A federal judge in New Hampshire delivered a significant legal victory Thursday for proponents of diversity, equity, and inclusion (DEI) programs in education by granting a preliminary injunction against the U.S. Department of Education’s controversial February “Dear Colleague” letter that critics had denounced as an unprecedented attempt to restrict DEI initiatives nationwide.
The ruling temporarily blocks the Education Department from enforcing its February 14, 2025, directive against the plaintiffs, their members, and affiliated organizations while litigation continues. The court determined the directive potentially contradicts established legal protections for academic freedom and may violate constitutional rights by imposing vague restrictions on curriculum and programming.
The February directive had sent shockwaves through higher education institutions across the country, with many administrators and faculty expressing concern that their diversity programs could trigger federal funding cutoffs. According to court documents, some educators reported feeling targeted by what they characterized as a “witch hunt” that put their jobs and teaching credentials at risk.
“Today’s ruling allows educators and schools to continue to be guided by what’s best for students, not by the threat of illegal restrictions and punishment,” said National Education Association President Becky Pringle in a statement following the decision. She further criticized the directive as part of broader “politically motivated attacks” designed to “stifle speech and erase critical lessons” in public education.
The coalition of plaintiffs who filed the lawsuit on March 5 includes the National Education Association (NEA), NEA-New Hampshire, the American Civil Liberties Union (ACLU), ACLU of New Hampshire, ACLU of Massachusetts, and the Center for Black Educator Development.
Sharif El-Mekki, CEO and founder of the Center for Black Educator Development, emphasized the significance of the ruling beyond its immediate legal implications. “While this interim agreement does not confirm the Department’s motives, we believe it should mark the beginning of a permanent withdrawal from the assault on teaching and learning,” he said. “The Department’s attempt to punish schools for acknowledging diversity, equity and inclusion is not only unconstitutional, but it’s also extremely dangerous — and functions as a direct misalignment with what we know to be just and future forward.”
Education legal experts note that the case represents a critical battleground in the ongoing national debate about how issues of race, identity, and structural inequality should be addressed in educational settings. The preliminary injunction suggests the court found merit in the plaintiffs’ arguments that the Education Department overstepped its authority and potentially violated First Amendment protections.
Sarah Hinger, deputy director of the ACLU Racial Justice Program, called the ruling “a victory for students, educators, and the fundamental principles of academic freedom,” adding that “every student deserves an education that reflects the full diversity of our society, free from political interference.”
The lawsuit challenges the directive on multiple legal grounds, including violations of due process and First Amendment rights, limitations on academic freedom, and exceeding the department’s legal mandate by dictating curriculum content. The plaintiffs argue that the directive created a chilling effect on legitimate educational activities while imposing vague standards that left educators uncertain about compliance requirements.
Gilles Bissonnette, legal director of the ACLU of New Hampshire, emphasized the importance of the ruling for educational inclusivity. “The court’s ruling today is a victory for academic freedom, the free speech rights of educators, and for New Hampshire students who have a right to an inclusive education free from censorship,” he said. “Every student, both in the Granite State and across the country, deserves to feel seen, heard, and connected in school – and that can’t happen when classroom censorship laws and policies are allowed to stand.”
The injunction comes at a time when many colleges and universities have been reassessing their diversity initiatives amid increased public scrutiny and policy debates. Higher education institutions have expressed particular concern about maintaining both compliance with federal regulations and their commitments to creating inclusive learning environments.
The Department of Education has not issued a public response to the court’s decision. The case will now proceed to further litigation as the court considers whether to permanently block the directive.
All of the vile executive orders issued by the Trump administration against law firms refer to purported “significant risks” associated with them, and have the same whiff of oppression:
Below the veneer of such boilerplate claims lies a repressive truth: they’re designed to be punitive, and to produce a fear that leads to robotic subservience. They are but a part of Trump’s enemies list. And his orders are to be executed by his lackey Attorney General Pam Bondi — the same person who once said: “I will fight every day to restore confidence and integrity to the Department of Justice and each of its components. The partisanship, the weaponization will be gone.”
Mr. Sellers filed the amicus brief on behalf of 61 media organizations and press freedom advocates in the case of Perkins Coie v. U.S. Department of Justice. At the outset he exposes the real agenda of the authoritarian figure in the White House:
“The President seeks the simultaneous power to wield the legal system against those who oppose his policies or reveal his administration’s unlawful or unethical acts—who, in many cases, have been members of the press—and then deny them access to the system built to defend their rights. The President could thus ‘permit one side to have a monopoly in expressing its views,’ which is the “antithesis of constitutional guarantees.’”
Mr. Sellers reminds us that “‘freedom of the press holds an . . . exalted place in the First Amendment firmament,’ because the press plays a vital role in the maintenance of democratic governance. To fulfill that function, the press relies on the work of lawyers. Lawyers assist the press in obtaining access to records and government spaces . . . because the press plays a vital role in the maintenance of democratic governance.”
Andrew Sellars
To honor that principle, Sellers argues that “the press relies on the work of lawyers. Lawyers assist the press in obtaining access to records and government spaces. They advise the press on how to handle sensitive sources and content. And they defend the press against civil and criminal threats for their publications.”
Among other key points made in this important brief is the following one:
If the Executive Order stands, many lawyers will be chilled from taking on work so directly in conflict with the President, out of fear for the harm it would cause to their clients whose relationship with the government is more transactional. For the lawyers that remain, the threat of a similar executive order aimed at them or their law firms would practically prevent them from doing their jobs, by denying their access to the people and places necessary to adjudicate their issues.
Some of the lawyers who signed this amicus brief include Floyd Abrams, Lee Levine, Seth Berlin, Ashley Kissinger, Elizabeth Koch, Lynn B. Oberlander, David A. Schulz, and Charles Toobin.
The Table of Contents appears below:
Introduction & Summary of Argument
Interests of Amici
Argument
A Free Press Allows the Public to Check Overreaching Government but Requires Legal Support.
The Oppositional Role of the Press Will Not Function if the Court Allows This executive order.
The government will inevitably use this authoritarian power to target the press.
The executive order will chill lawyers from working with the press.
The lawyers that remain will be unable to do their jobs.
Without a Robust Press, the Public will Lose a Key Vindicator of First Amendment Rights.
Related
Pronoun punishment policy in the Trump administration
You know those email signatures at the end of messages? The ones that include a range of information about the senders — phone numbers, addresses, social media handles. And in recent years, pronouns — letting the recipient know that the sender goes by “she,” “he,” “they” or something else, a digital acknowledgement that people claim a range of gender identities.
Among those who don’t agree with that are President Donald Trump and members of his administration. They have taken aim at what he calls “gender ideology” with measures like an executive order requiring the United States to recognize only two biological sexes, male and female. Federal employees were told to take any references to their pronouns out of their email signatures.
That stance seems to have spread beyond those who work for the government to those covering it. According to some journalists’ accounts, officials in the administration have refused to engage with reporters who have pronouns listed in their signatures.
The New York Times reported that two of its journalists and one at another outlet had received responses from administration officials to email queries that declined to engage with them over the presence of the pronouns. In one case, a reporter asking about the closure of a research observatory received an email reply from Karoline Leavitt, the White House press secretary, saying, “As a matter of policy, we do not respond to reporters with pronouns in their bios.”
Dare one ask? Is pro-Palestinian speech protected?
The first target of these threats was Mahmoud Khalil, a pro-Palestinian activist and former student of Columbia University, who was a negotiator for Columbia students during talks with university officials regarding their tent encampment last spring, according to The Associated Press.
Since his arrest, more than half a dozen scholars, professors, protesters and students have had their visas revoked with threats of deportation. Two opted to leave the country on their own terms, unsure of how legal proceedings against them would play out.
Free speech and civil liberties organizations have raised concerns over the arrests, claiming the Trump administration is targeting pro-Palestinian protesters for constitutionally protected political speech because of their viewpoints.
[ . . . ]
First Amendment Watch spoke with Esha Bhandari, deputy director of the ACLU’s Speech, Privacy and Technology Project, about the First Amendment implications of the Trump administration’s alleged targeting of pro-Palestinian protesters and activists. Bhandari explained how actions taken under the Immigration and Nationality Act need to be consistent with the First Amendment, described the importance of the right to peacefully assemble, and expressed that all Americans, regardless of their viewpoint, should be concerned with the Trump administration’s actions and its chilling of speech.
[Interview follows]
David Cole on the war on the First Amendment
Just released: Oxford University Press handbook on free speech
Freedom of speech is central to the liberal democratic tradition. It touches on every aspect of our social and political system and receives explicit and implicit protection in every modern democratic constitution. It is frequently referred to in public discourse and has inspired a wealth of legal and philosophical literature. The liberty to speak freely is often questioned; what is the relationship between this freedom and other rights and values, how far does this freedom extend, and how is it applied to contemporary challenges?
“The Oxford Handbook on Freedom of Speech” seeks to answer these and other pressing questions. It provides a critical analysis of the foundations, rationales, and ideas that underpin freedom of speech as a political idea, and as a principle of positive constitutional law. In doing so, it examines freedom of speech in a variety of national and supranational settings from an international perspective.
Compiled by a team of renowned experts in the field, this handbook features original essays by leading scholars and theorists exploring the history, legal framework, and controversies surrounding this tenet of the democratic constitution.
Forthcoming book on free speech and social media platforms
Northeastern University Professor John Wihbey
Why social media platforms have a responsibility to look after their platforms, how they can achieve the transparency needed, and what they should do when harms arise.
The large, corporate global platforms networking the world’s publics now host most of the world’s information and communication. Much has been written about social media platforms, and many have argued for platform accountability, responsibility, and transparency. But relatively few works have tried to place platform dynamics and challenges in the context of history, especially with an eye toward sensibly regulating these communications technologies.
In ”Governing Babel,” John Wihbey articulates a point of view in the ongoing, high-stakes debate over social media platforms and free speech about how these companies ought to manage their tremendous power.
Wihbey takes readers on a journey into the high-pressure and controversial world of social media content moderation, looking at issues through relevant cultural, legal, historical, and global lenses. The book addresses a vast challenge — how to create new rules to deal with the ills of our communications and media systems — but the central argument it develops is relatively simple. The idea is that those who create and manage systems for communications hosting user-generated content have both a responsibility to look after their platforms and have a duty to respond to problems. They must, in effect, adopt a central response principle that allows their platforms to take reasonable action when potential harms present themselves. And finally, they should be judged, and subject to sanction, according to the good faith and persistence of their efforts.
Franks and Corn-Revere to discuss ‘Fearless Speech’
Dr. Mary Anne Franks Eugene L. and Barbara A. Bernard Professor in Intellectual Property, Technology, and Civil Rights Law, George Washington Law School; President and Legislative & Tech Policy Director, Cyber Civil Rights Initiative
Robert Corn-Revere Chief Counsel, Foundation for Individual Rights and Expression (FIRE)
Moderators
William Araiza, Stanley A. August Professor of Law, Brooklyn Law School
Ron Collins, Co-founder of the History Book Festival and former Harold S. Shefelman Scholar, University of Washington Law School
Sarah C. Haan, Class of 1958 Uncas and Anne McThenia Professor of Law, Washington and Lee University School of Law
Lukianoff’s TED talk
FIRE President and CEO Greg Lukianoff (Photo by Gilberto Tadday / TED)
Last Wednesday, FIRE’s Greg Lukianoff delivered his first TED talk at TED 2025 in Vancouver. He spoke on why so many young people have given up on free speech and how to win them back. As he noted in a recent post for his Substack newsletter, The Eternally Radical Idea:
“After months of seemingly endless writing, rewriting, and rehearsing, I’m very happy with how it turned out! (Many thanks to Bob Ewing, Kim Hemsley, Maryrose Ewing, and Perry Fein for helping me prepare. Couldn’t have done it without them!)
We’re not yet sure when the full talk will be available online, but we’ll keep you posted!”
‘So to Speak’ podcast: The plight of global free speech
We travel from America to Europe, Russia, China, and more places to answer the question: Is there a global free speech recession?
2024-2025 SCOTUS term: Free expression and related cases
Cases decided
Villarreal v. Alaniz(Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
TikTok Inc. and ByteDance Ltd v. Garland (9-0: The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)
Review granted
Pending petitions
Petitions denied
Emergency applications
Yost v. Ohio Attorney General (Kavanaugh, J., “It Is Ordered that the March 14, 2025 order of the United States District Court for the Southern District of Ohio, case No. 2:24-cv-1401, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Wednesday, April 16, 2025, by 5 p.m. (EDT).”)
Free speech related
Thompson v. United States (decided: 3-21-25/ 9-0 w special concurrences by Alito & Jackson) (interpretation of 18 U. S. C. §1014 re “false statements”)
This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.
Journalist Jelani Cobb recommended looking at how universities
responded to Senator Joseph McCarthy’s attacks on professors to better understand
current strategies. The University of Michigan’s caving to political
intimidation isn’t new. In the 1950s, then President Harlan Hatcher
fired two faculty members and suspended one who refused to cooperate
with Senator McCarthy’s red-baiting Committee on “Un-American
Activities.”
As another federal government takes aim at universities, join us for a screening of Keeping in Mind: The McCarthy Era at the University of Michigan,
a 1989 documentary featuring interviews with Hatcher and the three men
he sacrificed to political expediency: Chandler Davis, Clement Markert,
and Mark Nickerson. The screening will be followed by a panel discussion
that includes the filmmaker, Adam Kulakow, who was a UM student in the
1980s.
WHEN: Wednesday, April 9, 5-7:30pm (Pizza available starting at 4:30p. Come early!) WHERE: Maize and Blue Auditorium, Student Activities Building, 515 E. Jefferson Street WHO: All students, faculty, staff, and community members
This audio is auto-generated. Please let us know if you have feedback.
Early childhood education advocates predict devastating impacts on young children from a series of federal staff reductions and proposed budget cuts to programs supporting low-income families.
Mass layoffs in the U.S. Department of Health and Human Services on April 1 led to the shuttering of five Office of Head Start regional offices: Boston, New York, Chicago, San Francisco and Seattle. The closed offices will be consolidated into the five remaining offices.
The regional offices provide federal policy direction, training and technical assistance to Head Start providers.
“This restructuring will not impact the critical services you rely on, and we are here to ensure a seamless experience as we move forward together,” wrote Laurie Todd-Smith, HHS deputy assistant secretary for early childhood development, in an April 3 announcement to Head Start grant recipients.
The move is part of a broader restructuring in HHS that is to save $1.8 billion, according to an agency press release on March 27.
The National Head Start Association, a nonprofit that represents children, families and educators, has urged the Trump administration to reconsider the office closures until a plan can be created and disseminated. “Closing these regional Head Start offices could create delays in essential program support and weaken the system that has successfully served millions of children for decades,” said NHSA in an April 1 statement.
The Trump administration says spending cuts at HHS and across the federal government are needed to reduce the country’s deficit and eliminate fiscal bloat and waste in federal agencies.
The Head Start move comes just a few months after HHS agreed to improve monitoring and reporting activities based on a U.S. Government Accountability Office report. The report found a small portion of Head Start programs that were operating under interim management in recent years had faced challenges from low student enrollment, unqualified staff and unsafe facilities.
Head Start, which celebrates its 60th anniversary this year, is a federally funded early childhood and pre-K program that serves infants, toddlers and preschool children from families with low incomes. It also provides prenatal services through Early Head Start.
In fiscal year 2023, the program was funded at $11.5 billion to serve 778,420 children and pregnant people in centers and through home-based programs, according to the Office of Head Start.
Closure of the regional offices could put young children at risk of abuse and other safety threats, early childhood advocates said during a Thursday press call hosted by The Child Care for Every Family Network.
“You can’t say you’re a champ of kids and then put kids at risk for abuse by gutting the very agency responsible for protecting America’s most vulnerable kids,” said Sen. Ron Wyden, D-Ore., during the press call.
The Head Start system was already in a precarious position earlier this year when the Trump administration froze federal funding in many agencies, asking that agency leaders assess how their fiscal programs conflict with President Donald Trump’s executive orders.
Even though the funding freeze was lifted just days later, NHSA said that even more than a week later, 52 Head Start grant recipients serving just under 20,000 children and families in 22 states, D.C. and Puerto Rico were still unable to access their already approved grant funding.
Stability of the child care system
Advocates are also concerned about stability of the broader child care and early childhood education infrastructure.
The Republican-led Congress is considering budget cuts that could significantly reduce programs that low-income families rely on, including Temporary Assistance for Needy Families and Social Services Block Grant.
Rep. Danny Davis, D-Ill, who was also on the press call, said all TANF and SSBG staff at HHS were laid off this week. “The mass layoffs for child care and Head Start programs are threatening the safety and care of children,” Davis said.
A recent report by the Center for Law and Social Policy found 40,000 children nationwide could lose access to child care if TANF and SSGB funding is cut. Children in California, Massachusetts and North Carolina would be hardest hit, according to the research.
The April 1 firings at HHS included all the staff in the Low Income Home Energy Assistance Program, a federally-funded initiative which helps vulnerable families afford their electricity and gas bills.
On Thursday, Wyden and Sen. Elizabeth Warren, D-Mass., introduced The Building Child Care for a Better Future Act, which proposes new, permanent funding of $20 billion per year for Child Care Entitlement to States allocations.
According to a statement about the legislation, individual child care costs range from $5,357 to $17,171 per year depending on location and type of care. The cost of center-based care for two children exceeds the average mortgage in 45 states and more than the average annual rent in all 50 states and the District of Columbia.
Nationally, 56% of early childhood educators surveyed said at least one child care center in their community closed over the past year, while 40% said centers opened, according to polling of nearly 10,000 workers by the National Association for the Education of Young Children. The survey data includes national and state-level responses.
Federal fiscal and workforce cuts “will ultimately mean child care will become less safe for children, more expensive for families, and even harder to find across all 50 states,” said Ruth Friedman, a senior fellow at The Century Foundation and director of the Office of Child Care at HHS under President Joe Biden.
Thisstory was produced by Floodlight and republished with permission.
President Donald Trump and his administration have called it the “Great American Comeback.” But environmental advocates say the U.S. Environmental Protection Agency’s reversing course on enforcing air and water pollution laws is more of a throwback — one that will exacerbate health risks for children who live and study in the shadows of petrochemical facilities.
The American Lung Association has found that children face special risks from air pollution because their airways are smaller and still developing and because they breathe more rapidly and inhale more air relative to their size than do adults.
Environmental lawyers say Trump and EPA Administrator Lee Zeldin’s slashing of federal protections against toxic emissions could lead to increased exposure to dangerous pollutants for kids living in fenceline communities.
Community advocates like Kaitlyn Joshua, who was born and raised in the southeast corridor of Louisiana dubbed “Cancer Alley,” say they are horrified about what EPA’s deregulation push will mean for the future generation.
“That is not an exaggeration; we feel like we are suffocating without the cover and the oversight of the EPA,” Joshua said. “Without that, what can we really do? How can we really save ourselves? How can we really save our communities?”
Kaitlyn Joshua is a native of the southeast corridor of Louisiana dubbed “Cancer Alley,” and has spent the last few years leading the fight against a hydrogen and ammonia facility being built within 2,000 feet of an elementary school in Ascension Parish. Joshua says she is ‘horrified’ about the recent deregulation measures the U.S. Environmental Protection Agency recently announced for the petrochemical industry. Credit: Claire Bangser/Floodlight
Ashley Gaignard knows how hard it is to keep kids safe when pollution is all around.
When Gaignard’s son was in elementary school, a doctor restricted him from daily recess, saying the emissions from an ammonia facility located within 2 miles of his playground could be exacerbating a pre-existing lung condition, triggering his severe asthma attacks.
“I had asthma as a kid growing up, and my grandfather had asthma, so I just figured it was hereditary; he was going to suffer with asthma,” said Gaignard, who was born and raised in Louisiana’s Ascension Parish, also located within Cancer Alley. She’s now chief executive officer of the community advocacy group she created, Rural Roots Louisiana.
“I just never knew until the doctor said, ‘Okay, we have to think about what he is breathing, and what’s causing him to flare up the minute he’s outside’,” she said.
Gaignard said the further her son got away from that school, as he moved through the parish’s educational system, the less severe his attacks were. She said he’s now an adult living in Fresno, California — and no longer suffers from asthma.
Zeldin sent shockwaves throughout the environmental justice sector on March 12 when he announced that the EPA was rolling back many of the federal regulations that were put in place under the administration of Joe Biden — many built around environmental justice and mitigating climate change.
Those included strengthening the Clean Air Act by implementing more stringent controls on toxic air emissions and increased air quality monitoring in communities near industrial facilities. The new standards were expected to reduce 6,000 tons of air toxins annually and reduce the emissions related to cancer risks in these communities in Texas, Louisiana, Delaware, New Jersey, the Ohio River Valley and elsewhere.
A new memo from the Office of Enforcement and Compliance Assurance, which serves as the law enforcement arm of the EPA — circulated the same day as Zeldin’s announcement — states that environmental justice considerations would no longer factor into the federal agency’s oversight of facilities in Black and brown communities.
Zeldin said the goal was “driving a dagger straight into the heart of the climate change religion.”
Port Allen Middle School sits in the shadow of the Placid petrochemical refinery in West Baton Rouge Parish, La. A 2016 report found nearly one in 10 children in the U.S. attends one of the 12,000 schools located within 1 mile of a chemical facility, which for environmental advocates highlights the danger of the recently announced rollbacks of air and water pollution regulations by the U.S. Environmental Protection Agency. Credit: Terry L. Jones / Floodlight
That means the EPA will no longer target, investigate or address noncompliance issues at facilities emitting cancer-causing chemicals such as benzene, ethylene oxide and formaldehyde in the places already overburdened with hazardous pollution.
“While enforcement and compliance assurance can continue to focus on areas with the highest levels of (hazardous air pollutants) affecting human health,” the memo reads, “…to ensure consistency with the President’s Executive Orders, they will no longer focus exclusively on communities selected by the regions as being ‘already highly burdened with pollution impacts.’”
The agency also will not implement any enforcement and compliance actions that could shut down energy production or power generation “absent an imminent and substantial threat to human health.”
In is prepared video statement about the EPA’s deregulation measures, Zeldin said, “The agency is committed to fulfilling President Trump’s promise to unleash American energy, lower cost of living for Americans, revitalize the American auto industry, restore the rule of law, and give power back to states to make their own decisions. ”
Top officials with the nonprofit environmental advocacy group Earthjustice recently said there is no way for the Trump administration to reconcile what it’s calling “the greatest day of deregulation” in EPA’s history with protecting public health.
Patrice Simms, vice president of litigation for healthy communities for Earthjustice, went a step further pointing out during a press briefing that the reason EPA exists is to protect the public from toxic air pollution.
“The law demands that EPA control these pollutants, and demands that EPA protect families and communities,” Simms said. “And these impacts on these communities most heavily land on the shoulders of children. Children are more susceptible to the harms from pollutants, and these pollutants are often happening right in the backyards of our schools, of our neighborhoods and our playgrounds.”
A 2016 report published by the Center for Effective Government found that nearly one in 10 children in the country attends one of the 12,000 schools located within 1 mile of a chemical facility. These children are disproportionately children of color living in low-income areas, the report found.
For the past several years, Joshua has been leading the opposition to a hydrogen and ammonia facility being built within 2,000 feet of an elementary school in Ascension Parish. Air Products plans to start commercial operation in 2028 where an estimated 600,000 metric tons of hydrogen will be produced annually from methane gas.
The $7 billion project has been touted as a clean energy solution because the company intends to use technology to collect its carbon dioxide emissions, and then transport them through pipelines to be stored under a recreational lake 37 miles away.
Carbon capture technology has been controversial, with skeptics highlighting the possibilities for earthquakes, groundwater contamination and CO2 leaking back into the atmosphere through abandoned and unplugged oil and gas wells or pipeline breaches. Pipeline ruptures in the past have also led to communities having to evacuate their homes.
Joshua said these communities need more federal regulation and oversight — not less.
“We had a community meeting … for our Ascension Parish residents, and the sentiment and the theme on that call was very much like ‘Kaitlyn, there is nothing we can do.’ Like, we just had to literally lie down and take this,” Joshua said. “We had to kind of challenge people and put them in the space, in time, of a civil rights movement. We have to get creative about how we’re going to organize around it and be our own version of EPA.”
This screenshot from CLEAR Collaborative’s Petroleum Pollution Map models health risks from hazardous air pollution from petrochemical facilities around West Baton Rouge Parish near Port Allen Middle School. The map uses U.S. Environmental Protection Agency data analyzed by the Environmental Defense Fund. Environmental advocates have sounded the alarm on the dangers of the EPA’s rollback of air and water regulations for children in fenceline communities. Credit: Provided by The Environmental Defense Fund
Sarah Vogel, senior vice president of health communities with the Environmental Defense Fund, said the move toward deregulation comes as the U.S. Department of Justice announced on March 7 that it was dropping the federal lawsuit the Biden administration lodged against Denka’s Performance Elastomer plant in Louisiana. That plant had been accused of worsening cancer risks for the residents in the surrounding majority-Black community.
The DOJ said its decision was tied to Trump’s moves to dismantle all federal programs tied to diversity, equity and inclusion.
“What they’re trying to do is just completely deregulate everything for oil and gas and petrochemical facilities, just absolutely take the lid off,” Vogel said. “We have long known that children are uniquely susceptible to air pollution and toxic chemicals. Like they’re huge, huge impacts. It’s why what they are doing is so devastating and cruel in my mind.”
Floodlight, which produced this story, is a nonprofit newsroom that investigates the powers stalling climate action.
The Hechinger Report provides in-depth, fact-based, unbiased reporting on education that is free to all readers. But that doesn’t mean it’s free to produce. Our work keeps educators and the public informed about pressing issues at schools and on campuses throughout the country. We tell the whole story, even when the details are inconvenient. Help us keep doing that.
Protesting in public parks is as American as apple pie. It’s at the heart of our First Amendment — and one of our nation’s most time-honored principles. That right does not disappear merely because a private entity operates the public park on the government’s behalf.
That’s why FIRE and the Law and Religion Clinic at the University of Texas School of Law are appealing a district court ruling that weakens this First Amendment right. And we are proud to be backed by a broad coalition of prominent organizations as “friends of the court.”
Here’s what happened. Several years ago, animal welfare advocates Daraius Dubash and Dr. Faraz Harsini took to Houston’s largest public park to raise awareness about the harms of industrialized farming. For Dubash, this activism is rooted in his Vedantic Hindu faith, which compels him to promote the teaching of ahimsa, or nonviolence. To communicate their message, Dubash and Harsini serve as co-organizers for an international nonprofit animal-rights group. Their signature event involves volunteers showing muted documentary footage of farming practices to passersby, while others remain available to answer questions.
Dubash and Harsini’s right to peacefully advocate on this issue in a public park is beyond dispute. But on three separate occasions, the public park’s private management ordered them to leave. The fourth time, park management had Houston police arrest Dubash for criminal trespass and banned them both from showing their video footage in the park in the future. Why? Because the park’s private managers and city police deemed their message “offensive.”
With the help of FIRE and the Law and Religion Clinic, Dubash and Harsini filed suit in 2023 against the City of Houston, the park management corporation, its then-president, and the arresting officers. But in September, 2024, the U.S. District Court for the Southern District of Texas dismissed their claims, ruling that none of the defendants were responsible for violating Dubash and Harsini’s constitutional rights in a public park.
We disagree.
FIRE and the Clinic appealed to the Fifth Circuit, arguing that the ruling effectively lets the government bypass the First Amendment by delegating the management of public spaces to private organizations. And the court’s limited interpretation of governmental liability would make it nearly impossible for anyone to challenge violation of their constitutional rights by municipalities or law enforcement.
Last week, 12 prominent organizations from across the ideological spectrum filed nine amicus curiae briefs in support of Dubash and Harsini:
The ACLU of Texas argues the park management company was acting as a state actor and public-private partnerships “cannot serve as an end run around the First Amendment.” The brief also argues the district court erred by failing to hold the arresting officers accountable based on their “mistaken belief” that the park was private. As the brief explains, probable-cause findings must be based on “objective facts and circumstances rather than subjective beliefs.”
Young America’s Foundation, Hamilton Lincoln Law Institute, and Advancing American Freedomexplain that Houston cannot bypass its duty to protect free speech in its public spaces by granting oversight authority to a private third party. The brief also emphasizes the sweeping implications of the district court’s decision, including in the academic context where state universities are increasingly attempting to evade First Amendment protections by outsourcing park management to nominally private entities like student governments.
Liberty Justice Center argues the district court’s decision “blurs the line between state and private actors,” allowing Houston to “contract out of its constitutional obligations.” We could not agree more.
The Center for American Liberty, in a brief submitted through Reeves Law LLC, argues that maintaining a public park is a traditional and exclusive government function, with public parks serving “as public forums for the expression of speech,” whether or not they are managed by a private entity.
The National Press Photographers Association, in abrief submitted through the First Amendment Clinic at Southern Methodist University Dedman School of Law, explains how the district court’s ruling “threatens the sanctity of the spaces where speech is deserving of the highest protection.”
Law Enforcement Action Partnership and the National Police Accountability Projectexplain that accountability for law enforcement officers and municipalities is crucial to preserving public confidence in the police and the government, and that failing to hold police officers accountable “undermines public trust in law enforcement.” The brief also argues that municipalities should know their police officers “need training and guidance to appropriately respond” to peaceful expressive activity, and failing to provide that training is sufficient to establish municipal liability.
Protect the First Foundation, in a brief submitted through the Religious Freedom Clinic at Harvard Law School and Schaerr Jaffe LLP, highlights that Dubash was motivated to proselytize nonviolence by his deeply held religious beliefs, and describes the long history and tradition of public proselytization, from the persecution of religious minorities in the colonies through the legal protections established by First Amendment jurisprudence.
The Hindu American Foundation, in a brief submitted through Jackson Walker LLP, explains that Dubash’s religious motivation to advocate for nonviolence towards animals is consistent with Hindu teachings. The brief also argues that his “arrest, detention, and the ongoing prohibition on his method of proselytizing” do not pass constitutional muster.
The American Hindu Coalition, in a brief submitted through the Free Exercise Clinic at Yale Law School, emphasizes the history of public parks and streets as centers of religious activity, how marginalized faiths rely on these spaces to exercise their faith, and that Dubash’s activism is rooted in his religious beliefs.
Our clients and their counsel are grateful for the support of this impressive and diverse amicus coalition. This case will play a critical role in protecting the rights of other protesters and religious minorities to engage in protected expression as guaranteed under the First Amendment.
SAN FRANCISCO, Dec. 19, 2024 — A federal court, acting on a stipulation agreed to by the California attorney general and San Francisco city attorney, today haltedenforcement of a California law that officials deployed to suppress journalism about a controversial tech CEO’s sealed arrest records.
Under the law, any person — including journalists, advocates, witnesses, and victims of crimes — faced a civil penalty of up to $2,500 for sharing public information. The court order results from a First Amendment lawsuit filed by the Foundation for Individual Rights and Expression in November, which led the California attorney general and San Francisco city attorney to agree not to enforce the law while the lawsuit is pending.
“The press and public have a constitutional right to discuss what’s publicly known,” said FIRE attorney Adam Steinbaugh. “Government officials can’t punish the press and public when officials fail to safeguard information. That responsibility starts and ends with the government.”
In October 2023, journalist Jack Poulson published articles about a controversial tech CEO’s arrest, sharing a copy of the arrest report sent to him by an unidentified source. The San Francisco Police Department had previously made that report public, even though the executive had successfully petitioned a state court to seal the record.
Almost a year after Poulson published the report, the city attorney of San Francisco — working with the tech executive — sentthreeletters to Poulson and his webhost, Substack, demanding they remove articles and the sealed report. Those letters threatened enforcement of California’s anti-dissemination statute, Penal Code § 851.92(c). The law imposes a civil penalty of up to $2,500 on any person (except the government officials charged with maintaining the secrecy of sealed records) who shares a sealed arrest report or any information “relating to” the report — even if the information is already publicly available.
Concerned by the implications of the statute, FIRE suedthe San Francisco city attorney and the California attorney general on behalf of the Bay Area-based First Amendment Coalition, its Director of Advocacy Ginny LaRoe, and legal commentatorEugene Volokh. Each regularly comments on censorship campaigns precisely like the one the tech CEO and city attorney launched against Paulson and Substack. But the anti-dissemination statute prohibited them from covering the CEO story, even though the information has been publicly available for over a year.
Today, the court entered a preliminary injunctionagreed to by both California and the city attorney that prohibits them from enforcing the law with respect to publicly available information.
The preliminary injunction protects not only FAC and Volokh, but anyone — including journalists like Poulson — who publishes information made available to the public.
“Discussing and sharing lawfully obtained information about arrests is not a crime — it’s a core First Amendment right,” said FIRE Staff Attorney Zach Silver. “The rich and powerful shouldn’t have the luxury of deploying the government to put their skeletons back in the closet. By standing up for their own rights, the First Amendment Coalition and Eugene Volokh have helped to protect others from facing legal action under California’s anti-dissemination law.”
The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of all Americans to free speech and free thought — the most essential qualities of liberty. FIRE educates Americans about the importance of these inalienable rights, promotes a culture of respect for these rights, and provides the means to preserve them.
CONTACT:
Jack Whitten, Communications Campaign Specialist, FIRE: 215-717-3473; media@thefire.org
FIRE, supported by a wave of prominent organizations and scholars as “friends of the court,” has appealed a district court’s ruling that limited the rights of students to attend middle and high school wearing clothes bearing the “Let’s Go Brandon” political slogan. FIRE is asking a federal appeals court to strike down the decision below and uphold freedom of expression for public school students, and a broad spectrum of free speech advocates and language experts are backing us up.
So what happened? In April 2023, FIRE sued a west Michigan school district and two administrators for preventing two students from wearing “Let’s Go Brandon” sweatshirts. The “Let’s Go Brandon” slogan originated during an October 2021 NASCAR race. After the race, won by Brandon Brown, members of the crowd chanted “Fuck Joe Biden” during Brown’s post-race interview. A commentator remarked that the fans were shouting “Let’s Go Brandon!”
WATCH VIDEO: NASCAR fans chant “Fuck Joe Biden” after the race.
Since then, the presidential campaign of Donald Trump and Republican members of Congress have used the phrase widely, including during Congressional floor speeches, to show their displeasure with the Biden administration. The “Let’s Go Brandon” slogan airs uncensored on broadcast television, national cable news, and broadcast radio for all to hear. In the case on appeal, FIRE’s clients wore their “Let’s Go Brandon” sweatshirts to school to express their disapproval of Biden and his administration.
During the lawsuit, the school acknowledged the students did not cause any disruption with their apparel. Yet this past August, the District Court for the Western District of Michigan upheld the school district’s censorship of “Let’s Go Brandon” apparel, holding “Let’s Go Brandon” is legally indistinguishable from “Fuck Joe Biden” and therefore constitutes “profanity.”
As FIRE’s appeal argues, that’s not how speech works. “Heck” is not the same as “hell,” “darn” is not the same as “damn,” and “Let’s Go Brandon” is not the same as “Fuck Joe Biden.” The government may not censor public school students’ political expression absent substantial disruption. Nor may school districts bypass this First Amendment protection by dubbing disfavored political speech “profane.”
This case will play a critical role in protecting the rights of other minor students to engage in non-disruptive political expression as guaranteed under the First Amendment.
Last week, 18 individuals and organizations, including some of the world’s foremost linguistic experts, joined together to file eight amicus curiae, or “friend of the court” briefs in support of minors’ free speech rights. These briefs urge the Sixth Circuit to recognize what has long been understood outside the courtroom — sanitized expression is, by design, distinguishable from the profane language it replaces:
Linguistic Scholars: Dr. Melissa Mohr, Dr. Rebecca Roache, Professor Timothy Jay, Professor John H. McWhorter, and Professor Steven Pinker are internationally recognized linguistic scholars whose works focus on the history, psychology, and sociology of swearing. Each has written extensively on how language works and the role it continues to play in society. Together, they submitted a brief through Quinn Emanuel Urquhart & Sullivan, LLP, helpfully delineating the different types of “sanitized expression,” including euphemisms like “Let’s Go Brandon,” and describing their ubiquity and importance in political discourse. As they state at the beginning of their brief: “This case is not about swearing; it is about not swearing.”
First Amendment Scholars: Dean Erwin Chemerinsky, Professor Clay Calvert, Professor Roy Gutterman, Professor Mary-Rose Papandrea, and Professor Joseph A. Tomain submitted an amicus brief through Cornell Law School’s First Amendment Clinic and attorney Michael Grygiel. Drawing on decades of study, the scholars methodically apply seminal First Amendment decisions to this particular case. Their brief argues: “the lower court failed to apply Tinker’s ‘substantial disruption’ test, as required when schools seek to prohibit student expression within the school environment that communicates a political message,” and thus “departed from longstanding public student constitutional free speech principles.”
Liberty Justice Center: The Liberty Justice Center’s amicus brief asserts the district court’s decision represents an unprecedented expansion of “profanity” and is part of a nationwide increase in political censorship. The brief describes how “censorship of entirely mainstream political discourse has become all too common around the country” and school authorities increasingly seek to restrict free expression. The LJC argues that the district court’s opinion exacerbates this growing problem, by authorizing schools to treat “every euphemism . . . as the equivalent of its reference.”
Dhillon Law Group, Young America’s Foundation, and Hamilton Lincoln Law Institute: These organizations submitted an amicus brief asserting the lower court’s failed to properly apply Tinker and its progeny to the students’ “Let’s Go Brandon” sweatshirts, which likewise represented political, non-profane student speech. Through careful analysis of First Amendment doctrine, their brief explains that the “district court erred in disregarding the political nature of appellants’ ‘Let’s Go Brandon’ apparel” and undervaluing the importance of First Amendment protections in K-12 public schools.
National Coalition Against Censorship: The National Coalition Against Censorship submitted an amicus brief through Covington & Burling LLP to challenge the district court’s categorization of “Let’s Go Brandon” as unprotected “profane” expression. The brief argues that the “district court’s analysis would create a new, ill-defined category of ‘euphemistic’ profanity,” and “give school officials wide latitude to silence viewpoints they find objectionable, a result at odds with existing First Amendment doctrine.” The brief asserts that the lower court’s decision “represents a serious departure from our nation’s historical commitment to protecting political speech” and urges the Sixth Circuit to reverse.
Manhattan Institute: The Manhattan Institute’s amicus brief emphasizes the critical importance of preserving free speech rights in K-12 public schools, where students develop the skills necessary to productively engage in democratic society. The brief describes case law reflecting the importance of these freedoms in primary and secondary schools — and argues the district court’s opinion fails to “accurately reflect this understanding.”
Parents Defending Education: Parents Defending Education submitted an amicus brief through Consovoy McCarthy PLLC arguing that the district court’s decision cannot be reconciled with First Amendment principles. The brief emphasizes how the school codes at issue in this case are part of a growing and concerning “trend of schools adopting speech codes prohibiting controversial speech.” And the brief asserts each of the cases relied on by the lower court are distinguishable.
Buckeye Institute: The Buckeye Institute’s amicus brief contends that under established First Amendment doctrine, “[r]egulation of speech under the First Amendment should constitute a rare exception.” Yet, they argue, the Michigan school district, motivated by desire to censor what it deems undesirable speech, disregarded that doctrine in order to censor non-disruptive political speech “that does not fall within one of the Supreme Court’s approved exceptions” to the First Amendment’s protection.
Our clients and their counsel are grateful for the support of this impressive and diverse amicus coalition. This case will play a critical role in protecting the rights of other minor students to engage in non-disruptive political expression as guaranteed under the First Amendment.
