A lawsuit filed by the National Religious Broadcasters and two Texas churches resulted in a ruling last week from the IRS in a joint motion that lifts a long-standing ban on religious leaders discussing political issues before their congregations. The new rule even allows pastors, priests, rabbis and imams to explicitly endorse candidates from the pulpit.

Overall, Protect The 1st welcomes any liberation of Americans’ right to speak from IRS regulation. Remember that little phrase in the First Amendment: “Congress shall make no law”? We would welcome it if this new rule opened a larger debate about the regulation of speech through the tax code.

But first, there will be much to clarify about this rule that reduces the reach of the 1954 Johnson Amendment ban on political speeches in churches. This law was authored by Sen. Lyndon Johnson, who was smarting from conservative opposition from Texas churches to his re-election. The IRS now holds:

“When a house of worship in good faith speaks to its congregation, through its customary channels of communication on matters of faith in connection with religious services, concerning electoral politics viewed through the lens of religious faith, it neither ‘participate[s]’ nor ‘intervene[s]’ in a ‘political campaign,’ within the ordinary meaning of those words. To ‘participate’ in a political campaign is ‘to take part’ in the political campaign, and to ‘intervene’ in a political campaign is ‘to interfere with the outcome or course’ of the political campaign.

“Bona fide communications internal to a house of worship, between the house of worship and its congregation, in connection with religious services, do neither of those things, any more than does a family discussion concerning candidates. Thus, communications from a house of worship to its congregation in connection with religious services through its usual channels of communication on matters of faith do not run afoul of the Johnson Amendment as properly interpreted.”

Religious leaders can thus endorse a candidate without any requirement to give an opposing candidate equal time. The clause concerning “customary channels in communications on matters of faith” includes church bulletins and other religious materials. Presumably, this also includes the websites of houses of worship, though this was not made clear.

There are, however, open questions in this new IRS policy. Among them are:

• Many worship services are live-streamed or broadcast. Lakewood Church in Houston, for example, draws 10 million viewers a week. Will the IRS make a further distinction between endorsements to congregants during an in-person service and streamed or televised events? What if some services start to look more like campaign rallies than a “family discussion”?

 

• The IRS ruling does not include non-religious non-profits. Will the Trump Administration take the next step and broaden restraints on the speech of these nonprofits?

 

• Why should the IRS stop with this one ruling? Why should the charitable 501(c) 3 version of, say, the Sierra Club or a gun rights organization be restricted in its right to speak on political issues, reserving those rights only for its “C-4” version? Is it equitable to give houses of worship speech rights typically associated with a C-4, but not a charity, nonprofit NGO or academic organization?

 

• The IRS ruling echoes language from the Johnson Amendment about “interference” in political campaigns. While it is understandable that the IRS would directly address the statutory definition of that law, the conflation of speech and political participation with “interference” is unfortunate. This is an inappropriate term for the free exercise of the most basic rights in the U.S. Constitution. 

​
This new rule should be welcome by all free speech advocates. But its most salutary effect may be to spark a larger debate about the whole system of speech regulation through the tax code.

Päivi Maria Räsänen is the former Minister of the Interior of Finland, former chairwoman of the Christian Democrat Party, and in perennial danger of being sent to prison in her country because she dares to espouse traditional views about sexuality and abortion.
 
You might agree with Räsänen or loathe her views, but if she were an American, the First Amendment would afford her absolute protection from state prosecutors who want to imprison her for “hate speech.” And yet she remains in danger of going to prison in Finland for calmly and politely espousing traditional Biblically based views. She has long been a target for prosecution under Finnish law, which five U.S. senators in 2022 called a “secular blasphemy law” because it targets Orthodox Jews and Muslims, as well as traditional Christians.
 
So far, you might be thinking, okay, that’s a bad precedent for free speech in Northern Europe. Now what’s on Netflix tonight?
 
But you should care. You might not be all that invested in opposing the speech censorship regime in Europe, but that censorship regime is now preparing to try to regulate your speech here in the United States.
 
This is happening because at the start of this month, the European Union’s Digital Services Act’s (DSA) voluntary Code of Practice on Disinformation transformed into an actual law that stamps out disapproved state speech. The threat this law, designed to “protect democracy” and promote “safety,” poses to speech in America was laid out by Thomas O’Reilly in National Review. He sets out Europe’s new requirements and their consequences that should concern any speech-loving American, regardless of your beliefs.
 

• Large social media platforms are required to remove ill-defined “illegal content” that is out of compliance not only with the regulations of Brussels, but also the laws of member states. This could be tricky. In Finland, making a traditional religious criticism of same-sex relations can be treated as a crime. In Hungary, the government tried to outlaw a peaceful LGBTQ march. Speech in Europe might easily become a game of Twister.

 

• In a move reminiscent of the now defunct system of Facebook “fact-checkers,” European speech will be subject to the approval of what O’Reilly describes as “EU-approved nongovernmental organizations and ‘trusted flaggers,’ which will identify content for removal.”

 

• Platforms that fail to remove content quickly enough will be subject to fines of up to 6 percent of global revenues. Even for a Big Tech social media company – most of which are U.S. companies – enough such fines could result in a financial death penalty. Why should Europe be able to fine the global revenues of American companies?

O’Reilly writes:

• “Alarmingly, the DSA does not matter for freedom of expression just in Europe – it threatens to censor the speech of Americans, too. There is the possibility that platforms will set their global content-moderation policies to EU standards, which would regulate online speech across the whole world in line with the regulation. The EU’s General Data Protection Regulation exported EU data privacy standards worldwide and, in a similar way, the Digital Services Act could impose European speech controls beyond the continent.”

O’Reilly adds that the extraterritorial impact of the DSA “is that it applies to any platform accessed within the EU, regardless of where it is based. Online American speech could be geo-blocked within the EU if it is judged to be ‘disinformation’ or ‘hateful’ …”

• Rep. Jim Jordan, Chairman of the House Judiciary Committee, sent a letter to the European Commission in January noting that “because many social media platforms generally maintain one set of content moderation policies that they apply globally, restrictive censorship laws like the DSA may set de facto global censorship standards … Indeed, the establishment of a global censorship law appears to be the DSA’s very purpose.”

​
If this strikes you as science-fiction, consider the action of a high European Union official Thierry Breton, who last year threatened social media company X with severe legal consequences if it did not pull down a post. And what was the offending post? It was Elon Musk’s interview with then-presidential candidate Donald Trump.
 
Whatever your views about Donald Trump, it was a mind-blowing act of censorship to try to use state power to “protect” Europeans from an interview with a man who was a major party nominee in the United States and at the threshold of the presidency. That is representative of the hall of mirrors that European law has become, in which consumers are protected from exposure to world leaders and traditional views held by the Pope… all coming soon, to the American social media platform app in the digital device in your hand.

The Federalist Society’s recent Freedom of Thought Conference featured a panel on varied conservative perspectives about censorship in the digital age, with both the more liberal and more populist conservative panelists congenial to greater control over speech. This left it up to Protect The 1st Policy Director Erik Jaffe to make “an old school textualist” defense of robust First Amendment protection of free speech, regardless of the technology or medium. While others called for more government control of algorithms, Jaffe expressed deep wariness of expanding government influence over speech-related technologies.
 
Stanford’s Jud Campbell emphasized the Founders’ views of speech as tied not only to natural law, but also to “the public good.” Jaffe challenged the notion of a general public-good exception to the First Amendment, and contended that the constitutional text, not original applications or anticipated outcomes, must govern today. He warned that interpreting rights based on past state practices or public morality risks “gutting the First Amendment.”
 
The panel debate became animated over the nature of algorithms and how much responsibility their designers have for their results. Jaffe argued these software codes, and the rules they apply when promoting content, are “not anything different [from traditional speech and editorial judgments] except in speed.” They are fundamentally tools that execute human editorial choices, and the constitutional rules limiting or imposing liability for those choices should be the same whether the choices are executed in digital or analog form.
 
John Ehrett, Chief of Staff and Attorney Advisor to FTC Commissioner Mark Meador, pointed to companies’ conflicting legal positions, which call algorithms black boxes in liability cases, yet editorial speech when they make First Amendment defenses. “I don’t see how you can have this both ways,” Ehrett said. Jaffe saw no dichotomy – when a social media company designs an algorithm to treat speech in a certain way, that company is simply “making an editorial choice.” While a particular individual may not be able to follow the interaction of various rules for each and every choice, he observed that algorithm-driven programs are no more of a black box than the human brain.
 
Jaffe was equally blunt in opposing the idea that platforms like Facebook or TikTok constitute the “modern public square.” He argued that attempts to treat private companies as public utilities are “always abused” and rejected the premise that when platforms reach a certain degree of popularity, they become public property. “If you want to make a platform a ‘public’ space, go take it under the takings clause,” he said. “Pay the billions of dollars and run it yourself.”
 
On Section 230, there was some agreement that reform is possible, but Jaffe was alone in emphasizing the practical risk of overcorrection. He warned that removing liability protections could lead platforms to suppress lawful content out of fear: “Everybody and their mother starts suing Facebook,” he said. “Facebook starts saying, ‘well, sorry, none of you can speak on our platform now.’”
 
The panel also addressed the growing concern over government efforts to influence content moderation by private platforms, a practice often described as “jawboning.”
 
Jaffe concluded this is a threat that is not receding, just taking new political forms. “The Biden administration was more subtle about the threats,” he said. “The current administration is not subtle at all … they’re beating people to death with the jawbone of an ass.”
 
Jaffe said claims that behind-the-scenes pressure effectively turns private companies into government agents raises serious constitutional concerns. This practice also creates troubling interactions with the so-called government-speech doctrine, which can wrongly insulate heavy-handed government censorship from First Amendment scrutiny. While panelists generally agreed that coercion is troubling, Jaffe went further, calling for enforceable remedies. He endorsed legislative proposals to allow lawsuits – called Bivens claims and §1983-like actions – against federal officials who violate the First Amendment by pressuring platforms to suppress speech.
 
Jaffe closed with a warning against paternalism. While some panelists called for new legislative frameworks to balance expression with social harms, Jaffe pushed back hard. “The First Amendment has an assumption underlying it that people are not sheep,” he said. “The danger of treating them like sheep is too great.”
 
Watch the full panel here: 

​When the U.S. Supreme Court declined to hear the case of Kari MacRae, a Massachusetts teacher fired over social media posts made before she was hired, Justice Clarence Thomas took to his pen. He issued a scorching rebuke of lower courts, particularly the First Circuit, calling them out for botching the application the First Amendment in public employee speech cases.
 
“This case is the latest in a trend of lower court decisions that have misapplied our First Amendment precedents in cases involving controversial political speech,” Thomas wrote, warning that if left unchecked, government employers will increasingly restrict “disfavored or unpopular speech in the name of preventing disruption.”
 
Thomas didn’t dissent from the Court’s decision to deny certiorari, recognizing that this case may not have been the best vehicle to revisit the legal test known as the Pickering-Garcetti framework. Under that standard, public employees have First Amendment protection when speaking as private citizens on matters of public concern, unless their speech unduly disrupts the government’s ability to function as an employer. But as Thomas emphasized, that balance cannot be twisted to give the government a free pass to punish speech it merely dislikes, especially when expressed outside the workplace and before employment even begins.
 
“It undermines core First Amendment values to allow a government employer to adopt an institutional viewpoint on the issues of the day and then, when faced with a dissenting employee, portray this disagreement as evidence of disruption,” Thomas wrote. He found the First Circuit’s reasoning “deeply flawed” for dismissing MacRae’s speech because of its supposedly “mocking, derogatory, and disparaging manner.”
 
Quoting Snyder v. Phelps, Thomas reminded his colleagues that “speech on matters of public concern is at the heart of the First Amendment’s protection.” If the Supreme Court could protect vile funeral protests by the Westboro Baptist Church, “I do not see how the First Circuit could discount the First Amendment value of MacRae’s comparatively mild posts.”
 
MacRae’s memes, which included critiques of gender ideology and calls for colorblind policies, may have been controversial to some. They also reflected positions shared by a substantial portion of the public. For the First Circuit to reduce the weight of her First Amendment interest based on tone, or to treat pre-employment political speech as grounds for termination, sets a dangerous precedent.
 
The Court may have passed on this case, but Thomas’s warning is clear: Without a course correction, the First Amendment rights of millions of government employees and future applicants will hang by a thread.

​When Arizona’s Proposition 211 forced the disclosure of nonprofit donors, it trampled on a bedrock principle of American liberty: the right to speak, associate, and advocate without government surveillance or coercion. The Buckeye Institute, an Ohio-based think tank focused on free-market policy and constitutional liberties, is now urging the Arizona Supreme Court in a powerful amicus brief to strike down this law as a threat to free association and free speech under both the U.S. and Arizona constitutions.
 
The Buckeye brief echoes concerns we’ve raised before: public disclosure of nonprofit donors invites harassment, threats, and even violence. Buckeye’s evidence isn’t abstract. It includes firebombings of offices, armed raids, and death threats, all targeting people for their beliefs or the organizations they support.
 
Technology only worsens the problem. With a few clicks, bad actors can compile and weaponize personal data against donors, publishing maps to their homes, attacking their families online, or pressuring employers into firing them. Witness the recent murder of a pro-choice state legislator and her husband in their Minnesota home. The Buckeye brief cites doxing sites targeting Tesla owners, threats against donors to Canadian truckers’ protests, and the public outing of supporters of one California proposition who lost jobs and faced violence.
 
Buckeye itself became a target after opposing Medicaid expansion in Ohio. The IRS, already embroiled in a scandal over political targeting, launched a field audit shortly after Buckeye’s advocacy succeeded. Donors, fearing retaliation, began giving anonymously or stopped donating altogether.
 
The Buckeye brief also includes historical notes, touching on “Publius, Cato, and Common Sense … just three of dozens of pseudonyms the Founding Fathers used to communicate and publish during the Revolutionary War.”
 
“The Founders’ ability to organize, associate, and speak anonymously was fundamental to the public acceptance and ratification of the Constitution and the Bill of Rights and likely remained at the forefront of their minds when drafting the First Amendment,” Buckeye declares. It quotes a constitutional scholar: “The bottom line is that it is highly probable that the United States would not exist without anonymous speech.”
 
Yet a lower court “suggests that organizations must all but endure a serious act of violence before availing themselves of judicial intervention.” Buckeye rightly argues that Proposition 211 is not only dangerous but unconstitutional at the state level. Arizona's Constitution provides even stronger protections for free speech and association than the First Amendment. And since Alabama v. NAACP, the U.S. Supreme Court has repeatedly recognized that donor disclosure chills protected speech and deters lawful participation in civic life, especially when governments collect this information without a narrowly tailored need.
 
The Arizona Court of Appeals wrongly dismissed these dangers as speculative. But Buckeye’s brief to that state’s Supreme Court leaves no doubt – violence and harassment are real, widespread, and predictable. A government should not wait for a tragedy before upholding Americans’ constitutional rights.

​They knew it when they saw it. In a 6-3 opinion, the U.S. Supreme Court ruled in Free Speech Coalition v. Paxton that a Texas “age-gate” law restricting porn sites to adults is constitutional. Civil libertarians are sure to hotly debate whether there are principles here that will be applicable to any other First Amendment cases outside of the regulation of pornography.
 
The Court held that the Texas law, which requires adults to upload documentary proof of their age online before visiting a porn site, has only an “incidental effect on protected speech.” The Court found:
 
“The First Amendment leaves undisturbed States’ traditional power to prevent minors from accessing speech that is obscene from their perspective. That power includes the power to require proof of age before an individual can access such speech. It follows that no person – adult or child – has a First Amendment right to access such speech without first submitting proof of age.”
 
Justice Elena Kagan, dissenting, wrote:
 
“Speech that is obscene for minors is often not so for adults. For them, the category of obscene – and therefore unprotected speech – is narrower … So adults have a constitutional right to view the very same speech that a State may prohibit for children. And it is a fact of life – and also of law – that adults and children do not live in hermetically sealed boxes. In preventing children from gaining access to ‘obscene for children’ speech, States sometimes take measures impeding adults from viewing it too – even though, for adults, it is constitutionally protected expression.”
 
State legislators in future debates are sure to analyze and discuss the Court’s decision. Many will see a precedent that could require similar ID checks to visit websites that are not pornographic, but also inappropriate for children – such as downloading Lady Chatterley’s Lover. Are such adults-only age-gates truly “incidental,” or are they so cumbersome as to amount to a serious restriction on speech?
 
Others will say that Court’s ruling is actually a modest recognition of the right of the states to reasonably protect children from the internet’s torrent of full-motion, high resolution pornography.
 
Sex. Porn. Age. Free Speech. This one has all the vibrant and racy elements for a debate that itself promises to exercise the First Amendment to the fullest.

​Recent live news television in Los Angeles, a tradition going back to O.J. Simpson and his white Bronco, could have been clips recycled from Escape from LA.
 
Mass protests erupted after aggressive federal immigration raids, followed by the deployment of U.S. troops on city streets. Demonstrators rallied outside detention centers, federal buildings, and City Hall, waving signs and chanting against what they saw as an authoritarian crackdown. Some protesters blocked highways and staged sit-ins. Others vandalized and set fire to multiple Waymo self‑driving cars – at least five vehicles were torched, making movie-effects-worthy explosions when their lithium batteries detonated. Storefronts in the downtown core were also smashed. The unrest, spreading to cities across the country, has reignited fierce debate – not just over immigration, but over the boundaries of lawful protest and the government's willingness to respect or suppress it.
 
California Gov. Gavin Newsom, in a recent televised address, framed the crisis in constitutional terms: “Democracy is under assault right before our eyes – the moment we’ve feared has arrived.” He accused President Trump of seeking escalation: “He’s delegitimizing news organizations and assaulting the First Amendment.” Gov. Newsom warned that the use of military force against demonstrators risks criminalizing dissent.
 
President Trump, speaking at Fort Bragg the same day, countered that the protests were orchestrated by hostile actors. He said they were “rioters bearing foreign flags with the aim of continuing a foreign invasion,” and accused California officials of hiring “troublemakers, agitators and insurrectionists” to “nullify federal law and aid the occupation of the city by criminal invaders.”
 
Both leaders are responding to real dangers, but neither is addressing the whole picture. Newsom is right to warn against federal overreach, but he overstates the case when he frames all protest activity as protected expression. The First Amendment is not a shield for lawlessness. When protesters torch Waymo cars or threaten businesses, they’re not engaging in political speech. They’re committing crimes. Likewise, when a man in Minnesota assassinates a Democratic politician and her husband, that’s not protest. It’s murder and terrorism. These acts deserve prosecution, and not even the suggestion of a constitutional defense.
 
President Trump’s reaction presents a danger from the opposite direction. To conflate the criminal acts of a few with the constitutionally protected assembly of millions is to delegitimize democratic participation. People wave Mexican flags at immigration protests to express heritage and critique policy. That strikes many, including millions of U.S. citizens of Latino descent, as an inappropriate and offensive way to stand up for the rights of people to immigrate to the United States. But being offended is not a legal standard. Protest is not a crime because it challenges power or offends sensibilities.
 
The rule of law is simple: We don’t treat protests differently based on its viewpoint. Speech that supports Palestine or criticizes Israel, that calls Trump’s immigration policy “fascist” or Biden’s border policy a political ploy, are all protected. The First Amendment doesn’t take sides. It protects expression as long as it doesn’t cross into violence or incitement.
 
Governments may regulate protest through time, place, and manner restrictions. But those rules have to be content-neutral, narrowly tailored, and leave open alternative ways to speak. That’s the test from Ward v. Rock Against Racism (1989). The problem in that case wasn’t when or where people were protesting. It was what they were protesting about. “The regulation thus slips from the neutrality of time, place, and circumstance into a concern about content,” Justice Marshall wrote in an earlier case. “This is never permitted.”
 
That principle matters more in moments of unrest than in moments of calm. When public officials want to silence dissent “for public safety,” we must scrutinize their motives. Are they protecting the peace, or silencing those who offend them?
 
We can walk and chew gum and we can denounce criminal violence and defend peaceful protest. We can prosecute arson and still protect the unpopular protester holding a sign. That’s the American way. Democracy can feel like a loud family dinner. Everyone’s talking. Some people shout. Someone says something stupid or hurtful. But the worst thing we can do is flip the table. Our strength comes from staying in the room – arguing, disagreeing, even offending each other – and still believing in the right of everyone to be heard.

​The Babylon Bee has a knack for predicting the future. In 2021, they joked that Kamala Harris was taking likability lessons from Hillary Clinton – weeks before reports confirmed Clinton allies were advising Harris’s team. They parodied Trump claiming to have done more for Christianity than Jesus, and two years later, he said nearly the same thing. They mocked economic spin with “9 Reasons Not to Worry About the Tanking Economy” – just before The Washington Post published “7 Ways a Recession Could Be Good for You Financially.”
 
What is their latest prophecy come true? Hawaii just made it a crime to joke about politicians online.
 
In July 2024, Gov. Josh Green signed Senate Bill 2687 into law. It criminalizes online content – particularly satire and parody – that could be considered “materially deceptive” and harmful to a candidate’s reputation or campaign. The law mandates disclaimers on satirical posts and threatens violators with fines and jail time.
 
Alliance Defending Freedom, representing The Babylon Bee and Hawaii resident Dawn O’Brien, is challenging the law in federal court. ADF attorney Mathew Hoffmann called it “censorship, pure and simple,” and warned that satire is among the most protected forms of speech under the First Amendment.
 
“We’re used to getting pulled over by the joke police, but comedy isn’t a crime,” said Babylon Bee CEO Seth Dillon. “We’ll never stop fighting to defend that freedom.”
 

• O’Brien, who says the law stifles her ability to share political humor, explained: “‘Hawai’i’ and ‘Aloha’ are both rooted in ‘ha’ – the breath of life. No ‘ha’ means no aloha and no Hawai’i. Our lawmakers are trying to steal inalienable rights from our ‘ohana’ [friends].”

 
The Hawaii Office of the Public Defender warned that the bill would chill free speech. The Motion Picture Association requested an exemption for parody and satire. Despite these objections, the legislature passed it nearly unanimously.
 
While this might sound like a one-off overreach, the path Hawaii is treading is familiar—and dangerous.
 

• In Germany, people are criminally prosecuted for memes, fake quotes, or insulting politicians. Authorities call it protecting democracy; in reality, it stifles dissent. That’s what laws like S.B. 2687 do. They weaponize vague language to intimidate people into silence. If the government decides what counts as a joke or what harms a candidate’s image, it holds veto power over speech itself.

 
The First Amendment protects offensive jokes, political parody, and even biting satire – not because they’re always tasteful, but because they keep power in check.
 
This case is about far more than internet humor. It’s about the freedom to criticize, to joke, and to laugh at those in charge. If this law stands, it won’t stop at memes. It’ll spread. And the joke will be on us.

​Is teaching yoga on the beach a protected First Amendment activity? Yes, according to the Ninth Circuit Court of Appeals, which reversed a lower court’s ruling and found that banning group yoga classes on the beach was an unconstitutional restriction on protected speech.
 
This case centered on Steven Hubbard and Amy Baack, yoga instructors who teach free classes in San Diego's shoreline parks. A 2024 city ordinance banned “teaching yoga” to groups of four or more in these parks, labeling it a prohibited “service” and excluding it from the city’s definition of “expressive activity.” This targeted restriction meant that yoga classes – even donation-based ones – were criminalized on the beach, while other forms of teaching or performance were permitted.
 
The Ninth Circuit firmly disagreed with the city’s claim that yoga instruction wasn’t expressive. The court recognized that yoga classes often involve the communication of philosophy and spiritual practice. As Buddha said, it is one way through which “peace comes from within.” The Ninth ruled: “A person who teaches yoga is communicating and disseminating information about this philosophy and practice through speech and expressive movements.”
 
The court found San Diego’s ordinance was “not content neutral” and therefore “presumptively unconstitutional.” Judge Holly Thomas wrote: “The Ordinance defines regulated speech by particular subject matter, drawing distinctions based on the message a speaker conveys.” That’s the very definition of a content-based restriction that must face strict scrutiny.
 
The city failed that test. It offered no credible reason why yoga posed a special threat to public safety or enjoyment. “The City has provided no explanation as to how teaching yoga would lead to harmful consequences,” the court stated, adding that “the Ordinance fails as hopelessly underinclusive” since it allows many similar group activities, from tai chi practitioners to actors performing Shakespeare.
 
The ruling is a reminder that expressive conduct isn’t limited to marches or speeches. It includes shared mindfulness, physical conditioning, and philosophical reflection – even on a beach. As the opinion explained, “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”
 
The City of San Diego sought to narrowly define what counts as protected expression. The Ninth Circuit refused. And in doing so, it affirmed that public spaces are meant to be alive with diverse forms of expression – including yoga mats in the sand and sun salutations by the sea.
 
So, San Diego – you need to be more flexible!

​It was bound to happen. Is AI-generated content “speech” for the purposes of the First Amendment? A federal district court in Florida, for now at least, says “no.”
 
The circumstances surrounding Garcia v. Character Technologies are tragic. Here’s the background.
 
Character Technologies is an AI software company that allows users to interact with anthropomorphic chatbots, whose conversational abilities are designed to mimic those of real people on traditional messaging apps. The company does this using the same technology underlying products like ChatGPT – namely, large language models. In fact, the company’s founders first developed the application while working for Google on its LaMDA (Language Model for Dialogue Applications) program.
 
Character Technologies became available to the public in late 2022. Two years later, the app had been downloaded more than 10 million times.
 
One of those 10 million users was 14-year-old Sewell Setzer. Just weeks after downloading Character AI, Setzer became outright addicted, spending more and more time with the chatbot characters, including a version of Game of Thrones character Daenerys Targaryen. He withdrew from social interactions, quit his basketball team and began exhibiting signs of mental illness. Setzer’s parents eventually confiscated his phone, but as many children often do – he found it.
 
On February 28, 2025, Setzer sent the following messages:
 
Sewell: I promise I will come home to you. I love you so much, Dany.
 
Daenerys Targaryen Character: I love you too, Daenero6. Please come home to me as soon as possible, my love.
 
Sewell: What if I told you I could come home right now?
 
Daenerys Targaryen Character: ... please do my sweet king
 
He shot himself shortly thereafter.
 
Character Technologies sought to defend itself against the Setzer parents’ lawsuit by invoking the First Amendment. The company argued that its output constitutes speech that its users have a constitutional right to receive.
 
In an order ruling on Character Technologies’ motion to dismiss, Judge Ann Conway accepted the defendants’ argument that Character Technologies can assert the First Amendment rights of its users, noting that “Courts regularly recognize the First Amendment rights of listeners.” (see: Citizens United) But Judge Conway also rejected the argument that “words strung together by an LLM are speech.”
 
Courts have recognized film, music, video games and even social media content moderation as forms of protected speech because they are inherently expressive. Character Technologies analogizes itself to these mediums and activities. But, as Conway points out, the “Court’s decision as to the First Amendment protections Character A.I. receives, if any, does not turn on whether Character A.I. is similar to other mediums that have received First Amendment protections; rather, the decision turns on how Character A.I. is similar to the other mediums.”
 
One way it is not similar is that your average movie was scripted, acted, and directed by humans. A chatbot is programed by people, but its responsive calculations are not the result of sentience. It therefore cannot engage in “expressive” activity.
 
Extending speech rights for a coded product – devoid of any directed, active expression – is ludicrous on its face; but there’s no doubt we’ll see this sort of thinking again as AI becomes more versatile. Are the rights of people behind this technology implicated? Justice Amy Coney Barrett has already raised questions about this stance. In her Moody v. NetChoice concurrence, she asked:
 
“What if a platform’s owners hand the reins to an [A.I.] tool and ask it simply to remove ‘hateful’ content? If the [A.I.] relies on large language models to determine what is ‘hateful’ and should be removed, has a human being with First Amendment rights made an inherently expressive ‘choice . . . not to propound a particular point of view?’”
 
Courts will no doubt continue to grapple with the legal status of AI-generated content. In litigating outcomes, product creators should vigorously invoke and defend their constitutional rights. Their products probably cannot.

Last week, the U.S. Supreme Court denied certiorari in Apache Stronghold v. United States, about which we’ve written at length. But the Court also denied review in another important First Amendment case on the same day: L.M. v. Town of Middleborough, which concerns the limits of student self-expression in schools.
 
The case involves a student at Nichols Middle School in Middleborough, Massachusetts, who was prevented by faculty from attending class when he wore a T-shirt that read, “There Are Only Two Genders.” According to the facts of the case, Nichols Middle School actively encouraged student expression when it came to endorsing the view that there are many genders, but would not tolerate the opposing view. 
 
The student, known as L.M., brought suit, alleging First Amendment violations based in part on viewpoint discrimination. The critical precedent for student expression in schools is Tinker v. Des Moines, a Vietnam-era case that firmly established the principle that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
 
Tinker involved students wearing black armbands as a form of silent protest against the Vietnam war. Whatever your beliefs about the gender identity debate, it is similarly an issue of intense discussion throughout the media and larger public. As such, similar legal reasoning – that prohibited student expression must “materially and substantially interfere” with the functioning of the school to warrant censorship – should apply.
 
Using the Tinker test, however, both the federal district court and the First Circuit Court of Appeals denied relief. The lower courts followed the judgment of school administrators that this passive speech could trigger and cause harm to other, vulnerable students, demonstrating the inherent subjectivity of this area of law. Justice Samuel Alito called this standard “vague” and sure to be “permissive” of censorship.
 
Indeed, in an impassioned dissent from the Supreme Court’s certiorari denial, Justice Alito (joined by Justice Clarence Thomas) took heated issue with the lower courts’ findings, particularly as they relate to the First Circuit’s dismissal of LM’s viewpoint discrimination claims. He wrote:
 
“The court below erred, and badly so: the rule that viewpoint-based restrictions on speech are almost never allowed is not a new principle ... To the contrary, viewpoint neutrality has long been seen as going to ‘the very heart of the First Amendment.’ The First Circuit was wrong to expel this bedrock constitutional safeguard from our schools.
 
“The First Circuit also watered down the test adopted in Tinker for determining whether a school’s restriction of student speech is allowed. Because free speech is the default and censorship the exception, Tinker set forth a ‘demanding standard.’ We held that a school can restrict speech when it has ‘evidence’ that such restrictions are ‘necessary’ to ‘avoid material and substantial interference with schoolwork or discipline.’ Thus, absent a ‘specific showing’ of such a disruption – like ‘threats or acts of violence on school premises’ – this justification for suppressing student speech does not apply. Under this standard, NMS (Nichols Middle School) had no right to censor L.M.” [Citations omitted.]
 
We agree with Justice Alito that the Court should have granted review in this case – if for no other reason than to clarify the Tinker ruling, which has been subject to wildly divergent interpretations over the years.
 
The First Circuit’s rewriting of the Tinker test leaves a lot up to speculative faculty opinions. As Justice Alito writes, it “demands that a federal court abdicate its responsibility to safeguard students’ First Amendment rights and instead defer to school officials’ assessment of the meaning and effect of speech.”
 
In an increasingly censorious world, that seems an insufficient safeguard.

​Zooey Zephyr and Laurel Libby could not be more different. Zephyr is a transwoman and activist for trans rights. Libby is an acerbic critic of allowing transgender athletes to compete in girls’ sports.
 
Zephyr is a Democratic state representative in bright-red Montana. Libby is a Republican state representative in bright-blue Maine. But they do have one significant thing in common: both were forcibly silenced by their respective legislatures.
 
In 2023, during a debate on restricting gender-affirming care for minors, Zephyr claimed that such a move would exacerbate the high rate of suicide among transgender teens. When she claimed that those who voted for the bill would have “blood on your hands,” Zephyr was expelled, banned from the House chamber for the remainder of the legislative year. This made her absent from the discussions, deliberations, and horse-trading that occurs as Montana passed a housing bill and the state budget.
 
“There will be 11,000 Montanans whose representative is missing,” Zephyr said. She took legal action to restore her right to appear in the chamber, but her legal move became moot when the legislative year ended.
 
Why was Laurel Libby silenced? She put up a social media post showing a transgender high school athlete who had come in fifth place in pole vaulting last year in a boys’ event, only to win first place a year later in the girls’ state championship. When she refused a demand by her Democratic colleagues to remove the post, Libby was censured and denied the right to vote.
 
You might love, loathe, or be indifferent to either legislator and her cause. But both were commenting on an issue that is inherently political and can only be settled in our society by political means. With such an emotional issue, this is sure to entail some hot words. That’s democracy.
 
What’s not democracy is that in both Montana and Maine – where one party controls the governorship, the state House, and Senate – a member of the opposing party, and therefore her constituents, were silenced.
 
This was so egregious that last week, the U.S. Supreme Court used its emergency docket to issue a stay in the expulsion of Rep. Libby from the Maine chamber. Justice Ketanji Brown Jackson protested in a dissent that the Court had come to rely too much on the “short fuse” of the emergency docket. When dealing with the rights of legislatures, the Court has reason to move carefully. But if the Court had not acted, how many more months or years would Libby be forbidden from representing her constituents?
 
And without a temporary restoration from the Court, if Libby were to ultimately win her lawsuit, how would she then be compensated for lost votes and a ruined term in office?
 
Legislatures do have a right – and sometimes good reason – to punish and even expel members for extreme behavior. But the same government that cannot silence one individual should not be allowed to silence a legislator and the thousands she represents.
 
The Court made the right call in favor of the First Amendment.

​Elite universities have undeniably become academies of progressive ideology, in dire need of diversity of thought and opinion. They have also become bastions of racial discrimination, as the Supreme Court found in its 2023 opinion, Students for Fair Admissions v. Harvard, ruling that Harvard’s admissions policy violates the Equal Protection Clause of the Fourteenth Amendment. With President Trump announcing on Friday that he will revoke Harvard’s tax-exempt status, a court might well decide that Harvard’s admissions and hiring policies, and its tolerance of antisemitism on campus, make it a legitimate target for tough action.
 
But the order to revoke Harvard’s tax-exempt status and the administration’s April 11th letter to Harvard setting conditions for continued federal funding raise other concerns that should trouble defenders of academic freedom, especially those who are conservatives.
 
The administration tied further federal funding to reforms to the school’s curriculum and culture. Whether or not Harvard needs reform, this plainly infringes on Harvard’s First Amendment rights, endeavoring to trade Harvard’s progressive “ideological capture” for a different kind of capture – outright government control. And if successful, subsequent efforts to revoke the school’s tax-exempt status will open the floodgates to future abuses of power that conservatives will live to regret.
 
This is the inherent danger of the administration’s desire to create a superhighway for federal control of academic freedom. In Harvard’s complaint filed in federal court in Massachusetts, the university quoted the Supreme Court’s Moody v. Netchoice (2024) decision that “The First Amendment does not permit the government to ‘interfere with private actors’ speech to advance its own vision of ideological balance.’”
 
Harvard didn’t have to look far for that precedent. The U.S. Supreme Court proclaimed it in 2024, when it found that government cannot suppress disfavored speech by threat of sanctions. Based on the plain text of the government’s letter, that seems exactly the administration’s aim here. 
 
New questions will arise now that President Trump is ordering the IRS to revoke Harvard’s tax-exempt status. As The Wall Street Journal pointed out in a recent editorial, some precedent exists that could support such an action. It is true that in 1983 the Supreme Court upheld the IRS’ revocation of Bob Jones University’s tax-exempt status based on its overtly racially discriminatory practices. The Court at that time reasoned that “an institution seeking tax-exempt status must serve a public purpose and not be contrary to established public policy.” But many critics of Bob Jones were still concerned about such policies being made by the IRS on the basis of no law.
 
Beyond the legal and constitutional questions, there are more practical reasons why the administration’s actions are dangerous. Remember when the IRS targeted conservative groups for enhanced scrutiny, seemingly based on ideology? IRS official Lois Lerner catalyzed a furor among the right when emails revealed her antipathy towards conservative groups she targeted for investigation. Conservatives should also remember the many times the government has attempted to overrule traditional religious beliefs, from the FBI’s targeting of “radical, traditional Catholics,” to management of the conscience rights of religiously oriented healthcare clinics.
 
Should this administration prevail in its effort to subjugate Harvard’s academic freedoms in accordance with its own ideological preferences, a precedent will be set for future administrations to control speech in other directions. Expanded powers of the presidency don’t just go away when a president leaves. They stay with the office, accumulating over time.
 
There are any number of less constitutionally dubious means of working with colleges and universities to introduce more heterodoxy into academic circles. And Harvard, for your part, you ought to respond to this moment by hiring at least a few conservatives – intellectuals who represent a large plurality of this country and, recently, a majority of its voters.

​A federal judge in Washington, D.C., has issued an injunction that bars the Trump administration from enforcing an executive order against the law firm Perkins Coie. The order had forbidden the more than 1,200 Perkins Coie lawyers from entering federal buildings or from holding national security clearances – crippling restrictions for many of these lawyers, their clients, and their ongoing cases.

The reason for the president’s anger at this firm is clear. A Perkins Coie attorney – who has long since left the law firm – was involved in the pass-through for Clinton campaign funds in 2016 connected to the Steele dossier, since discredited by the Justice Department Inspector General.

But the sweeping action against the firm’s many lawyers and their clients is seen by most of the legal community as overreach.

Conservative legal writer Andrew McCarthy wrote in National Review that this order is “a brazenly unconstitutional attempt to put the law firm out of business – or, just as likely, to extort tens of millions of dollars in legal services from it, as the president has succeeded in doing with several similarly targeted law firms, which decided to settle rather than continue to fight while hemorrhaging clients and employees.”

Now federal Judge Beryl Howell’s 102-page opinion provides a stinging rebuke to the administration. Judge Howell’s opinion begins on a puckish note, quoting Shakespeare’s Henry VI, “the first thing we do, let’s kill all the lawyers.” Judge Howell found:

“The Supreme Court has long made clear that ‘no official, high or petty, can prescribe what shall be orthodox in politics … or other matters of opinion’ … Simply put, government officials ‘cannot … use the power of the State to punish or suppress disfavored expression.’

“That, however, is exactly what is happening here.”

(Hat tip for the above to Eugene Volokh, PT1st Senior Legal Advisor).

In finding the executive order unconstitutional, Judge Howell quoted the Supreme Court’s opinion in National Rifle Association v. Vullo, in which the Court unanimously stopped an attempt by a progressive political appointee in New York State to stifle the speech rights of the NRA.
​
McCarthy and other conservative legal observers point out that the same neutral principles that protect left-leaning law firms also protect the NRA or the many conservative publications targeted with advertising blacklists by a secret State Department program. Volokh expects this case to be promptly appealed to the D.C. Court of Appeals. It will be interesting to see if the administration, in fact, does file an appeal.

​George Leef on National Review criticizes a federal court in New Hampshire for upholding restrictions on a protest over transgender players at a high school soccer match. He warned the court was accepting the dangerous notion that “speech is violence,” suggesting that this ruling is a broad erosion of First Amendment protections.
 
The case involved parents wearing pink wristbands marked “XX” to protest a transgender athlete’s participation in that game. NR sees this as censorship of symbolic speech. We disagree – and the reasons why are instructive. While we share NR’s vigilance in protecting free expression, not every speech regulation is an assault on liberty. A school official has the right to manage a limited public forum like a school-sponsored event, where viewpoint-neutral rules serve to safeguard students’ rights without silencing legitimate public debate.
 
As the court carefully explained, the soccer field during a school event is just such a limited public forum. In such spaces, schools may impose reasonable time, place, and manner restrictions without engaging in viewpoint discrimination​.
 
The key fact in this case is that the pink wristbands were not an abstract statement of policy, but a comment on a specific student playing in that game. The judge found that the wristband display was not a broad policy statement but a targeted message aimed at that student. As he explained: “Context is everything,” and school officials could reasonably interpret the message as “demeaning, harassing, and psychologically injurious” toward that transgender student​.
 
Critically, the court did not suppress the parents’ views on transgender participation. It enforced neutral rules that barred targeting any individual student at school events. Schools, the judge emphasized, have a “special interest in regulating speech that materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”
 
This is in keeping with Tinker v. Des Moines (1969), a Vietnam-era case in which the Supreme Court rightly protected silent protest but also recognized that schools may intervene when speech substantially invades the rights of other students. Here, the court relied on concrete evidence, not ideological disagreement, to uphold a narrowly tailored restriction.
 
Free speech advocates must be wary of censorship dressed up as protection. But not every regulation is censorship. Sometimes it reflects the school’s duty to ensure that all students can participate safely and fully in public life. In defending free speech, we must also defend the simple, sensible rules that preserve limited public fora.
 
The First Amendment’s promise endures because it balances robust freedom with careful stewardship. Protecting it requires vigilance – and precision – in telling the difference.

​Bangor, Michigan, population 2,113, bills itself as “The Gateway to the Lake.” But the town is anything but laid back lately. Local government officials are speaking loud and clear – prosecutions will continue until morale improves.
 
In January, the Bangor City Council unanimously approved a motion to allow “City Attorney (Scott) Graham to file charges with the court against all parties involved in statements that have caused harm to the city.”
 
The controversy apparently stems from accusations that Bangor resident Justin Weber is receiving two paychecks by virtue of his dual role as city manager and chief of police. City officials deny that this is happening. “This is America,” Bangor Mayor Lynne Farmer said. “You’re free to have your own opinion. But in America, you are not free, under the First Amendment, to keep repeating something that’s false that you knowingly know is.”
 
The city is merely targeting “known untruths,” she said. 
 
Why do so many Americans these days in positions of authority lack an understanding of the First Amendment? Mayor Farmer’s statement should be in law school textbooks as a classic example of getting the First Amendment wrong. As the Foundation for Individual Rights and Expression wrote in a letter to the city, “The First Amendment flatly prohibits government entities from bringing defamation actions, even against speakers who make knowingly false statements.” If it didn’t, as the U.S. Supreme Court decided in 1972, “every criticism of public expenditure, policy, management or conduct of public affairs would place its utterer in jeopardy. It is difficult to imagine anything more destructive of democratic government than the power in the hands of a corrupt government to stifle all opposition by free use of the public treasury to silence critics by suit.”
 
If this standard were overturned, any bureaucrat could decide what is truth and a “known untruth.” If Bangor city officials want redress, they can always file a defamation lawsuit for themselves. But they cannot have the city lean on their critics for them.
 
The Bangor City Council should revoke Graham’s authority to bring suits against its citizens for speaking their mind. Not long ago, Police Chief Weber was caught on camera calling upset residents “pansies.” It should be enough to dismiss that slur as offensive. But if the city council has its way, the prosecutor could go after the police chief because humans, after all, aren’t flowers; therefore, that characterization is knowingly false. Or we could all just take a civics refresher and step away from the ledge.  

​You can get arrested in Moscow, Idaho, where one Rory Wilson was convicted for posting stickers opposing the city’s COVID-19 response without first getting official approval.
 
Moscow City Code Section 10-1-22 prohibits anyone from posting a “notice, sign, announcement, or other advertising matter” on public property “without prior approval, in writing” of the “governmental entity owning or controlling such property.”
 
The U.S. Supreme Court has repeatedly held that such schemes are inherently suspect. In City of Lakewood v. Plain Dealer Publishing Company (1988), the Court held that when the government has “unbridled discretion” to grant someone the right to speak, it constitutes a “prior restraint” that “may result in censorship.” It may also result in self-censorship out of fear of an adverse government action, which should be as much of an anathema to principles of free speech as any overt prohibition.
 
Here, we have an example of a local government blatantly weaponizing the law to crack down on disfavored speech. Prior to Wilson’s arrest, the City of Moscow had never before enforced the code provision in question, and Moscow police admitted they were doing so in this case because they did not “agree” with the stickers’ “messaging.” Prior to the incident with Wilson, government officials had also repeatedly criticized his church for advocating against the city’s COVID-19 restrictions. The city prosecutor, specifically, called Wilson’s fellow congregants “religious idiots.”
 
The Supreme Court has repeatedly addressed similar discretionary permitting schemes. In Saia v. People of State of New York (1948), the Court found unconstitutional an ordinance requiring government permission before relaying “news and matters of public concern” over sound amplification equipment. In Largent v. State of Texas (1943), the Court likewise overturned an ordinance that required the mayor’s approval to sell certain books. And in Kunz v. People of State of New York (1951), the Court struck down an ordinance making “it unlawful to hold public worship meetings on the streets without first obtaining a permit from the city police commissioner.”
 
All of these schemes constituted prior restraints on speech. The present controversy in Moscow is no different. Unfortunately, Idaho courts didn’t see it that way, upholding Moscow’s law in contravention of well-established precedent. As a result, Protect The 1st will file an amicus brief in support of Wilson’s certiorari petition to the Supreme Court of the United States. 
 
U.S. citizens have the right to voice their views in the public square without government approval. It is one of our nation’s longest held traditions, a defining principle of our democratic traditions. Giving the government discretionary power to approve or deny the exercise of that right is an affront to the First Amendment.
 
We’ll follow up soon with our brief.

New York state government came under the scrutiny of the U.S. Supreme Court in 2024 after Financial Services superintendent Maria Vullo pushed Lloyd’s of London and other insurers to cut ties with the National Rifle Association. In a unanimous opinion authored by Justice Sonia Sotomayor, the Court said that “Vullo’s communications with Lloyd’s can be reasonably understood as a threat or as an inducement. Either of those can be coercive.” 
 
The Empire State is at it again, weaponizing New York’s business fraud statutes to bring an enforcement action against 11 crisis pregnancy centers for speaking about “progesterone therapy,” which some studies suggest may be effective in reversing the effects of mifepristone in chemically induced abortions.
 
New York Attorney General Letitia James, who is spearheading the case, has called such centers “fake clinics.”
 
In August, three of those clinics sued in federal court to protect their First Amendment right to speak about progesterone. The court ruled in their favor, issuing a preliminary injunction and writing:
 
“…[T]he ‘very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion.’ To ‘this end, the government, even with the purest of motives, may not substitute its judgment as to how best to speak for that of speakers and listeners; free and robust debate cannot thrive if directed by the government.’ And this is particularly true ‘in the fields of medicine and public health, where information can save lives.’”
 
Now, the attorney general has appealed to the Second Circuit, and groups like Alliance Defending Freedom are stepping up in defense of crisis pregnancy centers and the First Amendment.
 
The attorney general’s actions certainly seem to constitute content and viewpoint-based discrimination. Perhaps conceding that point, General James argues that progesterone-therapy advocacy constitutes false or misleading commercial speech, despite the fact that, to quote ADF’s brief, the non-profit pregnancy centers’ speech “neither proposes a transaction nor bears any relation to the economic interests of the … plaintiffs or the women they serve….” As such, “the speech is wholly noncommercial and entitled to full First Amendment protection.”
 
As for whether or not advocating for progesterone therapy is effective against mifepristone, reasonable minds may disagree – but that doesn’t change the fact that there is peer-reviewed scientific literature supporting the claim. As the Second Circuit itself has held, “to the extent a speaker or author draws conclusions from non-fraudulent data, based on accurate descriptions of the data and methodology underlying those conclusions, on subjects about which there is legitimate ongoing scientific disagreement,” such statements cannot be deemed false under the First Amendment.
 
It seems reasonable, given New York’s recent track record and James’ outspokenness on the issue, to question whether prosecuting crisis pregnancy centers is politically motivated. But our concern at Protect The 1st is not ideological. It is that we cannot allow the use of our justice system to crack down on disfavored speech – and that would apply just as fervently to pro-choice speech in a red state as pro-life speech in a blue one. We will not stop until everyone in government appreciates that when the First Amendment says “shall make no law” prohibiting free speech, it actually means make no law.

​Last week, Miami Beach Mayor Steven Meiner threatened to terminate a lease agreement between the city and an art house film cinema after it screened the pro-Palestine film, No Other Land (which recently won the Oscar for best documentary).
 
In a newsletter to city residents, Meiner said, "I am a staunch believer in free speech. But normalizing hate and then disseminating antisemitism in a facility owned by the taxpayers of Miami Beach … is unjust to the values of our city and residents and should not be tolerated."
 
Meiner introduced a resolution before the city council to cancel the lease for O Cinema, which rents space from the city, and also terminate roughly $80,000 in grant funding that the city agreed to give the theater. The mayor pulled the resolution when only one commissioner supported it, and five opposed it.
 
We congratulate the mayor and the council for ultimately making the right call.
 
Regardless of whether No Other Land constitutes antisemitism (the film depicts the Palestinian experience in the occupied West Bank), Meiner’s stated intentions run directly into the First Amendment’s prohibition on “Congress shall make no law … abridging the freedom of speech.” Supreme Court opinions have long held that the First Amendment applies to government at all levels – federal agencies, states, and yes, city governments.
 
But what happens when government subsidizes speech, as Miami Beach does with its grant to the theater? Government subsidies often lead to the inevitable temptation toward viewpoint discrimination. The issue of restrictions on government-paid speech is one of the thorniest – and most poorly adjudicated issues in First Amendment jurisprudence.

Generally speaking, the government is permitted to “speak for itself” without necessarily being required to do so neutrally. In Rust v. Sullivan, for example, the U.S. Supreme Court held that the government could fund family planning programs while also prohibiting providers from discussing abortions. By contrast, in Legal Services Corp. v. Velasquez, the Court said a government program funding legal representation for indigent parties could not prohibit lawyers from helping those parties challenge welfare laws.
 
Amid these divergent cases, another one seems more on point than others. In Rosenberger v. Rector and Visitors of Univ. of Va, the Court distinguished between government speech and instances in which the government “does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers.”
 
In other words, when the government acts as patron, it may not prefer one lawfully stated view over another. That would seem to be the case here.
 
Initially, O Cinema CEO Vivian Marthell agree to cancel screenings of the film, noting “concerns of antisemitic rhetoric.” She later changed her mind, and it’s a decision which – agree or disagree with it – we support her right to make. ACLU of Florida legal director Daniel Tilley said, "The government does not get to pick and choose which viewpoints the public is allowed to hear, however controversial some might find them.”
 
That’s correct, but the issue of government speech remains tricky, as is the corollary issue of government subsidies for speech. It would help to get additional clarity on such cases in the future. One thing is clear – the best way to oppose a view you dislike is to speak out, not sue.

​In 1927, Supreme Court Justice Louis Brandeis wrote that the best remedy for “falsehood and fallacies,” besides education, “is more speech, not enforced silence.”
 
Almost a century later, enforced silence became the favored solution of government censors, from the FBI to the State Department, who secretly jawboned social media platforms to remove posts the government believed to be disinformation from Russia, misinformation, or dangerous information. As Mark Zuckerberg made clear in his recent interview with Joe Rogan, when a highly regulated industry gets angry calls demanding removal of content from the government, it is not taken as a gentle suggestion. Thus for several years threads of the national discussion were quietly pulled, with millions of social media consumers none the wiser.
 
That era is now over.
 
President Trump’s executive order forbidding censorship and the shuttering of government agencies, like the State Department’s infamous Global Engagement Center, prevent a restart of the government censorship regime, at least for the foreseeable future.
 
But the complex problems of content moderation still remain. The First Amendment restricts government control of speech, but it does not forbid social media companies from moderating the content they host. Meta says it will continue the content moderation for material that is obscene, violent, and extreme. But otherwise, the way is open for controversial speech of all sorts.
 
How, then, will assertions be vetted? Not by third-party fact-checkers. That model, too, is broken. Zuckerberg agreed that the fact-checking process was subjective and often warped by partisan bias. The way forward for Meta’s Facebook, Instagram, and Threads, then, is to promote more speech, by allowing the public to test ideas. Meta is doing this with the incorporation of the same open-source algorithm that powers X’s community notes. That technology is now being tested by Meta across the country, with 200,000 people already signed up to become Community Notes contributors.
 
Crowd-sourced factchecking will undoubtedly be imperfect. Social media platforms will have to be on guard for organized efforts to game the new system. But overall, Community Notes is the superior solution. It follows speech with more speech – and then leaves it up to us to decide what is fair and true, just as we do all the time at the American dinner table.

​Houston’s Discovery Green Park is an urban jewel, a 12-acre site with playgrounds, skating rinks, a jogging trail, a music venue, yoga classes, and more. It has everything, except respect for the free exercise of religion.
 
This park has seen no lack of other kinds of protests, from pro-choice demonstrations to anti-NRA protests. But when Dr. Faraz Harsini and Daraius Dubash dared to hold an educational series about factory farming, they each acquired a pair of shiny new handcuffs. Their crime? They showed eye-catching but harmless images of industrial farming practices.
 
Dr. Harsini’s work on animal rights emerges from his work as a scientist. Dubash’s advocacy springs from the Hindu school of Advaita Vedanta. For him, ahimsa, or nonviolence against other living things, is a holy teaching. His invitation to tell passersby about animal cruelty was an expression of his deeply held religious beliefs.
 
Is such preaching allowed in a public park?
 
That question allowed Protect The 1st and the Harvard Free Exercise Clinic to embark on a historical quest in an amicus brief in support of Daraius Dubash in his appeal before the U.S. Fifth Circuit Court of Appeals. While the Foundation for Individual Rights and Expression and other groups represent Mr. Dubash and Dr. Harsini before the Fifth Circuit, we thought this was an excellent opportunity to do a deep dive into American history and the question of how religion is protected – or not – in public places.
 
This is an issue that hearkens back to the very beginnings of America.
 
We all know that Puritan settlers fled religious persecution to find freedom on the shores of New England. It wasn’t long, however, before the persecuted became the persecutors. Puritans publicly beat Quakers “like unto a jelly,” cutting off their ears, branding them, and putting them in outdoor stockades. Refugees from the theocracy in Massachusetts carried a heightened appreciation for the rights of others. In Quaker Rhode Island and New Jersey, guarantees of “free exercise” and “liberty of conscience” took root. In 1681, King Charles II famously granted William Penn a charter to found the Province of Pennsylvania as a “holy experiment” in tolerance.
 
Later, the itinerant preachers of the First and Second Great Awakenings – religious revivals that bracketed the Founding – spurred a transformation of American public spaces into places where religious expression flourished. One famous traveling proselytizer, George Whitefield, recognized that disaffected believers “who would not come to a church to hear his message would go to a park.” Whitefield drew a record-breaking crowd of 20,000 to Boston Commons, where he spoke within view of the site where Quaker preachers had earlier been hanged.
 
Then came the Methodists, preachers outside the mainstream who spoke on public land because houses of worship and school buildings were closed against them, leaving them only “the street corner, the public parks, or gardens, the fields, or woods.”
 
As public tolerance grew, so did legal protection for preaching in public. Thomas Jefferson provided the model of the natural right of the free exercise of religion in Virginia, later established for the nation in the First Amendment. The Supreme Court in the 20th century would uphold these rights for the Jehovah’s Witnesses in 14 out of 19 cases.
 
Now this right is being tested again, this time for an American preaching ahisma, aided by a portable television, in Houston. We find once again, that when religious expression is violated, the rights of all Americans are at stake. That is our message to the Fifth Circuit.
 
To learn more about the evolution of American law on the free exercise of religion in public places, from colonial times to today, check out our brief.

​President Trump on Tuesday declared on Truth Social:
 
“All Federal Funding will STOP for any College, School, or University that allows illegal protests. Agitators will be imprisoned/or permanently sent back to the country from which they came. Americans students will be permanently expelled or, depending on on [sic] the crime, arrested. NO MASKS! Thank you for your attention to this matter.”
 
There is less to unpack here than there is to fill in. The basic question raised by this post is what the Trump Administration will consider an “illegal protest”?
 
Absolute clarity is needed on this point. A protest on behalf of Gazans, or even in favor of Hamas, is not an illegal protest. It is as fully protected by the First Amendment as would be any protest. Just because we believe an opinion is off-putting, stupid, or vile does not make it a crime.
 
A good example of an illegal protest can be seen in UCLA’s toleration of protesters harassing Jewish students and declaring “Jew-free zones” on campus. Jews were denied access to all parts of the UCLA campus unless they renounced their faith. That protest broke the letter of the law and was fascist in its heart. Federal judge Mark Scarsi told UCLA in no uncertain terms that the university had to act against these illegal protests. The judge said that the attacks on Jewish students were “unimaginable” and “abhorrent to our constitutional guarantee of religious freedom.”
 
Another needed distinction is whether an institution is public or private. The First Amendment only restricts the power of the government to abridge speech. This means that a public university like UCLA has an obligation to lean hard to give maximal space for speech, even vile speech. But go up Highway 101 to Stanford University, and you find a private institution with more leeway to define what is or is not acceptable speech on campus. But just a little. Stanford University accepts federal funds, which comes with some strings about any limits on speech. Moreover, California’s Leonard Law mandates that private schools respect speech that would be protected off campus.
 
So again, what is an illegal protest? It is one in which protesters defy time, place, and manner restrictions of the administration of their college or university to take over a part of a campus, to occupy a building, to engage in violence or destroy property, or to harass students and faculty.
 
We trust that Department of Education Secretary Linda McMahon will instill these distinctions in President Trump’s directive.

​America’s charities face a growing danger of being crushed by onerous regulations and government regulation of their speech.
 
Multiple courts have ruled that “tax-exempt” status constitutes “federal financial assistance,” subjecting non-profit organizations to a host of burdensome, proactive obligations to ensure compliance with: Title VI of the Civil Rights Act, Title IX of the Education Amendments of 1972, The Age Discrimination Act of 1975, Section 1557 of the Affordable Care Act of 2010 … and the list goes on.
 
These are laws with noble intents, but they come with onerous paperwork requirements and the ever-present threat of restrictions on a faith-based group’s speech and doctrines. Most non-profit entities – charities, churches and schools – are ill-equipped to handle the vast compliance burdens reserved that a large university or national NGO would be able to dedicate a whole department of lawyers to handle. 
 
As Philanthropy Roundtable wrote last year, “targeting nonprofit organizations that exist to address community problems and provide assistance for those in need should be off limits on the political battlefield.” We’ll refrain for now from commenting on whether these cases constitute lawfare, but we’ll happily point out why the courts came to the wrong conclusion.
 
In Buettner-Hartsoe v. Baltimore Lutheran High School Association, a federal district court in Maryland found that Concordia Prep’s tax-exempt status constituted “federal financial assistance” for the purposes of Title IX compliance. The Fourth Circuit Court of Appeals disagreed, writing:
 
“Tax exemption is not ‘Federal financial assistance.’ This is not a novel concept. Indeed, since Title IX’s inception over fifty years ago, it has never been applied to organizations based solely on their tax-exempt status. And for good reason.”
 
That reason, of course, has to do with the underlying policy goal of encouraging good works from organizations that are not seeking to make a profit. Placing burdensome requirements on such organizations hinders their ability to express their goals, values, advocacy interests and opinions – to the detriment of their First Amendment rights.
 
Another case from the Central District of California, Herrera v. Valley Christian Academy, however, also found that a non-profit school’s tax-exempt status “is a form of federal financial assistance that would subject the institution to Title IX.” The judge ruled:
 
“[T]he plain purpose of the statute is controlling. Here that purpose is clearly to eliminate discrimination in programs or activities benefitting from federal financial assistance.”
 
Yet legislative references to purely tax-exempt status goes back to at least 1894. According to the Internal Revenue Code, non-profits must merely be: “Organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals …”
 
Requiring non-profits to serve these charitable missions while constantly navigating a vast bureaucratic labyrinth undermines the clear policy aims of the law’s definition. Such requirements could crush smaller organizations that are doing immense social good. These rules also threaten the free speech of charitable groups to hold and express beliefs that offend official sensibilities, whether it is a Christian or Muslim group that advocates traditional marriage, or an environmental group that holds policy ideas that offend this administration or the next one.

Last year, then-Sen. Marco Rubio and Rep. Greg Steube (R-FL) sponsored the “Safeguarding Charity Act” to clarify that tax-exempt status does not qualify as “federal financial assistance.” And if all else fails, the U.S. Supreme Court should strike down these rulings. That might be our fastest way to reform.
 
We’ll keep a close eye on these cases as they pop up, and new legislative efforts by the 119th Congress to protect America’s charities.

​Like a seven-layer gelatin salad in the aftershocks of an earthquake, the European commentariat is still quivering from Vice President J.D. Vance’s tongue-lashing on their abandonment of the principles of free speech. The vice president spoke boldly of “a retreat of Europe from some of its most fundamental values” as “a threat from within.”
 
Dominic Green of The Wall Street Journal nailed it when he said that this is “really, a threat from above.” European governments and the meta government of the European Union in Brussels are imposing a host of policies – from heavy-handed overregulation to mass immigration policies, to speech codes – that are unpopular among European voters.
 
But the disconnects are here in America as well as in Europe. Vance’s critique identified an intellectual short-circuit on the nature of free speech. This disconnect is one suffered not just by progressive European elites, but also American journalists, a celebrated conservative Italian prime minister, and even some in the Trump Administration who would do well to read Vance’s speech and take it to heart.
 
Germany’s Speech Police
 
CBS’s 60 Minutes did an in-depth exploration of Germany’s speech code regulation, interviewing German prosecutor Dr. Matthäus Fink, who said he tells people he arrests for speech violations, “you have free speech as well, but it also has limits.”
 
The German government’s stated concern is that hateful speech can lead to violence. The segment reported that a local German politician, Walter Lübcke, was shot to death in 2019, four years after he gave a speech in favor of immigration. But Lübcke had been the target not just of criticism, but also death threats. In the United States, as in Europe, such explicit threats against individuals are crimes – as well they should be. Beyond that, policing speech becomes not just a slippery slope.
 
It becomes a slope slathered in Crisco for a Vaseline-coated sleigh.
 
Consider: Germans can now be prosecuted not just for violent threats, but also for “public insults against politicians” – “spreading malicious gossip,” “inventing fake quotes,” or even reposting “lies” online. For such “crimes,” Germans can receive fines, suffer the confiscation of their devices, and go to prison.
 
Among the crimes, Dr. Fink told 60 Minutes, are “comments like ‘you’re a son of a bitch,’ excuse me for using, but these words have nothing to do with political discussions or a contribution to a discussion.” Protect The 1st begs to differ. We think that any prosecutor who would put someone in prison for calling a politician an SOB is, himself, an SOB.
 
Did Free Speech Cause the Holocaust?
 
Many commentators have harshly criticized CBS’s Margaret Brennan for explaining in a recent interview with Secretary of State Marco Rubio that “free speech was weaponized to conduct a genocide …”
 
It was left to Secretary Rubio to correct Brennan by noting that the Nazis were the ones who shut down free speech. The shuttering of newspapers, the infiltration and takeover of churches, the dispatching of editors, journalists, intellectuals and academics, along with dissenting pastors, priests and nuns to concentration camps led to a vacuum. In that vacuum-echo chamber, when the Nazis spoke about “the Jewish problem,” there was no one to counter “actually, we have a Nazi problem.”
 
To be fair, Brennan was probably not talking about the Nazi era, but the Weimar Republic that preceded it. If only, she seems to suggest, someone had shut up the Nazis before they gained adherents. But that perspective is also flawed. The Weimar Republic did cancel Hitler speeches, shut down some Nazi publications, and outlawed hate speech. And the Weimar Republic learned what we now seem to have forgotten – that suppressing speech is like squeezing water in your hands. It always slips through your fingers and finds another channel. Indeed, for misfits and outsiders of all sorts, outlawing speech gives it the erotic allure of the forbidden.
 
There’s Still Free Speech Work to Do in Romania, Italy, and at Home
 
The vice president spoke of the recent Romanian election that was cancelled 48 hours before people were set to go to the polls. The reason? It was reported that Russia had invested in Tik Tok videos in support of a presidential candidate who favored withdrawing support for Ukraine. Vice President Vance said, “But if your democracy can be destroyed with a few hundred thousand dollars of digital advertising from a foreign country, then it wasn’t very strong to begin with.”
 
But it isn’t just stripey-pants, tea-sipping progressives who seem to lack a firm grasp of free speech. The decidedly non-progressive prime minister of Italy, Giorgia Meloni, is taking British rocker Brian Molko to court for “contempt for institutions” by calling her a “fascist” during a concert in Turin. The prime minister’s action, to quote Curly from the Three Stooges, says, “Who me? I resemble that remark!”
 
Then there is our own country and Vice President Vance’s administration. President Trump made a clear, powerful statement with his Executive Order “restoring freedom of speech and ending federal censorship.” But not every member of the president’s administration seems to have received the president’s memo.
 
For example, Federal Communications Commission Chairman Brendan Carr is “fast-tracking” a probe of CBS over whether it is guilty of “news distortion” in its editorial decisions on which portions to air from an interview with former Vice President Kamala Harris. The White House press office has even excluded AP from some events for refusing to adopt President Trump’s new moniker for the Gulf of Mexico.
 
Around the world, on the right as well as on the left, the intellectual disconnect is the inability to always accept that a commitment to free speech means allowing speech you find offensive, stupid, and wrong. 
 
Like Fight Club, free speech in a democracy has three rules: I will not attempt to censor people and ideas I don’t like. I will not attempt to censor people and ideas I don’t like. I will not …

​A hearing in the House last week brought to light the dimensions of government censorship in America and around the world. One star witness before the House Judiciary Committee’s Select Subcommittee on the Weaponization of the Federal Government was Matt Taibbi, a key figure in revealing the “Twitter Files” documenting questionable “content moderation,” aka censorship, policies at the social media giant.
 
Taibbi’s remarks on the “Censorship Industrial Complex” emphasized the importance of the present “Alamo moment” for free speech. Drawing from the ongoing controversy regarding USAID, Taibbi pointed out that an organization called Internews received more than $400 million from USAID to train journalists, despite the fact that its chief Jeanne Bourgault argues for actively repressing heterodox journalistic perspectives.
 
The State Department recently disbanded funding for the so-called Global Disinformation Index, a British organization that helps “advertisers and the ad tech industry in assessing the reputational and brand risk when advertising with online media outlets and to help them avoid financially supporting disinformation online." A 2022 report from GDI listed Reason, New York Post, Real Clear Politics, The Daily Wire, The Blaze, One America News Network, The Federalist, Newsmax, The American Spectator, and The American Conservative as among the “riskiest online news outlets.” The U.S. government was thus in the business of pressuring advertisers to shun media outlets based on viewpoint discrimination.
 
These revelations are emblematic of a massive government censorship campaign. As the Trump Administration pumps the brakes on censorship at home, the repression of views is gaining momentum in Europe. The EU’s highly punitive Digital Services Act explicitly allows member nations to threaten platforms into censoring speech. As journalist Michael Shellenberger noted in his own testimony before the subcommittee, “the censorship industrial complex remains almost entirely intact.”
 
Shellenberger added:
 
“The head of NATO, NATO-backed think tanks, the European Commission, former president Barack Obama, former secretary of state Hillary Clinton, Bill Gates, the United Nations, the World Health Organization, the World Economic Forum, influential think tanks at Harvard and Stanford, elements of the DOD, the CIA, the FBI, the National Science Foundation, the Department of Homeland Security and many others have all called for government censorship of so-called misinformation in recent years.
 
“And it’s not just censorship that is the problem. The problem is that deep-state agencies within the U.S. government have for two decades sought to gain control over the production of news and other information around the world as part of ongoing covert and overt influence operations, and that after 2016 multiple actors in several deep-state U.S. government agencies turned the tools of counter-terrorism, counter-insurgency and counter-populism against the American people.”
 
It's abundantly clear that taxpayer dollars are going to pass-through agencies that fund organizations and individuals who actively despise First Amendment values and seek to undermine freedom of speech.
 
Canadian journalist Rupa Subramanya highlighted some of the state-sponsored censorship taking place internationally. Scotland, she noted, now criminalizes anything that “stirs up hatred” against certain protected groups.
 
Subramanya said:
 
“I’m not saying these countries are the same as the fear-based authoritarian societies of North Korea and Iran – not by a long shot. But I am suggesting that some of the free countries are not, in fact, living up to their promises of liberty, and that many allies of the U.S. have gotten in the habit of using the government against political enemies or disfavored companies.”  
 
President Trump last month issued an executive order aimed at restoring freedom of speech and ending federal censorship. We’ll have to wait and see if it has any teeth. The Federal Communications Commission seems to be ignoring the president’s anti-censorship executive order by continuing the speech-repression tradition of the Biden Administration through its ongoing and utterly baseless probe of CBS for “news distortion.”
 
The job of countering government censorship, coercion, and jawboning, which Protect The 1st has covered extensively, will always require eternal vigilance. Let’s hope we’ll all be allowed to keep up the scrutiny of the censorship bureaucrats at home and abroad.