​Earlier this summer, we wrote about an opinion and order issued by Judge Terry Doughty of the U.S. District Court for the Western District of Louisiana in the case of Missouri v. Biden. The controversy stemmed from accusations of government censorship and viewpoint discrimination against speech – under both the Biden and the Trump administrations – most notably social media posts related to COVID-19.

The plaintiffs argued that the government pressured social media platforms to such a degree that it interfered with the First Amendment right of the platforms to make their own content moderation decisions. Judge Doughty agreed.

The district judge’s controversial order enjoined the White House and a broad range of government agencies from engaging in a wide array of communications with social media platforms, with 10 separate provisions laying out the parameters. The administration appealed to the Fifth Circuit, which stayed the injunction.

Now, a three-judge panel from the Fifth Circuit has weighed in. Broadly, they side with Judge Doughty’s finding that the White House, the Surgeon General’s office, the FBI, and the CDC either coerced or significantly encouraged social media platforms to moderate protected speech.

At the same time, the court significantly reduced the scope of the injunction order, striking nine out of the 10 prohibitions for vagueness, overbreadth, or redundancy. Further, the court found that a range of enjoined parties – including former NIH Infectious Disease Director Anthony Fauci and the State Department – did not engage in impermissible conduct.

What we are now left with is a much narrower new injunction with a single prohibition reading as follows:

“Defendants, and their employees and agents, shall take no actions, formal or informal, directly, or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies’ decision-making processes.” 

Unsurprisingly, the Biden administration is appealing the ruling – this time to the highest court in the land. The U.S. Supreme Court granted the administration’s request for an administrative stay of the Fifth Circuit injunction as the administration prepares to file a petition for certiorari by Oct. 13 (which would allow the Supreme Court to hear the controversy this term).

While it is at least reasonably likely that the Court will agree to hear this case, we stand by our prior position on the issue – that questions surrounding the limits of government interaction with social media companies merit a vigorous, informed public debate. We again urge Congress to hold bipartisan hearings to examine among other questions whether social media platforms find the communications with government to be unwelcome pressure or whether they find the information provided to be helpful.

In order to combat a tide of Covid misinformation, in 2021 the White House began closely monitoring social media companies’ health related postings.

The sense of urgency felt by federal officials was soon reflected in sometimes hyperbolic communications to the public that reflected the deep concern with a flood of harmful misinformation that they believed was getting in the way of the provision of accurate Covid related information to the public. In July 2021, at a White House presser, the Surgeon General accused social media companies of “enabl[ing] misinformation to poison” the public. Soon after, President Biden responded with his own comment about social media “killing people” and the White House publicly discussed legal options. Social media companies apparently understood the message, changing internal policies and making new efforts to deplatform users like the “disinfo dozen,” a list of influencers deemed problematic by the White House. Still, the administration continued its public messaging, with the White House Press Secretary at one point expressing explicit support for Section 230 reforms so the companies can be held accountable for “the harms they cause.”

Of course, the government must be able to communicate freely to the public and with private companies, especially on matters of public health and safety. The parties released from the District Court’s injunction likely exercised that right appropriately. There is danger, however, when the government works with social media silently to remove content, with no public transparency, especially if there is a hint (or more than a hint) of coercion.

What is that danger, exactly? Reasonable people agree there are public health messages that are irresponsible and harmful. But secret censorship, no matter the justification, is the royal road to a censored society.
​
Protect The 1st hopes that congressional hearings and a high Court review will bring clarity on the question of government communications with social media, now America’s main public square.

​The Foundation for Individual Rights and Expression (FIRE), in conjunction with College Pulse, published its fourth annual survey on free speech at colleges and universities around the country. The survey included over 55,000 students from 254 institutions.
 
Bottom line: No school on the list earned an “Exceptional” or “Very Good” rating. The  best earned a “Good” speech climate rating.
 
The top five universities in the country for their speech climates were Michigan Technological University, Auburn University, the University of New Hampshire, Oregon State University, and Florida State University. At the bottom of the pack is Harvard University, followed distantly by the University of Pennsylvania, the University of South Carolina, Georgetown University, and Fordham University.
 
The University of Chicago, which previously held the top spot in 2020 and 2023, slid in the rankings this year, but this was mostly driven by the inclusion of considerably more schools. In fact, this year’s survey is the largest ever conducted by FIRE and College Pulse, up from just 54 institutions in 2020. Other universities that consistently rank highly include George Mason University, Purdue University, the University of Virginia, and Texas A&M University.
 
Just because a school scores highly, though, doesn’t mean that students necessarily feel safe.
 
When asked whether they self-censor often, 18% of students at the top five schools for freedom of speech reported that they do, whereas 20% of students at the bottom five schools said the same. Fifty-four percent of students at the top five schools reported worrying about damaging their reputation because of someone misunderstanding what they have done or said, whereas 57% of students at the bottom five schools reported the same. Overall, the average score on “Comfort Expressing Ideas” at the top five schools did not differ significantly from that of the bottom five schools.
 
Far from being safe to express one’s beliefs at the top five schools, students at these institutions may only experience a moderately less hostile environment. This insight underscores how much work still needs to be done to make even the most tolerant American universities safe for academic freedom.
 
Other facts from the report stand out. Students at the bottom five institutions were more biased against politically diverse speakers and were more accepting of disruptive or violent protests to stop a campus speech. Consequently, deplatforming speakers at these institutions was successful 81% of the time. More students this year (45%) compared to last year (37%) reported that blocking other students from attending a speech is acceptable to some degree.
 
While opposition to a controversial conservative speaker appearing on campus was considerably higher (57% to 72%, depending on the speaker) than a controversial liberal speaker, controversial liberal speakers were still opposed by anywhere between 29% to 43% of the student body.
 
Hostility to a speaker of a particular political persuasion may be more akin to a numbers game, rather than the domain of one particular ideology. For example, in 2021 at Florida State University, Dr. Meghan Martinez’s class “The History of Karen: Weaponizing White Womanhood,” the title of which leaves nothing to the political imagination, received significant backlash, causing the class to be removed from the course catalog.
 
The report contains many more fascinating insights into the state of free speech across America’s institutions of higher learning. Protect The 1st congratulates FIRE and College Pulse for another informative and thoughtful list.

​At first glance, the news that the National Constitution Center in Philadelphia has opened a gallery dedicated to the five freedoms of the First Amendment might strike producers and consumers of headline news as about as momentous as a national pie eating contest.
 
But take a look at Asha Prihar’s colorful blog at billypenn.com showcasing this exhibit’s depth, both historical and philosophical, and ask yourself if this exhibit isn’t well-timed and sorely needed. The gallery includes a 1789 letter from George Washington at the Constitutional Convention explaining to Quakers how the First Amendment, then awaiting ratification, would protect religious liberty. It tells the story of Elijah Lovejoy, an abolitionist who refused to quit publishing anti-slavery editorials in the face of angry mobs – and paid for his stubborn dedication to an ideal with his life. It tells the story of how the First Amendment advanced civil rights and how it relies on the good judgment of the people to tolerate vile speech upheld in the Supreme Court decision, Snyder v. Phelps (2011).
 
As one digitally strolls through this gallery, it becomes clear that the need of 21st century America for such an exhibit is cavernous. Case in point, an eminent law professor of our acquaintance, who teaches at a highly ranked law school, told us that when he recently began to teach the rudiments of the First Amendment, students balked. One asserted that a prominent politician with a national profile said things that were “evil” and that he therefore should be silenced.
 
The professor asked obvious questions:
 
Who decides what is “evil”?
 
Would you put an American – in this case, a major political figure elected by a majority of voters in his home state – in prison for saying something you regard as evil?
 
If we outlaw speech we don’t like, does it go away – or are we investing it with the glamor of the forbidden?
 
And what will you do when someone defines your speech as “evil” and comes after you?
 
These are the basic questions that were once presented in high school civics classes, not heard for the first time in a law school. In the face of these questions, this one law school student persisted –“but we just can’t let this guy go around saying things that are evil.” None of the professor’s questions penetrated. There is a level of senselessness in higher education, in public schools and in government – coming from both the right as well as the left – regarding the principles of free speech that approaches the satirical levels of Mike Judge’s 2006 masterpiece, Idiocracy.
 
So yes, the opening of a First Amendment Center at the National Constitution Center is something to be celebrated. So are the daily activities of the Free Speech Center at Middle Tennessee State University, which promotes the First Amendment through ad campaigns, a YouTube channel, and instructional materials for classrooms across the nation.
 
We cannot explain and celebrate the First Amendment often enough – the contentious, cantankerous, sometimes ugly, sometimes beautiful exercise of free speech that makes us Americans.

​Jaiden Rodriguez, a 12-year-old, was pulled out of class last week and reprimanded by administrators at the Vanguard School, a charter school in Colorado, for displaying a Gadsden Flag patch on his backpack. The school claimed the Gadsden Flag is “considered an unacceptable symbol” because of its “origins with slavery and the slave trade.” In an email to Jaiden’s family, school administrators further claimed that the Gadsden Flag is “tied to hate groups.”
 
The Gadsden Flag originated in the Revolutionary War era when America’s founding generation bravely stood against British tyranny. The flag remains a symbol of liberty and resistance to oppression. That it has been adopted by all manner of groups today says nothing about its historical and enduring meaning to Americans.
 
The school cited a rule that forbade clothing that refers to drugs, tobacco, alcohol, or weapons, yet the Gadsden Flag violated none of those rules. Colorado Gov. Jared Polis, hardly anybody’s idea of an alt-right extremist, came to Jaiden’s defense. The Democratic governor took to X, formerly known as Twitter, to state: “The Gadsden flag is a proud symbol of the American revolution and [an] iconic warning to Britain or any government not to violate the liberties of Americans.” The flag is a “great teaching moment for a history lesson!” added Polis.
 
After Jaiden’s story went viral, the school wisely backtracked on its position. The Vanguard School Board of Directors released a statement of apology: “The Vanguard School recognizes the historical significance of the Gadsden Flag and its place in history. The incident is an occasion for us to reaffirm our deep commitment to a classical education in support of these American principles.”
 
PT1st commends the Vanguard School for quickly reversing course. It is refreshing to see an honest admission of fault on the part of the school. We especially commend Gov. Polis for his strong comments in defense of Jaiden, American history, and student speech.

​In 2000, the U.S. Supreme Court in Hill v. Colorado found that restrictions on speech-related conduct outside abortion clinics was content-neutral and thus subject only to intermediate scrutiny, a lesser degree of protection. Since that time, lower courts have upheld similar state and local restrictions on speech based on this binding precedent – and despite a raft of subsequent cases that call Hill’s reasoning into question.
 
The recent case of Vitagliano v. County of Westchester is a perfect exemple of these ongoing challenges. It is now up for potential review before the Court. It offers a good opportunity to overturn Hill and the unconstitutional legal trend it originated.  
 
Here are the facts of the case: Debra Vitagliano is a devout Catholic whose mission is to offer compassionate counsel to women seeking abortions at the last minute, when such counsel might be most effective. Westchester County, like many jurisdictions before it, passed a law establishing a 100-foot buffer zone around reproductive health care facilities (encompassing public sidewalks), prohibiting anyone looking to offer such assistance from getting within eight feet of another person unless they receive explicit consent.
 
Critics of the Hill decision, including 14 states that recently filed an amicus brief, argue that Hill misapplied the legal test for determining whether a speech restriction is content-based. Specifically, they argue that the Court erroneously relied on Colorado’s references to “access” and “privacy” as justification for the statute’s purported neutrality. Since 2000, the Supreme Court has conspicuously refrained from drawing on Hill’s reasoning, and in Dobbs v. Jackson went so far as to call it a distortion of First Amendment doctrines.
 
Whenever the government passes a speech restriction that is obviously content-based (as it is here) it must be looked at through the lens of strict scrutiny. It must be narrowly tailored to serve a compelling government interest. This means a government cannot simply abridge its citizens’ First Amendment rights because of some particular policy preference – for example, in another context, the idea that protest should not be allowed outside military recruitment facilities because it discourages young people from enlisting.
 
It’s clear that Hill was a policy decision, and while one may agree with its intent, it also opened the door to overstepping when it comes to restricting speech in public places.
 
The sidewalk has long been held to be a public forum. In fact, it’s arguably the place where speech about contentious political issues most belongs. As the Supreme Court wrote in McCullen v. Coakley, sidewalk speech reflects the First Amendment’s goal to “preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.” Criminalizing certain speech on public sidewalks endangers that goal. And preventing Debra Vitagliano from engaging in peaceable, non-violent conversation amounts to the kind of overbreadth that seals the deal when it comes to a law’s unconstitutionality, particularly when laws already exist prohibiting assault, trespass, and blocking clinical access.
 
Whatever your views on abortion, Hill was a bad decision that should be overturned. To quote First Amendment scholar and Harvard professor Lawrence Tribe, the case was “slam-dunk simple.” Its ruling: “slam-dunk wrong.”

The French concept of secularism – or laïcité – derives from the Enlightenment and the culminating revolutionary event that expelled, once and for all in France, the divine right of the king. Much like America’s founding principle of separation of church and state, laïcité discourages the commingling of religion and government, though the French take it a bit further (okay, a lot further). Today, even public displays of faith are frowned upon in France. The way France enforces this philosophy today has a lot to teach Americans about the value of the First Amendment and its guarantee of the free exercise of religion.   

In 2004, France banned students from wearing or displaying overtly religious symbols in schools – including crucifixes, yarmulkes, and hijabs. Now, French education minister Gabriel Attal has announced that girls in state schools will no longer be permitted to wear abayas – long, robe-like garments favored by Muslim women that typically cover the body, but not the head and face, or feet and hands. Minister Attal said: “When you walk into a classroom, you shouldn’t be able to identify the pupils’ religion just by looking at them.”

Attal argues that wearing abayas in school violates laïcité, which was codified into French law in 1905. Abayas are not, strictly speaking, religious. It’s true that it is Muslim women who tend to wear the garments, but it’s certainly not a prescribed uniform. Long dresses have long been popular across cultures. How do you enforce a ban against fashion? (France’s previous education minister, Pap Ndiaye, declined to ban abayas, noting the risk of having to “publish endless catalogues to specify the length of dresses.”)

More to the point, even if abayas were overtly religious like a crucifix, yarmulke, or hijab – what is the danger in allowing students to express their religious identity?

In the United States, most see nothing wrong with such religious expressions. Whether it’s a headscarf or a yarmulke or a bolo tie knotted in the shape of a cross, our Constitution protects the free exercise of religion. Period.

But we’ve seen troubling signs in recent years of a desire among some of our fellow Americans to import the thinking behind laïcité – prohibiting people of faith from participating in public education at all. In Arizona, an elementary school district attempted to ban student-teachers from Arizona Christian University based solely on their religious affiliation. In Minnesota, the state legislature blocked religious schools from offering college credit courses to high schoolers. At Bremerton High School in Washington, the school board fired a football coach for daring to pray after games on the playing field.

The ACU students, at least, were eventually vindicated (Minnesota remains pending). As for the Bremerton case, no less an authority than the Supreme Court of the United States weighed in, making it clear. In Kennedy v. Bremerton, the Court declared:

“Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s. Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.”

The Court went on to underline that just because religious speech by teachers or coaches may occur within the confines of a government school, that does not necessarily make it “government speech subject to government control.” Writing for the Court, Justice Gorsuch added, “On this understanding, a school could fire a Muslim teacher for wearing a headscarf in the classroom or prohibit a Christian aide from praying quietly over her lunch in the cafeteria.”

What we continue to carve out in America – through constitutionally guided policy and sound jurisprudence – is a balance between respecting religion and prohibiting the state establishment or endorsement of one. The French government’s atavistic rejection of even a whiff of the religious takes institutional secularism to troubling and prejudicial extremes. 

Attal, however, is unlikely to agree. “Secularism,” he said, “means the freedom to emancipate oneself through school.” The same freedom might be afforded to those who wish to emancipate themselves from censorship – and religious discrimination.  ​

​The Fourth Circuit Court of Appeals recently handed down a disappointing ruling in an important speech case, holding that a college professor who has been the target of escalating retaliation by his university for criticizing his department is not protected by the First Amendment.
 
North Carolina State’s Stephen Porter, a tenured professor on the NC State faculty since 2011, first got into trouble with higher-ups in 2016 when he objected to adding a question about “diversity” to student course evaluations. What followed was a mounting series of attempts by the university to rid themselves of Porter and to stifle dissent.
 
Porter was accused of “bullying” the person who had proposed adding the question. Later, in 2018, after Porter sent an email linking an Inside Higher Ed article that alleged an NC State faculty search was slanted to favor a minority applicant, Porter was told the administration would “find ways to exclude [Porter] from critical aspects of his job.” In 2019, Porter received another email that stated that students in the department were having strong reactions to his criticism of the Association of the Study of Higher Education (ASHE).
 
Finally, on July 5, 2019, Porter received notice that he was being removed from the Higher Education Program Area – a valued post – because the faculty could not make progress toward resolving issues with him there. After this incident and other punishments, Porter filed suit against NC State in 2021.
 
Porter’s case was first dismissed by the district court judge, who argued he had no legal grounds. Now, the Fourth Circuit has upheld the district court’s ruling, holding that Porter’s statements were not protected by the First Amendment because they were made in his capacity as an NC State employee, nor was his “bullying” protected because it was “an unprofessional attack on a colleague.”
 
Enter Judge Julius Richardson, the lone dissenter in this case.
 
In his dissent, Judge Richardson persuasively argues that Porter’s comments on the ASHE are protected by the First Amendment. Porter could have remained silent about the diversity question and about the drift of ASHE into ideological activism. Porter was not required to submit his opinion as part of his job, and, therefore, he was speaking as a citizen and is protected under the First Amendment.
 
Furthermore, Judge Richardson took issue with the majority’s assertion that because the school did not act against Porter for more than six months after the last of his controversial statements, he had not clearly established that his speech was the reason for the punitive actions taken against him. Judge Richardson argues that obviously NC State had for years been ratcheting up its threats against Porter because his statements frustrated the department’s activist objectives. It strains credulity to think that Porter’s criticism of the department wasn’t the motivating reason.
 
In the last instance, however, Judge Richardson noted that “bullying” does not push Porter’s speech outside of First Amendment protection. Even if that characterization were true, the First Amendment would be toothless if it didn’t cover offensive speech. (Porter did in one conversation use a four-letter word.) Contrast this treatment to Georgetown University’s acceptance of a professor who tweeted that sitting Supreme Court Justices should suffer miserable deaths and have their corpses castrated.
 
We commend Judge Richardson for his valiant stand in defense of the First Amendment. The issues at stake make this case ripe for SCOTUS review. If Porter’s case is left as-is, his situation would provide a dangerous roadmap for censorious administrators around the country on how to micromanage dissenting faculty until they either quit in frustration or can be fired. We look forward to further developments in this case.

​National outrage over a rural Kansas police department’s ransacking of a newspaper, the Marion County Record, will almost certainly result in a massive legal reckoning. But will its larger implications prompt Congress to move to protect journalists from similar interference by federal authorities?
 
Here’s the background: On Friday, the Marion police department launched simultaneous raids on the homes of a reporter, an 80-year-old councilwoman, and The Record’s 98-year-old co-owner, Joan Meyer, mother of editor Eric Meyer. According to the account in The Record, the trauma left Joan Meyer “stressed beyond her limits,” prompting her to quit eating, and to collapse and die the next day.
 
And for what? The Marion police launched this extreme execution of a search warrant to track down an informant who revealed a letter from a state agency about a local restauranteur’s DUI to a Record reporter. The newspaper ultimately chose not to print this story out of concern that the informant acted maliciously in revealing the restauranteur’s personal information.
 
“The police confiscation of virtually all of the equipment of a 4,000-circulation newspaper will be one for the textbooks in both law and journalism schools,” said Rick Boucher, Senior Policy Advisor to Protect The 1st and a former U.S. Representative from Virginia and Member of the House Judiciary Committee. “The seizure of a newsroom is an outrage that demonstrates that absent proper legal restraints, and sometimes even with them, some in officialdom will use a petty excuse to pry open a reporter’s notebooks.
 
“These events triggered a raid in which the police seized computers, servers and snatched cellphones,” he said. “The Record reports that one reporter’s hand was reinjured by having her phone forcibly jerked out of her hand. The police took so much equipment that the staff is scrambling to find a way to publish the newspaper’s next edition.
 
“The police did not just raid The Record, they potentially put it out of print. And as a result, the police – and the politicians they work for – now have ready access to vast amounts of confidential interviews, official contacts, and other investigations that any local paper customarily conducts into city hall.”
 
Boucher noted that the raid is likely a violation of the federal Privacy Protection Act of 1980, opening the door to significant liability for the town.
 
“The larger takeaway from this event is the appetite that some in authority have to bully a sometimes nettlesome press,” Boucher said.
 
“Kansas, like most states, has a shield law that protects journalists and their sources,” he said. “Rather than taking the extreme step of raiding the newspaper’s office and seizing all of its records, if the police had probable cause to believe that stolen property was in the possession of the paper, a subpoena for the record in question would have put in motion a court proceeding at which a judge could have decided whether the Kansas shield law applies. It will be instructive to read the probable cause affidavit behind the search warrant that was issued.”
 
Boucher noted that the federal government, with its huge apparatus of prosecutors and surveillance, is restrained by no such law. While lawmakers and journalists in Kansas sort out how to avoid events like this, Congress should take this opportunity to pass the Protect Reporters from Exploitive State Spying (PRESS) Act to give journalists at least some protection from official intimidation.
 
The PRESS Act passed the U.S. House unanimously last year and was recently favorably reported again without dissent by the House Judiciary Committee.
 
“The House should schedule a full vote when it returns in September,” Boucher said. “Action in the Senate should swiftly follow.”

​Jeff Kosseff, associate professor of cybersecurity law at the U.S. Naval Academy, titled his acclaimed book about Section 230, The Twenty-Six Words that Created the Internet. Those exact words:
 
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
 
Kosseff did not exaggerate. This statute, part of the Communications Decency Act of 1996, protects platforms and websites from any liability contained in third-party posts. Section 230 not only protects Facebook or Twitter (now X) from being sued for libelous posts made by its users, it also protects myriad web-based businesses – from Angi (formerly Angie’s List), to Rate My Professors, to a thousand sites that run reviews of hotels, restaurants, and businesses of all sorts.
 
Without Section 230, a wide swath of U.S. digital commerce would cease to exist overnight.
 
And yet, Justice Clarence Thomas hit a nerve in 2021 when he mused in an opinion that the “right to cut off speech lies most powerfully in the hands of private digital platforms. The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions.”
 
Such questions certainly seemed interesting to lawmakers in Florida and Texas. Texas passed a law that bars companies from removing posts based on a poster’s political ideology. This law was upheld last year by the Fifth Circuit. The Florida law, which would prohibit social media from removing the posts of political candidates, was stricken last year by the Eleventh Circuit. At the time, we wrote that:
 
Cert bait doesn’t get more appealing than this. Consider: A split between federal circuits. Laws that would protect free expression in the marketplace of ideas while simultaneously curtailing the speech rights of unpopular companies. Two similar laws with differences governing the moderation of political speech. The petition for SCOTUS reviewing the Texas and Florida laws practically writes itself.
 
The First Amendment is aimed only at the government. It protects the editorial decisions of social media companies while forbidding government control of speech. But being kicked off X, Facebook, Google, and Amazon would certainly feel like being censored. And there may well be First Amendment implications whenever federal agencies are secretly involved in content management decisions. But if Section 230 is overthrown, what will replace it?
 
In the face of the current circuit split, legal principles get tangled up like fishing lines on a tourist boat. As Kosseff notes in Wired, Americans living under the Fifth Circuit may see drastic alteration of the regulation of internet companies. In the Eleventh Circuit, Section 230 prevails as it is. The resulting confusion is why it is likely the Supreme Court will have to take up a challenge from NetChoice, which represents tech companies.
 
If the Court doesn’t cut this Gordian knot, we could wind up with a Red State internet and a Blue State internet. While the judiciary sorts out its thinking, Congress should act. Protect The 1st continues to press policymakers to look at principles similar to those of the bipartisan Platform Accountability and Consumer Transparency Act, which would require big social media companies to offer clear standards and due process for those who post in exchange for the liability protections of Section 230.

​If the State of North Carolina has its way, the U.S. Supreme Court could soon hear its first case addressing the constitutionality of so-called “ag-gag” laws, statutes that aim to punish whistleblowers and undercover activists.

North Carolina passed the Property Protection Act (PPA) in 2015, seeking to codify a ruling emanating from a late-1990s conflict between Food Lion and ABC News in which two journalists posed as employees and covertly recorded unsafe food-handling practices. Food Lion sued the network, and the Fourth Circuit Court of Appeals eventually found in the supermarket’s favor. The legislature’s 2015 codification of that ruling, in theory, creates an employee disloyalty cause of action and allows for damages resulting from work stoppage.

It’s a clever framing, but the reality is that the PPA is a little more than an unconstitutional “ag-gag” law designed to shield North Carolina’s large-scale farming industry from journalistic scrutiny. That’s certainly what PETA – which brought the case – believes. And two prominent federal courts have now sided with them.

PETA’s argument is that the PPA unconstitutionally burdens its investigative efforts. Specifically, the organization takes issue with a provision in the law that allows employers to sue for damages any employee who “without authorization records images or sound occurring within” the nonpublic areas of the employer’s private property “and uses the recording to breach the person’s duty of loyalty to the employer.” (Three other provisions are also at issue, each prohibiting similar conduct.)  

A federal district in North Carolina agreed with PETA, striking down the law as a content-based restriction on speech. The Fourth Circuit upheld that ruling insofar as it pertained to newsgathering efforts by PETA and similar animal welfare groups but did not rule on the law’s constitutionality applied to other situations. North Carolina subsequently filed a certiorari petition before the U.S. Supreme Court.

What the State of North Carolina is effectively asking the Supreme Court to do is create a new category of unprotected speech – information collected by an undercover investigation in non-public areas. From a policy standpoint, it’s anathema to the very notion of a free press.

America’s venerable tradition of investigative journalism goes back centuries, and is exemplified by trailblazing reporters like Nellie Bly, who became an inmate at the Women’s Lunatic Asylum at Blackwell’s Island to expose deplorable conditions there. It continues today in the form of citizen journalists like Darnella Frazier, who received a Pulitzer Prize citation for recording the murder of George Floyd by a policeman in Minneapolis in 2020.

The right to record is closely linked to investigative journalism, which is and must always be protected under the Constitution. Judge Henry Floyd of the Fourth Circuit perhaps put it best:
“…while we agree that an employer could freely choose to deny entry to journalists who seek to secretly record its inner workings, it does not follow that a State can create ‘new categories of unprotected speech’ to punish those journalists. The First Amendment limits the government; the government does not limit the First Amendment.”
​
Both the Ninth Circuit and Tenth Circuit have invalidated “ag-gag” laws as incompatible with First Amendment press protections. Eight of 11 “ag-gag” laws passed on the state level have been found unconstitutional. If the Supreme Court agrees to hear oral arguments in this case, the Court will find plenty of precedent.

​Communities have the power to pass laws that protect vulnerable minors from clearly inappropriate material, even in cases where adults have a First Amendment right to view and distribute that material to each other. But such laws have to be precise in how they enforce restrictions. And, one would hope, they’d include solutions to actual problems – not just a response to political passions.

Plaintiffs before a federal court – including bookstores, libraries, and patrons of those establishments – take issue with two specific provisions in Arkansas’s Act 372. The first is Section 1, which creates misdemeanor criminal liability for librarians and booksellers, and even parents, who “[furnish] a harmful item to a minor.” The second is Section 5, which creates a process by which any citizen can challenge the appropriateness of any book in a state library according to local community standards, with final decision-making power in the hands of local county quorum courts or city councils.

As the plaintiffs assert, Section 1 would result in either the widespread removal of books or an outright ban on young people under 18 from entering libraries or bookstores. Section 5, they argue, would allow vocal minorities to tell entire communities what they can and cannot read.
In a remarkably restrained order and opinion, Judge Timothy L. Brooks found that the plaintiffs were likely to succeed on the merits of their case based on the overbreadth of Section 1 and the vagueness of Section 5.

Regarding Section 1, Arkansas code defines “harmful to minors” as “any description, exhibition, presentation, or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse” that lacks “serious literary, scientific, medical, artistic, or political value for minors” or would be deemed “inappropriate for minors” by the average adult, based on potentially restrictive local community standards. Factoring in the state’s very broad definition of “nudity,” it’s clear that Section 1 would result in the censorship of a vast swath of popular books, including many with only fleeting or insubstantial references to sexual conduct. It would certainly cover any book with even the most innocuous depiction of same-sex affection.

Moreover, defense counsel candidly admitted in court that, under their interpretation of the law as written, any reading material deemed harmful for a five-year-old minor would also be deemed harmful for a 17-year-old minor, despite obvious differences between the two in maturity and comprehension of adult themes and issues. The U.S. Supreme Court addressed this issue in Virginia v. American Bookseller’s Association, Inc., suggesting that an interpretation of the term “harmful to minors” that includes speech protected for older minors would raise First Amendment concerns.    

Regarding Section 5, Judge Brooks agreed with the plaintiffs that the provision is likely “void for vagueness” because the term “appropriateness” is left entirely undefined. He further notes that it “would permit, if not encourage, library committees and local governmental bodies to make censorship decisions based on content or viewpoint.”

It's worth pointing out that Arkansas already prohibits the provision of obscene material to minors. Accordingly, Judge Brooks asks, “[w]hat has happened in Arkansas to cause its communities to lose faith and confidence in their local librarians? What is it that prompted the General Assembly’s newfound suspicion? And why has the State found it necessary to target librarians for criminal prosecution?”
​
It is better for legislators to focus on protecting children from real harms, instead of passing sure-to-be-voided legislation.

​A New York Times op-ed by two U.S. senators offers a bipartisan counter to the power of Big Tech – eliminate the legal liability protections that have been the cornerstone of the internet since 1996, while imposing “an independent, bipartisan regulator charged with licensing and policing the nation’s biggest tech companies.”
 
The ability to license and police is, of course, the ability to control some of America’s largest social media platforms. If enacted, this measure proposed by Sens. Elizabeth Warren (D-MA) and Lindsey Graham (R-SC) would strip away the ability of minority opinion and contentious views from being heard, while subjecting speech to official, top-down policing by a regulator.
 
The op-ed doesn’t name Section 230, the law that protects platforms that host third-party speech from legal liability. We respect the earnest desire of these two senators to improve the state of online speech, but replacing Section 230 with the vague mandate of a regulator could be profoundly dangerous for the First Amendment’s guarantee of free speech, the lifeblood of democracy.
 
Section 230 restricts the legal liability for illegal acts to the speaker, not the website. It holds those who break the law online accountable for their actions, while holding platforms accountable for preventing serious federal crimes, like posting child abuse sex material. It empowers minorities of all sorts, allowing controversial or unpopular opinions to have their day.
 
Without Section 230, the internet would devolve into a highly sanitized, curated space where any controversial statement or contentious argument would be red penciled. The elimination of Section 230 would take away the vibrant clash of opinions and replace it with endless cat videos and perhaps the regulator’s officially sanctioned views.
 
Many believe, and we agree, that Section 230 needs reform. The bipartisan PACT Act would require platforms to give speakers a way to protest having posts removed, while respecting the First Amendment rights of both companies and speakers, with less risk of government heavy-handedness and censorship.

​On July 4th, Judge Terry A. Doughty, Trump appointed judge of the United States District Court for the Western District of Louisiana, issued an opinion and order enjoining listed federal agencies from “urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms.” The decision follows outcries from some conservatives that government agencies are pressuring social media companies to remove or modify content posted by conservative voices. The order was rapidly stayed by the Fifth Circuit Court of Appeals.  One can be assured that the debate will continue.

We have questions.  

The case, Missouri v. Biden, stems from accusations of government censorship and viewpoint discrimination against conservative speech – specifically, posts related to whether vaccines are effective as a COVID-19 treatment, the origins of the COVID pandemic , the efficacy of lockdowns to slow the spread of the disease, and other content. Unsurprisingly, many on the right lauded the ruling as a victory against the administration’s “Orwellian ‘Ministry of Truth’” (quoting Doughty himself). Others decry it as politically driven theater, which could have significant, deleterious consequences on the government’s efforts to stem the flow of mis- or disinformation.

Judge Doughty found that the posts in question did not fall within the narrow category of speech that is unprotected by the First Amendment (e.g., incitement to violence). He further cited specific examples of exchanges between the White House and various agencies and social media companies that could reasonably be interpreted as coercive. 

On the other hand, many reading the same comments could also interpret them as mere requests – intended to promote public health and safety. Herein lies the difficulty. 

What is clear from this case is that this issue is far from resolved. The Fifth Circuit on July 16th temporarily paused Doughty’s order and agreed to expedite the administration’s appeal. Ultimately that court will decide whether an injunction is appropriate (and, perhaps, another court after that). In the meantime, we are left with those pesky questions.

Is government advice to social media companies helpful? The government possesses intelligence gathering capabilities far superior to those of any social media company. Do platforms welcome advice derived from those capabilities about the harmfulness of  content? Or does the sharing of information constitute undue pressure? Is this a fact-specific inquiry? Where is the line between violating First Amendment rights and protecting public safety? Should the recipient’s perception matter at all? 

These questions merit an informed public debate. In our view, the best means of doing so would be to hold public, bipartisan congressional hearings (arguably not achieved by recent hearings held by the House Judiciary Select Subcommittee on the Weaponization of the Federal Government). The witness list for the hearings should prominently feature executives from the social media platforms who can address the questions directly.

It’s true that courts make policy all the time, but such critical policy debates should not be resolved by injunction (or by reactive, piecemeal state legislation). A robust discussion at the national level is a far better means of comprehensively parsing the many nuances at play when it comes to social media and free speech. 

If it is determined that the government is threatening social media platforms, then that’s a problem that must be addressed – by the courts or by Congress, or both. But at the same time, the government must also be able to speak to private actors, including private companies, and especially on issues of public concern. (You might say it’s fundamental to the very concept of governance.)

One thing lacking from Judge Doughty’s opinion is any articulable roadmap for distinguishing between legitimate government speech and coercion. We need one.  
​
As such, we might urge some of our more enlightened statesmen on both sides of the aisle: it’s time to speak up. 

​The Foundation for Individual Rights and Expression is back in court again to remind the school system that they don’t have the power to curtail student speech outside of the classroom. The organization is representing a 17-year-old rising senior who was suspended by his Tennessee public high school for posting memes making fun of the principal’s dour personality.
 
In August of 2022, Tullahoma High School’s principal Jason Quick and assistant principal Derrick Crutchfield called the student, whose name is not mentioned, to their office and interrogated him about three memes he posted to Instagram off school grounds and outside school hours. As a consequence, Quick suspended the student based on a school policy prohibiting students from posting images on social media which “embarrass,” “discredit,” or “humiliate” another student or school staff. 
 
As FIRE attorney Conor Fitzpatrick said, “The First Amendment bars public school employees from acting as a 24/7 board of censors.” He added that “as long as a student’s posts do not substantially disrupt school, what teens post on social media on their own time is between them and their parents, not the government.”
 
FIRE is representing the student in the hopes the courts will solidify their 2021 ruling in Mahanoy Area School District v. B.L. In that case, also filed by FIRE, the Supreme Court held that Pennsylvania’s Mahanoy Area High School violated former high school cheerleader Brandi Levy’s First Amendment rights by suspending her from the cheerleading team for voicing her frustrations with the school in a Snapchat post. In an 8-1 decision, the Court held that Levy’s comment, similarly posted while off-campus, was directed to her “private circle” of online friends. The Court affirmed that the incident did not constitute the “sort of ‘substantial disruption’ of a school activity or a threatened harm to the rights of others that might justify” disciplinary action.
 
By filing this suit, FIRE cements its hard-fought precedent by standing up for students’ First Amendment rights. The phrase used to be that students don’t have to “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” How far we’ve come that now we need lawsuits to remind schools that students don’t shed their First Amendment rights at home either. PT1 is very pleased to express our support for FIRE’s position in the litigation.

​The Supreme Court made the right call on Tuesday when it reversed (7-2) the conviction of a man convicted in Colorado under that state’s anti-stalking laws, establishing in the process a new standard for the criminal prosecution of “true threats.”

While the First Amendment broadly protects speech – including and especially controversial speech – exceptions exist for obscenity, incitement to violence, and other discrete categories. “True threats” constitutes one of those categories. 

Yet until Tuesday, some judicial disagreement persisted on the question of how to properly evaluate a purported “true threat” – particularly in the online arena. To quote Justice Kagan, “Courts are divided about (1) whether the First Amendment requires proof of a defendant’s subjective mindset in true-threats cases, and (2) if so, what mens rea standard is sufficient.” 

In this case, petitioner Billy Counterman was convicted of stalking by a Colorado court after he sent repeated online messages to a female musician that caused her to fear for her safety. The court convicted Counterman using an objective test employing a “reasonable person” standard. In other words, the court asked whether a “reasonable person” would interpret Counterman’s messages as threatening. The Colorado court found that they would.

On appeal, attorneys for Counterman argued that any determination of whether speech constitutes a “true threat” should take into account the defendant’s intent – i.e. his state of mind (mens rea). The Supreme Court agreed.

In a majority opinion authored by Justice Elena Kagan, the Court found that “the State must prove in true-threats cases that the defendant had some subjective understanding of his statements’ threatening nature.” However, according to the Court, the government need not show that the defendant’s purpose was to threaten; instead, they must merely prove that “the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

This “recklessness” standard, Kagan writes, “offers ‘enough ‘breathing space’ for protected speech,’ without sacrificing too many of the benefits of enforcing laws against true threats.” And it’s a true compromise, too – one where both sides walk away a little unhappy. “The rule we adopt today is neither the most speech-protective nor the most sensitive to the dangers of true threats,” Kagan writes. “But in declining one of those two alternative paths, something more important is gained….”

While the majority recognized that some prosecutors may face a higher burden of proof in future true-threats cases, they correctly weighed that burden against the potentially chilling effects of a purely objective test. Kagan writes: “The speaker’s fear of mistaking whether a statement is a threat; his fear of the legal system getting that judgment wrong; his fear, in any event, of incurring legal costs – all those may lead him to swallow words that are in fact not true threats.”

Legally, incorporation of the “mens rea” element in true-threats cases has been a long time coming. The Court has gradually built that element over the years in cases like Virginia v. Black and Elonis v. United States. In other words, it’s legally consistent with prior opinions – but it’s also good policy.

The American Civil Liberties Union, long an ardent defender of even the most offensive free speech, notes: “[O]ne person’s opprobrium may be another’s threat. A statute that proscribes speech even where the speaker does not intend to threaten, as does the Colorado statute at issue here, runs the risk of punishing protected First Amendment expression simply because it is crudely or zealously expressed.”

This is especially true in the context of online speech, which is “often abbreviated, idiosyncratic, decontextualized, and ambiguous.” Statements made on social media platforms can be accessible to impossibly large, diverse, and unpredictable audiences; how they may interpret such speech is anyone’s guess. Thus, the objective test becomes something like a negligence standard – it criminalizes mistakes. Writes the ACLU: “If First Amendment protections are to enjoy enduring relevance in the twenty-first century, they must apply with full force to speech conducted online.”

An amicus brief co-authored by the Electronic Frontier Foundation and the Student Press Law Center builds on this point, suggesting that the objective standard could “incorrectly capture a staggering amount of humor, hyperbole, sarcasm, art, and even malicious speech that was never supposed to reach a particular person, and/or never intended to be read as threatening.”

​Counterman may well be convicted on remand based on the new, subjective standard for true threats. As for the rest of us, we now have a lot more certainty on the extent to which the First Amendment protects even our coarsest civil discourse – particularly in the online arena.

We applaud the Supreme Court’s ruling, one that protects all manner of speech that may be critical or harsh or hyperbolic – but non-threatening all the same.   

The U.S. Supreme Court ruled 6-3 in 303 Creative LLC v. Elenis to uphold the First Amendment right of a digital designer not to be compelled to write, design, and create websites that violate her beliefs.
 
Protect The 1st applauds the Court’s decision and the reasoning behind it. Despite the religious roots of the appellant’s beliefs, this is fundamentally a case about the free exercise of speech. The Court correctly decided that web design is an expressive industry, and that no writer should be compelled to write something to which they object.
 
Lorie Smith owns 303 Creative LLC, a web design company she wanted to expand into the wedding industry. But 303 Creative’s expansion ran headlong into the State of Colorado’s Anti-Discrimination Act (CADA), which would have required her to design websites for same-sex weddings in violation of her religious beliefs. Smith and 303 Creative lost before a U.S. District Court and the Tenth Circuit Court of Appeals before being heard in oral arguments before the Supreme Court last year.
 
In a ringing defense of speech, Justice Neil Gorsuch wrote in the majority opinion of the inviolability of free speech under the Constitution. The majority opinion states:
 
“A hundred years ago, Ms. Smith might have furnished her services using pen and paper. Those services are no less protected speech today because they are conveyed with a ‘voice’ that resonates farther than it could from any soapbox.”
 
The Court noted that the Tenth Circuit, which ruled against Smith, had reasoned that Smith’s speech was involved in this case, but that “Colorado could compel speech from Ms. Smith consistent with the Constitution.” The majority concludes that First Amendment precedents “teach otherwise.”

For those who are inclined to see this ruling as the beginning of a discriminatory approach to services, Justice Gorsuch fleshed out the consequences if the Court were to uphold the lower court’s logic.
 
“Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message—if the topic somehow implicates a customer’s statutorily protected trait … Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty.”
 
Justice Gorsuch then painted a convincingly realistic dystopian outcome for people on all sides, quoting a dissenting judge on the Tenth Circuit.
 
“The government could require ‘an unwilling Muslim movie director to make a film with a Zionist message,’ or ‘an atheist muralist to accept a commission celebrating Evangelical zeal,’ so long as they would make films or murals for other members of the public with different messages. Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage.”
 
Justice Gorsuch made it clear that there are sharp limits for this ruling, one that pertains to speech and expressive industries.
 
“[W]e do not question the vital role public accommodation laws play in realizing the civil rights of all Americans …”
 
Quoting a prior ruling that public accommodation laws “vindicate the deprivation of personal dignity that surely accompanies denials of equal access to public establishments,” Justice Gorsuch noted that Smith’s “voice is unique; so is everyone’s. But that hardly means a State may coopt an individual’s voice for its own purposes.”
​
Protect The 1st agrees with the Court’s reasoning and urges people on all sides to take the same cool look at the consequences that would have flowed from an alternate ruling.
 
One doesn’t have to agree with a particular belief to agree with the principle that speech should never be coerced. The Court’s opinion provides a narrow exception, one to be kept within the boundaries of the exercise of speech.

​Last week, the U.S. District Court for the Western District of Washington at Seattle handed down a ruling that drew a sharp line between constitutionally protected speech and acts of vandalism on public and private property.
 
The case, Tucson v. City of Seattle, had to do with a city ordinance that held a person is guilty of property destruction if he or she intentionally damages the property of another and writes, paints, or draws on any public or private building, structure, or personal property owned by any other person. Though a seemingly straightforward proscription on public or private acts of vandalism, overly broad and vague language within the ordinance made it susceptible to legal challenges.
 
What about washable paint or chalk? What about some public spaces, like sidewalks, on which people routinely chalk messages?
 
The case involved plaintiffs who wrote political messages critical of the Seattle police department in charcoal both on public sidewalks and on temporary walls outside the police precinct. The court preliminarily enjoined the ordinance, concluding that “Plaintiffs have demonstrated a strong likelihood of success on the merits of their First Amendment overbreadth argument.”
 
The problem with the ordinance is that it, as the court stated, is so broad that it “criminalizes innocuous drawings (from a child's drawing of a mermaid to pro-police messages written by the Seattle Police Foundation that can hardly be said to constitute ‘visual blight’ and which would naturally wash away in the next rain storm.”
 
We are pleased by the court’s ruling and agree that in cases involving reasonable restrictions on the First Amendment, such as the defacing of property, there needs to be clearly-defined boundaries that give maximal protection for free expression. Without these protections, laws risk curtailing a host of valid speech.
 
Such was the case of a 13-year-old girl in 2019, who inadvertently used spray paint instead of washable chalk paint during a climate protest at Seattle City Hall. A man was also arrested in conjunction with the incident for mistakenly providing the girl the wrong kind of paint. The girl was eventually released to her parents, but not before the Seattle Police Department was criticized for arresting her instead of using the incident as a teachable moment. Some felt that incidents where damage is clearly not intended, if the girl had used the correct washable spray paint, should not receive the same severity as other clearly malicious actions. Others point to the damage, which is egregious.
 
Going forward, legislators should clearly define terms and limits when drawing the line between First Amendment activities and vandalism.

​Information consumers no doubt face more “noise” in public channels than ever. A new article by Prof. Justin (Gus) Hurwitz suggests a novel, but misguided, approach to regulating speech – one that reflects a new spirit of hubris in many legal, academic, and political circles.
 
The article, dubbed “Noisy Speech Externalities,” presents something of a counterargument to Justice Holmes’ dissent in Abrams v. United States, which introduced the idea that more speech is the best answer to bad speech – what he called a “free trade in ideas.” In light of recent scholarship, free and unregulated speech seems to some to be too quaint for our times.
“Consumers of information face a glut of information that overwhelms their ability to process it all,” Hurwitz argues. Excessive “noise,” he suggests, harms the underlying goal of allowing unfettered speech because people become too confused to filter out the legitimate information.
 
Hurwitz has a solution to this “market failure” in speech. He wants to utilize an EPA-like pollution control framework that would require social networks to use “best available” content moderation technologies that would filter out speech that muddies the public discourse. Who decides whether some speech should be silenced as “pollution” or “noise” remains conspicuously unclear.
 
We should, it seems, just leave those questions to the “experts” and their “best available” algorithms.
 
Hurwitz draws on Claude Shannon’s “information theory,” which posits that a signal-to-noise ratio governs the extent to which a listener may distinguish good information from bad information. In other words, the more noise, the less discernible a signal. No question, this is the reality of social media today.
 
What Hurwitz fails to reckon with is the practical application of his theoretical framework. In arguing that excessive speech constitutes a market externality meriting a gag order, Hurwitz suggests that post-grad tech workers should be the arbiters of our civil discourse, with virtually no constraints on their power. This, he says, should be the contingent basis upon which Section 230’s liability shield is applied.
 
Speech theorists of this sort seem to lack a basic appreciation for the efficacy of speech over time. Surely, the revolutionary mobs who protested the Stamp Act were “noisy.” So, too, were civil rights demonstrators whose cacophonous outcries muddled the signal-to-noise ratio in the 1960s.
 
Passionate, inflamed speech may result in short-term discomfort; in the long run, it’s still the only way to build consensus for or against a starkly new proposition. Witness the shifting debate on the origins of covid, or the efficacy of masks and lockdowns. Applying outmoded “command-and-control” regulatory solutions is sure to repress valuable insights.
 
This paper has glimmers of the thinking of Marxist philosopher Herbert Marcuse. In his influential essay, Repressive Tolerance, Marcuse argued for the censorship of ideas and the repression of people who advocate positions that could stymie what to him was the clear Marxist direction of history. “Suppression of the regressive ones,” Marcuse wrote, “is a prerequisite for the strengthening of the progressive ones.”
 
Can one concoct a turn of phrase more thoroughly Orwellian than “repressive tolerance”? In a similar though less strident vein, Hurwitz suggests that social media organizations should make First Amendment policy decisions based on their own vague – and likely biased – interpretations of what constitutes a vibrant marketplace of ideas with an appropriate noise level.
 
There may well be a better answer on social media discourse and content moderation. The best answer of all is quality education. Better schooling is the missing piece needed to make consumers more discerning. The best information filters are the ones we carry in our heads.

​The U.S. Press Freedom Tracker reports that the overwhelming majority of police arrests of journalists occur while they are reporting on ongoing protests. When journalists are arrested, they often lose access to their phones and their computers. The potential for police review of the content stored on their cameras makes journalists particularly vulnerable targets.
 
For this reason, reporters have begun writing what are known as “legal support numbers” – names and phone numbers of their attorneys -- on their inner arms or bodies. After all, one’s contact lists aren’t much use if one’s phone is confiscated or destroyed.
 
However, criminal prosecutors are now starting to argue that writing contact information on your body prior to attending a protest is evidence of criminal intent. This is because not only journalists are writing legal support numbers, but so too are protestors and activists. The argument is that, if a person is writing numbers on their body which would only be useful if they is jailed, then that person reasonably expects they will get into an altercation with the police. The outcome would be to effectively criminalize legal support numbers.
 
Freedom of the Press Foundation argues that if prosecutors succeed in criminalizing legal support numbers for protesters, it’s just a matter of time before the same arguments are made against journalists. For that reason, more than 40 organizations are seeking to challenge prosecution arguments against legal support numbers on the basis that criminalizing them would violate the First Amendment as well as the Sixth Amendment right to legal counsel.
 
The National Lawyers Guild, leading this coalition, states that “[p]eople write these numbers on their arms in preparation for demonstrations precisely because they know they may be unjustly detained, and because they know that police use mass arrest as a form of crowd control that is calculated to disrupt protected speech.”
 
Protect The 1st is alarmed to see prosecutors targeting Americans for taking steps to ensure their access to legal counsel in the event they are arrested.
 
When the charges brought against arrested protestors can include domestic terrorism, access to counsel is vital. It also has the added benefit of being a constitutional right. Journalists fulfill a vital role in our democracy, and assuming guilt simply for writing a phone number will only serve to chill speech and undermine our First Amendment rights.
 
PT1st looks forward to further developments in this story, and in these cases.

​Controversial new realities in American life often require a period of discussion on how to accommodate them and how to square them with existing paradigms. It’s an important precursor to social progress and a fundamental part of existing in a pluralistic society founded on free and open debate.

The issue of transgender athletes is a relatively new one. Trans athletes have every right to compete in sports. So, too, do biological women who endure hard work and sacrifice to win in swim competitions, often with scholarships at stake. To the extent a collision of rights exists here, it can only be resolved by discussing the issue freely and without fear of reprisal.

Yet, when respected voices are silenced in furtherance of a particular agenda, debate – and, by extension, progress and resolution – becomes impossible. Consider the case of Dr. Michael Joyner, a renowned physiologist and professor of anesthesiology at the Mayo Clinic who studies male and female athletes. Earlier this year, Joyner was subjected to disciplinary action for comments he made to the New York Times in an article about transgender swimmer Lia Thomas.

“There are social aspects to sport,” he said, “but physiology and biology underpin it. Testosterone is the 800-pound gorilla.”

In a scathing email, a Mayo Clinic administrator responded to Joyner’s perceived affront with a formal reprimand, an unpaid suspension, the denial of an annual salary increase, and the overt threat of termination – all for the apparent crime of conveying scientific information related to one of his core competencies. Specifically (bordering on satirically), the email cites Joyner’s failure “to communicate in accordance with prescribed messaging.” (The Clinic also took issue with Joyner’s use of “idiomatic language.”)

This is important because the Mayo Clinic is one of the world’s leading medical institutions and the top-ranked hospital in the country according to U.S. News and World Report. As an important hub for academic medical research, its doctors are regularly called upon to offer insight into difficult, health-related topics with national implications. In 2020, the Clinic adopted a “Freedom of Expression and Academic Freedom Policy,” which includes the right to “discuss and present scholarly opinions and conclusions without fear of retribution or retaliation if those opinions and conclusions conflict with those of the faculty or institution.”

While the Mayo Clinic is a private institution with a First Amendment right to speak as it wishes, the organization’s actions against Dr. Joyner plainly conflict with its own policies and are further inconsistent with vigorous, science-based academic debate. Punishing a medical professional for offering valid, scientific statements that happen to clash with emerging or trending social mores is wrong – and will have a chilling effect on science, speech, and academic freedom going forward.
​
If we are to honestly address the difficult topic of transgender athletic competition – without, for example, simply resorting to knee-jerk, blanket bans, it is incumbent on us to allow a robust debate and hear from all sides, including and especially those with pertinent knowledge. It’s a reality – and a requirement – of our American experiment.

​In October, famed legal scholar and law professor Eugene Volokh demonstrated to an en banc hearing of the highest court in the District of Columbia that a Washington, D.C., anti-stalking statute that outlaws communications that inflict “significant mental suffering or distress” is overbroad, and thus violates the First Amendment.
 
Today, the D.C. Court of Appeals issued an opinion in Mashaud v. Boone in agreement with Volokh, who represented Protect The 1st as an amicus in this case. The court also agreed with Volokh’s contention that the court should narrow the law to speech that fits within First Amendment exceptions long recognized by courts – threats, obscenity, defamation, fraud, incitement, and speech integral to criminal conduct.
 
The law in this case, D.C.’s anti-stalking statute, “prohibits any speech that one should know would cause another to feel ‘seriously alarmed, disturbed, or frightened” or suffer “emotional distress.” The court vacated a lower court ruling that held an aggrieved husband liable for emails and social media posts that embarrassed a man who had conducted an extramarital affair with his wife.
 
The court based its reasoning in part on demonstrations by Volokh, Protect The 1st, and other amici who “argue the statute is constitutionally overbroad and would need to be struck down if it is not susceptible to a narrowing construction.” The court found that emotionally distressing speech as a category could subsume much speech that is necessary:
 
“Doctors deliver life-shattering prognoses that surely send reasonable people to suffer emotional tailspins of distress. Spouses knowingly inflict emotional distress by revealing longstanding paramours and demanding divorce. Police officers deliver news of loved ones having been killed. Judges pronounce death sentences. Employers tell staff that they are fired. They all know, or should know, the extraordinary distress their messages bring, and so fall within the statute’s prohibitions. Distressing speech is an important and often valuable part of life.”
 
The court turned to political communication at the highest rung of First Amendment-protected speech. Activists, from advocates of animal rights to the pro-life position on abortion, often hurl insulting words or graphic images. “Both speak on issues of public concern and are therefore entitled to the strongest First Amendment protections” despite the emotional distress such statements and images may inflict. Thus, the court reasoned, “a statute that prohibits speech indiscriminately based solely on its propensity for causing such distress is a constitutional nonstarter.”
 
Perhaps the court’s take on speech can be reduced to a quote from a 1973 U.S. Supreme Court decision, “the First Amendment needs breathing space.”
 
As Volokh has pointed out, the court did not strike down the D.C. law, but narrowed it to those discrete categories of speech that fall outside the scope of the First Amendment’s protection.
 
“We are overjoyed at this opinion from the Court of Appeals,” said Gene Schaerr, general counsel of PT1st. “We are proud to have been ably represented by Eugene Volokh and to have help vindicate the First Amendment’s protection against any laws that encroach on the freedom of speech.”

Tennessee’s short-lived ban on drag shows finally met its end in federal court on Friday at the hands of a judge who ruled it unconstitutional while explicitly recognizing the right of Tennessee voters to protect children from sexually explicit materials. The question that remains is why legislators so often pass unconstitutional messaging bills that are doomed to die in court.
 
Tennessee’s Adult Entertainment Act (AEA) banned “adult cabaret performances” on public property or in locations where the performance “could be viewed by a person who is not an adult.” The law not only outlawed male or female impersonators, but also “exotic” dancers.
 
As Protect The 1st pointed out, AEA could conceivably outlaw performances of Shakespeare’s As You Like It, or outdoor showings of Mrs. Doubtfire or Tootsie, or even dancing ladies announcing the circus is coming. The state’s attorney referred to a Tennessee Supreme Court ruling that “harmful to minors” would only include “materials which lack serious literary, artistic, political or scientific value for a reasonable 17-year-old.” In other words, leave it to endless litigation to determine what is literature, art, science, or political discourse, not to mention the rare species of reasonable 17-year-olds.
 
U.S. District Court Judge Thomas L. Parker saw the vacuity of this law. He agreed with the plaintiffs, a Memphis-based theater group threatened with the felony of producing drag shows, that the law’s “harmful to minors standard” is “unconstitutionally vague and substantially overbroad.”
 
In the opening of his brief, Judge Parker gave a ringing description of the First Amendment. He wrote:
 
“Freedom of speech is not just about speech. It is also about the right to debate with fellow citizens on self-government, to discover the truth in the marketplace of ideas, to express one’s identity, and to realize self-fulfillment in a free society.”
 
In the conclusion of his 70-page opinion, Judge Parker wrote:
 
“Let there be no mistake about this Court’s recognition that Tennessee has a compelling government interest in protecting its minor population. Scores of concerned Tennesseans asked the Court to uphold the Adult Entertainment Act because their State supposedly enacted it to protect their children. Tennesseans deserve to know that their State’s defense of the AEA primarily involved a request for the Court to alter the AEA by changing the meaning of ‘minors’ to a ‘reasonable 17-year-old minor.’ In other words, while its citizens believed this powerful law would protect all children, the State’s lawyers told the Court this law will only protect 17-year-olds. This is only one of several ways in which Tennessee asked this Court to rewrite the AEA.
 
“To rewrite this law would not only violate the separation-of-powers principle, but it would also offer perverse incentives for legislators to continue their troubling trend of abdicating their responsibilities in exercising ‘considered legislative judgment.’”
 
The short journey of this law from passage to being overturned is a visible result of a national trend: Namely, voters are sending declining numbers of candidates with law degrees to state legislatures. Perhaps if more legislators were lawyers, they would craft bills that respect the First Amendment and the Constitution.

​There is nothing easy about Rep. George Santos. His pending legal cases throw into relief two very different takes on the First Amendment – the public’s right to know against legitimate reasons to bestow anonymity.
 
Congressman George Santos was recently arraigned in a New York court to face a 13-count criminal indictment. Federal prosecutors claim that Rep. Santos stole campaign funds, unlawfully obtained pandemic unemployment payouts, and provided false information to Congress on financial documents. However, the court allowed Rep. Santos to be released on a $500,000 bond cosigned by three anonymous suretors, a decision that has been criticized as highly unusual.
 
Now, The New York Times has filed a motion asking the court to release the unredacted versions of judicial records identifying those who guaranteed Rep. Santos’ bail. The Times argues that “federal common law and First Amendment endow the public with a presumptive right of access to judicial proceedings and records, including to bond proceedings.”
 
The Times’ motion states: “The public interest in openness is particularly strong in this case. The surety records relate to three individuals who have committed large sums of money to ensure that Rep. Santos can remain at liberty, pending further proceedings. This presents an obvious opportunity for political influence, given Rep. Santos's elected position and his dependence on these suretors. That risk is further heightened by the fact that the very crimes Rep. Santos has been charged with involve abusing the political process for personal gain.”
 
The Times makes a valid point. When a congressman is charged with crimes relating to political corruption, shrouding those who bailed him out could obscure telling facts about this case.
 
But Protect The 1st sees a larger interest to protect, one that cuts to the heart of the protection of speech. Since the landmark Supreme Court ruling in 1958, NAACP v. Alabama, the anonymity of donors has been recognized as critical to the protection of speech and the flourishing of the First Amendment. For that reason, we joined with groups ranging from NAACP to ACLU to advise courts to strike down a California law that would have forced non-profits to disclose their donors.
 
The dangers to NAACP donors in 1950s Alabama exist today in a new, modern form – the threat of doxing, the invasions of one’s home and workplace, and punishment ranging from cancelation to violence. If there is some sinister nexus at play, which The New York Times seems to suspect, those facts will likely come out in court. In the meantime, the public’s larger interests may be better served by sticking with the rules as they are.

​Princetonians for Free Speech released a survey of Princeton University students that paints a harrowing portrait of student opinion regarding the first and most important item in the Bill of Rights.
 

• Only 30 percent of students say all speech protected by the First Amendment should be allowed.

 

• 40 percent say an athletic team should be able to deny a spot to, or suspend, a student who expresses views others find offensive.

 

• Only 24 percent say it is never appropriate to shout down a speaker. Only 57 percent say it is never appropriate to block other students from attending a speech; and 16 percent say it might at least on rare occasions be appropriate to use violence to block a speaker.

 
When asked about their own speech, students reported:
 

• 70 percent would be very or somewhat uncomfortable publicly disagreeing with a professor in class on a controversial topic.

 

• 56 percent say they would be very or somewhat uncomfortable expressing their views in class on a controversial topic.

 
Princeton is by no means alone. If polls of student opinion regarding free speech were taken at many other higher education institutions, we have no doubt that similar results would be seen.
 
Like many other universities, Princeton has struggled to defend speech in the age of cancellation. This survey falls on the heels of the firing of Joshua Katz, and comes after the enunciation of a free speech policy by Princeton University president Christopher Eisgruber.
 
Perhaps the Princeton community would do well to consider the words of one of its most famous alumni, a graduate from the days when the university was called the College of New Jersey.
 
James Madison, father of the First Amendment, wrote: “There are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.”