​For all the recent turmoil about the state of free speech in America, the greatest censorship threats to American speech are coming from foreign governments. Congress is beginning to do something about it.

Foreigners Getting Bolder About Censoring Americans

Small-minded regulators are increasingly relying on the global nature of American social media to extend the reach of their censorship into the United States.

Brazilian Supreme Court Justice Alexandre de Moraes, for example, issued takedown orders to social media platforms that included tweets made by Americans. Moraes’s orders to X were issued in secret, with threats to jail X’s Brazilian employees if they did not comply. Similarly, the European Union’s draconian regulatory approach to online speech, often dubbed the “Brussels Effect,” threatens U.S. social media companies with eye-popping fines if they refuse to take down the posts of Americans. In one instance, a senior EU regulator, Thierry Breton, ordered X to remove an interview with then-candidate Donald Trump or face serious legal consequences.

It is hard to imagine how anyone could think that it somehow serves democracy to try to suppress an interview with a presidential candidate.

Now we have a timely and necessary defense of our First Amendment rights, the No Censors on Our Shores Act. Introduced by Rep. Darrell Issa (R-CA) and Rep. María Elvira Salazar (R-FL), the legislation was passed on a bipartisan voice vote by the House Judiciary Committee. This was a rare bipartisan recognition that Americans' free speech deserves protection not only from domestic threats but also from foreign censorship.

What the Bill Does

The bill takes aim at foreign government officials who attempt to suppress the speech of U.S. citizens, especially when those actions affect Americans on U.S. soil. It amends the Immigration and Nationality Act to make these officials inadmissible at U.S. ports of entry and removable if they commit actions that would violate the First Amendment were they carried out by a U.S. official. This creates a clear legal consequence for foreign actors who attempt to undermine constitutional rights from afar.

The No Censors on Our Shores Act addresses this by sending a clear message: If you violate the speech rights of Americans, you are not welcome here.

“The Censorship Industrial Complex around the world isn’t just made up of advocates or academics. It is wrapped in the robes of the judiciary in Brazil, wears the uniform of police in the U.K., and wields ministerial power across the European Union,” said Rep. Issa. “Global government officials are now on notice: Deny our American citizens their First Amendment rights and you will be kept out of this country or removed if you are here.”

At its core, this legislation reasserts that Americans’ right to speak freely isn’t subject to the whims of a foreign official. It is heartening that this measure passed the committee with bipartisan support. It now deserves a vote on the House floor, where it should pick up strong support from both sides of aisle.
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In short, don’t expect to see Moraes or Breton with their families in Disneyland.

​Alphabet’s recent letter to Rep. Jim Jordan, Chairman of the House Judiciary Committee, was nothing short of a white-flag surrender from the world’s most prolific social media company.

Yes, Google’s parent company, which also owns YouTube, finally admitted what conservatives have said all along – the Biden administration leaned on social media companies to censor conservative voices.

Here’s the money quote:

“[A]dministration officials, including President Biden, created a political atmosphere that sought to influence the actions of platforms based on their concerns regarding misinformation.”

And then this stunner:

“It is unacceptable and wrong when any government, including the Biden Administration, attempts to dictate how the Company moderates content, and the Company has consistently fought against those efforts on First Amendment grounds.”

Translation: The White House bullied us, and we caved.

As we’ve reported, that administration used quiet coercion to remove conservative content, ranging from reviews of content by eighty FBI agents, to taxpayer-funded efforts to quietly dissuade companies from running ads in conservative and libertarian news sites and magazines, to White House officials picking up the phone and screaming at senior people at Meta.

Alphabet now vows to accept deplatformed speakers:

“No matter the political atmosphere, YouTube will continue to enable free expression on its platform, particularly as it relates to issues subject to political debate.”

The company affirmed that it has never run a “fact-checking program,” one way in which biased advice prompted Twitter and Facebook to shut down speech during the censorship era. It pledged never to use fact-checkers.

So what should we make of this sudden confession?

First, it sometimes pays to be paranoid. The many conservatives who complained about vanishing content were not crazy. Second, credit Chairman Jordan for pressuring Alphabet to admit its censorship and to speak openly about behind-the-scenes pressure from government. Third, we are not out of the woods yet.

The danger of government pressure leading to censorship is greater than ever. It comes now not from “jawboning” officials in Washington, D.C., but from actors in Brussels and the European Union.

Alphabet wrote that the EU’s Digital Services Act “could be interpreted in such a way as to require Alphabet and other providers of intermediary services to remove lawful content, jeopardizing the companies’ ability to develop and enforce global policies that support rights to free expression and access to information.”
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That’s the next battleground, and it is one in which liberals and conservatives should join forces to defend American speech from foreign censorship.

Erika Kirk spoke of how her husband, Charlie Kirk, was assassinated while appearing on campus to hold a dialogue with college students who disagreed with him. Some admirers of Charlie Kirk have supported the censorship of people who criticized her late husband. Erika Kirk chose to speak up for free speech.

Referring to Kirk’s legacy in his Turning Point USA organization, she said:

“And we will continue to hold debates and dialogue. The First Amendment of our Constitution is the most human amendment. We are naturally talking beings, naturally believing beings. And the First Amendment protects our rights to do both. No assassin will ever stop us for standing up to defend those rights ever.
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“Because when you stop the conversation, when you stop the dialogue, this is what happens. When we lose the ability and the willingness to communicate, we get violence."

​We recently praised Federal Communications Commission Chairman Brendan Carr for a spirited defense of free speech. Regarding so-called “hate speech,” Carr made it clear that there is no such category of speech that can be censored under American law.

What a difference a few days make.

Chairman Carr this week threatened to effectuate the removal of late-night host Jimmy Kimmel from the air. Carr told a podcaster, “We can do this the easy way or the hard way.”

• Sen. Ted Cruz (R-TX) responded: “What he said there was dangerous as hell … that’s right out of Goodfellas. That’s right out of a mafioso coming into a bar going, ‘nice bar you have here. It’d be a shame if something happened to it’ … I think it is unbelievably dangerous for government to put itself in the position of saying, ‘We’re going to decide what speech we like and what we don’t, and we’re going to threaten to take you off the air if we don’t like what you’re saying.’”

We do not find Kimmel particularly amusing, and certainly not someone we would stay up late to watch. Sen. Cruz also made it clear he didn’t appreciate Kimmel and hated many things he said. Sen. Cruz understands that Kimmel’s First Amendment rights are our rights.

The Shoe Is Now on the Other Ideological Foot

For years, Protect The 1st has complained about the left’s cancel culture. The FBI detailed 80 agents to privately order social media companies to remove content, almost all of it conservative content. We wrote about the State Department’s Global Engagement Center, which funded a London-based NGO that privately advised corporate advertisers to avoid such dangerous publications as Reason magazine. We denounced left-wing mobs on campus that exercised the heckler’s veto and threatened speakers with violence.

We called out this heavy-handed “jawboning” as nothing but coercion from a government with immense regulatory authority.

Conservatives Standing Up for the First Amendment

Do conservatives now really want to institutionalize these practices by using the power of the Federal Communications Commission to approve media mergers as a way to regulate speech? Many Republicans and conservatives are demonstrating that the better angels of our nature are still perched on many shoulders.

• Sen. Jerry Moran (R-KS): “We all should be very cautious. The conservative position is free speech is free speech, and we better be very careful about any lines we cross in diminishing free speech.”

 

• Chairman Brett Guthrie (R-Ky), House Energy and Commerce Committee: “Just because I don’t agree with what someone says, we need to be very careful. We have to be extremely cautious to try to use government to influence what people say.”

 

• Chairman Jim Jordan (R-OH), House Judiciary Committee: “This is a total market decision.”

Many more Republicans we speak to on Capitol Hill are also disturbed by this trend at the FCC, both for what it does to our constitutional liberties, and how it may be used against them by a future administration.

A High-Profile Liberal Speaks Out for “American Moxie”

Rep. Ro Khanna (D-CA), a liberal’s liberal from a blue state, showed similar courage when he spoke out against social media’s blocking of The New York Post’s coverage of the Hunter Biden laptop story.

He writes in The Wall Street Journal that President Trump and Vice President Vance should “change direction.” In particular, he called on the latter to live up to the promise of his speech before the Munich Security Conference, in which he accurately criticized Germany, the UK, and other countries in the EU for using heavy-handed tactics to silence speakers.

Rep. Khanna writes:

“A government that feels comfortable bullying the private sphere – whether businesses, hospitals, universities, employers or individuals – strips away our audacity as Americans to speak our minds and call out those in power. If we lose that we lose our American moxie.”
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Here’s to hoping that Chairman Carr returns to the free speech convictions that were such a hallmark of his prior work.

​“The crownless again shall be king” wrote Bilbo Baggins in a poem in J.R.R. Tolkien’s Fellowship of the Ring. In America, the conservative party – once crownless – now controls the White House, the Senate, and the House. When it comes to protecting our First Amendment rights, are Republicans going to use their power wisely?
 
Sen. Ted Cruz of Texas has often exposed and criticized the previous Biden administration and its allies for censoring conservatives on social media and using coercive techniques to silence and “cancel” conservative speakers in academia, media, and corporations. The power to use the law and agencies to punish political opponents and critics for speech is for many an intoxicating temptation.
 
If only those stupid people would just shut up!
 
Cruz, a fan of Tolkien’s Lord of the Rings series, in a recent podcast interview compared the desire to misuse regulatory authority to silence critics to the almost unbearable temptation exerted by the magical ring of power that could corrupt even the most virtuous.
 
We saw this on full display in the Biden administration, which assigned government agents to secretly censor social media. Now Cruz is applying this literary trope to Federal Communications Commission Chairman Brendan Carr, who publicly threatened to punish the corporate sponsors of Jimmy Kimmel Live! As we all know, it worked. Kimmel is canceled.
 
Sen. Cruz said:
 
“So the Federal Communications Commission is in charge of granting broadcast licenses. So ABC, NBC, CBS, they have licenses from the FCC. It is true that under statute, they are required to be in the public interest. What he [Carr] is saying is Jimmy Kimmel was lying [about the background of Charlie Kirk’s killer]. That’s true. He was lying. And his lying to the American people is not in the public interest. And so he [Carr] threatens explicitly, we’re going to cancel ABC’s license. We’re going to take him off the air so ABC cannot broadcast anymore.
 
“It’s so attractive,” Sen. Cruz said of censorship. “It’s sort of like conservatives saying, wait, wait, if we have government, we have power. We can ban the media.”
 
Sen. Cruz made it clear he found this offensive to the American ideal of free speech. He also offered a practical “live-by-the-sword, die-by-the-sword” reason for this administration and conservatives to abandon this path.
 
“Going down this road, there will come a time when a Democrat wins again, wins the White House … They will silence us.”
 
An arms race is developing between the two parties, established under President Biden and now racing further ahead under President Trump. Unless sides agree to mutual disarmament, censorship of partisan opponents will become a permanent feature of American political life.

- Samuel Johnson

​Alex Jones, founder of InfoWars, is asking the U.S. Supreme Court to review a defamation judgment ordering him to pay nearly $1.5 billion to an FBI agent and parents of children murdered in the Sandy Hook school massacre that took 26 lives.

Jones notoriously claimed the 2012 tragedy in Connecticut was a deep-state “hoax” and that the grieving parents of 20 slain children were “crisis actors” hired to promote gun control. Once on the stand, he admitted that the massacre was “100 percent” real, but now argues that his appeal should succeed on First Amendment grounds, with references to a landmark First Amendment case.

Does Jones Have a Leg to Stand On?

In New York Times v. Sullivan (1964), the Court raised the bar for public figures to win libel suits, requiring proof of “actual malice” – reckless disregard for the truth or knowingly making false statements. The decision gave critics of the powerful “breathing space” to report without undue fear of crushing lawsuits.

Jones’ lawyers invoke Sullivan, but their argument rests on the claim that a Connecticut court’s default judgment makes the precedent irrelevant. That claim is undercut by Jones’ refusal to participate in his trial, including ignoring discovery orders. Worse for Jones, the odds against him are steep. The Supreme Court hears fewer than 100 cases of 6,000 to 7,000 petitions it receives each year.

Viewed through the lens of Sullivan, Jones’ defamation was about as serious as it gets. As a result of Jones’ attacks, Sandy Hook survivors testified that they suffered from threats of death and rape, along with the added trauma of being branded impostors before an audience of millions.

How Might the Court Consider this Petition?
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A Supreme Court clerk weighing this petition would likely check every Sullivan box:
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• Reckless disregard for truth? Check.
• Knowingly making false statements? Check.
• The Sullivan standard for “actual malice”? Check and check.

The First Amendment, bolstered by Sullivan, likely still leaves Jones without sufficient “breathing space” to protect his outrageous claims. “Speech is free,” a plaintiff’s lawyer in the case once told a jury, “but lies you have to pay for.”

We have sometimes criticized how courts have subsequently gone beyond Sullivan to the point of making it almost impossible for public figures to win a defamation case. The Jones case, however, may mark the bottom line. His snarling visage could then become the enduring image of what “actual malice” truly means.
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For a deeper dive on Sullivan’s history and legacy, check out this piece by Columbia’s Knight First Amendment Institute.

​The decline of civic education in America is reflected in the inability of most Americans today to name the five protections of the First Amendment. Worse, one in three college students believes violence is sometimes justified against certain speakers.

In the turbulent wake of the assassination of Charlie Kirk, two basic First Amendment misunderstandings keep surfacing.
​

• First, many believe the First Amendment applies to private organizations, including employers and social media platforms. It doesn’t – it only restrains the government.

 

• Second, many think the First Amendment prevents a private employer from firing someone for comments made on social media during their own time. It offers no such protection.

What Can the Government Do About Speech?
Brendan Carr, Chairman of the Federal Communications Commission, got it right at Politico’s AI & Tech Summit when asked if government should crack down on ugly social media posts about Kirk’s murder.

Chairman Carr said:

“I think you can draw a pretty clear line, and the Supreme Court has done this for decades, that our First Amendment, our free speech tradition, protects almost all speech.”

He noted that only “a relatively small category of speech” – such as direct advocacy of violence – has “existing laws on the books that deal with that.”

Attorney General Pam Bondi was less discerning. She faced a brutal takedown by Charles C.W. Cooke in National Review for comments she made this week. Cooke noted that Bondi promised: “We will absolutely target you, go after you, if you are targeting someone with hate speech.”

Cooke wrote:

“Actually, she won’t. She won’t ‘target’ or ‘go after’ anyone for ‘hate speech’ because, legally, there is no such thing as ‘hate speech’ in the United States, and because, as a government employee, she is bound by the First Amendment. And if she tries it anyway? The Supreme Court will side against her 9-0.”

Cooke notes that there are categories of speech such as incitement, libel, and threats that can be sanctioned. Otherwise, he wrote, “speech is speech.”

“But speech that is supposedly ‘hateful’ – including about Charlie Kirk’s murder – is undoubtedly protected by the Constitution. Kirk himself was clear about this.”

Can Businesses Refuse to Promote Your Views?
Attorney General Bondi also suggested prosecuting businesses that refuse to print posters for Kirk vigils. That’s a fundamental misreading of the First Amendment. Businesses can legally refuse any customer, as long as it is not on the basis of a protected category, such as race, gender, or national origin.

To propose otherwise is to fail to understand the First Amendment as a neutral principle.

Think about it: If you want to defend a Christian web designer who is being prosecuted in a blue state for declining to celebrate same-sex marriage as a matter of religious conviction, you cannot then turn around and prosecute vendors for declining to print a poster with a political subtext.

What Does the Law Say About Firing People for Their Posts?
Bondi told Sean Hannity on Monday, that employers “have an obligation to get rid of people. You need to look at people saying horrible things.”

Private employers have no such obligation to the government. And while many states protect the speech and political views of private employees by statute, the rules regarding private-sector employment and private speech in states without such protections typically favor the employer. A number of employees of private companies and even public school teachers have been fired for insensitive comments in recent days. And most of these firings will likely stick.
​

• Brian Spanh, a free speech attorney at Godfrey & Kahn, told David Go of Fox News: “Generally speaking, the First Amendment is not going to protect an employee from being fired for social media comments that he or she makes, if they are working for a private company.”

 

• Most private employment is “at will,” meaning, said Ryan Thompson, a senior HR consultant, “you can be fired for a good reason, a bad reason or no reason, provided it’s not an illegal or discriminatory reason.”

 

• Thompson said that the law is a little less clear for public employees, like public-school teachers. But many have signed contracts that include clauses for “moral turpitude” and “community unrest or outrage” that could allow such a firing.

The Bottom Line on Free Speech
We know that a lot of ugly and insensitive things have been said and posted in the wake of the Kirk assassination. But trying to regulate speech is not only unconstitutional, it is also self-defeating. If we actually broke the First Amendment, forbidden speech wouldn’t disappear. It would pool under the national skin, fester, and become something much worse.
As always, sunlight remains the best disinfectant.

​In the last few years, we’ve documented the abuse of government power to shut down conservative speech. Does that now make it okay to use government power to shut down progressive speech, especially if it’s way out of line?

Here’s a little history: the State Department under the Biden administration used its now-shuttered division, the Global Engagement Center, to fund efforts through a London-based NGO to persuade advertisers to boycott conservative- and libertarian-leaning news outlets. We’ve reported on the Twitter files and from Meta-Facebook CEO Mark Zuckerberg about threats from the White House to shut down conservative speakers.

The rationale for censorship was that conservative journalism, posts, and rhetoric were “disinformation” that was too “dangerous” to society to be permitted.

Now, in the aftermath of Charlie Kirk’s murder, some progressive voices are testing the patience of conservative critics of online censorship. Some posts about Kirk from progressives have been healing and compassionate, but some have been insensitive, cruel, and even gloating.

In reaction, Rep. Clay Higgins (R-LA), who sits on the Committee on Homeland Security and the Committee on Oversight and Accountability, posted this:

“I am going to use Congressional authority and every influence with big tech platforms to mandate immediate ban for life of every post or commenter that belittled the assassination of Charlie Kirk. If they ran their mouth with their smartass hatred celebrating the heinous murder of that beautiful young man who dedicated his whole life to delivering respectful conservative truth into the hearts of liberal enclave universities, armed only with a Bible and a microphone and a Constitution … those profiles must come down.

“So, I’m going to lean forward on this fight, demanding that big tech have zero tolerance for violent political hate content, the user to be banned from ALL PLATFORMS FOREVER. I’m also going after their business licenses and permitting, their businesses will be blacklisted aggressively, they should be kicked from every school, and their drivers licenses should be revoked. I’m basically going to cancel with extreme prejudice these evil, sick animals who celebrated Charlie Kirk’s assassination. I’m starting that today. That is all.”

Virtually everything Rep. Higgins said to characterize these speakers – running their mouths with “smartass hatred” – could be leveled at some conservative speech. Of course, actual endorsements of Charlie Kirk’s murder shouldn’t be posted by any company. Beyond that, once we start down the path of banning insensitive speakers “from all platforms forever,” pulling their business licenses and permits, “blacklisting” their businesses, we will have created a Leviathan government censorship machine that can be used against anyone at any time, including Rep. Higgins himself the next time a progressive administration is in power.

It is hard to accept, but the landscape of free speech is bound to include smartasses, jerks, smirkers, and ghouls who run their mouths. Narrow the horizons and all speech will ultimately be in danger. Besides, letting the jerks be jerks allows them to reveal their real selves to the public.

Rep. Higgins correctly notes that the late Charlie Kirk went into what can often appropriately be called “liberal enclave universities” armed with nothing but a Bible, a microphone, and – we would add – a smile. Whether you nodded in agreement or seethed in objection to what Charlie Kirk said, he had the courage to say it with good humor and to respectfully listen to those who disagreed with him.
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That’s the spirit America needs now, from people on all sides.

The murder of conservative activist Charlie Kirk is a bullet fired at all of us. That bullet was also fired at a father, husband, and a nice man who made himself approachable to all.

You might have nodded in agreement with Kirk’s podcasts, you might have dismissed him as too provocative, or you might have (as we did) agreed with much of what he said but shrink from some of his statements. But one thing everyone should have noticed about Charlie Kirk was his willingness to engage with people – students especially – who vehemently disagreed with him. We’ve seen clip after clip of Charlie Kirk patiently listening to invective, only to respond with thoughtful responses and questions that promote dialogue.

If you doubt this, check out Kirk’s response to an NSFW South Park parody of him. “We need to have a good spirit about being made fun of,” Kirk said, smiling after replaying South Park’s roast of him.

In this heated moment, we need to reaffirm that every American has a right to speak, whether it is temperate or intemperate, good or bad, fair or unfair speech. You have the right to be angry about what other people say, but you don’t have the right to hurt them. (Note to anyone itching to pick up a gun – violence is a surefire way to hurt whatever cause you’re espousing.)
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Violence in retribution for speech is un-American. We are deeply disturbed and concerned about what happened on Wednesday in Utah, not only for the sake of Charlie Kirk and his family, but also because when someone is shot for political reasons, we all take a bullet.

​Two events cast long shadows over the House Judiciary Committee’s hearing on Wednesday concerning the threat of European censorship to American speech and innovation.

One was the arrest this week of comedy writer Graham Linehan by five armed police officers at London’s Heathrow Airport. If anyone should doubt that the speech laws of the UK’s Online Safety Act, as well as the Digital Services Act of the European Union, were meant to be global, it had to be the arrest of this Irish citizen who had posted his offending tweets from Arizona.

The other shadow was cast by the looming midterm elections, with Democratic Members firing shots not at Europe but at the White House. Ranking Member Rep. Jamie Raskin (D-MD) launched a spirited attack on President Trump for his treatment of the First Amendment, including the use of regulatory authority to coerce a $16 million settlement from Paramount over a nuisance lawsuit about CBS’s editorial decisions.

Chairman Jim Jordan (R-OH) archly noted that while Rep. Raskin spoke, an aide stood behind him with a large poster full of headlines “from countless articles criticizing Donald Trump” – underscoring, that whatever one thinks of the controversies of the Trump administration, free speech in America remains robust.

The star of the show was Nigel Farage, MP and the leader of the UK Reform Party in Parliament. His remarks were well set up by Chairman Jordan who noted that when European Commission member Thierry Breton had fired off a letter in 2024 to Elon Musk complaining about X’s posting of an interview with Donald Trump, he threatened “full use of our toolbox.”

This toolbox under the EU’s Digital Services Act includes fines that can reach 10 to 20 percent of global revenues. Enough of those could amount to a potential death-penalty fine for even the largest social media companies.

Breton, Rep. Jordan said, “threatened an American running an American company regarding our most important election.”

Farage seamlessly picked up on Jordan’s characterization, telling the committee that he came bearing bad news from the “land of the Magna Carta and the Mother of Parliaments.” He had come to the United States, he said, “to be a klaxon” warning of the impending threats from the UK and EU to free speech in America.

In his formal testimony, Farage told the committee that the British regulator Ofcom “purports to have the authority to demand that American citizens who operate web platforms provide Ofcom with incriminating information about themselves and their services. Failure to respond to these demands, or any evasion in a response to these demands, is a criminal offense in the United Kingdom, punishable by arrest, fines, and a term of imprisonment of up to two years’ duration.”

This threat is far from merely rhetorical, as the arrest of Linehan underscores.

“Ofcom has already threatened four American companies with exactly these penalties,” Farage told the committee. “I repeat: regulatory bodies in the United Kingdom are actively threatening to imprison American citizens for exercising their protected Constitutional rights.”

There were some notes of bipartisanship. Rep. Zoe Lofgren (D-CA), whose district includes Silicon Valley, said that she has long been “critical of the approach of the EU” on internet regulation.

Chairman Jordan defended American technology companies as an “engine of innovation in our global economy.” He noted that European regulation has not resulted in the rise of any competitive European champion.

“China wins as Europe hurts both itself and America,” Chairman Jordan said.
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Overall, the hearing was noisy, contentious, and spirited – in all, exactly what one would hope for in a discussion about free speech.

Graham Linehan is an Irish sitcom producer and writer who lives in the UK. He also wrote a series of harsh tweets criticizing “trans activists” on X.

“I am furious about what is happening to women in the UK and I despise trans activists because I think they are homophobic and misogynist,” Linehan wrote.

He also posted this: “If a trans-identified male is in a female-only space, he is committing a violent, abusive act. Make a scene, call the cops and, if all else fails, punch him in the balls.”

How to characterize these tweets? Reactions range from “bigoted,” to “obscene,” to “kind of agree but over the top,” to “about time someone said that.” Left alone, Linehan’s posts would have floated past us down tweet river into oblivion.

But the ever-vigilant UK government, oblivious to the Streisand Effect, enlarged these tweets to the size of the Hollywood Sign and pumped them full of bright, blazing neon. Now the whole online world has read them. This happened after Linehan returned from Arizona to London, only to be greeted at the airport like a suspect in a terrorist investigation.

“The moment I stepped off the plane at Heathrow, five armed police officers were waiting,” he wrote. “Not one, not two, five. They escorted me to a private area and told me I was under arrest for three tweets … I was arrested like a terrorist, locked in a cell like a criminal, taken to hospital because the stress nearly killed me and banned from speaking online – all because I made jokes that upset some psychotic crossdressers.”

Offended? Many will be. But even if you judge the remarks to be radical, intemperate, or narrow-minded, it is still just speech. In our country, a comedian saying “punch him in the balls” would surely fall far short of the judicial doctrine of a “true threat” that would be actionable. Actual true threats by extremists preceded the July 7, 2005, terrorist bombings that killed 52 people and injured 800 in London. Confusing that with “punch him in the balls” degrades the meaning of actual violence.

Many Britons outside of Prime Minister Keir Starmer’s Labour government are as alarmed as most Americans.

“Sending five officers to arrest a man for a tweet isn’t policing, it’s politics,” said Tory leader Kemi Badenoch. “It’s time this government told the police their job is to protect the public, not monitor social media for hurty words.”

Nigel Farage, leader of the Reform party, said, “The Graham Linehan case is yet another example of the war on freedom in the UK … Free speech is under assault, and I am urging the USA to be vigilant.”

Should we be vigilant?

Warning Americans about the importation of these speech standards may, in the era of Trump at least, sound alarmist – “couldn’t happen here,” etc. But keep in mind that social media posts are global. The UK’s Online Safety Act, as with the European Union’s Digital Services Act, under which people can be officially investigated, arrested, and prosecuted, for merely insulting politicians, can also be used to deplatform Americans on U.S.-based social media under the laws’ broad definitions of “harmful” speech.
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It's almost enough to make you want to punch someone in the cojones.

Call it Euro-creep – the tendency of Europe’s draconian censorship laws to seep into American law.

Germany is prosecuting digital speakers for “public insults against politicians.” Not to be outdone, California passed two laws that punish speakers for posting satirical memes and parodies of politicians, while requiring large online platforms to act as the government’s censors and remove political humor from their sites.

On Friday, the satirical site, Babylon Bee, and video-sharing platform Rumble, prevailed in a lawsuit before a federal district court. The court swept the two California laws into the dustbin of unconstitutional attempts to control speech.

Lowbrow Humor Gets Equal Protection

The California laws targeted the use of digital technology and AI to create “materially deceptive” content. Think of concocted images of President Donald Trump standing next to a giant cannon on the White House lawn to fire deportees into the air, or Gov. Gavin Newsom deploying a giant can of Febreze over San Francisco to mask the city’s “poo smell.”

As Judge John Mendez of the U.S. District Court for the Eastern District of California wrote, “Novel mediums of speech and even lowbrow humor have equal entitlement to First Amendment protection and the principles undergirding the freedom of expression do not waver when technological changes occur.”

Targeting Some Speakers, Protecting Others

Concluding that California’s approach “suffers from a ‘compendium of traditional First Amendment infirmities,’” the court found that the laws discriminated on the basis of “content, viewpoint, and speaker.”

One of the laws only punished content that could “harm” a candidate’s electoral prospects. But “materially deceptive content that helps a candidate or promotes confidence would not be subject to penalty.”

Broadcasters and some internet websites are covered by more lenient rules, exempt from general or special damages. But no such leniency is afforded parodists.

Deputizing “Censorship Czars”

Worst of all, California sought to deputize legions of internet users as plaintiffs, allowing them to seek general and special damages, including attorneys’ fees and cost, even from those who merely repost the offending image. The court rightly concluded that “this attempts to stifle speech before it occurs or actually harms anyone as long as it is ‘reasonably likely’ to do so and it allows almost anyone to act as a ‘censorship czar.’”

Imagine the flood of lawsuits that would have drowned nearly all satirical speech if this litigation factory had been allowed to continue.

The Solution to Bad Speech Is… the Envelope Please… More Speech!

Judge Mendez acknowledged the problem of digital technology spreading deceptive stories and deepfakes misleading people. But burying the First Amendment’s guarantee of free speech under a heap of lawsuits is not the answer.

“When it comes to political expression,” Judge Mendez wrote, “the antidote is not prematurely stifling content creation and singling out specific speakers but encouraging counter speech, rigorous fact-checking, and the uninhibited flow of democratic discourse.”

The mere fact that the California legislature and Gov. Newsom saw nothing amiss with these laws should serve as a wake-up call that the First Amendment is poorly understood and respected, even by elected officials. “It is alarming to think that government officials could decide which political speech is permitted, silenced, or erased altogether,” said Rumble CEO Chris Pavlovski.
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We agree. Vigilance is called for, especially considering that Babylon Bee still has to defend itself against similar laws in Hawaii.

​Earning a graduate degree is one way to stuff knowledge into one’s brain. But the stomach still needs food, the body still needs a place to shower and sleep, and every student needs a little extra cash to go out with friends. This is why for graduate students, working as a teaching assistant is one way to make ends meet while earning a Ph.D.
 
For decades, teaching assistants – better known as “TAs” – have complained about being overworked and underpaid. Many grumble that their professors offload too much of their teaching load and benefit from free research help for their next paper or book. The running joke: TAs just grade papers until they pass out. Understandably, graduate students sought to unionize to set limits on their labor and seek better pay.
 
That is a good thing. But union membership should never come at the cost of freedom of speech.
 
“Campus labor groups once motivated by economic fairness are increasingly governed by ideological litmus tests,” writes Jon Hartley, a doctoral candidate in economics at Stanford University, in The Wall Street Journal. The unions that represent teaching and research assistants in academia are often steeped in far-left ideological agendas that many don’t support and don’t want to endorse support with their dues.
 
This was the case at the University of Chicago, where graduate students are going to court to protect their First Amendment rights against their union, the United Electrical, Radio, and Mine Workers of America. The union’s local, GSU-UE, is a proponent of the “Boycott, Divest, and Sanction” movement against Israel, branding Israel an “apartheid regime” that commits “ethnic cleansing.” The union has joined in the campaign to “fight against campus Zionists,” resist “pigs” (meaning the police), and “liberate” Palestine from the “river to the sea” by “any means necessary.”
 
Jewish students understandably regard their compelled dues as forced subsidies of antisemitism. So they are going to federal court for being compelled to pay a union that, they believe, leans hard against Israel and Jews.
 
Hartley himself is suing for being forced by the Stanford Graduate Workers Union for refusing to sign a membership form and pay dues to that same union that supports progressive causes such as abortion, public subsidies for “gender-affirming care,” and defunding the police. Because the union’s advocacy contravenes his Roman Catholic faith, he is seeking a religious-objector accommodation under Title VII of the Civil Rights Act. Hartley writes:
 
“At both Stanford and Chicago, union leadership insists that such coercion is routine – part of collective bargaining. But there’s a world of difference between negotiating wages and punishing dissenters. When students are told they can’t work, teach or study unless they pay dues to a political organization, it’s no longer about labor rights – it’s about freedom of association, conscience and speech.”
 
On Labor Day, we celebrated the solid advantages unions have brought to all Americans, from the five-day work week to the eight-hour workday. Even if you buy the idea that Americans should be forced into union membership (and some of us don’t), no one should be forced to support speech they find objectionable. This is especially true in academia, where the freedom to study, teach, and research is held to be sacrosanct.

​At the Rose Bowl in Pasadena, California, we saw safety barriers stamped with the words, “Free Speech Zone.” Presumably, these portable safety barriers are used to cordon off protesters into designated areas.
 
While we understand the need for “time, manner, and place” restrictions on protests, the signage on these barriers is an abomination and a travesty. It amounts to an advertisement for ignorance. There are no “free speech zones” in America. Thanks to the First Amendment, the nation itself is one giant free speech zone.
 
Why is free speech so important? Why did the Founders make sure to put it at the very beginning of the Bill of Rights? How do Americans today benefit from this legacy of the 18th-century Enlightenment?
 
Greg Lukianoff, CEO and president of the Foundation for Individual Rights and Expression (FIRE), explains in a recent TED Talk the benefits that result from the “four truths” of free speech. Some of them run counter to today’s prevailing assumptions – beginning with the realization that, far from creating “safety issues,” free speech actually makes us safer. To find out why, listen to Lukianoff explain how free speech is this safety valve that keeps our society freer, fairer, and ultimately securer. In just 12 minutes, he explains to a 21st-century audience why this 18th-century principle is more essential to America than ever before.

​Does a Christian prayer on a stadium loudspeaker at the start of a football game amount to a government endorsement of religion, or does it fulfill the First Amendment’s guarantees of free speech and the free exercise of religion?

That’s the question that arose when two Christian schools made it to the state championships in Florida in 2015. The state’s high school athletic association, a government entity, barred the teams from conducting a joint prayer over the stadium loudspeaker.

Many would reflexively side with the athletic association. The government sets the venue for the event. The government controls the loudspeaker. Allowing any religion to pray over government-controlled equipment might, at first glance, appear to violate the clause of the First Amendment that forbids the official establishment of religion.

That was essentially the conclusion the Eleventh Circuit Court of Appeals supported last year. To mix sports metaphors, it may have seemed like a slam dunk. But the Eleventh’s decision was, in fact, a bad call.

In a petition asking the Supreme Court to hear the case, Protect The 1st wrote that the “Eleventh Circuit held that the First Amendment was not even implicated – on the dubious theory that the proposed prayer, and by extension anything else that had ever been said by private parties on the loudspeakers, was government speech.”

Worse, that “dangerous expansion of the already questionable government-speech doctrine flips the First Amendment on its head.”

Protect The 1st is now telling the Supreme Court that this case presents “a clean vehicle to resolve the conflict and confusion” about the difference between the government’s speech and the speech of private actors using public forums.

Consider what happened when the city of Boston allowed 284 diverse groups at various times to hoist their flags on a city-owned flagpole, except for one group seeking to fly a standard that included the Latin Cross. In that case, Shurtleff v. City of Boston (2022), Protect The 1st told the Court that when the government provides a public forum for all comers, it is not “government speech.” It is merely a government forum. To single out religious expression for exclusion in a public venue is to abridge freedom of religious expression. Period.

Justice Samuel Alito wrote then that “speech by a private individual or group cannot constitute government speech if the government does not attempt to control the message.” The same principle applies, whether with flagpoles or loudspeakers.

Protect The 1st told the Court that the state athletic association “would not itself have been speaking had it allowed a student to use the limited public forum it created to pray at the championship football game.” We added that expanding the government-speech doctrine to convert government-sponsored forums into tools for censoring some views – but not others – weakens the First Amendment.

Protect The 1st concluded by telling the Court that “a prayer to solemnize the forthcoming competition, thank God, and seek His help in ensuring a good game for players and fans alike offers a religious viewpoint. That viewpoint must be respected and permitted every bit as much as a speech thanking parents, teachers, and the school, or merely cheering, ‘Go team!’”
​
Many long-time Court observers believe the Justices will recognize the threat to free speech and expression in the Eleventh Circuit’s ruling and will, this fall, place this case on their docket.

​The historian Robert Paxton notes that governments of all stripes are susceptible to authoritarian trappings, especially when their narratives suggest “obsessive preoccupation with community decline.”

This happens when power elites – whether left, center, or right – become convinced of their correctness close ranks to maintain dominance. Before long, they begin acting “in ways quite contrary” to their professed beliefs – a pattern Vice President J.D. Vance condemned in a blistering critique of Europe’s entrenched interests in Munich in February).

All this makes a recent post by Jonathan Turley particularly resonant. “Free speech is in a free fall in Europe,” he observes. This dynamic helps explain why Germany’s tendency to censor speech continues to find new targets:

• A comment mocking a politician’s weight warranted a criminal inquiry

 

• An opposition newspaper editor was indicted and fined for posting a meme ridiculing the hypocrisy of a minister’s supposed support for free speech

 

• A Bavarian pensioner was convicted for posting satirical Nazi-era images on X, because he did not make his critique of a government minister sufficiently clear

 

• Annual police raids target so-called “digital arsonists.”

Germany’s current coalition politicians seem intent on furthering, as the examples above demonstrate, crackdowns on speech. Writing in the Wall Street Journal, Filipp Piatov excoriated this censorship:

“Germany’s establishment is fighting to reassert control over public discourse – especially online, where it’s losing ground. The main targets are social-media platforms and populist parties. The tools are censorship and criminal law.

“This isn’t really about fighting disinformation. It’s about regaining control, which they sense is slipping away.”

Alas, Germany is hardly alone in this regard. As we’ve written before – and undoubtedly will again – the European Union’s Digital Services Act threatens to censor the speech of Americans and other foreign citizens, making it the new price of simply doing business. Across the Channel, the increasingly restrictive United Kingdom seems locked in step with the EU.

There, the Online Safety Act is poised to wreak havoc on privacy, free speech, and even the safety of the children it purports to protect.
​
Jonathan Turley is rightfully leery of EU Commission President Ursula von der Leyen’s recent declaration of a Pax Europaea. If the current pattern of free speech violations holds, it signifies a larger abandonment of the shared values that helped build robust post-war democracies on both sides of the Atlantic.

​Police in Allentown, Pennsylvania, have long drawn the scrutiny of civil libertarians over claims of excessive force and occasional brutality. Since 2015, the city has paid out more than $2 million in police misconduct claims.
 
Phil Rishel, a 25-year-old Allentown resident, is determined to drive home Allentown’s lack of training in the First Amendment for its police force. He has often filmed police to demonstrate the point that he has a constitutional right to do so. In one of his recent posts, in which Rishel filmed a police garage through widely spaced bars from a public sidewalk, an officer sternly told him that “filming is not a First Amendment right.”
Courts have long held the opposite – that a citizen’s right to film in public is a vital form of public oversight, as seen in the arrest of a citizen-journalist who dared to film a public hearing in Texas. (Here’s a good guide on your rights and suggestions on how to film the police from the ACLU.)
 
Rishel’s recent posts have blown up the internet in which he has an insulting interaction with a police officer in the garage. In that recent video, the officer loses his cool and drives his police car down the sidewalk toward Rishel, who gleefully films him. When the officer inadvertently bangs the side of his car against a sidewall, Rishel responds with profane insults about the officer’s intelligence.

​Rishel has beaten charges of “verbally abusing, harassing, and screaming obscenities on the public street.” Local courts have recognized that swearing and even flipping the middle finger amount to constitutionally protected speech. Now the Foundation for Individual Rights (FIRE) is backing Rishel in his First Amendment lawsuit to protect his right to film and criticize police activities.
 
As Rishel tells an officer in his video, “there is no purer form of protest than on a public sidewalk.”
 
Well put. But can the same be said for Rishel’s pointed insults? They almost certainly fall far short of the Supreme Court’s “fighting words” threshold for what would constitute an actionable offense.
 
One likely – and commendable – result of this incident will be enhanced First Amendment training for Allentown police. Still, we don’t feel like breaking out the champagne over this one. Yes, the U.S. Constitution protects Phil Rishel’s right to act like an insulting jerk who provokes police officers into overreacting. But provoking police officers in a very personal way – who are, after all, human – is not a good way to test the boundaries of the First Amendment.

Rep. Jim Jordan, Chairman of the House Judiciary Committee, followed up on his committee’s report on how Europe enforces censorship of Americans on U.S. platforms by taking his complaints to the censors themselves.

The Ohio Congressman led a bipartisan delegation to explain to regulators in Brussels, London, and Dublin exactly why Americans find European censorship of American social media platforms so disturbing.

“America innovates, China replicates, and Europe regulates,” complained a member of the delegation, Rep. Scott Fitzgerald (R-WI). In an interview in Brussels, Fitzgerald noted that “there are seven corporations that are currently listed as gatekeepers by the DSA (Digital Services Act) and six of the seven are American corporations” being punished for their speech.
Did this message land?

“Nothing we heard in Europe eased our concerns about the (EU’s) Digital Services Act, Digital Markets Act, or (the UK) Online Safety Act,” Jordan said. “These sweeping regulations create a serious chilling effect on free expression and threaten the First Amendment rights of American citizens and companies.”

Like so many media outlets, Spotify was caught in the crossfire between free speech and medical authority during the pandemic. Joe Rogan on his popular podcast interviewed a vaccine-skeptical doctor who asserted that the antiparasitic medication, Ivermectin, can cure COVID-19. Spotify also removed “War Room,” the Steve Bannon podcast for calling on President Trump to seize CDC Director Anthony Fauci and FBI Director Christopher Wray and put their “heads on spikes.”

In this investigation, we caution House investigators to always keep in mind that Spotify has a First Amendment right to ban Bannon, curtail Rogan, and play the treacly “Dr. Fauci Say” (“Doctor Fauci, save me, I’m going insane”!) 24 hours a day. The First Amendment allows Spotify to make its own editorial decisions regarding Ivermectin or anything else. It can only be dissuaded by the free market of its listeners if it should decide to dedicate itself 24/7 to ridiculing President Trump or former President Biden, the Bible, the Quran, or apple pie.

If it decided to pull Bannon for making a graphic and menacing statement, Spotify was well within its rights to do so. And when rocker Neil Young pulled his music from Spotify in protest of Rogan’s COVID coverage – agree or disagree – he was fully exercising his First Amendment right to free association. Or in this case, disassociation.

The First Amendment only restricts the government’s ability to abridge speech.

The House Judiciary Committee should, then, be commended for correctly targeting its investigation on how the Biden administration and the European Union may have used coercive state power to bludgeon Spotify into censoring itself for them. Such “jawboning” from powerful regulators can never be treated as mere suggestions. It is more like the Mafia’s protection racket shakedowns: You have a nice little media company there, shame if anything happened to it.

At the time Spotify took this action, Biden press secretary Jen Psaki praised it as a “positive step” while urging other social media platforms to do more. Now the House Judiciary Committee is asking Spotify to turn over any communications and judicial orders from the EU, the UK, and a host of other governments since 2020.
​
This is the right approach. We praise Chairman Jordan and his colleagues for taking their case directly to the sources of censorship. Meanwhile, as we recently pointed out, conservatives in the United States should not punish the targets of past official censorship and coercion by enacting a censorship regime of their own.

Conservatives, firmly in power, hold the whip hand over their long-standing tormentors, including those who for years privately censored their speech. The Trump administration is now exploring ways to use its regulatory power to punish Silicon Valley and social media companies for suppressing conservative voices on private platforms.

• But punishing people who refused to associate their platforms with conservative speech by using government to infringe on their speech and associational rights threatens to permanently degrade the First Amendment.

​

• Conservative regulators should also realize they are publicly toying with the very weapons that will almost certainly be used to silence them again, only in more effective ways, if another progressive president is elected.

Consider Federal Trade Commission Chairman Andrew Ferguson, who is threatening to use Section 5 of the FTC Act – which outlaws unfair or deceptive practices – to target social media companies for selective enforcement of their terms of service. Chairman Ferguson also contemplates using antitrust law to “prosecute any unlawful collusion between online platforms, and confront advertiser boycotts which threaten competition among those platforms.”
 
Ferguson told an audience in March: “I’m not looking for censorship qua censorship. I’m looking for exercises of market power that might reveal themselves in censorship.”
 
Conservatives, bruised by rough treatment at the hands of big social media companies, understandably exult in this role reversal. Discrimination against conservative speech clearly happened, from Facebook’s efforts to exclude the conservative Prager University from its digital audiences, to crackdowns on posts that asserted that COVID-19 originated in a lab in Wuhan, China (which the FBI and CIA now believe it probably did), to efforts by secret entities within the State Department to persuade advertisers to defund conservative and libertarian publications.
​
Are consumer-protection complaints about companies’ editorial judgments, which would put the government firmly into the business of managing speech, a legitimate approach to reform? Section 5 allows the government to go after a company selling an ointment that it falsely claims prevents COVID-19 infections. That would not be a “speech” issue. It would be fraud enforcement. But should the government be able to tell a private company it must post a conservative or a progressive political statement, or be in violation of the law?
 
Labeling such editorial choices as supposed “evidence” of collusion inevitably carries the risk of government manipulation of private speech.
 
It would in fact be a violation of the First Amendment for the government to tell private actors – whether a network news organization or a social media platform – what to say or not say. The U.S. Supreme Court held in Moody v. NetChoice that social media companies have a First Amendment right to select, order, and rank third-party posts as they see fit. Prosecuting content and its moderation under unfair or deceptive trade practices would install government as a national content manager and editor-in-chief.
 
This is worse than overkill. The essential problem of content management censorship was, after all, driven primarily by government. Meta’s Mark Zuckerberg told Joe Rogan that he received calls from White House staffers who screamed at him about Facebook’s content decisions. The FBI had 80 agents assigned to evaluating social media posts as possible disinformation. Agencies from the IRS, to the Department of Homeland Security, to the State Department, pressured platforms on their posts. All of them have enormous regulatory power over Silicon Valley, making their “jawboning” for editorial changes far stronger than polite suggestions. Changing the jawboner to the FTC is just a new version of this regulatory game of three-card Monte.
 
The application of laws about fair trade practices and antitrust enforcement to speech would be an abusive extension of Washington’s power. It is easy to imagine this power being misused in myriad ways. Conservatives above all need to keep in mind that the weapons used now to punish their progressive opponents will surely one day be in their opponent’s hands as well.
 
The better way forward is to renounce the tools of punishment and restore respect for the First Amendment. With a few social media platforms making up so much of the nation’s townhall, social media companies should live up to a civic – even a moral – obligation to not discriminate against the right or the left. But it is ultimately up to the public to enforce such standards with what they click and what they purchase.
 
If this sounds naïve, take stock of how companies are already listening and responding to public pressure. X pioneered the freeing of moderation from government control and developed “community notes” to crowdsource fact-checking. Meta is testing this crowdsource technique for Facebook, Instagram, and Threads. Meta also got rid of its notoriously biased “fact checkers.” Google is standing up to political demands by activist-employees. Such market-driven reforms are the way to go, not speech regulation from Washington regulators.
 
Conservatives would do well to remember Marcus Aurelius, who wrote that the “best revenge is to be unlike him who performed the injury.”

A report released last week by the House Judiciary Committee adds detail to our report about how the European Union’s 2022 Digital Services Act allows Europeans to control and censor Americans’ speech at home and around the world.
 
The committee subpoenaed nine major technology companies to produce communications with foreign censors around the world. Analyzing the responses, the committee gained insight into the EU’s censorship goals from its requests for social media companies to identify “misleading or deceptive content,” “disinformation, “actual or foreseeable negative effects on civil discourse and electoral processes,” “hate speech,” and (this one’s a gobsmacker) “information which is not illegal.”
 
These vague and subjective standards reflect German rules that have criminalized insults to German politicians. They also fall in line with the actions of former EU Commissioner for Internal Markets Thierry Breton who wanted to sanction X for broadcasting a live interview with Donald Trump during the 2024 campaign. Social media companies – almost all of them American companies – now have their content subjected to continuous scrutiny by government-designated “trusted flaggers.”

• The committee reports: “In practice, these ‘trusted flaggers’ are uniformly pro-censorship, and in many cases, they are government-funded, meaning that these so-called ‘trusted’ flaggers are incentivized to censor speech critical of politicians or the current regime.”

The Digital Services Act threatens these American social media companies with up to 6 percent of their global revenue per violation. The law, however, offers a safe harbor for U.S. companies if they adopt the EU’s ‘codes of conduct’ on a global basis. These gentle suggestions to sign up are backed with threats as subtle as Al Capone wielding a baseball bat.

• When X dropped the Code of Conduct on Disinformation in May 2023, because it does not generally use third-party fact-checkers, the EU in October opened an investigation of X’s Community Notes program. “Now,” the committee reports, “the Commission reportedly plans to fine X more than $1 billion for non-compliance with the DSA.”

 
As European censorship filters down into American speech, defensible speech – some of it banal, some of it edgy – is effectively criminalized.

• In 2023, the French National Police sprang into action when an American sarcastically responded to a mass stabbing attack: “I certainly hope this little dust-up in #Annecy doesn’t hurt this poor Syrian asylum seeker’s chance of becoming a Frenchman.”

 

• In 2024 a Polish flagger targeted a TikTok post that simply said, “electric cars are neither ecological nor an economical solution.”

 

• In 2024 a tweet that factually noted that a Syrian family in Germany is reported to have committed 110 criminal offenses was judged by the German government to be a violation of the criminal code.

The committee’s conclusion is blunt: “Taken together, the evidence is clear: the Digital Services Act requires the world’s largest social media platform to engage in censorship of core political discourse in Europe, the United States, and around the world.”
 
With the announcement of a new trade deal between the United States and the European Union, the way should now be clear for the Trump administration to take up the EU’s censorship as the next big issue in our bilateral relations.

​President Trump last week issued several executive orders that command AI developers to refrain from building in “ideological biases or social agendas” in their artificial intelligence services. The orders deploy the federal government’s procurement power to enforce ideological neutrality on AI Large Language Models (LLMs).
 
The president’s concern is understandable. Google’s AI image-generator Gemini, in an effort to provide racial and gender balance, portrayed both the American founders and Nazi soldiers as Black, the Pope as female, and National Hockey League players as women.
 
What was going on here?
 
“Well, it turned out that Google was aware that Gemini’s data, which draws from the entire internet, was flawed,” said Bobby Allyn, an NPR technology correspondent. “It perpetuated stereotypes. There are more images of male doctors than female doctors. There are more photos of white CEOs than executives of color. So every time someone asked for an image, Google placed secret code into the request that basically said, make the images more diverse.”
 
What had begun as a commendable tweak turned into a monstrous distortion of reality. Conservatives note that LLMs are also apt to give progressive answers on controversial social issues. One conservative reported that ChatGPT refused to create an argument for how fossil fuels enhance human civilization. It was willing to write poems extolling former President Biden but not one about President Trump.
 
On the other hand, when we asked ChatGPT about the 1619 Project, which asserts that America’s true founding began with the importation of slaves and not the Declaration of Independence in 1776, it answered: “The claim that America's ‘real founding’ was in 1619 is a provocative reinterpretation, not a universally accepted historical fact.” We would score that as a solid and unbiased answer.
 
So what is going on with the more biased answers? LLMs compose responses extracted from terabytes of public and copyrighted material vacuumed up from the internet. It is all too easy to forget that humans originate AI’s raw material. It necessarily absorbs the biases of society, of the right as well as the left. The old saying about computer programming – “garbage in, garbage out” – should apply to the contents of the human brain as well.
 
We also do not preclude the built-in biases the president’s executive order aims at. Whether ChatGPT or X, the design parameters often reflect the views of their creators.
 
Though the president’s executive orders aim at a real problem, his approach has two flaws. The first is that when the government uses its purchasing power to manage speech, it is clearly encroaching on First Amendment territory. Over the years, government influence over AI could bend this technology in one political direction or another.
 
This points to the second problem – that language is slippery. The 20th century philosopher Ludwig Wittgenstein warned against the “bewitchment of our intelligence” by language. Words are simply too malleable and subject to interpretation to codify under an order. What are the boundaries of “woke”? Where does the ideological hobbyhorses of the DEI movement end and a simple dedication to racial fairness begin?
 
These are real questions that no government regulation could or should answer. Only time, criticism, free markets, and free speech can do that.

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: