​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.

French President Emmanuel Macron at an AI summit in New Delhi on Wednesday said that U.S. objections about European crackdowns on free speech are, pardon our French, “pure bullshit.”

Macron argued that “we have no clue” how a social media “algorithm is made, how it’s tested, trained, and where it will guide you – the democratic consequences of this bias could be huge … Free speech is pure bullshit if nobody knows how you are guided to this so-called free speech, especially when it’s guided from one hate speech to another.”

So-called free speech? Let’s take a look at what’s missing from Macron’s analysis from the American point of view.

First, Who Gets to Define Hate Speech?

American law, as interpreted by the U.S. Supreme Court, doesn’t prohibit hate speech, unless it calls for imminent acts of violence. The reasoning is that once you begin parsing speech, the fine distinctions are endless and are apt to wind up with the kind of absurdities we’ve seen in Europe and Canada, where even well-reasoned, evidence-based criticisms of a minority social practice or a tenet of elite ideology are treated as too obscene to tolerate.

Once a society goes after “hate speech,” activists and bureaucrats start to draw the line. The House Judiciary Committee reports that such determinations are made for the European Union by a hodgepodge of left-wing NGOs that tend to find almost any critique of prevailing orthodoxy as “hate.” If this sounds overwrought, consider the former EU Commissioner who tried to censor an interview with Donald Trump during the 2024 campaign – as if the opinions of a former president and major-party nominee were something the public needed to be shielded from.

Second, Can the EU Censor Americans in America?

The First Amendment in the United States will not be harmed if Europeans censor Europeans in Europe. The problem is that when a post made by an American on an American-based platform is removed by the EU, the global nature of the internet necessarily means it is removed in the United States as well.

Forgive us, President Macron, but we find that to be “pure connerie.”

Third, Is the EU Taxing America’s Speech Platforms?

The European social media landscape is dominated by American companies because Europe has increasingly proven unable to innovate and compete in high technology. Many Americans believe that Europe’s Digital Services Act and Digital Markets Act, which effectively outlaw the business model of American social media companies, smack of rank protectionism.

For example, the EU is trying to compel U.S. companies to offer their services without selling user data to advertisers. This would cripple Facebook, Instagram, and TikTok by essentially requiring U.S. companies to provide their services for free. When Meta responded to European demands by creating a two-tiered system for Facebook and Instagram – one in which European users could consent to tracking in exchange for the free service or pay a subscription fee for no tracking – the EU slapped Meta with a €200 million fine.

The EU is also trying to compel U.S. companies to share the guts of their algorithms with competitors – virtually guaranteeing that China will gain access to their business secrets and possibly customer data.

Worst of all, Europe has found reasons to hit American tech firms with almost $12 billion in fines from 2021 to 2025. And its laws allow the EU to levy fines on U.S. companies of up to 10 percent of their global turnover or revenue. Even for corporate giants, these fines could have death-penalty consequences.

Is There Room for Common Ground?

The House Judiciary Committee has commendably detailed the censorship threat from Europe. American leaders have expressed outrage to Europe in no uncertain terms. Washington would be well advised, however, to lower the temperature and look for some common ground in defense of free speech before more damage is done.

There are many technical problems with making algorithms public property, as Macron suggests. But there may be ways for Washington and Brussels to promote more accountability and transparency online that would satisfy European concerns.
​
Secretary of State Marco Rubio, in his recent speech in Munich, cleared the way for a more respectful discussion that could lead to productive agreements. It is time for the difficult spadework of business diplomacy to start. But first, let’s bury the bullshit.

​The latest furor over whether Stephen Colbert can air an interview with Democratic Texas Senate candidate James Talarico exposes a relic of broadcast regulation that no longer fits the modern media world: the FCC’s “equal time” rule. And what we’re seeing isn’t just awkward – it’s constitutionally and technologically outdated.

The rule, rooted in the Communications Act of 1934, requires broadcasters who give airtime to one political candidate to offer comparable time to opponents. In an era of three networks and scarce spectrum, regulators claimed such mandates served the public interest. Today, the rule feels as antiquated as a Philco radio crackling with the Eddie Cantor Show.

Even worse, enforcement is inconsistent. Traditional news programs are largely exempt from strict balancing requirements, while talk shows face a shifting and often opaque standard. When Arnold Schwarzenegger announced his California gubernatorial run on The Tonight Show in 2003, the FCC declined to invoke equal time. Yet now, Colbert faces scrutiny for doing what modern media personalities do every night – interview public figures.

Joe Lancaster, writing in Reason magazine, spells out how badly the equal time rule had become superannuated by 2024.
 
“Today the broadcast networks no longer have a stranglehold on what people can watch. Last year, according to Nielsen, the combined share of TV viewership that took place on over-the-air broadcasts or cable fell below 50 percent for the first time, as streaming skyrocketed. Only 20 percent took place on conventional broadcast television – meaning 80 percent of all TV viewership was not subject to any FCC content regulation, much less equal time rules.

“When the equal time rule was drafted, a far more limited number of frequencies were available across the broadcast spectrum. But that world no longer exists. We've reached the point where nearly 17 percent of American adults get their news from TikTok.
 
“The equal time rule imposes burdens on one group of broadcasters while sparing their cable or streaming competitors. Any public benefit that its drafters intended no longer meaningfully exists. Let's abolish it before the next election cycle begins.”
​
Lancaster points to some history that should be our guide.
 
In 1974, the U.S. Supreme Court in Miami Herald Publishing Co. v. Tornillo overturned a Florida law that required publishers to print a reply to any political editorial or personal criticism, print version of the equal time rule.
 
At that time, a dominant newspaper held tremendous sway in a market. Today, in most cities, the local newspaper is just another website. As with newspapers, broadcasters are now just one of many media outlets constantly competing for our attention.
 
It is time for the law to adjust. Throw the equal time rule into the round file.

Sol Wachtler, former chief judge of the New York Court of Appeals, crafted perhaps the most famous aphorism in American law – that any prosecutor could persuade a grand jury to “indict a ham sandwich.”

Jeanine Pirro, longtime television judge turned U.S. Attorney for the District of Columbia, may have thought it would be that easy when she tried to indict six Democratic Members of Congress for posting a video informing active-duty military personnel that they had an obligation to refuse illegal orders. What she got from a grand jury on Tuesday was a lot of mustard on her face.

Wachtler’s point was that grand juries almost never refuse to issue an indictment. The reason is simple – in grand jury proceedings, there is no defense counsel to challenge the facts as presented. The jurors hear what the prosecutor wants them to hear, and only that. In Pirro’s case, they were told that these six lawmakers had violated a World War II-era statute – of questionable constitutionality – that makes it a crime to “interfere” with “the loyalty, morale, or discipline” of the U.S. military.

And yet these jurors refused to indict two U.S. senators and four Members of the House, including former Navy pilot Sen. Mark Kelly (D-AZ) and former CIA analyst who served in Iraq, Sen. Elissa Slotkin (D-MI). The four House Members include two Navy veterans, a former Air Force officer, and a former Army Ranger.

Critics of this video post make the point that it appeared at a time when President Trump was ordering the military to fire missiles into what were believed to have been boats ferrying drugs destined for the United States. Whatever one thinks of the boat strikes, some made the legitimate criticism that these members were flirting with the encouragement of defiance of lawful orders.

Outside of that context, however, these Members of Congress made a flatly factual statement – that under the U.S. Uniform Code of Military Justice, service members are required to disobey orders that are direct commands to commit a crime or violate the U.S. Constitution.

In the grand jury hearing, it is likely that no one made the point that the unprecedented prosecution of sitting Members of Congress for speech would represent an assault by the executive branch on the legislative branch. Nor is it likely that anyone told them that such an indictment would degrade the First Amendment, criminalizing speech in a way that exceeds any abuses of the past.
​
These American citizens came to these conclusions on their own. And in so doing, they demonstrated the value of the grand jury system as a check on overweening prosecutors. It isn’t just ham sandwiches, after all.

​If you’re going to tell a mean joke about Donald Trump – like Trevor Noah did last week at the Grammys – expect the president to threaten a lawsuit.

“Song of the Year,” quipped Noah. “That is a Grammy that every artist wants almost as much as Trump wants Greenland. Which makes sense, I mean, because Epstein’s island is gone, so he needs a new one to hang out on with Bill Clinton.”

Yes, the joke was factually off-center; Trump says he never went to Epstein’s Island, and there is no evidence that he did. Moreover, it wasn’t even a particularly well-written or clever joke.

But it’s still a joke – not a news report. Such distinctions are often lost on public figures, who seem not to understand the difference between slander and libel, versus humor. The former purports to be fact and is meant to be taken seriously, to be believed as true. With news reporting, the wisdom of New York Times v. Sullivan endures, which allows public figures to sue for journalism corrupted by malice.

Various forms of humor are by their nature not meant to be believed. A joke is funny precisely because it is off-kilter and hyperbolic. As such, jokes are protected as free expression under the First Amendment.

The threat of a lawsuit is perhaps inevitable, both because jokes can wound and because going to court is a perfectly American reaction. But, like a bad joke, frivolous lawsuits brought by billionaires can have a chilling effect on the public’s willingness to express views critical of those with power. Threatening to sue a comedian for insulting you is not censorship, but the expense of having to defend oneself against a billionaire who happens to be the President of the United States amounts to punishment by litigation.

Presidents have structural advantages as well. The U.S. Supreme Court has held that presidents can be sued for unofficial acts, but not for official acts. On the other hand, the president can sue at will, just like anyone else. And let’s not forget that this administration has shown no restraint in weaponizing the executive branch and using its regulatory authority to go after its critics (just ask Jimmy Kimmel).

What can be done about this imbalance in legal power?

Perhaps Congress should pass a law stipulating that a lawsuit filed by a president must be stayed until the occupant leaves office. Only once he is a private citizen again could the lawsuit move forward. Where state laws constrain or complicate this stipulation, the Constitution’s Supremacy Clause ought to override them.
​
In the meantime, thin-skinned public figures in both parties and of all stripes need to learn how to take a joke – even bad ones. In a free society, the proper response to a bad joke isn’t a lawsuit – it’s a better joke.

​Irish comedian and television writer Graham Linehan testified this week before a House Judiciary Committee hearing: “But I warn you – the Atlantic is not as wide as you think.”
 
That is the thesis of a staff report from that same committee, also released this week, entitled, Europe’s Decade-Long Campaign to Censor the Global Internet and How It Harms American Speech in the United States.
 
This committee staff report, the second in a series, is informed by evidence from subpoenaed communications between ten U.S. tech companies and the European Union. It draws on thousands of documents and communications to present an eye-popping portrayal of Europe’s ambition to control speech across the Atlantic.
 
That report declares:
 
“The European Commission, in a comprehensive decade-long effort, has successfully pressured social media platforms to change their global content moderation rules, thereby directly infringing on Americans’ online speech in the United States.”
 
The EU’s enabling authority in this effort springs from the Digital Services Act (DSA), which went into effect in 2023. In December 2025, the European Commission finally cracked its knuckles and hit X with the first DSA fine, a whopping €120 million ($140 million). Of the several justifications for this punishment, the most telling was that X was charged with not being as forthcoming as possible in providing American data to “vetted researchers” around the world.
 
The first committee staff report in 2025 traced “these so-called researchers” back to academia and NGOs, finding them to be “uniformly left-wing and pro-censorship.”
 
The DSA also lists many content infractions, revealing a determination to restrict free speech in the United States and to curtail our First Amendment. The report details an EU handbook that helpfully lists “offending” categories, which include:
 
• “Populist rhetoric”
• “Anti-government/anti-EU” content
• “Anti-elite” content
• “Political satire”
• “Meme subculture”
 
To help enforce this censorship, a European disinformation “task force” is focused on specific disinformation topics, including “fact-checking, elections, and demonetization of conservative news outlets.”
 
The committee recounts how TikTok was forced to buckle to pressure from such groups. It was compelled to report to the European Commission how it censored over 45,000 pieces of alleged “misinformation,” including political speech on topics such as migration, climate change, security, and defense, ahead of the 2024 EU elections.
 
Most alarming of all is Europe’s desire to control American speech about American elections. The absurd lengths of Europe’s ambition were on full display when then-EU Commissioner Thierry Breton “threatened X with regulatory action under the DSA for hosting a live interview with Donald Trump in the United States during the 2024 elections, warning that ‘spillovers’ of U.S. speech into the EU could spur the Commission to adopt retaliatory ‘measures’ against X under the DSA.”
 
Such “spillover” is the EU’s excuse for trying to deny users of X around the world the ability to watch an interview with a former president who was a major-party nominee seeking to return to the White House. Whatever your view of Donald Trump, Breton’s actions revealed the breathtaking determination of Europe to try to manage our domestic political dialogue.
 
The report concludes that the EU’s Digital Services Act “represents a grave danger to American freedom of speech online: the European Commission has intentionally pressured technology companies to change their global content moderation policies, and deliberately targeted American speech and elections.”
 
In short:
 
“The European Commission’s extraterritorial actions directly infringe on American sovereignty.”

That conclusion should alarm anyone who values the First Amendment. Europe is not merely regulating its own digital marketplace – it is attempting to export its censorship regime to the United States by pressuring American companies to silence American speakers.

If American leaders allow foreign regulators to dictate what Americans may say, hear, or share online, the First Amendment will not be repealed. It will be quietly nullified, one “spillover” at a time.

An Irish comedian, a physician elected to the Finnish Parliament, and a lawyer defending speech rights in Europe – all testified about the growing danger that EU and UK censorship poses to the health of free speech in America and around the world.

Graham Linehan, longtime television comedy writer, who was arrested at Heathrow Airport for an off-color tweet:

“The First Amendment protects you from government censorship. It does not protect you from what the British government has learned to outsource.

“In the UK, police record ‘non-crime hate incidents’ against citizens who have broken no law. These records appear on background checks. They affect employment. They create a chilling effect without a single prosecution.

“But the state has also learned to let others do its work. When employers fire workers for protected speech, when banks close accounts, when publishers drop authors, when platforms suspend users – the government's hands stay clean. The censorship happens. The state didn't do it. In Britain, we have discovered that you can have formal free speech and no free speech at all.”

Dr. Päivi Räsänen, physician, member of the Finnish Parliament since 1995, and former Minister of the Interior, fighting in court for posting a traditional view on sexuality:

“I expressed my Christian beliefs about marriage and sexuality in a Twitter post … I added a picture of Scripture verses from the book of Romans …”

“For this exercise of my free speech, I was investigated by the police and interrogated for more than thirteen hours. The questions from police were shamelessly about the Bible and its interpretation. I was asked, ‘What is the message of the book of Romans and its first chapter?’ and ‘What do I mean by the words ‘sin’ and ‘shame’?’ A joke spread on social media that Päivi Räsänen was once again meeting for a Bible study at the police station …

“The crime of ‘agitation against a minority group’ falls under the ‘war crimes and crimes against humanity’ section in the Finnish criminal code and can carry up to two years of prison time. I did not insult or call for harm against anyone. I was being criminally charged for simply expressing convictions rooted in my faith and conscience …

“Even when courts ultimately acquit, our story shows how the process itself becomes the punishment. We have faced years of investigation, public scrutiny, and legal uncertainty. This creates a chilling effect, not just for Christians, but for everyone who holds views outside a narrow, state-approved consensus.”

Lorcán Price of the Alliance Defending Freedom International testified on the anti-free speech extremism of the European Union:

“The EU’s obsession with harmonization and regulation is at odds with the values of free speech and a free press. Those are supposed to be universal human freedoms as well as European values … In practice, the DSA undermines the right to express opinions, the freedom to receive and impart information, and the respect for media freedom and pluralism inherent in European human rights law …

“This opens the prospect of worldwide enforcement of draconian European hate speech laws, such as the law against insulting public figures in Germany … The effect of the DSA is to require U.S. companies to apply the lowest common European legal denominator to police memes, jokes, and controversial commentary across the globe.

“The DSA permits each EU member state to implement its own rules and procedures … Thus, the nightmare scenario X currently finds itself in includes active parallel investigations by two regulatory bodies, under differing procedures and in different legal contexts, both using sweeping powers to scrutinize the company and levy enormous fines against it. This fate will befall any company that refuses to bend the knee to the Commission’s demands …

“Germany, France, and every other European country have all adopted criminal speech offences in vague, overbroad, and ambiguously worded laws that are used to prosecute legitimate political speech. At times in a democracy, citizens will use robust, rude, irreverent, and sometimes offensive speech to express themselves on matters of public importance.”

***

The committee’s Democratic minority refused to cooperate with Chairman Jim Jordan (R-OH) and the Republican majority in discussing the subject of the hearing, which was exploring European censorship. Democrats focused, instead, on the actions of Immigration and Customs Enforcement agents in Minnesota and elsewhere. From the Democrats’ protest, useful insights on free speech emerged – showing us that as egregious as European censorship is, we must also continue to practice vigilance at home.

Deepinder Mayell, Executive Director of the American Civil Liberties Union of Minnesota, spoke on the right to record law enforcement:

“Taking photographs and video of things that are plainly visible in public spaces is a constitutional right – and that includes police and other government officials carrying out their duties. Specifically, the First Amendment protects the right to photograph and video police conduct occurring in public, both because it protects the right to gather information about what public officials do on public property, and because it protects the right to record matters of public interest. This includes the right to livestream such content.

“The repression I have described is not just happening in Minnesota. From Illinois to Southern California, again and again, we have seen federal agents threaten peaceful protesters and physically assault them – including veterans, members of the clergy and the elderly.”

Overall, the hearing reinforced what Ronald Reagan said years ago:
​
“Freedom is never more than one generation away from extinction. It has to be fought for and defended by each generation.”

​CNN reports that comedian Megan Stalter taped a video asking her fellow Christians to speak out against the heavy-handed tactics of Immigration and Customs Enforcement (ICE) agents in Minneapolis, only to be iced out of TikTok.
 
Her video was popular on Instagram, reposted more than 12,000 times. But several attempts to upload her video on TikTok failed. Others have complained of similar experiences. For its part, TikTok responded that power outages at a data center were to blame.
 
Even if TikTok’s behavior was completely above board, a little history shows the basis for users’ suspicion: Congress, concerned by the national security implications of a Chinese-owned company collecting the personal data of 170 million Americans, passed a law requiring TikTok’s parent company, ByteDance, to sell the platform or face a U.S. ban by Jan. 19, 2025.
 
When Donald Trump was sworn in as president a day after the statutory deadline, he promptly refused to enforce that law. The president instead worked to secure a deal for U.S. ownership of TikTok. Last month, a group of investors led by Trump ally Larry Ellison of Oracle acquired TikTok’s U.S. operations.
 
With this deal brokered out of the Oval Office, is it any wonder that TikTok users immediately leapt to the conclusion that they were being censored to please the administration?
 
The distrust of these anti-ICE critics follows the distrust of conservatives, who still rankle from being deplatformed and shadowbanned on major social media platforms. During the Biden administration, eighty FBI agents in a program overseen by the White House quietly contacted social media companies to “jawbone” them into removing conservative content.
 
What the Biden administration did privately, Federal Communications Commission Chairman Brendan Carr has done publicly. He threatened to withhold the approval of the Paramount-Skydance merger. Carr only relented when CBS News, owned by Paramount, agreed to pay $16 million to settle a weak lawsuit filed by President Trump regarding how 60 Minutes edited an interview with Kamala Harris.
 
CBS News editor-in-chief Bari Weiss – a noted critic of mainstream liberal journalism – entered the job saddled with this history. When she made the controversial decision to hold and revise a story about the Trump administration’s detentions of deportees to El Salvador’s notorious CECOT prison facility, there was an immediate outcry from fellow journalists. Her editorial judgment was quickly tainted by the perception that CBS was kowtowing to federal regulators for business reasons – and perhaps to CBS’s new owner, the Ellison family.
 
The Wall Street Journal summed up Holman Jenkins’ editorial on this debacle with this subhead: “The Ellison family is getting what it paid for when it acquired the journalistic mouthpiece.” 

Fair? Probably not. Weiss may have made a defensible editorial decision and TikTok may, in fact, be having technical issues. The problem remains that when government officials can reward or punish media companies through secret “jawboning” and selective enforcement of licensing and mergers, the line between private editorial judgment in the media and the political needs of administrations begins to blur.
 
When the business of media is entangled with political agendas and government wheeling and dealing, even innocent explanations are tainted.

A woman in Maine was using her cellphone on Friday to record the public actions of Immigration and Customs Enforcement (ICE) agents.
 
When one agent began taking pictures of her and her car, she said: “It’s not illegal to record.”
 
“Exactly, that’s what we’re doing,” the agent replied.
 
“So why are you taking my information down?” she asked him.
 
“Because we have a nice little database,” he replied. “And now you’re considered a domestic terrorist, so have fun with that."

This is consistent with a report by Ken Klippenstein on his independent news site that a federal law enforcement official told him that the Department of Homeland Security (DHS) has ordered immigration officers to collect information on anyone video-recording ICE agents at work. The official told Klippenstein that intelligence agents use this data to perform a “work-up” on targets that likely includes running their license plates and criminal history checks, and even analyzing their social media profiles.
 
Why is the federal government building intelligence files on Americans engaged in activity that is plainly protected by the First Amendment? Will Americans in this database suddenly find themselves facing legal restrictions, such as appearing on a “No Fly” list, barring them from air travel?
 
That would run counter to rulings by seven federal circuits that have recognized Americans’ “right to record” – the right to hold up a smartphone and make a video of law enforcement in action. One of those – the Fourth Circuit Court of Appeals – noted that “recording police encounters creates information that contributes to discussion about governmental affairs.”
 
Yet DHS Assistant Secretary for Public Affairs Tricia McLaughlin said that “videotaping ICE law enforcement and posting photos and videos of them online” is a crime, and that “we will prosecute those who illegally harass ICE agents to the fullest extent of the law.”
 
DHS Secretary Kristi Noem seems to have a similar view. After the shooting of Renée Good, Noem connected her to  “domestic terrorism.” And McLaughlin labeled Alex Pretti – slain by agents after he filmed them – as also committing an “act of domestic terrorism.” 
 
Preemptively labeling Good and Pretti as terrorists when official investigations have hardly begun seems counterproductive. And the current administration would do well to remember the Biden Administration, which linked parents who got into heated discussions at school board meetings and “radical traditional Catholics” to “domestic terrorism.” Remember, too, that the Woodrow Wilson administration freely labeled Americans as “disloyal” and worse if they criticized America’s participation in World War I.
​
History has been unkind to every administration that has tried to stretch charged words like “terrorism” to cover lawful dissent. The Trump Administration would do well to make a clean break with these broad-brush depictions of Americans exercising their First Amendment rights. Let us hope that such a break will be part of President Trump’s recently announced “reset” of his administration’s immigration enforcement policy.

​Iran did not merely censor dissent last week. It turned off the lights on an entire nation.

In a recent post on X, Greg Lukianoff, a free speech lawyer and CEO of the Foundation for Individual Rights and Expression (FIRE), pointedly reminded defenders of liberty what the tumult in Iran represents:

“So, my international free-speech brethren: this is a big one. A tyrannical theocracy has shut down the internet for an entire country so the world can’t see the brutal tactics it plans to use to crush a free Iran. In my view, this is the biggest free-speech story in the world.”

Behind these drawn curtains, international observers believe that thousands of protesters were tortured and executed. Many U.S. commentators are asking why American college students, who so vigorously protested the human rights dimensions of Israel’s actions in Gaza, have been largely silent about Iran. This is a double standard in which Israel and other democracies are always fair game for severe criticism and protest, but tyrants, perhaps because they are expected to behave badly, get a free pass. (Not all campuses have been quiet. The Iranian Student Association of Northeastern University in Boston occupied the campus quad and chanted, “Hey hey, ho ho. Ayatollah must go.”)

Every American, not just college students, should be alarmed at the ease with which the Iranian regime cut off dissidents and protesters from the world. This incident shows how internet access has become the oxygen of safety and free speech. Shutting it down, like stepping on an oxygen tube, is an act of authoritarian aggression against people. As FIRE’s Sarah McLaughlin posted, with internet blackouts, the repression of information goes hand-in-hand with brutal violence:

“Iran isn’t just using brute force to escalate the crackdown on its people. It’s also deploying a repressive tactic that’s become increasingly common: suppression of the tools government critics use to broadcast their message on a mass scale. Authorities’ ultimate aim is to limit what their subjects can say – and what the rest of the world can know about it.”

And while Tehran is a repeat offender, it is by no means alone:

“Last year marked the most severe year yet for internet shutdowns, with researchers tracking nearly 300 disruptions and blackouts in dozens of nations. India, Myanmar, Pakistan, and Russia stood among the worst offenders.”

No doubt, Iran’s tyrants are deeply worried. Authoritarians, McLauglin points out, wouldn’t work so hard if they thought their populations were powerless. When they believe their people are cowed, they are happy to let them have their digital distractions.

What’s happening in the world’s dictatorships is also happening in democracies in quieter, more bureaucratic forms (see more on India). “The future of freedom depends on the internet,” writes McLaughlin. “We must start acting like it.”

That means recognizing internet access not just as a convenience or source of entertainment, but as a critical civic infrastructure – no less essential than open roads, courts, or elections. When governments claim the power to silence networks “temporarily,” they are asserting the power to disappear people permanently. Iran’s blackout is not a foreign aberration. It is a stress test – and one free societies should not assume they will pass by default.

​Take your mind back to October 7, 2023. Hamas fighters, amped up by amphetamines and toxic ideology, sprinted from Gaza into Israel. They massacred young concertgoers. They raped Israeli women. They slaughtered babies in their cribs and murdered children in front of their parents.
 
More than 1,200 Israeli civilians were killed.
 
Three days later, University of California, Davis, American Studies professor Jemma DeCristo reacted to that event with the above statement on X. For the obtuse who still didn’t get her point, DeCristo added emojis of a knife, an axe, and three giant drops of blood.
 
For obvious reasons, this post sparked outrage around the world. Unlike many similar posts, it didn’t seek to justify violence in a distant land. It called for doxing and murder – how else is one to interpret axes and blood? – against American journalists and their children. After a two-year investigation, the university last week decided not to fire DeCristo, accepting her argument that the post was meant to be “sarcastic.”
 
This story highlights many academic controversies, from rising antisemitism on the American campus to the capture of many departments by far-left ideologues (DeCristo is a self-described “anarchist”). For our part, we see this case as a Gordian knot of First Amendment issues.
 
For example, did DeCristo have a First Amendment right to post this?
 
It could be argued that since DeCristo called for violence against an identified group of Americans – journalists and their children – DeCristo’s post met the U.S. Supreme Court’s definition of speech likely to incite imminent lawless action. The saving grace is that no such violence occurred. If this post wasn’t incitement, however, it was right up against the line.
 
Another issue: Would U.C. Davis – which put a letter of censure in her file – have been within the parameters of the First Amendment if it had fired DeCristo?
 
While the “right of expressive association” is not explicitly articulated in the Constitution, the U.S. Supreme Court has held that the right of expressive association is inherent in the First Amendment’s protection for free speech. Consider the impact on a group’s speech if the NAACP were forced to include the Klan in its leadership? Or the Freedom from Religion Foundation had to include clergy on its board?

Groups centered around a message have the right to set the terms of their membership and leadership, or else the integrity of their speech is destroyed. Perhaps the obverse of that principle is also correct. A First Amendment culture cannot thrive in the face of threats against people based on their race, religion, or gender. The U.C. Davis investigation confirmed that the post “injured members of the Jewish community, who felt scared, isolated, and angry to see this type of violent and hateful rhetoric from a U.C. Davis professor.” 

Professors enjoy wide latitude under the rubric of academic freedom. That is a good thing. But is that latitude infinitely elastic? U.C. Davis, as a public university, also has some degree of accountability to the California Legislature and the taxpayers of California. And it has a right to employ professors who convey respect for the values of tolerance and civility.  

One lesson should have been clear since 1956, when Autherine Lucy had to be driven from class to class by the dean of women at the University of Alabama while more than a thousand men screamed threats at her and pelted the car. Were they merely expressing their First Amendment rights through their rage at a Black woman who had the temerity to study at Alabama? If a professor had been among them, would he have been protected by the doctrine of academic freedom? 
​
Concerning the latter, we have to ask how vibrant the First Amendment can be in today’s academic monoculture. It is, for example, just and necessary to give students a full understanding of the ugly history of slavery in the United States. But shouldn’t students also know that if you scan world history – the empires of China, Persia, Greece, Rome, and ancient Mexico – you will not find another civilization waging a civil war against itself in order to eradicate slavery?
 
And yet the academic discipline to which DeCristo belongs literally seems to have nothing good to say about America, as detailed in a recent Wall Street Journal article by Richard Kahlengberg and Lief Lin entitled, “American Studies Can’t Stand Its Subject.” They found that of 96 articles in the flagship journal of the discipline, American Quarterly, 77 percent focused on American racism, imperialism, classism, sexism, xenophobia, homophobia and transphobia. Not a single positive article was found over a three-year period – not one about America’s dominance in Nobel Prizes, the defeat of Nazi Germany, or the moon landing.
 
The First Amendment won’t thrive if the academy succumbs to a crabbed, ideological, and frankly pathological view of America – now spiced by hatred of American Jews – with screeds crowding out scholarship. Nor will it be restored by the clumsy, top-down efforts of some in the current Administration to dictate instruction by fiat.
 
What is needed is a cultural shift back to open debate and curiosity. A good first step would be to redirect Jemma DeCristo’s salary to an earnest American Studies scholar who will challenge students with hard questions about our nation’s complex history and culture.

Will Smith sang of Miami, “the heat is on all night.” In Miami Beach, it’s on all day too, especially if one is brazen enough to criticize the mayor.

A couple of weeks ago, resident Raquel Pacheco left a hot comment on a Facebook post by Mayor Steven Meiner. The mayor had posted, “Miami Beach is a safe haven for everyone,” adding, “We will always stand firm against any discrimination.”

In response, Pacheco commented:

“The guy who consistently calls for the death of all Palestinians, tried to shut down a theater for showing a movie that hurt his feelings, and REFUSES to stand up for the LGBTQ community in any way (even leaves the room when they vote on related matters) wants you to know that you’re all welcome here.”

She then added three clown emojis.

Two police officers were soon dispatched to knock on her door. One of the officers was later identified in a photo taken at a residential campaign event for the mayor in October.

Both Pacheco and Meiner are Jewish, but they have very different views when it comes to Israel, culture, and politics. To be clear, Pacheco’s post was hyperbolic. The mayor has never called for the death of Palestinians. He did, however, attempt to break the city’s lease with a theater that was showing what he considered to be a film that contained anti-Israeli hate speech. As for LGBTQ issues, community reviews are far from glowing.

Pacheco’s comment and additional replies contained inaccuracies, sarcasm, and exaggeration. But nothing in it justified a police visit, which could be taken as a thinly disguised attempt at intimidation. Agree or disagree with her words, they strike us as a traditionally, and perhaps uniquely, American approach to political discourse – which is to say, rude –  yet guaranteed by an at-times inconvenient First Amendment. This isn’t Germany, after all, or the UK, where comedians are arrested for tasteless jokes.

Which leads us to wonder, was it the clown emojis that pushed the mayor and his team over the edge? We wouldn’t envy anyone the task of explaining emojis to James Madison and his fellow founders, but we feel confident they would recognize them as symbolic communication, the substance of all human language, and therefore something to be given a wide berth when confronted by thin-skinned authorities.

The only truly scary line uttered by anyone involved in this entire imbroglio came from one of the attending police officers. Whether speaking on behalf of his boss or not, he told Pacheco:

​“What we’re just trying to prevent is someone else getting agitated or agreeing with the statement.”

Send in the clowns.

​Once upon a quainter time, America’s elected leaders understood that it is unwise and improper to fully exercise their First Amendment rights by commenting on an ongoing homicide investigation. Just because the Constitution allows you to speak does not make all speech wise, prudent, or necessary.
 
President Richard Nixon learned this the hard way in 1970 when he declared Charles Manson, then on trial, “guilty, directly or indirectly, of eight murders without reason.”
 
This set off a firestorm of criticism, despite the fact that Manson was obviously guilty of inciting the murder of actress Sharon Tate and seven others. The president’s comments interfered with the due process of an ongoing trial, potentially giving Manson’s defense attorneys an unexpected gift.
 
Within hours, the Nixon White House released a statement:
 
“To set the record straight, I do not know and did not intend to speculate as to whether the Tate defendants are guilty, in fact, or not. All of the facts in the case have not yet been presented. The defendants should be presumed to be innocent at this stage of the trial.”
 
Like many other long-respected guardrails, the prohibition of official interference in homicide investigations and prosecutions has been cast aside. It started with the early verbal conviction by politicians of the police officer who was ultimately found guilty of the murder of George Floyd. The emergence of politicians as judge and jury escalated with another fatal shooting in Minneapolis, that of Renee Nicole Good at the hands of an Immigration and Customs Enforcement (ICE) officer on January 7.
 
Within days of that event, former Secretary of State and U.S. Senator Hillary Clinton posted on X: “Last night, at the corner where an ICE agent murdered Renee Good, thousands of Minnesotans gathered in the frigid dark to protest her killing.”
 
President Trump chimed in on Sunday. Speaking to reporters, he said: “At a very minimum, that woman was very, very disrespectful to law enforcement.”
 
This prompted Mike Fox, a legal fellow at the Cato Institute’s Project on Criminal Justice, to tell The New York Times: “As far as I can tell … she’s just a local woman who lived in the community. But it doesn’t really matter, right? You don’t get to kill someone because they engage in conduct that you disagree with or find distasteful or deplorable. If cops could just kill people any time they get annoyed or frustrated, my God, we would be in trouble.”
 
Whatever your views about Americans treating the police with disrespect – and to be clear, while we exist to defend speech, we hate it when people insult police officers – courts have long upheld that speaking disrespectfully to the police is protected by the First Amendment. Courts have even upheld the right of Americans to curse at cops, so long as their words are not threatening violence. Perhaps you disagree. But we hope you agree that in this country, we don’t shoot people in the head for being “very, very disrespectful.”
 
Tom Homan, White House “border czar,” is one public official who has kept his head. He told Tony Dokoupil of CBS:
 
“I am not going to make a judgment call on one video when there’s a hundred videos out there. I wasn’t on the scene. I’m not an officer that may have body cam video. It would be unprofessional to comment on what I think happened in that situation. Let the investigation play out and hold people accountable based on the investigation.”
 
While the FBI having taken over the investigation have made some people suspicious and others defensive, the wiser course is still to let the legal process play out before litigating it in the court of public opinion.
 
That is far better than convicting an officer of murder while an investigation into his actions is still under way, or suggesting that – “at a minimum” – Americans are subject to being shot to death for exercising their First Amendment rights.

​Those words, penned by Thomas Jefferson in the Declaration of Independence in 1776, were revolutionary in every sense. They defined human rights not as gifts bestowed on people by their rulers, but as birthrights we all possess as human beings. In a provocative and thought-provoking essay published by the Ethics and Public Policy Center, Andrew Walker and Kristen Waggoner ask whether the right to free speech is related, as the Declaration suggested, to the will of our Creator.
 
Of course, for that question to make sense, one must believe in God. The late Nat Hentoff, author of Free Speech for Me, But Not for Thee, was a confirmed atheist and passionate defender of free speech. He believed in the ethical roots of free speech – as well as its value for democracy. But Walker and Waggoner see moral roots in free speech – “not merely a political concession of liberal democracies but [one that] arises from humanity’s nature as rational agents made in the image of God, created to be seekers and speakers of truth.”
 
The rub, as Pontius Pilate asked, is: What is truth? The answer from belief is that truth is rock-solid and not subject to the relativism of politicians. “In general,” the authors write, “speech enters a ‘danger zone’ when people abandon the pursuit and expression of truth, allowing prurient (valueless), scandalous, malicious, and inciteful (physically animating) speech to predominate.” They later write: “Not all sinful speech should invite government regulation.”
 
On that note, we can imagine Lenny Bruce crushing a cigarette on the floor and saying – with a few choice expletives – “not any *@#$% regulation at all!” Walker and Waggoner, however, in defining their “Public Theology of Free Speech,” also see the dangers of government regulation: “We allow free speech as a political concession in service of a deeper moral and theological right – the right to seek and speak the truth.”
 
As theologians have argued for millennia, free will enables sin, but without that enablement, no virtue would be possible. The same holds true for speech. The Supreme Court allows government sanction of direct calls for violence, as well as the punishment of libel and false advertising. Going further than that risks tampering with free will. The authors quote Christ, who warned in the parable of the weeds, “lest in gathering the weeds you root up the wheat along with them.”
 
Whether the roots of free speech are divine or ethical, Walker and Waggoner converge with Hentoff on the value of free speech. The latter wrote:
 
“Those who created this country chose freedom. With all of its dangers. And do you know the riskiest part of that choice they made? They actually believed that we could be trusted to make up our own minds in the whirl of differing ideas. That we could be trusted to remain free, even when there were very, very seductive voices – taking advantage of our freedom of speech – who were trying to turn this country into the kind of place where the government could tell you what you can and cannot do.”
 
Is there a better use of humanity’s free will than that?

Wilmer Chavarria is a school superintendent in Vermont. He became a U.S. citizen in 2018 after arriving in the United States a decade earlier to get an education. In April, he refused to sign his state’s request to certify to the U.S. Department of Education that no school district in Vermont was using “illegal” DEI practices.

He did so publicly, noting that his district is Vermont's most diverse. The controversial DOE request was one that 19 states, including Vermont, ultimately refused to comply with. Agree or disagree, Chavarria’s political speech should not make him a target for selective law enforcement.

Chavarria is making precisely that claim, suing the Department of Homeland Security for an incident at Bush Intercontinental that happened a suspiciously coincidental three months after he criticized the policy.

According to the lawsuit, Customs and Border Patrol (CBP) agents detained him and demanded his device passwords. They threatened him and refused to say why he was being held. Only after agents promised not to look at confidential student records did he reluctantly relent. The agents then disappeared with his devices, returned them without comment, and immediately revoked his longstanding TSA Global Entry status, stating that Chavarria suddenly no longer met “program eligibility requirements.”

That day in July, he was returning home after visiting family in Nicaragua – something he had done many times before without trouble. When asked about such incidents, CBP consistently maintains that “lawful” travelers need have no fear of being detained. By that logic, it appears that New England schoolchildren and naturalized citizens are a greater threat to the republic than anyone previously realized.

In short, this story looks like political targeting, walks like it, and quacks like it. There are some 26 million naturalized U.S. citizens. And from the moment they finish swearing “so help me God,” they fall under the protection of the First Amendment, no less than a native-born citizen of Vermont or metropolitan Houston.
​
As the lawsuit proceeds, Congress would do well to look under the hood of this detention and forced surveillance. If political dissent can trigger warrantless searches, credential revocations, and digital shakedowns at the border, then the problem is not one traveler – it’s the power over speech being exercised in our name.

Sen. Ted Cruz (R-TX) set off a political firestorm in September when he warned that a public campaign by Federal Communications Commission Chairman Brendan Carr to pressure ABC into firing late-night host Jimmy Kimmel was “dangerous as hell.” Cruz said Carr’s warning to ABC – “we can do this the easy way or the hard way” – sounded less like a regulator than a mob boss, invoking the classic mafioso line: “Nice bar you have here – shame if something happened to it.”
 
The Kimmel controversy revived a perennial concern about government power over speech: when does regulation cross the line into coercion?
 
When Carr appeared last week before the Senate Commerce Committee, however, Sen. Cruz dialed down the rhetoric and sharpened the analysis, making two interesting observations. First, the senator surveyed Democrats’ long record of abusing the First Amendment. Second, he identified the legal authority that makes such abuse possible – the New Deal-era law that created the FCC also empowered the agency to police broadcast licensees to ensure they serve the “public interest” through diversity of views and community service.
 
“I think you would agree that the FCC’s public interest standard has been weaponized against conservatives in the past,” Cruz said to Carr. The senator from Texas cited efforts by Democratic senators in 2018 to prevent the conservative Sinclair media company from making a major acquisition. He noted that in 2023, left-wing groups sought to stop a renewal of the license of a Fox-owned broadcast station over complaints about its 2020 election coverage.
 
Carr agreed that there were times in which the agency, “rather than follow FCC precedent, broke from it and did so in a weaponized way.” This paved the way for Cruz to then examine the behavior of the FCC under Carr.
 
About Kimmel, Cruz said:
 
“ABC and its affiliates would have been fully within their rights to fire him or simply to no longer air his program, that was their choice. But what government cannot do is force private entities to take actions that the government cannot take directly. Government officials threatening adverse consequences for disfavored content is an unconstitutional coercion that chills free speech …
 
“Democrat or Republican, we cannot have the government arbitrating truth or opinion … Mr. Chairman, my question is this: so long as there is a public interest standard, shouldn’t it be understood to encompass robust First Amendment protections to ensure that the FCC cannot use it to chill speech?”
Protect The 1st welcomes Sen. Cruz’s principled stand for restoring the law to its limited, constitutional aims – rather than allowing it to be used for partisan management of news and opinion. But we would go one step further. The “public interest” duty itself has outlived whatever justification it once had.
 
That standard may have made sense in an era when a handful of broadcasters controlled scarce spectrum and dominated local markets. It makes little sense today, in a media environment defined by abundance – streaming video, cable networks, podcasts, and the internet – all of which operate free from FCC content supervision.
 
Experience has now shown that the public interest standard is less a neutral safeguard than a loaded weapon – one that both parties have repeatedly been tempted to wield against disfavored speech. A rule that invites political abuse, chills expression, and places government officials in the role of speech arbiter cannot be reconciled with the First Amendment.
 
Given that history, it is truly in the public interest to retire the public interest standard.

​Not since 1970, when the Weather Underground emerged from the University of Michigan to unleash a wave of bombings – and the nation witnessed the massacre of students at Kent State – has the American campus seemed so prone to ideological violence. What impact is violence having on students’ attitudes toward free speech?

The Foundation for Individual Rights and Expression (FIRE) sponsored a nationwide survey of 2,028 undergraduates in October, in the aftermath of the assassination of Charlie Kirk at Utah Valley University (UVU). Some 204 UVU students were included in this survey.

The College Pulse Poll commissioned by FIRE found:

• Half of students say that they are less comfortable attending or hosting controversial public events on their campus.

 

• Forty-five percent are less comfortable expressing their views on controversial topics in class after the murder of Charlie Kirk; 43 percent are less comfortable doing so in common campus spaces, and 48 percent on social media.

 

• Roughly one in five students say they are now less comfortable attending class.

And these results were compiled before a gunman killed two students – at this writing, for reasons unknown – on the Brown University campus on Dec. 13.

Calm Surface, Roiling Emotions

The poll shows that UVU students appear more sensitive to speech rights than their peers, a sensibility born of trauma. The UVU campus, FIRE reports, “appears calm,” but “the survey data tells a more complicated story.”

• Seventy-four percent of students nationally say that the state of free expression in the United States is heading in the wrong direction. By contrast, 86 percent of UVU students believe the environment for free speech is deteriorating.

Confusing Words with Violence

One of the most provocative findings of the national survey is that nine out of ten students agree or partially agree that words can be “violence.” This prompted J.D. Tuccille in Reason to write: “Of all the stupid ideas that have emerged in recent years, there may be none worse than the insistence that unwelcome words are the same as violence.”

We would add some nuances. First, we doubt that all undergraduates immediately grasped the First Amendment implications of this question. Second, it deserves to be said that some speech can inflict wounds and leave lasting scars, much like physical violence. Imagine a drunken father berating his six-year-old daughter in the coarsest, most brutal language imaginable. That’s verbal violence that could lead to a court terminating parental rights.

But we take Tuccille’s point.

Imagine college students triggered into terrified paralysis by a speaker who argues that 19th-century colonialism brought some benefits to the peoples of Africa and Asia, or a professor denouncing Gen. George Washington for ordering massacres of Iroquois villagers during the American Revolution. College students who expect to practice critical thinking need to entertain such challenging thoughts.

“Telling young people who haven’t been raised to be resilient and to deal with the certainty of encountering debate, disagreement, and rude or hateful expressions in an intellectually and ideologically diverse world plays into problems with anxiety and depression,” Tuccille writes. “It teaches that the world is more dangerous than it actually is rather than a place that requires a certain degree of toughness. Worse, if words are violence, it implies that responding ‘in kind’ is justified.”

Is Some Speech So Heinous that Violence Is Justified?

Regarding Tuccille’s last point, perhaps the most interesting result of the survey is that before Kirk’s murder, 81 percent of UVU students responded that using violence to stop a campus speech was “never” acceptable. Now, 94 percent of UVU students believe violence is never acceptable. (We wonder, however, what the remaining 6 percent failed to notice.)
​
The FIRE poll shows that exposure to actual violence – including the impossible-to-unsee silencing of a man who only sought open debate – is making the vast majority of students appreciate the difference between violent acts and provocative speech.

​Mark Twain once said, “It ain’t the parts of the Bible that I can’t understand that bother me, it’s the parts that I do understand.”

Whether you’re religious or not, you have to admit he had a point. If the Bible were made into a movie, parts of it would have to be rated NC-17 for violence. The same could be said for some quotes from the Quran. Or consider Hinduism’s Bhagavad Gita, in which Krishna prepares Arjuna to wage a bloody battle, inspiring the prince to ride forth in his chariot, shooting arrows and slashing with his sword.

The response of the faithful is that context is everything. Some of these passages are best understood as history, some as religious parable, some as spiritual metaphor – representing the battles we fight within ourselves.

For many contemporary critics of religion, however, things only get worse when someone preaches religious teachings on sexual morality and marriage. All the orthodox forms of the great world religions hold standards of morality that would draw the ire of a modern HR department.

You might cherish or deplore these religious views, but should those who espouse them be prosecuted for hate speech?

The governing Liberal Party in Canada thinks so.

It is backing a move in Parliament to remove an exemption for religious speech under that country’s “hate speech law.” The current criminal code in Canada includes the following exemption that politicians wish to expunge: “If, in good faith, the person expressed or attempted to establish by argument an opinion on a religious subject or an opinion based on a belief on a religious text.”

It is this exemption that the Liberals and their partner in government, Bloc Québécois, are seeking to strike from the law.

In the United States, under the First Amendment – which guarantees both free speech and the free exercise of religion – Americans can debate their views on religion without fear of prosecution. Any attempt to dictate either speech or theology is forbidden, even when others find the speech or belief offensive.

The efforts of Canadian politicians to criminalize religious speech are a recipe for an endless culture war between the government and Catholics, evangelicals, Muslims, and Hindus. The very idea of forbidding the advocacy of traditional religious standards highlights the danger of having a “hate speech” code in the first place.  
​
Thank you, James Madison.

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

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

Precedent Is “a Dried Husk”

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

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

 

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

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

Who Makes the Laws?

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

Lawmaking?

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

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

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

Regulating Speech: Risks Under Both Models

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

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

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

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

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

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

A Constitutional Contradiction with No Easy Fix

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

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

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

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

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

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

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

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

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

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

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

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

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