughts.

Frieth notes that the science of internet addiction is “genuinely disputed.” He writes:

“None of this means the harms alleged are fabricated. It means the word ‘addiction’ is doing heavy rhetorical and legal work, and the policy consequences are far beyond anything a jury in Los Angeles will decide.

“‘Addiction’ is how you get a public health emergency. A public health emergency is how you get emergency powers and make it easier for people to overlook constitutional protections. Emergency powers applied to the internet mean mandatory access controls. And mandatory access controls on the internet mean the end of anonymous and pseudonymous speech.

“When social media is classified as a drug, access to it becomes a medical and regulatory matter” justifying “identity verification, access controls, and a surveillance architecture that follows users across every platform and device.”

Frieth notes that a win for the plaintiff in this case would strip the current law protecting platform design decisions. This danger is not theoretical. Frieth reports that Zuckerberg repeatedly suggested that any age verification mandate – and thus identification – be shifted from platforms to owners of operating systems. Zuckerberg would thus toss his liability hot potato from Instagram to Apple and Google.

“This is more than age verification,” Frieth concludes. “It is a national digital ID layer baked into the two operating systems that run the majority of the world’s smartphones.”

There are a lot of competing interests in this case – the safety of children, the nature of the internet, and the value of free speech. Juries don’t have to balance these equities. They can just side with the plaintiff and inadvertently make policy for U.S. tech – and by extension, the world.
​
Any new approach to child safety should not require adults to give up speech rights recognized in this country since Alexander Hamilton, James Madison, and John Jay wrote collectively as the pseudonymous “Publius” in The Federalist Papers.