​We’ve chronicled the decline of free speech in the European Union, with Germany leading the way.

In Germany, “public insults against politicians,” “spreading malicious gossip,” “inventing fake quotes,” and reposting purported lies online are now crimes. For ridiculing politicians, Germans are being investigated – one case was launched after a social media poster called a politician “fat.” Social media users have been fined, had their devices confiscated, and have even been sent to prison.

California Senate Bill 771 would have similarly restricted speech, this time with million-dollar fines on social media companies if their algorithms promote content that “aids or abets” threats of violence or intimidation. Under the terms of this bill, the state would fine social media companies $1 million per violation if a post is amplified by the platform’s algorithm, even if the content is lawful and fact-based.

The law was drafted to address “rising incidents of hate-motivated harms.” But harassing, assaulting, and harming people are already crimes. Under the Supreme Court’s Brandenburg v. Ohio standard, incitement to violence can also be prosecuted. This bill aims to further punish language that leads to “coercive harassment, particularly when directed at historically marginalized groups.” Section 1 of the bill notes, in one example, speech regulation is needed because anti-Islamic “bias events” rose by 62 percent in 2023.

And yet Oussama Mokeddem of the Council on American-Islamic Relations (CAIR) of California opposed the bill, saying: “This bill opens the door for bad actors to disproportionately pressure online corporations into silencing free speech to reduce their financial liability, with no protections for users against those mechanisms.”

A host of civil liberties groups objected that Senate Bill 771 was a recipe for government regulation of speech.

“In no way shape or form is that accurate,” responded Edward Howard, senior legal counsel for the Children’s Advocacy Institute at the University of San Diego School of Law, who had advised lawmakers in drafting the bill. He told Sacramento’s KCRA: “The First Amendment protects offensive, salacious, insensitive, horrifying, terrible things that people say. The bill is in fact about the right … of every single one of your viewers to be protected from threats of violence in response to his speech if those threats of violence would legitimately and reasonably place a regular old person in fear for their lives or being harmed.”

But Howard was far more precise in his interview than the bill’s language itself, which punishes but does not define “intimidation.” There is no lack of laws against threats of violence. If Gov. Newsom had signed SB 771 into law, it would have necessarily deployed armies of regulators and a range of activist groups armed with dictionaries in trying to discern the threats lurking in mere stinging criticism.

In his veto statement, Gov. Newsom said he shared concerns about the growth of discriminatory threats, violence and coercive harassment online, but found this bill “premature.” He thus kicked the can down the road. The governor wrote that “our first step should be to determine if, and to what extent, existing civil rights laws are sufficient to address violations perpetuated through algorithms. To the extent our laws prove inadequate, they should be bolstered at that time.”

What shape would such bolstering take? Bad ideas never die; they just get repackaged. Such a law in California, as in Germany, would pose global concerns. By regulating speech on world-spanning social media platforms, California would effectively regulate speech for everyone, everywhere.
​
The same technology that brings the world into dialogue can also bring the world under this or that regime’s censorship. Free speech is liberty, the price of which is eternal vigilance.

​Nine universities have received letters from the Trump administration asking them to sign a “Compact for Academic Excellence in Higher Education.” These institutions can receive extra funds in exchange for agreeing to freeze tuition for five years, enforce equality in admissions, adopt institutional neutrality on major issues, bring ideological diversity to hiring, limit international students, combat grade inflation, and bring about “transforming or abolishing institutional units that purposefully punish, belittle, and even spark violence against conservative ideas.”
 
Does the administration’s Compact protect or violate the First Amendment?
 
Marc Rowan, chief executive of Apollo Global Management, took to the pages of The New York Times to mount a vigorous defense of the Compact in the face of a university system that is “broken.”
 
We cannot disagree with his characterization. Rowan writes that the Compact dispenses honey to persuade universities to make common sense changes:
“These are not politically partisan requirements. It is eminently reasonable for the government to expect all this of schools before providing them with public funds.
 
“Critics have charged that the compact threatens free speech. It does no such thing. It places no constraints on individual speech, nor does it intrude on academic freedom. The compact does require schools not to punish, intimidate or incite violence against conservative ideas. Those are not speech restrictions. They are restrictions on the suppression of speech.”
 
Genevieve Lakier of the University of Chicago Law School takes an opposing view.
 
She writes in Divided Argument that the Compact violates the “unconstitutional conditions doctrine, which holds that the government may not condition access to government benefits on the recipient’s agreement to waive their constitutional rights, including the rights protected by the First Amendment.”
Lakier continues:
 
“The First Amendment rights that the Compact asks universities to forego are almost too numerous to mention, but they are many and they are blatant. Consider for example the requirement that universities maintain ‘an intellectually open campus environment, with a broad spectrum of ideological viewpoints present and no single ideology dominant’ … It is a matter of political judgment what constitutes an open and undistorted, as opposed to a closed and distorted, marketplace of ideas – and therefore, the kind of judgment that members of the democratic political community must make for themselves …”
 
Where does Protect The 1st stand? We admit it – we are conflicted.
 
The imposition of speech standards by government funding – even if it broadens the diversity of speech – is an intrusion of government into the speech rights of universities. What constitutes an open versus a distorted marketplace of ideas is an invitation to endless legal and political wrangling. We especially worry that the Compact’s intrusion could one day become a weapon that can be wielded for much more illiberal purposes.
 
At the same time, federal funding has already been used to micromanage higher education for decades now. Would it hurt to use that power for at least some of these purposes? We are beyond frustrated at institutions that are supposed to be safe havens for free inquiry but are instead killing grounds for dissent.
 
Like many things Trump, the execution may be overbroad and overdone, but the challenge itself might have a bracing effect forcing institutions to finally consider long-needed changes.

​Rumors have swirled on Capitol Hill that Sen. Ted Cruz (R-TX) is drafting legislation to let Americans – whether skeptics of the COVID-19 origin story or late-night talk show hosts – sue the government for monetary damages when they are censored.

Sen. Cruz has now confirmed that he is indeed crafting such a bill, one that would create new legal remedies for those silenced by government pressure. His bill would also restrict “jawboning” – the process by which officials pressure social media companies or news outlets to suppress disfavored views. The Senate Commerce, Science & Transportation Committee, which Cruz chairs, held a hearing Wednesday that explored government censorship and how to stop it.

• The first witness was famed legal scholar and Protect The 1st Senior Legal Advisor Eugene Volokh, who presented testimony explaining that “jawboning” can be defined benignly as an act of persuasion. It can also be:

“Government officials trying to coerce through the explicit or implicit threat of retaliation stemming from their position of authority, e.g., through the threat of enforcement or regulation. As a practical matter, the two meanings are closely intertwined, especially since it may be hard to tell whether there is an implicit ‘or else’ behind a request.”

Volokh raised the subtle issue of precisely defining what constitutes government coercion. Sen. Cruz emphasized the “or else” threats implicit in jawboning campaigns by powerful government agencies. On the other hand, Volokh asserted, no law should restrict the ability of government officials to communicate with journalists. For example, a White House press secretary should be allowed to tell journalists that they got a story wrong.

But Volokh made it clear – citing a strong line of legal precedent – that “a government official cannot do indirectly what she is barred from doing directly.” Quoting from the U.S. Supreme Court’s unanimous opinion in NRA v. Vullo, he said “a government official cannot coerce a private party to punish or suppress disfavored speech on her behalf.”

• Sean Davis, executive director of The Federalist, gave a vivid account of what it feels like to be on the receiving end of speech coercion. Davis described the State Department’s Global Engagement Center (GEC) and how it targeted domestic news outlets:

“Despite the fact that GEC was explicitly prohibited by both the U.S. Constitution via the First Amendment and by the very statute which created and authorized the agency from targeting domestic speech, it nonetheless sought to drive us out of business by funding, developing, and distributing technologies and tools to reduce our reach, by bullying advertisers into blacklisting us and many other conservative outlets, and by coercing Big Tech companies like Facebook, Twitter, and Google to throttle access to our content. In essence, our own government secretly and without any due process charged us with thought crimes, convicted us, and sentenced The Federalist to death.”

• Alex Berenson, journalist and author – whose reporting on COVID-19 was censored by Twitter – testified that social media companies did not want to censor users, but acted out of fear of the government. (The same dynamic is visible today when the Chairman of the Federal Communications Commission publicly hints at regulatory action against broadcasters who air views he dislikes.)

About his ordeal, Berenson reflected on the dilemma of social media companies: 

“They viewed having to sacrifice speech from some users as the price they had to pay to stay in the administration’s good graces. Every company faces this calculus, whether a Democrat or Republican is in the White House.”

No American should have to calculate that one’s protected speech might trigger censorship or a regulatory crackdown.

Eugene Volokh added a grace note with a personal reflection that underscored the stakes. Fifty years ago to this day, he said, his parents brought him out of the Soviet Union.
​
Volokh concluded simply, that he wanted to “thank the United States of America for letting me in.”

​It is a welcome development that more than 550 Hollywood celebrities have restarted the Committee for the First Amendment. But we also have some reservations about the focus of this group, which we will explain below.

The committee announced on Wednesday: “The federal government is once again engaged in a coordinated campaign to silence critics in the government, the media, the judiciary, academia, and the entertainment industry.”

This is not a controversial statement. It is not interpretation. It is nothing but a recap of recent headlines.

The current administration has used executive orders to target individuals and law firms for past speech. Government funding is now being conditioned on how well universities align with administration priorities. The regulatory power of the Federal Communications Commission has been wielded to force media into paying large settlements over specious defamation lawsuits.

The Committee for the First Amendment was originally formed in the Cold War era to protect the Hollywood Ten, liberals and, to be accurate, actual communists like screenwriter Dalton Trumbo, who were blacklisted and persecuted by the House Un-American Activities Committee during the Joseph McCarthy era. Jane Fonda, whose father Henry was a founding member, said: “I’m 87 years old. I’ve seen war, repression, protest, and backlash. I’ve been celebrated, and I’ve been branded an enemy of the state. But I can tell you this: this is the most frightening moment of my life.”

We are concerned too. So why aren’t we 100 percent thrilled about the rebirth of the Committee for the First Amendment?

Like the parable of the man who sees the splinter in the other man’s eye, but not the log in his own, many on the left – just like so many on the right – only see the violations of their partisan opponents. It is all those evil Republicans, or those evil Democrats (leading MAGA influencers to now pine for the prosecution of George Soros… for what, exactly? Spending money on speech, as he is permitted to do under Citizens United?)

We suggest that Mark Ruffalo, Kerry Washington, Viola Davis, Ben Stiller, Aaron Sorkin, Barbra Streisand, Billie Ellish, and the rest take stock of the truth that for some years now, both parties have tried hard to misuse government power to silence each other. Alphabet/Google has publicly admitted that it buckled to secret pressure from the Biden administration to deplatform conservatives. The State Department secretly used government funds to use an NGO to persuade advertisers to blacklist conservative and libertarian news outlets. White House aides, who wielded tremendous regulatory power, called Mark Zuckerberg to scream at him over Facebook posts they wanted removed.
​
The First Amendment is sinking, and the recent actions of the Trump administration have thrown it an anvil when it needs a life preserver. It is good to get angry about the violation of speech rights of those we agree with. But we won’t have the strength to rescue free speech until we are all just as angry about the violation of the speech rights of people we don’t like.

None of the 800 generals and admirals flown in from around the world could have missed Defense Secretary Pete Hegseth’s demand for greater readiness and fitness in America’s Armed Forces.
 
Clarity is a good thing. Fitness and a dedication to lethality in war are, in this broken world of ours, necessary.
 
But some questions remain on the table.
 
Some might wonder about the wisdom of banning “fat generals.” This would have excluded one of America’s greatest generals, Henry Knox, who dragged 60 tons of artillery on ox-drawn sleighs through heavy snow from Fort Ticonderoga to liberate Boston from the British. As many have pointed out, this standard would have excluded Lieutenant General Leslie Groves, who oversaw the development of the atomic bomb.
 
But we have a different question – will Secretary Hegseth’s ban on beards in the military include those for whom a hirsute appearance is a religious obligation?
 
The Council on American-Islamic Relations called on the Pentagon on Tuesday to clarify Hegseth’s order and affirm that the department would maintain the religious rights of all service members. CAIR said in a statement:
 
“The First Amendment guarantees military personnel the right to practice their faith – including the right of Muslim, Sikh and Jewish personnel to grow beards or cover their hair – as does established Pentagon policy.”
 
Over the last five years, Protect The 1st has joined the Becket Fund for Religious Liberty to protect Jewish, Muslim, and Sikh men in the U.S. military who want to keep their beards. One of them, Electrician’s Mate (Nuclear) 3rd Class Edmund Di Liscia, was a Hasidic Jew who said that his beard is “a religious commitment and an expression of obedience and fidelity to God.”
 
Similar views were heard from Mass Communications Specialist 3rd Class Leo Katsareas, a Muslim, and several Sikh men serving in the Marine Corps.
 
The Trump administration has compiled a strong and commendable record of defending religious liberty.  It established a Religious Liberty Commission in the Department of Justice to advise the White House on ways to protect religious freedom from government encroachment. Creating an exception to the grooming standards in the military for these men would be in keeping with the beliefs and actions of President Trump.

​Many Americans on the right are upset about a recent letter in which Alphabet/Google acknowledged that YouTube did, in fact, censor conservative speech at the behest of the Biden White House. Meanwhile, many Americans on the left are deeply alarmed by how Federal Communications Commission Chairman Brendan Carr inserted himself into the Jimmy Kimmel drama, threatening official retaliatory action if the late-night host stayed on the air.

Both sides are right about the other side, which means, of course, that both sides are in the wrong.

Yet somehow, the concept of a neutral principle that applies equally to everyone has become too hard for even highly educated policymakers to grasp. Wait, are you actually saying that free speech means that people who piss me off can say anything they want?

Yes, as hard as it is for some to grasp, that is what the First Amendment guarantees.

A way out of our current national free-speech debacle may, ironically, come from the universities, where the heckler’s veto has all too often prevailed. Universities are adopting the University of Chicago principles for free speech, which include this declaration:

“[I]t is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Although the University greatly values civility, and although members of the University community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussions about ideas, however offensive or disagreeable those ideas may be to some members of our community.”

Entire state university systems from North Carolina to Texas, as well as Princeton, Stanford, Harvard, Yale, and Johns Hopkins, have embraced the Chicago principles, more than 100 in all.

Now Harvey Silverglate, co-founder of the Foundation for Individual Rights and Expression (FIRE) makes a puckish suggestion in a wide-ranging interview with Tunku Varadarajan in The Wall Street Journal. Silverglate suggests a “Chicago statement for the nation,” declaring “it is not the proper role of the government to shield individuals” from statements and opinions they find objectionable.”
​
This is not likely to happen anytime soon, not with the censorship arms race now taking place in Washington, D.C., today. But it took only a few years for the Chicago principles to take hold in academia. Perhaps in a decade, could we see a similar declaration by our government?

​Netta Perkins, assistant basketball coach at the Paso Robles Unified School District in California, allegedly posted the following reaction to the assassination of Charlie Kirk: “God does not like ugly! Charlie Kirk reap wat u sow!” and “White on white crime let them sit in it!”
 
This post was, to put it mildly, a digital advertisement for ignorance and lack of empathy, not to mention poor grammar. The author might want to meditate on the phrase, “God does not like ugly.”
 
Some 145 Americans – including many teachers in high schools and universities – have been fired for posting statements similar to this one. But Perkins was not, and will not be, one of them.
 
The Paso Robles Unified School District announced:
 
“In some cases, you may see employees of private companies face immediate consequences for things they post online. Public schools, however, are public institutions and must follow constitutional protections such as the First Amendment.
 
“In practice, this means that even if a staff member or coach shares something online that many find upsetting, the District cannot legally take disciplinary action based on personal speech alone, unless it affects their ability to do their job or harms students.”
 
Some argue that a teacher should model character for students, especially in public fora. But once we start to evaluate every teacher’s public posts, millions of posts will suddenly become subject to angry, internal debates within school boards over one subjective judgment after another.
 
In a thoughtful piece, the editorial board of The San Luis Obispo Tribune explored the reasons why Perkins should not be fired for her post:
 
“Would we want it any other way? Would we really want to live in a nation where someone can be fired, or worse, for saying something critical of the party in power?”
 
The Tribune recounted the many examples of people on the right, as well as the left, who want to justify censorship because someone’s over-the-top rhetoric is likely to incite violence – while reserving the right to call their opponents “vermin” and “scum,” and, we would add, “fascists.”
 
The Tribune asked all sides to consider the “irony of silencing critics.”
 
“Charlie Kirk – the man whose legacy is being championed by all comers on the right – would have stood against such encroachment on this fundamental American right, because he was a fierce defender of free speech.
 
"You should be allowed to say outrageous things," he said shortly before his death …
 
“Those agitating for the firing – or just the muzzling – of political opponents like Coach Perkins or any of the 145 or so employees who were actually terminated may want to slow down and ask themselves this simple question.
 
“What would Charlie have done?”
 
Many on both sides should consider that the irony of silencing critics is really just another way of acknowledging that karma boomerangs. It is only a matter of time before the silencers become the silenced.

​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.
​
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.”
​
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.
​
“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.”
​
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?
​
A Supreme Court clerk weighing this petition would likely check every Sullivan box:
​

• 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.
​
For a deeper dive on Sullivan’s history and legacy, check out this piece by Columbia’s Knight First Amendment Institute.

What does the U.S. Supreme Court have to do to make the law clear to the states?

Several states seem determined to get around the 6-3 ruling of the Court in 303 Creative LLC v. Elenis. In that 2023 opinion, the Court upheld the First Amendment right of a digital designer not to be compelled to write, design, and create websites that conflicted with her religious beliefs opposing same-sex marriage.

Even if you disagree with those conservative religious beliefs, you still have a stake in the right of people not to be forced to violate their religious beliefs in businesses that rely on expressive activities.

Justice Neil Gorsuch wrote that under the logic of a Colorado state board, which pressed the case against 303 Creative, the government could be allowed “to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty.”

He added that under the same logic, Colorado “could require an unwilling Muslim movie director to make a film with a Zionist message, or an atheist muralist to accept a commission celebrating Evangelical zeal … Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage.”

The Court followed the logic of its Masterpiece Cakeshop decision in 2018, which found that a baker who crafts wedding cakes with special messages was engaged in expressive activity. This made his profession one in which religious scruples must be protected by the First Amendment.

Now California is prosecuting another baker, Cathy Miller, owner of Tastries Bakery in Bakersfield for refusing to make a cake for a same-sex couple. In the Becket Fund video below, there is no doubt that Miller sees her work as artistry that supports her Christian beliefs.

Before starting a wedding cake, Miller meets with every bride and groom to get the message right. “What is the intent of the cake?” she asks. “How can I bless somebody with this?”
​
When a same-sex couple asked her to make a cake, Miller said that she “prayed for the right words” on how to communicate with the prospective customers. She told them that she is the only baker in Bakersfield with this restriction and offered a referral. Legal action by the state soon followed, along with coarse threats and vandalism from anonymous attackers.

​The Court has made it clear that the principle protecting expressive services is narrow and limited. A restaurateur or hotel owner who tried to deny service to LGBTQ customers would be hit with a civil rights violation – and rightly so.

There is, perhaps, a larger culture takeaway in this case for people on all sides of the religious and cultural divide.
​
Given that almost every baker would jump at the chance to take the order that Miller took a pass on, could we just agree to live and let live? Does everything have to be litigated to the ultimate degree? Or the next time, might two customers actually follow up on Miller’s referral to a “really good decorator” who is more than happy to make their cake?

​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.

​When President Trump issued an executive order directing the attorney general to prosecute those who burn American flags, it struck many as a snub of the U.S. Supreme Court. Did the president’s order fly in the face of a 1989 Supreme Court opinion, Texas v. Johnson, holding that flag-burning is protected by the First Amendment?

“We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents,” wrote Justice William Brennan for the 5-4 majority in that case.

Even Justice Antonin Scalia, known for conservative social views, gave the majority its decisive swing vote. He later said that if he were king, “I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.” Justice Scalia put his understanding of the Constitution before his personal preferences.

President Trump’s executive order seems to ignore this clear precedent, putting emotion above legal logic. The president wrote that desecrating the flag “is uniquely offensive and provocative.”

And it is.

The Executive Order and the Boundaries of the Law
But the First Amendment does not allow speech to be outlawed simply because it is offensive or provocative. There are other, more complex issues for the courts to consider in this executive order. The president took pains to expand enforcement while purporting to acknowledge the boundaries of the law.

Consider two distinctions in the president’s executive order.

• First, the order directs the attorney general to rely on existing national criminal and civil laws that are “content neutral” and focus on harms “unrelated to expression.”

 

• Second, it targets burning this “representation of America” in a way that may “incite violence and riot.” The president specifically singled out flag burning by “groups of foreign nationals as a calculated act to intimidate and threaten violence against Americans because of their nationality and place of birth.” The executive order also notes that the Supreme Court has never extended constitutional protection to “fighting words” that are “likely to incite imminent lawless action.”

This seems an attempt to build on the 2003 Supreme Court ruling in Virginia v. Black, which affirmed the right of Virginia to ban cross burning when it is done with the intent to intimidate. Writing for the majority, Justice Sandra Day O’Connor noted the long history of “whipping, threatening, and murdering” associated with burning crosses.

From this history, she concluded:

• “The protections the First Amendment affords speech and expressive conduct are not absolute … Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”

The Trump executive order attempts to predicate action against flag burners on this principle. But does every instance of flag-burning place specific Americans in fear of bodily harm or death? Is that reasonable, or too much of a stretch? It is one thing to burn a cross on a particular person’s front lawn, quite another to burn a flag as part of a mass protest against the government rather than against individual Americans.

Is the Executive Order Content Neutral?
Similar principles apply to the directive to use “content-neutral” laws relating to harms unrelated to expression. While content-neutral enforcement of laws against burning things in public places would of course be reasonable, the executive order specifically directs a content and viewpoint-based enforcement against burning American flags. That is hardly content neutral, and the order makes clear that the harm it goes after is exactly based on the expressive content of the act of burning an American flag, not any concern with fire safety. If the executive order does not include enforcement on burning the flags of other countries, it is by definition not content neutral.

Courts will have to decide whether a viewpoint-based directive to selectively enforce otherwise permissible laws can end-run existing precedent on flag burning. This being America, within hours of the executive order’s release, a man torched an American flag across the street from the White House. He was arrested, but not for burning the flag. He was arrested for starting a fire in Lafayette Park.

That seems reasonable to us. Starting fires is illegal in most public places, and is not exactly the safest activity. Would the police plan to be equally diligent against flammable conduct the president likes – perhaps a pardoned January 6th protester burning a picture of the J6 Committee in effigy?
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There may be specific instances in which flag burning poses a threat of imminent violence. Attaching such a threat to all flag burning could, however, be just a means of punishing the expression by imposing the costs of arrest and defense, regardless of the merits of the charge.

​In the meantime, we point to the words of Justice Anthony Kennedy, who wrote in a 2003 concurring opinion: “It is poignant but fundamental that the flag protects those who hold it in contempt.”

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.

​President Trump announced on Monday that he is directing the Department of Education to formulate guidelines to protect prayer in public schools. Is this the first step in imposing religion on Americans through public institutions, or a necessary act to defend the First Amendment rights of the religious?
 
The president could not have picked a more colorful stage for this announcement – inside the Museum of the Bible in Washington, D.C. – or a more attentive audience, the Religious Liberty Commission that he himself created. “The Department of Education will soon issue new guidance protecting the right to prayer in our public schools, and it's total protection,” the president said. Cue the critics who echo Robert Reich, former Secretary of Labor and leading progressive voice, who wrote: “A society where one set of religious views is imposed on those who disagree with them is not a democracy. It’s a theocracy.”
 
Is this fair? Of course, no executive order or law would override the Constitution’s establishment clause to allow, say, a teacher to begin each class with the Lord’s Prayer. But what about a teacher saying grace before lunch, or wearing a crucifix or Star of David? Or students who choose to privately pray?
 
We note two aspects of Monday’s event. First, President Trump did not say he was “establishing” prayer in public school classrooms. He said he was going to “protect” prayer in schools. To illustrate what he meant, President Trump pointed to Hannah Allen, who in 2018 was an eighth-grader at Honey Grove Elementary School in Texas. Hannah had organized a group of students to hold hands around an empty table at lunchtime to pray for the healing of a fellow student who had been injured in an accident.
 
The school’s principal broke up the prayer session. The next day, he told Hannah that students who wanted to pray should go behind the curtain of the cafeteria’s stage, outside the school, or to the gym. A tart letter from First Liberty Institute lawyers to the school district said these statements constituted an official message that prayer “is illegitimate, disfavored and should not occur in public.” The letter asserted that the principal showed hostility by “quarantining” prayer as if it were “an infectious disease.”
 
The school district quickly backed down.
 
During the session of the Religious Liberty Commission, commissioners heard from several other former students with harrowing tales of what can only be described as religious persecution.
 
One of them was Maggie DeJong, who filed a lawsuit against Southern Illinois University Edwardsville, alleging violations of her First Amendment rights. She had been ordered by university administrators to refrain from having “any contact,” or even “indirect communication” with three fellow graduate students who complained about her posts about religion and her respectful critique of Critical Race Studies theory in class.
 
Maggie told the commissioners that the administration had sent out emails to faculty and students denouncing her for “oppressive” comments that created “a toxic learning environment.” She expressed her dismay to the commissioners that a university, “which should be a marketplace of ideas,” would so forcefully shut her up. “I wish we could have shared our views,” she told the commissioners.
 
The Commission also heard from a young woman who attempted to establish a Students for Life organization at Queens College, part of the City University of New York. That application was denied, forcing the members of this would-be student organization to fund, through the university’s mandatory student activity fees of $1,200 (per student over eight semesters) for groups that support abortion.
 
Whatever your views on this contentious issue, surely banning one viewpoint and subsidizing its opposite is unconstitutional. After being sued in federal court, Queens College agreed to recognize the organization and revise its policies to prevent discrimination on the basis of belief.
 
The Commission also heard from an evangelical student at Georgia Gwinnett College, one that went all the way to the U.S. Supreme Court. When Chike Uzuegbunam attempted to share his enthusiasm about his recent conversion experience with fellow students at an outdoor plaza, campus police showed up to crack down on this act of “disturbing the peace.”
 
He was later offered the chance to voice his views from a designated “speech zone” that constituted 0.0015 percent of the campus, open only 10 percent of the time – as if the whole school shouldn’t be a free speech zone. A lower court ruled that because Uzuegbunam had claimed no monetary losses (beyond $1), and that the college had changed the policy, his case was moot.
 
The U.S. Supreme Court begged to differ. It heard the case and overturned the lower-court’s ruling. In an 8-1 decision, the Court reversed the lower court, citing precedent from British common law: “Because ‘every violation of a right imports damage,’ nominal damages can redress Uzuegbunam’s injury even if he cannot or chooses not to quantify that harm in economic terms.”
 
Uzuegbunam told the Commission that without this recognition of his religious rights, the “Constitution is an empty promise.” He also noted that in his case before the Supreme Court, he was elated to be supported by statements not just from fellow Christians, but also from Jews, Muslims, and atheists.
 
What came to the fore in this hearing was that despite reversals in court, there is a lack of understanding among educators that expressions of faith on campus – as long as they don’t interfere with instruction – enjoy First Amendment protection. It shouldn’t take a presidential initiative to make this clear.

​There is much more to Rastafari than reggae music and the ritual inhalation of ganja. This belief system is, in fact, recognized as an Abrahamic religion, with roughly one million adherents around the world, dedicated to its interpretation of the Bible and devotion to Jah, the Rasta designation for God.
 
Damon Landor, a devout Rastafarian, had grown dreadlocks over nearly two decades in devotion to his faith. Sentenced to prison for a drug-related conviction, Damon was allowed to keep his dreadlocks in keeping with court interpretations of the Religious Land Use and Institutionalized Persons Act (RLUIPA). With only three weeks left before his release, Damon was transferred to Raymond Laborde Correctional Center in Louisiana. At intake, he explained his beliefs, presented proof of past accommodations, and handed a guard a copy of the Fifth Circuit decision protecting Rastafarian inmates.
 
The guard threw it in the trash. When Damon offered to contact his lawyer to prove his dedication to his religion, guards forcibly handcuffed him to a chair and shaved his head bald. What began as an ugly dispute is now a landmark religious-liberty case. The U.S. Supreme Court has agreed to review Landor v. Louisiana Department of Corrections.
 
Though lower courts condemned the conduct, they denied Landor the ability to seek monetary damages under RLUIPA, finding that the statute bars such relief against individual officials.
 
In a powerful amicus brief, the Becket Fund for Religious Liberty argues that allowing damages under RLUIPA is essential – not merely appropriate – for holding prison officials accountable and safeguarding religious liberties. The brief warns that without such a remedy, courts effectively bless “mootness gamesmanship” – the practice of officials evading accountability by transferring or releasing inmates before injunctive relief can take effect.
 
“Without money damages, prison officials can engage in strategic gamesmanship to moot meritorious cases,” Becket told the Court. Becket warns that RLUIPA would otherwise be a "parchment promise." The brief also highlights that fears of burdening officials are overblown. Existing safeguards, including qualified immunity, the Prison Litigation Reform Act’s exhaustion and filing requirements, and screening for frivolous suits, ensure that only culpable officials face liability.
 
If the Supreme Court holds that RLUIPA doesn’t authorize damages, countless prisoners – particularly those who are transferred or released before adjudication – could never receive redress for profound religious violations. This is why dozens of Jewish, Christian, and Muslim organizations have filed amicus briefs in this case, understanding that respect for the religious rights of some involve the religious rights of all.
 
Protect The 1st will closely follow oral argument before the Court on November 10. In the meantime, keep in mind the words of the late, great Bob Marley: “You never know how strong you are until being strong is your only choice.”

​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.
​
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.

We reported in 2023 on Minnesota’s exclusion of Christian colleges and universities from participating in a publicly funded program that allows high school students to earn college credit at the postsecondary institution of their choice.
 
The law explicitly excluded students from post-secondary programs in which the admission process considered “religious beliefs or affiliations.”
 
This law would have barred from the program the University of Northwestern-St. Paul and Crown College, the latter the largest provider in this 40-year-program. Both schools asked students to sign a statement of faith to ensure that they are a good fit for their institutions that – while they teach secular subjects at a high level – have a religious orientation.
 
At the time, Minnesota legislator Harry Niska said this amounted to the “targeting of people of faith.”
 
Now, thanks to a federal court in Minnesota, that targeting is over. The court scrapped the law as unconstitutional, finding that the outlawing of faith statements as admissions requirements was unconstitutional. The court held that under the law, the “free exercise in maintaining a campus-community of like-minded believers is burdened.”
 
Credit for this victory goes to the Becket law firm that backed parent-plaintiffs who brought suit.
 
“Minnesota tried to cut off educational opportunities to thousands of high schoolers simply for their faith,” said Diana Thomson, senior counsel at Becket. “That’s not just unlawful – that’s shameful. This ruling is a win for families who won’t be strong-armed into abandoning their beliefs, and a sharp warning to politicians who target them.”