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

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

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

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

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

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

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

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

Did that not happen?

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

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

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

We briefly wondered if Brendan Carr, chairman of the Federal Communications Commission, was having a bad day when he threatened ABC if it did not fire late-night host Jimmy Kimmel. “We can do this the easy way or the hard way,” he told a podcaster, suggesting the regulatory options available to the FCC to punish the network.

Carr also used his authority over media mergers to force Paramount into paying a $16 million settlement to the Trump library project. Paramount, then seeking to complete a merger, was forced to settle the president’s nuisance complaint against its CBS News division for how it edited an interview with former Vice President Kamala Harris.

On Saturday, Chairman Carr left no doubt where he stands on censorship – he is for it and he is the would-be censor. He doubled down by threatening to revoke broadcasters’ licenses if they do not stop the “hoaxes and news distortions” about the Iran war. If they want to stay in the good graces of the FCC, Carr wrote that broadcasters must “correct course” and toe the administration’s line or risk losing access to the airwaves.

One can argue that networks have focused too much on the blowback to U.S. actions against Iran. This is perhaps more of a matter of proximity than of bias. It is much more visually compelling to show an Iranian drone strike on the Dubai International Airport than it is to show a map of Iran with an explosion emoji designating a strike on an Iranian airfield.

It is also true that the media is sometimes sensational and biased. Consider the recent story about Defense Secretary Pete Hegseth “blowing” millions of dollars on lobsters and steaks. What was left out in many accounts is that the U.S. Department of Defense has made such expenditures for decades – as an occasional morale booster for deployed troops who often subsist on the preserved food of Meals Ready-to-Eat.

All of these are fair points. Similar criticisms can be made about much of the current war coverage.

But would we be better off if these content decisions were made by the FCC? Is the “public interest” standard of the FCC Act too easily defined as the agenda of whichever party is in power? Would officially sanctioned coverage be more objective or trustworthy? Ask the people of Russia, of China, and of Iran.

The threat in Carr’s message is unmistakable. Some of the strongest objections to Carr’s attempts at censorship come from conservatives. Sen. Ted Cruz, who oversees the FCC as Chairman of the Senate Commerce Committee, likened Carr’s statements to a mobster’s threat – “nice bar you have here… it’d be a shame if something happened to it.”

Conservatives, who were victimized by secret acts of censorship by the Biden administration, should be especially wary. If the power of the FCC to punish networks for content becomes institutionalized, Fox News, Newsmax, and other conservative outlets are sure to be targeted by a future Democratic administration.

We expect Russia to crack down on media for spreading “distortions” and undermining national unity. We do not expect to see the idea of licensed speech in America.

Chairman Carr: the First Amendment protects speech that you find disagreeable, biased, or wrong. It exists to protect all speech and a free press. The government does not supervise or license journalism. Period.
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Conservatives who were righteously angry about the ham-handed jawboning of the Biden administration should be furious about this far-greater abuse of the First Amendment, and the roadmap it creates for future administrations. These breaches of principle, as Sen. Cruz said, “are dangerous as hell.” They are also profoundly un-American.

Censorship is making a comeback as extremists in both parties try to use the mechanisms of government to shut down the bad speech of all those stupid people who just won’t shut the @#%$*& up!
 
On the left, the Biden administration engaged in an official censorship program by deploying 80 FBI agents to secretly jawbone social media companies into shadow-banning and removing conservative content. It also had a State Department program that quietly funded efforts through a London-based NGO to scare off advertisers from conservative news outlets.
 
On the right, Andrew Ferguson, Chairman of the Federal Trade Commission, apparently determined to leave no bad idea behind, is flirting with censorship by asserting the right of his agency to regulate the editorial decisions of a journalistic enterprise and a media rater.
 
We could credit Ferguson with doing publicly what the Biden administration did secretly. But the brazen, public assertion of FTC authority over private, journalistic enterprises is perhaps the greater danger – one that if accepted by the public and the courts would transform the United States from a First Amendment society into a semi-free, authoritarian country like Hungary.
 
Apple News and Journalistic “Deception”

The previous FTC chair, the progressive Lina Khan, gave a broad interpretation to Section 5 of the FTC Act that empowers the agency to bring legal actions against private actors for “unfair or deceptive practices.” Her predecessors in both parties interpreted this vague authority with modesty, choosing to go after phony claims of cancer cures or the selling of worthless swamp land. Khan used it freely to investigate businesses.
 
But not even Khan asserted that this vague authority gave her the ability to regulate news outlets. That bit of pioneering belongs to Ferguson. He recently fired off a “warning letter” to Apple CEO Tim Cook accusing Apple News of violating its terms of service and the “reasonable consumer expectations of tens of millions of Americans.”
 
Apple News is an aggregator that features content from outlets ranging from Politico to The Wall Street Journal to USA Today. Ferguson accuses Apple News of favoring liberal content while ignoring stories from conservative media – which to be clear, the First Amendment would protect even if true.
 
What about Ferguson’s “terms of service” claim? We pored over the terms of service for Apple News (so you don’t have to) and found that this document eschews any promises about quality, neutrality, balance, or editorial fairness. It’s not even as if its marketing catchphrase is “Fair and Balanced,” or “All the News that’s Fit to Print.” In fact, this document explicitly disclaims responsibility for content accuracy or quality arising from Apple News’s curated, third-party material. And apart from any disclaimer, accusations of editorial slant or an assumed obligation of balance or good judgment ultimately boil down to matters of opinion – of the editors and the readers – not government diktat.
 
Quite simply, Ferguson is attempting to extend consumer protection laws to allow the government to regulate the editorial decisions of a news organization and impose its own editorial slant on organizations it dislikes. That is not consumer protection. It is phony concern about terms of service to promote terms of censorship.
 
FTC Seeks to Ransack the Files of Media Rater
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The FTC also issued a civil investigative demand related to an antitrust investigation, requiring NewsGuard – a for-profit organization that rates the credibility of news organizations – to produce all its documents. This order includes any documents NewsGuard created or received since its founding in 2018, including reporters’ notes and lists of subscribers.
 
Many conservatives had their suspicions raised when they learned that this business received $25,000 in 2020 from the Pentagon and the State Department to identify hoaxes about COVID-19. On the other hand, as The Wall Street Journal has noted, NewsGuard rates Fox News ahead of MS Now, and National Review above CNN.
 
Of course, even if one thinks it is biased, NewsGuard and its viewpoints are protected by the First Amendment. NewsGuard understandably responded to the FTC’s actions by suing the government for attempted censorship.
 
Regardless of whether you privately agree with Ferguson’s underlying point about overall media bias against conservatives, that is a private opinion for you to make and others to reject. That opinion can control your choices about which media to follow, praise, or criticize, but other individuals get to make those same choices for themselves. Giving the government the means to regulate editorial decisions, and to constrain those choices from on high, guarantees abuse and censorship. Conservatives should be the first to recognize this. If Ferguson’s tactics stick, they will surely be used against conservatives tomorrow just as they are being used against allegedly biased news organizations today.
 
More and more, leaders on the right and the left seem dedicated to living out what Ray Bradbury predicted in 1953 in his dystopian novel, Fahrenheit 451: “There is more than one way to burn a book. And the world is full of people running about with lit matches.”

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

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

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

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

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

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

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

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

​When federal agents clamped handcuffs on independent journalist Don Lemon at the Beverly Hills Hotel as he prepared to cover the Grammys, this made-for-headlines arrest immediately raised a serious question: Do journalists enjoy First Amendment protections when they are embedded in an unlawful protest?

Lemon was arrested after covering an anti-ICE demonstration that disrupted a Sunday worship service in St. Paul, Minnesota, on Jan. 18. This case exposes questions about the constitutional boundaries separating worshippers, protesters, and journalists.

Can you protest during a church service?

The protesters entered Cities Church, shouting “Justice for Renée Good!” This church was apparently targeted because one of its pastors, David Easterwood, heads an Immigration and Customs Enforcement (ICE) field office in that city. At least two of these protesters have been arrested, along with Lemon.

A federal indictment naming Lemon and other defendants portrays the protesters entering the church in a “coordinated, takeover-style attack” that caused congregants to flee and children to panic. The indictment claims one protester told two crying children: “Do you know your parents are Nazis? They’re going to burn in hell.”

The protesters might be found guilty of violating the Freedom of Access to Clinic Entrances (FACE) Act, a federal law from the Clinton era that protects both abortion clinics and churches from interference by protesters. Does the First Amendment, which is the supreme law over any statute, override the statute and protect these protesters on the basis of free speech?

Short answer: No.

Of course, churches are open to all. The protesters had every right to enter, just like anyone else. But if a church official considered them disruptive and told them to leave – and they didn’t – they were trespassing and also possibly guilty of a FACE Act violation. A first offense carries a penalty of up to six months in prison and a $10,000 fine.

Wait, how is the FACE Act not a violation of the First Amendment’s free speech clause?

If anything, the First Amendment protects the church, not the protesters.

While the “right of expressive association” is not explicitly articulated in the U.S. Constitution, the Supreme Court has held that this right of expressive association is inherent in the First Amendment’s protection of free speech. And it is likewise inherent in the First Amendment’s protection of the free exercise of religion. Indeed, if the government were to make a church exception to the enforcement of ordinary trespass laws, that would be blatant discrimination against religion in violation of the free exercise clause.

Think of it this way: How could any group of people, banding together for the same expressive or religious purpose, enjoy any associational and collective speech or religious rights if anyone could storm in and shout them down?

This principle applies to mosques, synagogues, churches, private university classrooms, board meetings, award ceremonies, and even Don Lemon’s online show.

So Lemon is in big trouble, right?

It depends on whether the allegations in the indictment hold up.

The federal government charges that Lemon met with other defendants at a shopping mall to plan the entry into the church. It also alleges that Lemon stood close enough to the pastor to restrict his freedom of movement in an effort to “oppress and intimidate” him. Did he do that, or was it an attempt to interview the pastor that he perceived as an attack?

What we can see online is that Don Lemon went into the service with a camera and interviewed both protesters and worshippers. Walking around a church sanctuary interviewing people is potentially disruptive, but it will take a trial to test the government’s allegations. Did Don Lemon lead or follow the protesters into the church? If he merely followed the protesters, he may have been reporting on a newsworthy disruption, not causing it. But if the government’s portrayal of Lemon being involved in planning the protest is proven, Lemon faces legal jeopardy.

C’mon, Lemon is a left-wing activist himself. Now he’s a “journalist”?

Lemon, who was fired by CNN for alleged rudeness and misogynistic remarks, is no Walter Cronkite. He’s an opinion journalist with a leftward, progressive slant. He is undoubtedly sympathetic to the protesters and their cause. That still makes no difference in this case.

A thought experiment brings home the principle protecting Lemon: Imagine if a Fox News reporter had been at Cities Church to cover the trashing of its service for an outraged audience. That hypothetical reporter’s sympathy in favor of the church would leave no one questioning his First Amendment rights (unless, of course, he was asked to leave and didn’t).

The same applies to Lemon and his sympathies. As long as he didn’t plan the protest – but merely followed up on a tip that there was a story brewing at the church – and did not ignore a proper request to leave the premises, he is likely protected as a journalist.

What will be the practical effects of this arrest?

U.S. Attorney General Pam Bondi said Lemon was arrested at her direction, posting: “WE DO NOT TOLERATE ATTACKS ON PLACES OF WORSHIP.”

That’s all well and good, with the all-caps warranted. But to convict Lemon, the government will need to prove its allegations.

If the government’s allegations don’t hold up in court, and Lemon is acquitted, it would hard be to imagine a greater gift AG Bondi could have granted a left-wing, web-based, independent journalist than to arrest him as an anti-ICE, free speech martyr in the very epicenter of his progressive base of viewers.
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What we can definitively say is that the losers will be anyone – including Lemon – properly found guilty of violating the FACE Act. Tip to the protest community: Wrecking a church service is not a good look for you, nor a help to your cause. It’s also against the law.

On January 14, FBI agents raided the home of Washington Post reporter Hannah Natanson and seized her phone, two laptops, and a Garmin watch.

This story has brought the Privacy Protection Act (PPA) of 1980 back into focus. In theory, that law protects journalists from having their notes or “work product” seized unless they themselves are criminal suspects. And while the affidavit has yet to be unsealed, Natanson and The Post were told that they are not targets of the government’s probe. Yet clearly, she is being targeted as if she were a criminal. First Amendment watchdogs are understandably barking mad.

As Chris Cillizza recounts in his concise summation of recent history on the law and past raids on reporters, the PPA has inspired creative ways by administrations of both parties to circumvent it. The government doesn’t like it when a reporter knows more about a crime than the Department of Justice does. In such cases, what’s an administration to do? In the case of Fox News reporter James Rosen, Obama’s Justice Department in 2013 declared Rosen a co-conspirator with an actual criminal in order to confiscate that reporter’s notes. Then-Attorney General Eric Holder later admitted he never suspected Rosen of an actual crime.

To quote Cillizza, after the Obama Administration “stretched the rubber band” on First Amendment press protections, it “never went back.” The First Trump Administration stretched the rubber band some more. So did the Biden Administration. And now the second Trump Administration appears to be giving the method for getting around the law even more elasticity. Gabe Rottman of Reporters Committee has meticulously chronicled the long struggle between free press advocates and these successive administrations.

It is not a tale that inspires hope. Consider how the Department of Justice embraced an internal policy of protecting reporters, only to violate its own policy, then rescind it altogether.

As dysfunctional as the media may sometimes be, it still performs a vital role in national hygiene – bringing to light corruption and malfeasance in government. Time after time, we’ve seen administrations act under the banner of “national security,” when they are in fact seeking primarily to avoid political embarrassment.

This worsening trend in press freedom in recent years suggests that the Privacy Protection Act is an insufficient guarantor of journalistic rights. As aggressive and overreaching as Attorney General Bondi’s move against Natanson was, it is the logical continuation of the policies of the last four presidential administrations.
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Only by passing the Protect Reporters from Exploitive State Spying (PRESS) Act – a genuine press shield law – will the feds respect the role of journalists in a First Amendment society.

​A three-judge panel of the 11th Circuit Court of Appeals denied President Trump’s lawsuit against CNN for saying that his claims about the 2020 election were a “Big Lie.”

What’s the big deal about the Big Lie?

That propaganda term was coined by Adolf Hitler in the 1920s to describe a technique in which many people – who might doubt a small, unfounded accusation – are apt to believe an absurd, outlandish falsehood. Say that your opponent is beholden to special interests, and people shrug. Say that he sacrifices stray dogs to the Roman God Mars, and a surprising number of people will believe it must be true.

Why do some react this way? Hitler wrote in Mein Kampf that it is because most people believe that no one “could have the impudence to distort the truth so infamously.”

So, when CNN ran a story accusing Trump of peddling the “Big Lie” that the 2020 election was stolen, the president was understandably offended by the comparison. He sued. But was he correct in telling the court that audiences would assume that he was doing exactly what “Hitler did in his monstrous, genocidal crimes against humanity”?

A cursory search shows that the “big lie” trope has been watered down by commonplace usage. During President Trump’s first term, then-Attorney General William Barr described the allegations that Trump’s 2016 victory occurred with an assist from Putin as a “big lie.” Sen. Mitch McConnell, then-Minority Leader, accused Democrats of pushing a “big lie” about Republican proposals for voter IDs. President-elect Joe Biden castigated Sen. Josh Hawley for being “part of the big lie” about the 2020 election.

The term “big lie” might have been defamatory in 1938. By 2025, it has been used so often and so elastically that it has surely lost much of its sting. That is one reason why the appeals court panel ruled:

“To be clear, CNN has never explicitly claimed that Trump’s ‘actions and statements were designed to be, and actually were, variations of those [that] Hitler used to suppress and destroy populations.’”

Two of the three judges were Trump appointees. The judges harked back to failed defamation cases in which one plaintiff was described as a “fascist” and another as “an outspoken proponent of political Marxism.” Courts found that such terms were, in the ruling on the first case, “so debatable, loose and varying that they were insusceptible to proof of truth or falsity.”
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Courts have long recognized that political speech deserves the widest latitude when it comes to defamation. Politics is not for the easily bruised. Still, with great freedom comes great responsibility. We would all be better off as a country if politicians and journalists alike were to dial back the rhetoric and stick with the facts.

​The University of Alabama shut down two student run-magazines – one for women, one for Black students. Why? The university holds that these publications’ targeting of readers among its 43,000 students constitutes unlawful discrimination on the basis of race and sex.

The theory suggests that the university is acting to protect Crimson Tide men who are writhing in pain from their exclusion from Alice, “the University of Alabama’s fashion and lifestyle magazine.” The same can be said for all the white, Asian, and Latino students who are in agony over their exclusion from Nineteen Fifty-Six, a publication dedicated to “Black culture, Black excellence, and Black student experiences.”

In other words, the university is singling out these publications for directing content to women and African-American students, which sounds a lot like – and is – viewpoint discrimination. “You cannot have a more blatant First Amendment violation here,” Mike Hiestand, senior legal counsel for the Student Press Law Center, told the student-run The Crimson White.

We would add that it would be hard to have a more profoundly stupid violation, either. This ranks up there with the decision by the U.S. Naval Academy to protect its non-Black students by removing Maya Angelou’s autobiography, I Know Why the Caged Bird Sings from its library.

Why is this happening? Universities have an understandable desire to stay on the right side of the Trump administration’s crackdown on diversity, equity, and inclusion initiatives. To be fair, DEI ideology and administrative departments had become domineering presences in campus culture and speech, threatening academic careers over faux pas and linguistic misdemeanors. A correction was certainly needed, but we are now veering into overcorrection.

The University of Alabama is acting on its interpretation of a July 29 memo from Attorney General Pam Bondi. That memo included “non-binding suggestions” to help institutions that receive federal funds avoid “unlawful proxies” and “ostensibly neutral criteria that function as substitutes for explicit considerations of race, sex, or other protected characteristics.”

Somehow, that has become a directive to avoid any channelization of communication or free association between Black Americans (12 percent of both the U.S. and the University of Alabama population), and women (51 percent of the U.S. population and 56.5 percent of that university’s population). Taken literally, any lawful interest magazine would have to cater to everyone, of all races, both genders, of all backgrounds, faiths, and national origins. Maybe Fencepost magazine, courtesy of the American Fence Association, fits the bill. (Although some might find its “modern wood designs that keep us coming back” a tad bit risqué.)

The bottom line is that the university’s actions constitute blatant viewpoint discrimination – one of the clearest violations of the First Amendment imaginable.

We draw this conclusion from the U.S. Supreme Court in Rosenberger v. Rector, which slammed the University of Virginia in 1995 for denying standing to a Christian-based student publication. The Court majority’s abiding concern was viewpoint discrimination, not that somehow non-Christians would be discriminated against by the publication’s existence.

A society based on free speech is one that respects pluralism – Christians, Muslims, Jews, atheists, women, men, gays and non-binary folk, fashionistas, sci-fi geeks, and football fanatics. An effort to enforce an artificial homogeneity is not anti-discriminatory. It is just a new form of discrimination: viewpoint discrimination.
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We would not be surprised if between the time we post this piece and you read it the university will have listened to its lawyers and reversed these twin cancellations rather than face these students in court. As Nick Saban said, it’s never okay to lose a game.

​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.

​In any democracy, the justice system and the Fourth Estate are bound to clash. When they do, the clash often reveals much more about the status of constitutional freedoms than the details of a given case. Case in point, a headline from July 22 on Bloomberg Law: “Journalist’s Wiretap Prosecution Exposes First Amendment Risks.”

Here's the backstory behind a case fraught with First Amendment implications, one Protect The 1st has followed since 2022.

• Journalist Tim Burke obtained deleted clips from Tucker Carlson’s controversial interview with Kanye West when Carlson was still with Fox News. Burke then shared those with Vice and Media Matters for America, which published them. This was embarrassing to Carlson, who framed the interview as showing Kanye West – now Ye – to be an iconoclast worth listening to. The deleted portions were, to put it in strictly scientific terms, absolutely bonkers.

 

• Fox apparently invited this embarrassment by uploading the outtakes to a public online site and neither securing nor encrypting them. But that didn’t stop the Justice Department from raiding Burke’s Tampa home and seizing his electronic devices.

 

• Now the case against Burke is proceeding in a federal court in Florida. It represents, warns Bloomberg’s Holly Barker, an invitation for prosecutorial abuse, potentially turning what doesn’t even seem to rise to the level of misdemeanor molehills into felony mountains. The prosecutors’ “felonizer” here is an expansive over-interpretation of the Wiretap Act, which DOJ appears to be using to turn possible Computer Fraud and Abuse Act infractions into far more serious violations – 14 of them, to be exact.

At the heart of the case is the relevance of the First Amendment in the digital age – and, to a lesser extent, what constitutes a journalist in the modern sense and perhaps even the meaning of what is “public.” For the moment at least, the court is taking the case and these constitutional questions seriously, seeing it as the high-level referendum on freedom that it is.
Judge Kathryn Kimball Mizelle acknowledged: “Burke’s arguments raise novel questions with potential wide-reaching impact.”

An ACLU-led coalition, the Reporters Committee for Freedom of the Press, and the Electronic Privacy Information Center have all filed amicus briefs outlining what’s at stake in this case.
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Protect The 1st believes that making use of materials left in open view – whether posted online or put out on a public sidewalk – is in no sense a wiretap. Worse, the FBI raid on Burke’s home was overkill that deserves to be slapped down. We hope Judge Mizelle will stand for a free press and rule against this attempt by prosecutors to narrow the First Amendment.

​In a move that is drawing widespread condemnation and ignited a press freedom firestorm, Paramount has agreed to pay $16 million to settle President Trump’s lawsuit over CBS’s editing of a “60 Minutes” segment. The settlement, which includes legal fees and a donation to Trump’s future presidential library, appears less like a legal resolution and more like a political payoff designed to grease the wheels of a corporate merger.
 
Seth Stern of The Freedom of the Press Foundation (FPF), slammed the settlement as “a thinly veiled effort to launder bribes through the court system.” FPF is preparing a shareholder derivative lawsuit against Paramount’s leadership for what it sees as a betrayal of journalistic integrity and a violation of fiduciary duty.
 
Let's be clear: This lawsuit, based on a Texas statute “outlawing false, misleading, or deceptive acts or practices” in business is beyond a legal stretch. CBS aired edited clips from an interview with Vice President Harris – standard practice in broadcast journalism – with no evidence of factual inaccuracies.
 
The lawsuit claims that CBS hid the former vice president’s propensity for answering questions with nonsensical “word salad” answers – a breathtaking assertion of legal control over editorial decisions that are clearly subjective. If this standard were widely adopted, all manner of news and editorial content would become subject to adjudication.
 
The settlement only makes sense when you look at the bigger picture. Shari Redstone, who chairs Paramount, stands to gain if the company’s merger with Skydance Media goes through. Trump’s lawsuit, and his Federal Communication Commissioner’s opening of a “news distortion complaint” of CBS, created the leverage. Paying $16 million to settle this lawsuit starts to look less like a legal decision and more like a calculated move to secure the deal.
 
Seth Stern’s warning is especially apt: “Corporations that own news outlets should not be in the business of settling baseless lawsuits that clearly violate the First Amendment.” As Stern notes, this doesn’t just damage CBS’s credibility, it makes every newsroom in America more vulnerable to future intimidation.
 
To be sure, CBS has its journalistic flaws. Since the days of Dan Rather, some of CBS’s reporting has been comically biased against Republicans. But editorial bias is not, and must never be, a matter for governmental scrutiny or political reprisal. The First Amendment is not a quality control mechanism for press content. It is an absolute – “Congress shall make no law” abridging freedom of the press. It is a firewall between the state and the newsroom.
 
Conservatives should be especially wary of this precedent. If a sitting president can sue a media company over edits backed by the implied threat of merger obstruction, what stops officials in the next administration from doing the same to Fox News? Or your favorite influencer who gets under their skin?
 
This case should alarm anyone who values an independent press, even if they disagree with the views generated by such independence. When an administration uses the threat of regulatory power to extract money and editorial concessions from a news organization, it’s not just CBS on trial. If this strategy proves successful, every newsroom becomes a target, and every critical story a liability. And that’s flatly incompatible with the First Amendment.

​Jeff Davis County in Texas is almost the size of Delaware. Home to the Davis Mountains, it is a place of stark beauty and small towns.
 
Covering this vast region is The Big Bend Times, “news for the Trans-Pecos,” a website with strong social media reach, amassing 285,000 followers on Facebook. It carries news about local jobs, business openings and closings, economic development, and local feature stories. It currently features a poignant and frightening account from a county politician about how he and his family barely escaped the recent floods in Central Texas.
 
With content like this, it is easy to see why regional public radio and other news outlets often turn to The Big Bend Times and its independent publisher, David Flash, for stories and leads. The Big Bend Times helps many far-flung communities keep up with developments in this vast region, including the public meetings of local officials.
 
Carlos Nogueras Ramos in the Texas Tribune reports on an incident at one such meeting held by Jeff Davis County commissioners on June 27. Flash set up a camera and then moved around the room, taking photos of the commissioners meeting from various angles. He had previously been banned from coming within 300 feet of county officials, employees, and buildings over “claims of harassment and terroristic threats.” Flash denies that he harassed or threatened anyone, unless you count news coverage of public figures as such.
 
In this incident, the sheriff warned Flash that his movements were distracting the commissioners. Ramos reports that after Flash tried to take a photo of a deputy sheriff, she handcuffed and forcibly removed him. Flash was later hit with a charge of “disorderly conduct.”
 
In many ways, Flash’s case is reminiscent of that of another Texas citizen-journalist, Priscilla Villarreal of Laredo, who was arrested for “misuse of official information”’ – reporting police information about a fatal traffic accident. While undergoing the booking process, Villareal reported that she was subjected to jeers and ridicule by the police, many of whom did not consider this citizen-journalist with a Facebook news site to be a “real” journalist.
Officials question whether Flash should also be treated as a journalist. Although he has a journalism degree, Flash’s LinkedIn page shows him serving as the sales and marketing director for a steam cleaning company. But his status as the publisher of a news site should render that question moot.
 
More important than his status as a journalist, however, is Flash’s status as a citizen, freely exercising his rights under the First Amendment. Texas law, like those of most states, allows any citizen to record any open meeting.
 
To be fair, there are signs in Ramos’ account that Flash may have distracted the hearing with his pacing around. Public commissions in Texas do have the right to impose reasonable rules of decorum in hearings. But his treatment was surely an overreaction.
 
So what might one conclude from this case?
 
First, local officials in Texas (and elsewhere) need to do a better job of acquainting themselves with the First Amendment. There is no reason for officeholders to get flustered, panicked, and angry when they are confronted by a journalist. Second, Flash’s management of a news site should dispel any questions about his status as a journalist protected by the First Amendment’s guarantee of a free press. Third, there is perhaps too much focus on the “journalist” part of “citizen-journalist.”
 
You have the right to ask your public officials questions, and to memorialize their public meetings with a camera, whether you consider yourself a member of the press or not.
 
Perhaps the most important part of the moniker “citizen-journalist” is “citizen.”

​Georgia Dillane did not attend the pro-Palestinian sit-in at Barnard College in March. She wasn’t out in the crowd; she was in the school’s WKCR radio studio anchoring a broadcast. Yet weeks later, she found herself accused by Barnard of “disorderly conduct, disruptive behavior, failure to comply, unauthorized entry, threatening behavior, and theft, vandalism or damage to property.” All for doing her job as a journalist.
 
Her colleague, Celeste Gamble, was at the scene, but only as a credentialed student reporter. She left when told by police to evacuate. There is no reason to believe she was anything but professional in her role as an objective observer. Yet, like Dillane, Gamble received emails from Barnard’s CARES (Community Accountability, Response, and Emergency Services) office demanding she meet without legal counsel to “refute any suggestion” of wrongdoing. Neither student had been disruptive. Neither had committed any known infraction. Yet they were treated as suspects.
 
Dillane’s offense appears to be little more than journalism. Her real “crime” was that a man later arrested by immigration authorities could be heard in her audio report. That connection, however tenuous, was enough to get her flagged as a potential wrongdoer just weeks before graduation, which had temporarily been put in jeopardy.
 
This is not an isolated incident. As we’ve noted in our coverage of Tufts Ph.D. student Rumeysa Orturk, moral panic over campus protests is now being weaponized against students with the flimsiest of links to the turmoil. Orturk, too, was no ringleader – just a signatory to a student op-ed, sober and serious, that was critical of Israel. Orturk was arrested and nearly deported before a judge intervened.
 
The recent spike in antisemitism on college campuses is real, troubling, and must be countered and kept from happening again. Hate speech and threats of violence must always be taken seriously by college administrations. But the solution cannot be to launch witch hunts against students who write, report, or question. Colleges and universities are where the principle of free inquiry – so foundational to our democracy – is meant to be practiced.
 
If journalism is rebranded as “disruption,” and if signing an op-ed becomes a pretext for arrest, we risk sliding from law enforcement into the realm of viewpoint persecution. Institutions like Barnard should be defending their students’ right to report and speak freely, not joining in the chorus of overreaction.
 
Even though New York’s shield law provides strong protections for journalists, including an absolute privilege for confidential sources, it doesn’t cover unpaid student reporters. Still, courts in the Second Circuit have found that student journalists can claim a qualified First Amendment privilege if they gather news for public distribution. Undermining their independence betrays both press freedom and the core mission of higher education.
 
In this age of guilt by association, the pursuit of actual wrongdoers can give way to the harassment of innocent people, even those who (unlike the two student journalists) have opinions we detest. We should remember freedom means protecting dissenters we disagree with, and standing up for process even when we’re angry. Otherwise, we lose not only our cool, but our constitutional compass.

​Student journalists and their supporters across the United States are celebrating the eighth annual Student Press Freedom Day. This year’s theme, "At the Forefront," emphasizes the resistance of student journalists and the challenges of prior restraint, censorship, and even the threat of arrest they face. How these challenges are met today will shape the future of tomorrow’s journalism, already facing stiff challenges from collapsing business models and social media fragmentation.
 
Student Press Freedom Day, organized by the Student Press Law Center, brings together students, educators, and press freedom advocates to raise awareness about the struggles of student journalists. Participants advocate for legal reforms, such as “New Voices” laws, which safeguard student journalists from administrative censorship.
 
Consider how the University of Northern Iowa handled student journalists, imposing unconstitutional prior restraint by requiring resident assistants to obtain approval before speaking to the media. The student newspaper, The Northern Iowan, exposed this policy, leading to its revocation and earning the publication the First Amendment Award at the Iowa College Media Association Awards.
 
Student Press Freedom Day also shines a light on precedents that threaten student press freedom.
 
The 1988 Supreme Court decision in Hazelwood School District v. Kuhlmeier weakened protections for high school journalists by allowing administrators to censor school-sponsored publications if they could justify doing so for “legitimate pedagogical concerns.” Though the ruling was meant to apply to K-12 institutions, its logic was later extended to colleges in Hosty v. Carter in 2005. In that case, the Seventh Circuit Court ruled that a university could exert prior review over a student newspaper if it was not designated a public forum.
 
Courts have also upheld the rights of college journalists. Over the past four decades, more than 60 cases have addressed censorship in public college and university student media, with decisions consistently affirming that the First Amendment prohibits most administrative censorship of student-edited publications.
 
The challenges faced by student journalists are not limited to administrative censorship. In 2024, Stanford University student journalist Dilan Gohill was arrested while covering a protest after following demonstrators into the university president's office. Despite wearing a press pass and acting in his capacity as a reporter, Gohill faced potential disciplinary action and criminal charges. After seven months of uncertainty and advocacy from First Amendment groups, Stanford President Jonathan Levin confirmed there would be no disciplinary action from the university.
 
With changing business models and a polarized society, quality, independent journalism struggles to exist. Whether or not quality journalism can continue will require, at the very least, cultivating young reporters and editors who are free to learn their chosen profession by practicing it without restraint.
 
Protect The 1st is pleased to join student journalists in celebrating Student Press Freedom Day.

​The city of Clarksdale, Mississippi, sued the Clarksdale Press Register for publishing an editorial that criticized officials for allegedly failing to provide public notice regarding a hearing on a local “sin tax.” The editorial in question began: “SECRECY, DECEPTION ERODE PUBLIC TRUST.”
 
Hinds County Chancery Court Judge Crystal Wise responded by ordering the newspaper to take down the column.
 
In her order, Judge Wise said the case involved “defamation against public figures through actual malice in reckless disregard of the truth and interferes with their legitimate function to advocate for legislation they believe would help their municipality during this current legislative cycle.”
 
Perhaps Judge Wise could benefit from a few hours reading The First Amendment for Dummies. The “actual malice” standard in legal jurisprudence protects journalists from libel suits, requiring a public figure to prove: 1) that a defendant knew a statement was false; or 2) that a news outlet acted with reckless disregard for the truth. It’s one of the most basic, foundational protections for free speech in the United States, allowing for unfettered coverage of public figures without fear of legal reprisal.
 
There was at least one question of fact: Was there a reckless disregard for the truth by the newspaper? Not according to a city clerk, who submitted an affidavit admitting that she failed to send a routine notification of the public meeting to the newspaper. As for what else Judge Wise thought was illegal about the Press Register’s opinion column – that remains unclear. Since she didn’t hold a hearing before issuing her order, it’s anyone’s guess.
 
After the ruling, Clarksdale mayor Chuck Espy lauded the decision, writing on Facebook:
“Thank GOD! The City of Clarksdale WON today! The judge ruled in our favor that a newspaper cannot tell a malicious lie and not be held liable. The newspaper had to take down a false story that they printed. The only thing that I ask, that no matter what you print, just let it be the truth; be it good or bad. Thank you GOD for a judicial system.”
After the Foundation for Individual Rights and Expression (FIRE) and its lawyers became involved, the mayor withdrew his suit. And thank God for that!
 
In the meantime, Mayor Espy and other officials should keep in mind that when the courts fail, the internet’s Streisand Effect always kicks in to punish would-be censors.
 
Protect The 1st looks forward to seeing this editorial hot off the press when it is reprinted by The Clarksdale Press Register.

One reason why Donald Trump won his second presidential term – against the expectations of notable mainstream commentators and respected pollsters – is that a small, independent group of influencers and online conservative news outlets went around the mainstream media to keep Americans informed of the candidate’s policy responses to the failures of the Biden Administration.
 
The 2024 election announced the arrival of the small, independent journalistic outfit, from Breitbart on the right to the streaming Young Turks show on the left. These independent voices have their slant on the news and their biases about candidates, but they have been effective in challenging the monolith of reporting from mainstream news organizations.
 
Protecting this ecosystem of independent, pluralistic voices is one reason why soon-to-be President Trump should support the Protect Reporters from Exploitive State Spying (PRESS) Act.
 
Without reporters relying on whistleblowers, we might never have learned about many recent scandals, ranging from the Fast and Furious gun-walking scandal under the Obama Administration to the IRS targeting of conservative non-profits under the direction of Lois Lerner, to the FBI’s highly politicized secret surveillance of Carter Page and the Trump campaign, to the truth behind the Hunter Biden laptop scandal. In each instance, brave whistleblowers came forward to set the record straight, often as sources for independent journalists.
 
“If you cannot offer a source a promise of confidentiality as a journalist, your toolbox is empty,” celebrated investigative journalist Catherine Herridge told members of a House Judiciary subcommittee. “No whistleblower is coming forward, no government official with evidence of misconduct or corruption. And what that means is that it interrupts the free flow of information to the public ...”
 
Herridge is currently fighting for her freedom in the face of a contempt charge regarding an investigative piece she did for Fox News concerning the possible penetration of U.S. higher education by Chinese intelligence. During the Obama administration, government lawyers also issued a search warrant for the emails of Fox News journalist James Rosen. Such aggressive legal tactics threaten to shut down the media’s ability to hold the federal government accountable.
 
It is for reasons like these that Republicans supported the PRESS Act, which this year passed the House with the sponsorship of Republican Rep. Kevin Kiley (R-CA) and the enthusiastic support of conservatives such as House Judiciary Chairman Jim Jordan (R-OH), as well as with the bipartisan support of many House Democrats. The PRESS Act also has the support of Sens. Lindsey Graham (R-SC) and Mike Lee (R-UT).
 
Catherine Herridge can rely on the generosity of Fox News for supporting her defense in facing down contempt charges. But few independent outlets have such deep pockets. A federal prosecutor seeking their sources would force a blogger or small outlet to immediately decide whether to rat out whistleblowers or spend every last dollar of their savings mounting a defense in court and still possibly go to prison.
 
President-elect Trump, supporting the PRESS Act in this Congress or the next would be a way for you to stand by the small, independent, online journalists and commentators who got your campaign appeals to the American people. To oppose the PRESS Act would be to score a goal for those who want to use this power to silence these voices. 

​You don’t have to be in the bag for one party or another to see that media outlets are taking on the partisan tone of newspapers reminiscent of the vitriol of the early American Republic. CNN and Fox News are at the far latitudes of different hemispheres and Newsmax and MSNBC are the North and South poles.
 
Roland Fryer, a Harvard University professor of economics, in Monday’s Wall Street Journal writes that the economic incentives of a fragmented media environment make it unlikely that we will see a return to objective journalism any time soon. “My hunch is that it will get worse before it gets better,” Fryer wrote. “I am skeptical that there is enough demand for objectivity and believe there are powerful economic forces pushing media outlets to give audiences the red meat they desire.”
 
All answers to this conundrum have so far failed. For example, some promote subsidized journalism as a way to ensure clear-eyed objectivity. But a close reading of subsidized ventures invariably reveals they skew to the left- or right-leaning predilections of their billionaire donors. We should remember that one reason early American newspapers were so biased is that they often received lucrative printing contracts when their favored political party won an election.
 
Out of frustration some hold up the heavy-handed speech codes of Canada, the United Kingdom, and the European Union as a way forward. But, as we saw in the censorship of the Covid “lab-leak theory” – now held by the FBI as probably true – no one is smart enough to declare what is disinformation and what is mere information that belongs in the national debate.
 
Some look to President-elect Trump’s successful lawsuit against ABC for anchor George Stephanopoulos’ inaccurate statement that Donald Trump had been held “liable for rape by a jury.” ABC’s admission of error resulted in a $15 million settlement by the news organization to the Trump presidential library. This defamation case is cheered by some on the right as a sign that media bias can be addressed by aggressive application of libel law. This outcome certainly offers a new precedent that widens the boundaries of a public figure’s ability to win a defamation suit. Yet the statement in question was a limited misstatement of fact from a professional news organization, placing it arguably within the boundaries for public figures set by the U.S. Supreme Court in New York Times v. Sullivan.
 
Most media bias, right or left, is not like that. Bias is less about how a story is reported, and more about which stories are selected. Thus CNN focuses on anonymous reports of Defense nominee Peter Hegseth’s alleged peccadillos, while Fox News focuses on heinous crimes committed by illegal aliens.
 
So if subsidized journalism, anti-“disinformation” campaigns by a consortium of government and media, and libel law will not guarantee objective journalism, what can we do?
 
We should begin by accepting there is no getting around the need to respect that the First Amendment gives media outlets the right to report in a biased fashion if they so choose. Even biased reporting fulfills the right of readers, watchers, and listeners to receive available reporting that aligns with their own biases. This is decidedly suboptimal. But if the alternative is to put some government functionary or faceless executive, or trial lawyer in charge of determining truth for everyone, we will be even worse off.
 
Fryer is right that media outlets pander to their audiences. The only way we’ve found to achieve balance is to skim The New York Times and Breitbart, CNN and Fox News, and then use our brains to read between the lines.

​Earlier we compared the First Amendment records of Sen. J.D. Vance and Gov. Tim Walz, finding the two vice presidential candidates problematic with notable bright spots.
 
So how do the two candidates at the top of the ticket compare on defending speech? Answer: Even more problematic, but also with some bright spots.
 
Vice President Kamala Harris
 
As a U.S. Senator, Harris in 2017 co-sponsored an amendment with her fellow Californian and leading Democrat, the late Sen. Dianne Feinstein, that would have required federal agencies to obtain a probable cause warrant before the FISA Court could allow the government to review the contents of Americans’ emails. Protecting Americans from warrantless surveillance of their private communications concerning personal, political, and religious lives is one of the best ways to protect speech.
 
As a senator, Harris also defended the First Amendment rights of social media platforms to moderate their content. This is not surprising given that she was from California and big tech is one of her best backers. The Washington Post reports that Karen Dunn, one of Google’s top attorneys in against the Biden administration’s antitrust case, is a top Harris advisor. This closeness suggests a danger that a Harris administration might lean heavily in support of using friendly relations with big tech as a backdoor way to censor critics and conservative speech.
 
Consider that Harris once called for the cancellation of former President Donald Trump’s then-Twitter account, saying:
 
“And the bottom line is that you can’t say that you have one rule for Facebook and you have a different rule for Twitter. The same rule has to apply, which is that there has to be a responsibility that is placed on these social media sites to understand their power … They are speaking to millions of people without any level of oversight or regulation. And that has to stop.”
 
Why does it have to stop? Americans have spoken for two centuries without any level of oversight or regulation. You might find the speech of many to be vile, unhinged, hateful, or radical. But unless it calls for violence, or is obscene, it is protected by the First Amendment. When, exactly, did liberals lose their faith in the American people and replace it with a new faith in the regulation of speech?
 
Worse, as California Attorney General, Harris got the ball rolling on trying to force nonprofits to turn over their federal IRS Form 990 Schedule B, which would have given her office the identities of donors.
 
Under Harris’s successor, this case went to the U.S. Supreme Court. Protect The 1st was proud to submit an amicus brief, joined with amici from a coalition of groups from across the ideological spectrum. We demonstrated that the likely exposure of donors’ identities would result in various forms of “cancellation,” from firings and the destruction of businesses, to actual physical threats. A Supreme Court majority agreed with us in Americans for Prosperity Foundation v. Bonta in 2021 that the same principle that defended Alabama donors to the NAACP extends to all nonprofits.
 
The Biden-Harris administration has also been mum on worldwide crackdowns on speech, from a Brazilian Supreme Court Justice’s cancellation of X, to hints from the French government that this U.S.-based platform might be the next target after the arrest of Telegram CEO Pavel Durov.
 
Former President Donald Trump
 
This is a harder one to judge. It’s long been said that Donald Trump wears better if you turn the sound off.
 
On the plus side, President Trump took a notably strong approach in supporting surveillance reform. A victim himself of illicit surveillance justified by the FBI before the FISA Court with a doctored political dossier and a forged document, President Trump was sensitive to the First Amendment implications of an overweening surveillance state. To his credit, he nixed the reauthorization of one surveillance authority – Section 215, or the so-called “business records provision.”
 
During the pandemic, Trump issued guidance in defense of religious liberty. He said: “Some governors have deemed liquor stores and abortion clinics essential but have left out churches and houses of worship. It’s not right. So I’m correcting this injustice and calling houses of worship essential.” He backed up his defense of religious liberty by appointing three Supreme Court Justices – Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh – who have been strong defenders of religious liberty.
 
But turn the sound back on and you will hear Donald Trump call the American press “the enemy of the people.” Call the media biased, corrupt, in the bag for the Democrats, whatever you like … but “enemy of the people?” Trump’s rhetoric on the media often edges toward physical hostility. As president, he mocked a CNN reporter who was hit with a rubber bullet while covering the 2020 riots in Minneapolis. “Remember that beautiful sight?” Trump asked.
 
At a time when journalists are under threat in America and around the world, this is a decidedly un-American way to confront media bias.
 
Donald Trump has also called for a loosening of the libel laws to allow elected officials to more easily pursue claims against journalists without having to meet the Supreme Court’s “actual malice” standard. We agree that there is room for sharpening libel law in the age of social media amplification, but allowing wealthy politicians to sue news outlets out of business would be one effective way to gut the First Amendment.
 
So what should we conclude? Both Harris and Trump have mixed records. Both have taken bold stands for speech. Both have treated the opposition as so evil that they do not deserve legal protections. Both seem capable of surprising us, either by being more prone to censorship or to taking bold stands for free speech.
 
Whatever your political leanings, urge your candidate and your party to lean on the side of the First Amendment.

​We’ve already heard a lot of rowdy speech from the two vice-presidential candidates, Democratic Minnesota Gov. Tim Walz and Republican U.S. Sen. J.D. Vance. Would they be as generous in applying the First Amendment to others as they do to themselves?
 
Tim Walz, who, despite correct opinions regarding the tragedy of Warren Zevon being left out of the Rock and Roll Hall of Fame, hasn’t been as on the money when it comes to which types of speech are protected and which are not. In 2022, Walz said on MSNBC:
 
“There's no guarantee to free speech on misinformation or hate speech, and especially around our democracy. Tell the truth, where the voting places are, who can vote, who's able to be there….”
 
As PT1st senior legal advisor Eugene Volokh points out in Reason: “Walz was quite wrong in saying that ‘There's no guarantee to free speech’ as to ‘hate speech.’ The Supreme Court has made clear that there is no ‘hate speech’ exception to the First Amendment (and see here for more details). The First Amendment generally protects the views that the government would label ‘hateful’ as much as it protects other views.”
 
Legal treatment of misinformation is more complicated. In United States v. Alvarez, the Supreme Court held that lies “about philosophy, religion, history, the social sciences, the arts, and the like” are largely constitutionally protected. Libel, generally, is not – though, in a defamation case, a public official can only succeed in their claim if they can show that a false statement was published with “actual malice” – in other words, “with knowledge that it was false or with reckless disregard of whether it was false or not.” Categories of intentional misinformation that are patently not protected include lying to government investigators and fraudulent charitable fundraising.
 
Walz may be on firmer ground when it comes to lies about the mechanics of voting – when, where, and how to vote. Thirteen states already ban such statements. As Volokh writes, “[I]f limited to the context that Walz seemed to have been describing – in the Court's words, ‘messages intended to mislead voters about voting requirements and procedures’ – Walz may well be correct.”
 
On freedom of religion, Walz’s record as governor is concerning. During the pandemic lockdowns, the governor imposed particularly harsh restrictions on religious gatherings, limiting places of worship to a maximum of ten congregants, while allowing retailers to open up at 50 percent capacity. An ensuing lawsuit, which Walz lost, resulted in an agreement granting religious institutions parity with secular businesses.
 
Walz also signed a law prohibiting colleges and universities that require a statement of faith from participating in a state program allowing high school students to earn college credits. As the bill’s sponsor conceded, the legislation was intended in part to coerce religious educational institutions into admitting students regardless of their beliefs – diluting their freedom of association. That controversy is currently being litigated in court. Little wonder the Catholic League declared that “Tim Walz is no friend of religious liberty.”
 
The Knights of Columbus might agree – at least as pertains to the broader ticket. In 2018, during the federal judicial nomination hearing for Brian Buescher, then-Sen. Kamala Harris criticized the organization for its “extremist” (read: traditional) views on social issues. Harris also sponsored the “Do No Harm” Act, which would have required health care workers to perform abortions in violation of their religious beliefs. 
 
Regarding Vance, the former Silicon Valley investor is hostile to the speech rights of private tech companies (who certainly enjoy the same First Amendment protections as any other person or group). In March, the senator filed an amicus brief in support of the State of Ohio’s lawsuit against Google, which seeks to regulate the company as a common carrier. In his brief, Vance argues Google’s claim that it creates bespoke, curated search results that directly conflict with its past claims of neutrality. Sen. Vance writes:
 
“[Google’s] functions are essentially the same as any communications network: it connects people by transmitting their words and exchanging their messages. It functions just like an old telephone switchboard, but rather than connect people with cables and electromagnetic circuits, Google uses indices created through data analysis. As such, common carrier regulation is appropriate under Ohio law.”
 
Vance’s argument creeps in the direction of Texas and Florida laws that seek to regulate social media companies’ internal curation policies. Both laws were found wanting by the Supreme Court. The Court in a strongly worded remand on both laws wrote:
 
“[I]t is no job for government to decide what counts as the right balance of private expression – to ‘un-bias’ what it thinks is biased, rather than to leave such judgments to speakers and their audiences.”
 
Yet Vance also attempts to “un-bias” social media platforms, leaving little to no room for independent curatorial judgment.

On the plus side, Vance has cosponsored numerous bills aimed at curtailing government censorship, including the “Free Speech Protection Act,” which prohibits government officials from “directing online platforms to censor any speech that is protected by the First Amendment.” He also sponsored the PRESERVE Online Speech Act, which would force social media companies to disclose government communications urging the censoring or deplatforming of users.
 
As the election season progresses, we can hope for more clarity on the candidates’ positions regarding our First Amendment freedoms. It is already clear, however, that both candidates are far from purists when it comes to protecting other people’s speech.

​Who qualifies as a journalist? Do you have to work for a mainstream media outlet? If you don’t have the imprimatur of an award-winning newspaper like The New York Times or Washington Post, does that negate your right to gather and convey information?
 
That seems to be the case in certain parts of Texas, where police have twice recently arrested private citizens for committing the crime of journalism. In 2021, the Fort Bend County Sheriff’s Office arrested and strip-searched Justin Pulliam – who posts on the YouTube channel Corruption Report – for filming police during a mental health call. Despite following police instructions to stand away from the interaction, Pulliam was charged with “Interference with Public Duties,” a Class B misdemeanor under Texas state law.
 
It wasn’t the first time Pulliam had been legally harassed – earlier that year he was ejected from a press conference because authorities said he did not qualify as a journalist.
 
A similar situation happened back in 2017, when Laredo police arrested citizen journalist Priscilla Villareal under a statute prohibiting the solicitation of nonpublic information where there is “intent to obtain a benefit.” AKA journalism. The Fifth Circuit initially sided with Villareal, with Judge Ho writing:
 
“If the First Amendment means anything, it surely means a citizen journalist has the right to ask a public official a question, without fear of being imprisoned. Yet that is exactly what happened here: Priscilla Villarreal was put in jail for asking a police officer a question. If that is not an obvious violation of the Constitution, it’s hard to imagine what would be.”
 
Unfortunately, the full court backtracked during an en banc appeal, finding that city officials had qualified immunity. As we wrote at the time, that ruling set a terrible precedent for freedom of the press – sending a message that reporters should be wary of arrest and reprisal for daring to ask questions of government officials.


Now, Pulliam’s case is up before the Fifth Circuit too, following a Texas district court’s rejection of the defendants’ qualified immunity argument. We’ll see whether the judges get it right this time and acknowledge that Corruption Report constitutes a “legitimate” media outlet. In Villareal’s case, Judge Edith Jones suggested that her Lagordiloca page was not.
 
We respectfully disagree. Courts should not be in the business of determining who is and who is not a “legitimate” reporter according to platform or reporting style. The changing technological landscape has enfranchised a new class of citizen journalists no less deserving of respect and the protections of the First Amendment than their more well-heeled counterparts.
 
Offering a step in the right direction, the Protect Reporters from Exploitive State Spying (PRESS) Act, introduced by Sen. Ron Wyden and Rep. Jamie Raskin, brings all sorts of journalists into the fold and provides a shield for reporters’ notes and sources from prying prosecutors. The PRESS Act defines a covered journalist as someone who “gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns news events or other matters of public interest for dissemination to the public.” That would certainly include Pulliam and Villareal.
 
The House passed the PRESS Act by unanimous voice vote earlier this year. The Senate should follow up and send it to the president’s desk for signature.
 
As for the Fifth Circuit, the Pulliam case is a great chance to revise its stance and catch up with the evolution of the fourth estate.

​Reporters Without Borders dropped the United States 10 places on its annual rankings from last year, from 45th to 55th place out of 180 countries in its 2024 World Press Freedom Index. This is part of a trend. This NGO has downgraded the United States, which enshrines freedom of the press in our Constitution, from 17th best for press freedom in 2002 to that 55th place now.
 
To be fair, some of the organization’s metrics are questionable. For example, Argentina fell from 40th place last year to 66th place in 2024 after newly elected President Javier Miliei shuttered news outlet Télam and put its 700 journalists on the street. It should be noted, however, that Télam was a money-losing, state-funded news agency founded by Juan Perón and known for being a government and Peronista mouthpiece under previous administrations.
 
So how fairly did Reporters Without Borders treat the United States? It seems overkill to us to rank the United States below the Ivory Coast, where reporters are routinely called in by prosecutors and newspapers are suspended – or Romania, where a prominent journalist who investigated the government had her personal images hacked and uploaded to an adult website.
 
At the same time, while we can take issue with the overall ranking of the United States, this NGO is correct on what the British call the direction of travel. Protect The 1st has reported what Reporters Without Borders states: “In several high-profile instances, local law enforcement has carried out chilling actions, including raiding newsrooms and arresting journalists.” We would add to that the lack of a federal press shield law also leaves reporters vulnerable to being wiretapped and worse.
 
The good news is that protections for reporters have a strong basis of public support in the United States. A recent survey by the Pew Research Center reveals robust support among Americans for the principle of press freedom, underscoring its vital role in our democracy. It’s heartening to note that nearly three-quarters of U.S. adults (73 percent) consider the freedom of the press — enshrined in the First Amendment — extremely or very important to the well-being of society.
 
Still, we have reason for caution. While a significant majority of Americans acknowledge the importance of a free press, many are concerned about threats to journalistic freedom. Notably, a substantial portion of the population believes U.S. media is influenced by corporate and political interests — 84 percent and 83 percent respectively. In our polarized society, partisan differences color these perceptions of press freedom. Republicans and Independents consistently express greater concern over media restrictions and the influence of political interests compared to Democrats.
 
Equally concerning is the broader debate over the balance between safeguarding press freedom and curbing “misinformation.” Approximately half of the American population is torn between the necessity to prevent the spread of false information and the imperative to protect press freedoms, even if it means some false information might circulate.
 
While it's encouraging to see strong support for journalistic freedoms among Americans, local authorities must understand that raids and legal threats against reporters is intolerable under our Constitution and under the press shield laws of 49 states. And we need a federal press shield law – the PRESS Act, which recently passed the U.S. House – to reduce the shadow the Department of Justice can cast over the free exercise of journalism.
 
We’ve got work to do.

​Like many declarations of the United Nations, the 31st anniversary of World Press Freedom Day is more aspirational than reality in many UN member countries.
 
In some countries, journalists are routinely killed for reporting on corrupt politicians and police agencies. UN Secretary-General Antonio Guterres’ says that violence is also common among journalists covering local environmental issues like illegal mining, logging, poaching and other acts of “environmental vandalism.”
 
Much of the repression comes from sophisticated state actors. In China, imprisoned Hong Kong publisher Jimmy Lai stayed in that jurisdiction to bravely stare down official repression after his newspaper, Apple Daily, was shuttered. In Russia, Evan Gershkovich of The Wall Street Journal remains held on specious charges of spying for the CIA by Vladimir Putin’s judicial puppets.
 
“Journalism should not be a crime anywhere on the earth,” President Biden declared today. We agree and would only add, for unfortunately necessary emphasis, “including the United States.”
   
While 49 U.S. states have press shield laws, there is no federal law that protects the notes and sources of a journalist from being seized by a federal prosecutor. Many U.S. reporters have gone to jail rather than bow to a prosecutor’s demand to reveal his or her sources. All the more reason to celebrate World Press Freedom in America by asking Congress to get behind the PRESS Act, which would extend these basic protections to the federal government.
 
“If you cannot offer a source a promise of confidentiality as a journalist, your toolbox is empty,” celebrated investigative journalist Catherine Herridge told members of a House Judiciary subcommittee. “No whistleblower is coming forward, no government official with evidence of misconduct or corruption. And what that means is that it interrupts the free flow of information to the public … Journalism is about an informed electorate, which is the bedrock of our democracy.”
 
We urge Congress to honor the First Amendment and the freedom of the press by passing the PRESS Act.

​A House hearing on the protection of journalistic sources veered into startling territory last week.
 
As expected, celebrated investigative journalist Catherine Herridge spoke movingly about her facing potential fines of up to $800 a day and a possible lengthy jail sentence as she faces a contempt charge for refusing to reveal a source in court. Herridge said one of her children asked, “if I would go to jail, if we would lose our house, and if we would lose our family savings to protect my reporting source.”
 
Herridge later said that CBS News’ seizure of her journalistic notes after laying her off felt like a form of “journalistic rape.”
 
Witnesses and most members of the House Judiciary subcommittee on the Constitution and Limited Government agreed that the Senate needs to act on the recent passage of the bipartisan Protect Reporters from Exploitative State Spying (PRESS) Act. This bill would prevent federal prosecutors from forcing journalists to burn their sources, as well to bar officials from surveilling phone and email providers to find out who is talking to journalists.
 
Sharyl Attkisson, like Herridge a former CBS News investigative reporter, brought a dose of reality to the proceeding, noting that passing the PRESS Act is just the start of what is needed to protect a free press.
 
“Our intelligence agencies have been working hand in hand with the telecommunications firms for decades, with billions of dollars in dark contracts and secretive arrangements,” Attkisson said. “They don’t need to ask the telecommunications firms for permission to access journalists’ records, or those of Congress or regular citizens.”
 
Attkisson recounted that 11 years ago CBS News officially announced that Attkisson’s work computer had been targeted by an unauthorized intrusion.
 
“Subsequent forensics unearthed government-controlled IP addresses used in the intrusions, and proved that not only did the guilty parties monitor my work in real time, they also accessed my Fast and Furious files, got into the larger CBS system, planted classified documents deep in my operating system, and were able to listen in on conversations by activating Skype audio,” Attkisson said.
 
If true, why would the federal government plant classified documents in the operating system of a news organization unless it planned to frame journalists for a crime?
 
Attkisson went to court, but a journalist – or any citizen – has a high hill to climb to pursue an action against the federal government. Attkisson spoke of the many challenges in pursuing a lawsuit against the Department of Justice.
 
“I’ve learned that wrongdoers in the federal government have their own shield laws that protect them from accountability,” Attkisson said. “Government officials have broad immunity from lawsuits like mine under a law that I don’t believe was intended to protect criminal acts and wrongdoing but has been twisted into that very purpose.
 
“The forensic proof and admission of the government’s involvement isn’t enough,” she said. “The courts require the person who was spied on to somehow produce all the evidence of who did what – prior to getting discovery. But discovery is needed to get more evidence. It’s a vicious loop that ensures many plaintiffs can’t progress their case even with solid proof of the offense.”
 
Worse, Attkisson testified that a journalist “who was spied on has to get permission from the government agencies involved in order to question the guilty agents or those with information, or to access documents. It’s like telling an assault victim that he has to somehow get the attacker’s permission in order to obtain evidence. Obviously, the attacker simply says no. So does the government.”
 
This hearing demonstrated how important Fourth Amendment protections against unreasonable searches and seizures are to the First Amendment’s guarantee of freedom of the press. If Attkisson’s claims are true, the government explicitly violated a number of laws, not the least of which is mishandling classified documents and various cybercrimes. And it relies on specious immunities and privileges to avoid any accountability for its apparent crimes.
 
Two proposed laws are a good way to start reining in such government misconduct. The first is the PRESS Act, which would protect journalists from being pressured by prosecutors in federal court to reveal their sources. The second proposed law is the Fourth Amendment Is Not For Sale Act, which passed the House this week. This bill would require the government to get a warrant before it can inspect our personal, digital information sold by data brokers. And, of course, these and other laws limiting government misconduct need genuine remedies and consequences for misconduct, not the mirage of remedies enfeebled by improper immunities.

​The growth of the surveillance state in Washington, D.C., is coinciding with a renewed determination by federal agencies to expose journalists’ notes and sources. Recent events show how our Fourth Amendment right against unreasonable searches and seizures and our First Amendment right of a free press are inextricable and mutually reinforcing – that if you degrade one of these rights, you threaten both of them.
 
In May, we reported that the FBI raided the home of journalist Tim Burke, seizing his computer, hard drives, and cellphone, after he reported on embarrassing outtakes of a Fox News interview. It turns out these outtakes had already been posted online. Warrants were obtained, but on what credible allegation of probable cause?
 
Or consider CBS News senior correspondent Catherine Herridge who was laid off, then days later ordered by a federal judge to reveal the identity of a confidential source she used for a series of 2017 stories published while she worked at Fox News. Shortly afterwards, Herridge was held in contempt for refusing to divulge that source. This raises the question that when CBS had earlier terminated Herridge and seized her files, would network executives have been willing to put their freedom on the line as Herridge has done?
 
In response to public outcry, CBS relented and handed Herridge’s notes back to her. But local journalists cannot count on generating the national attention and sympathy that a celebrity journalist can. Now add to this vulnerability the reality that every American who is online – whether a national correspondent or a college student – has his or her sensitive and personal information sold to more than a dozen federal agencies by data brokers, a $250 billion industry that markets our data in the shadows.
 
The sellers of our privacy compile nearly limitless data dossiers that “reveal the most intimate details of our lives, our movements, habits, associations, health conditions, and ideologies.” Data brokers have established a sophisticated system to aggregate data from nearly every platform and device that records personal information to develop detailed profiles on individuals. To fill in the blanks, they also sweep up information from public records. So if you have a smartphone, apps, or search online, your life is already an open book to the government. In this way, state and federal intelligence and law enforcement agencies can use the data broker loophole to obtain information about Americans that they would otherwise need a warrant, court order, or subpoena to obtain.
 
Now imagine what might happen as these two trends converge – a government hungry to expose journalists’ sources, but one that also has access to a journalist’s location history, as well as everyone they have called, texted, and emailed. It is hardly paranoid, then, to worry that when a prosecutor tries to compel a journalist to give up a source through legal means, purchased data may have already given the government a road map on what to seek. 
 
The combined threat to privacy from pervasive surveillance and prosecutors seeking journalists’ notes is serious and growing. This is why Protect The 1st supports legislation to protect journalistic privacy and close the data broker loophole. The Protect Reporters from Exploitive State Spying, or PRESS Act would grant a privilege to protect confidential news sources in federal legal proceedings, while offering reasonable exceptions for extreme situations. Such “shield laws” have been put into place in 49 states. The PRESS Act, which passed the House in January with unanimous, bipartisan support, would bring the federal government in line with the states.
 
Likewise, the Fourth Amendment Is Not For Sale Act would close the data broker loophole and require the government to obtain a warrant before it can seize our personal information, as required by the Fourth Amendment of the U.S. Constitution. The House Judiciary Committee voted to advance the Fourth Amendment Is Not For Sale Act out of committee with strong bipartisan support in July. The Judiciary Committee also reported out a strong data broker loophole closure as part of the Protect Liberty Act in December. 
Now, it’s up to Congress to include these protection and reform measures in the reauthorization of Section 702.
 
Protect The 1st urges lawmakers to pass measures to protect privacy and a free press. They will rise or fall together.