Does the First Amendment protect passive, nondisruptive political speech of adults in a public forum? Under longstanding precedent and common sense, the answer is yes, of course it does. Yet a federal district court in New Hampshire ratified a viewpoint-based removal of parents from a high school soccer game. So FIRE filed an amicus brief in the appeal from that decision, explaining how the court went astray.
In September 2024, as a form of silent protest against allowing a transgender athlete to play on the opposing girls’ soccer team against Bow High School, parents Kyle Fellers and Andy Foote donned pink “XX” wristbands during halftime. After about 10 minutes, school officials approached, along with a police officer, and demanded that the two parents remove the wristbands or leave the game.
Worse, when the parents invoked their First Amendment rights, the officials threatened to arrest them for trespassing despite having no evidence that the wristbands, as opposed to the school officials’ conduct, was causing any disruption of the soccer match. Nor is there any evidence the transgender athlete saw the wristbands.
So when a federal district court rejected the parents’ constitutional challenge to their treatment, it made two key mistakes.
First, it held censoring their message was not viewpoint discrimination — even though the record shows Bow High School officials explicitly cited what they perceived as the protest’s “exclusionary” views while allowing “inclusive” messaging. That is, they objected to the wristbands’ gender identity messaging because they found it offensive, while at the same permitting other displays, including those celebrating LGBT causes.
That is textbook viewpoint discrimination, and is simply unconstitutional in any kind of forum, full stop. As the Supreme Court ruled in the 2001 case Good News Club v. Milford Central School, “When a restriction is viewpoint discriminatory, we need not decide whether it is unreasonable in light of the purposes served by the forum.”
Second, the court imported precedent applicable only to K–12 students in school into its forum analysis, and misapplied it to the speech of adults. Although it acknowledged this is not a student speech case, the court looked to Tinker v. Des Moines Independent Community School District, which affords school officials some authority to regulate student speech that substantially causes disruption or invades the rights of others. But Tinker has no role in analyzing adult speech in a public forum.
The district court compounded that error by developing a test based on its reading of the First Circuit decision in L.M. v. Town of Middleborough to justify censorship of the parents’ passive protest as demeaning towards a visiting student. But L.M. involved student speech — not adult speech — and used reasoning that doesn’t apply here.
Even if Tinker did apply (it doesn’t), L.M. relied solely on its “substantial disruption” standard to hold demeaning statements might eventually lower test scores and cause “symptoms of a sick school,” while disclaiming reliance on “rights of others” under Tinker. Despite that, the district court centered its L.M.-based analysis on how the protest here might invade the visiting athlete’s rights, not that it would disrupt school functions.
Had other students or adults actually engaged in what both the school district and district court feared may occur — essentially, discriminatory harassment — school administrators are already empowered under Davis v. Monroe County Board of Education to counteract conduct that is “so severe, pervasive, and objectively offensive … that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”
All told, as FIRE explained to the First Circuit, it is unwise to further dilute First Amendment protections by applying L.M. to adult speech. By sanctioning Bow High’s viewpoint discrimination against passive political protest and bastardizing student speech principles to silence adults, the district court’s decision would give administrators expansive authority over protected adult expression. That unwarranted and dangerous outcome is why the First Circuit should reverse on appeal, to protect First Amendment rights against erosion and abuse.
This week, FIRE filed a “friend-of-the-court” brief in Garcia v. Character Technologies urging immediate review of a federal court’s refusal to recognize the First Amendment implications of AI-generated speech.
The plaintiff in the lawsuit is the mother of a teenage boy who committed suicide after interacting with an AI chatbot modeled on the character Daenerys Targaryen from the popular fantasy series Game of Thrones. The suit alleges the interactions with the chatbot, one of hundreds of chatbots hosted on defendant Character Technologies’ platform, caused the teenager’s death.
Character Technologies moved to dismiss the lawsuit, arguing among other things that the First Amendment protects chatbot outputs and bars the lawsuit’s claims. A federal district court in Orlando denied the motion, and in doing so stated it was “not prepared to hold that the Character A.I. LLM’s output is speech.”
FIRE’s brief argues the court failed to appreciate the free speech implications of its decision, which breaks with a well-established tradition of applying the First Amendment to new technologies with the same strength and scope as applies to established communication methods like the printing press or even the humble town square. The significant ramifications of this error for the future of free speech make it important for higher courts to provide immediate input.
Contrary to the court’s uncertainty about whether “words strung together by an LLM” are speech, assembling words to convey messages and information is the essence of speech. And, save for a limited number of carefully defined exceptions, the First Amendment protects speech — regardless of the tool used to create, produce, or transmit it.
As we told the court, it’s important to answer questions about the First Amendment’s application quickly and fully. Not just to minimize the impact on the parties to the case, but to avoid uncertainty about the First Amendment’s reach that would chill expression more broadly.
That clarity is especially important when the case presents novel issues about an emerging technology. Early decisions in cases about new expressive technologies influence the development of jurisprudence, sometimes becoming accepted “defaults” for decades. For example, the development of Section 230 jurisprudence was heavily influenced by the early Zeran v. America Online case, which still provides the generally accepted interpretation of that law nearly two decades later. Fortunately, the Zeran court got it right. But if the decision in Garcia has a similar impact, expressive rights are in serious trouble.
Delaying review of the district court’s decision will chill a great deal of expression while the case otherwise winds toward an appealable decision — particularly given the implications of holding AI outputs are not speech. If that endures, the government would have vast power, without any constitutional limit, to regulate what we may say, how (and how effectively) we may say it, and even what we know and how we may learn it.
Whether AI output is speech is a question with profound implications. If it is not speech, plaintiffs will be able to impose liability for the distribution of ideas in a way that courts have steadfastly rejected for other forms of media.
The district court’s analysis bypassed these issues and gave the First Amendment question far less consideration than it deserved. This warrants the immediate intervention of an appellate court to approach this issue with a level of rigor befitting the paramount constitutional principle at stake.
CHAPPAQUA, NY, June 25, 2025 — The Foundation for Individual Rights and Expression agreed to drop its First Amendment lawsuit against Chappaqua Central School District after the district’s board of education adopted a robust First Amendment regulation that will protect the constitutional free speech rights of its students.
FIRE sued the district in 2024 on behalf of O.J., an LGBTQ+ student suspended for violating the district’s “hate speech” definition in its code of conduct because he used the words “faggot” and “twink” in a rap song recorded in his friend’s home after school. In the song, O.J. rapped the refrain, “faggot, fart, balls.” The song also included another person’s lyrics, which contained violent imagery. After O.J.’s friend uploaded the song to a music-sharing website, the school received three complaints and promptly suspended the student.
“In the Supreme Court’s decision inMahanoy Area School District v. B.L., the Court held that students’ off-campus, nondisruptive speech is protected by the First Amendment,” said FIRE attorney Colin McDonell. “That is true even when the speech receives criticism.”
In communications with the district, O.J.’s father cited Mahanoy and argued the school could not punish his son for his off-campus speech because it did not disrupt the educational environment. When this proved unsuccessful, O.J.’s father reached out to FIRE for assistance. On April 15, 2024, FIRE sued the district on behalf of O.J. and his father in the federal district court for the Southern District of New York.
After commencement of the lawsuit, FIRE and the district worked together to craft a First Amendment regulation that would protect its students’ rights to express themselves both on and off school campus, consistent with and reconciled with Mahanoy and the New York State Dignity for All Students Act and its regulations. The district’s insurer also agreed to pay $70,000 to FIRE, encompassing attorneys’ fees, and the district removed the disciplinary action based on the song from the student’s file.
“With its adoption of a First Amendment regulation, the board of education has affirmed the rights of its students to engage in protected speech on and off campus,” said FIRE Senior Attorney Greg H. Greubel. “We’re pleased that we could work with the board to avoid further litigation and turn this situation into a positive outcome for our client and all students in the district.”
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:
Karl de Vries, Director of Media Relations, FIRE: 215-717-3473; [email protected]
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“No American President has ever before issued executive orders like the one at issue in this lawsuit . . . The instant case presents an unprecedented attack on . . . foundational principles. . . . Here, deciding what process was due to plaintiff is unnecessary, because no process was provided.” — Perkins Coie LLP v. Department of Justice (Dist. Ct., D.C., May 2)
“[T]he Court found that Ms. Rumeysa Ozturk has demonstrated a substantial claim of a violation of due process.” — Ozturk v. Hyde (Dist. Ct., VT, May 16)
Maxim: #1: Vagueness and due process cannot coexist, at least not in any system of constitutional justice worthy of the name.
Maxim #2: The broader the law’s sweep, the greater the likelihood that it was designed to be arbitrarily punitive.
It is undeniable: Many of Donald Trump’s executive orders run wildly afoul of basic tenets of fairness. Time and again, he has ordered his subordinates to enforce orders that are shockingly vague and disturbingly broad. Both in their conception and execution, such orders patently violate the commands of the First, Fifth, and Fourteenth Amendments. And yet, the public and the courts are asked to countenance such abridgments of law in the name of unfettered executive prerogative.
Clarity and precision in lawmaking are fundamental to any system of justice. That call for clarity, which traces back at least to Roman law, finds expression in Montesquieu’s “Spirit of Laws” and William Blackstone’s “Commentaries on the Laws of England.” Laws must be “plainly and perspicuously penned,” is how Blackstone tagged it.
In “FederalistNo. 62,” James Madison condemned those laws that were “incoherent that they cannot be understood.” The idea is rooted in basic fairness, in due process of law. Such a process is especially important in the First Amendment context.
Whether it be in executive orders directed at DEI practices, law firms, universities, libraries, or immigrants, among others, the basic problem of vagueness is the constitutional cancer present in all of them.
As Justice Thurgood Marshall made clear in 1972’s Grayned v. City of Rockford, vagueness offends fairness because (i) it provides no meaningful warning to ordinary persons as to “what is prohibited,” (ii) it provides no “explicit standards” to law enforcement officials, judges, and juries necessary to avoid “arbitrary and discriminatory application,” and (iii) vague laws chill protected speech insofar as the “boundaries of the forbidden areas [are not] clearly marked.”
Justice William Brennan explained the First Amendment importance of that principle in 1963’s NAACP v. Button: “Standards of permissible . . . vagueness are strict in the area of free expression. . . [I]n the area of First Amendment freedoms, the existence of a [vague mandate is] susceptible of sweeping and improper application.”
In the unconstitutional process, lawyers, scientists, librarians, universities, law firms and others are chilled into silence — and that is precisely the point.
The evils of vagueness, among other constitutional wrongs, were thoughtfully identified by federal district court Judge Adam B. Abelson in the recent Maryland District Court case National Association of Diversity Officers in Higher Education v. Trump. In relevant part, Judge Abelson began:
This Court remains of the view that Plaintiffs have shown a strong likelihood of success on the merits of their facial free speech and vagueness claims . . . The Challenged Provisions forbid government contractors and grantees from engaging in “equity-related” work and from “promoting DEI” in ways the administration may consider to violate antidiscrimination laws; they demand that the “private sector” “end . . . DEI” and threaten “strategic enforcement” to effectuate the “end[ing]” of “DEI”; and they threaten contractors and grantees with enforcement actions with the explicit purpose of “deter[ring]” such “programs or principles.”
Judge Adam B. Abelson
Thereafter, he emphasized that the Court was
…deeply troubled that the Challenged Provisions, which constitute content-based, viewpoint-discriminatory restrictions on speech (in addition to conduct), have the inherent and ineluctable effect of silencing speech that has long been, and remains, protected by the First Amendment. And they do so through impermissibly vague directives that exacerbate the speech-chilling aspects of the Challenged Provisions.
To elucidate that point, he added:
Historically, the metaphor used to describe the effect of laws that restrict speech is “chill.” The more apt metaphor here is “extinguish.” Part of the explicit purpose and effect of the Challenged Provisions is to stifle debate — to silence selected viewpoints, selected discourse — on matters of public concern. They forbid government contractors and grantees from engaging in discourse — including speech such as teaching, conferences, writing, speaking, etc. — if that discourse is “related” to “equity. ” And they direct the “private sector” to “end” diversity, to “end” equity, and to “end” inclusion. See J21 Order § 4(b) (directing agencies to “encourage the private sector to end . . . DEI”). “End” is not a mere “chill.” “Deter[rence]” is not a side-effect of the Challenged Provisions; their explicit goal is to “deter” not only “programs” but “principles” — i.e. ideas, concepts, and values. After all, the opposite of inclusion is exclusion; the opposite of equity is inequity; and, at least in some forms, the opposite of diversity is segregation.
Such are but some of the evils rooted in many of Trump’s executive orders. Those affronts to due process and First Amendment principles are so obvious as to render their design intentional (see “Trump’s ‘So what?’ stratagem,” FAN 470).
Trump’s Justice Department defends such lawlessness by procedural obfuscation coupled with political rhetoric and claims of unrestrained executive prerogative. When that fails they take cover by being evasive, as revealed in oral arguments in the Second Circuit case of Ozturk v. Hyde:
The appeals court judges pushed . . . [Department of Justice attorney Drew] Ensign on whether or not the Trump administration believed that both students’ speech was lawful speech.
“We have not taken a position on that,” Ensign told the panel of three judges, saying concerns over where the students’ cases should be heard were more important.
“Help my thinking along,” Judge Barrington D. Parker then said. “Take a position.”
“Your honor, I don’t have authority to take a position on that right now,” Ensign replied.
Drew Ensign
In the unconstitutional process, lawyers, scientists, librarians, universities, law firms and others are chilled into silence — and that is precisely the point.
Consider as well this from an article in The New York Times by Stephanie Saul:
The Trump administration is set to cancel the federal government’s remaining federal contracts with Harvard University — worth an estimated $100 million, according to a letter that is being sent to federal agencies on Tuesday. The May 27 letter [from the U.S. General Services Administration] also instructs agencies to “find alternative vendors” for future services.
The additional planned cuts, outlined in a draft of the letter obtained by The New York Times, represented what an administration official called a complete severance of the government’s longstanding business relationship with Harvard.
The letter is the latest example of the Trump administration’s determination to bring Harvard — arguably the country’s most elite and culturally dominant university — to its knees, by undermining its financial health and global influence. Since last month, the administration has frozen about $3.2 billion in grants and contracts with Harvard. And it has tried to halt the university’s ability to enroll international students.
This episode features a conversation with Cass Sunstein, the Robert Walmsley University Professor at Harvard Law School and former administrator of the White House Office of Information and Regulatory Affairs. His recent working paper, ‘Our Money or Your Life!’ Higher Education and the First Amendment,’ explores the First Amendment constraints on federal funding to American universities.
In the last few weeks, the Trump administration has made several announcements that it is withholding a significant amount of federal funds from specific universities, notably Columbia University and Harvard University, and that those funds will not be released until those universities comply with a set of demands. Harvard received a letter on April 11 demanding changes in Harvard’s governance, faculty hiring practices, student admissions practices, viewpoint diversity among the faculty, and student disciplinary policies, among other things. On May 5, the Secretary of Education sent a letter to Harvard informing the university that the federal government will award it no grants for scholarly research in the future. Reportedly, there is more than $2 billion dollars at stake.
On the podcast we talk through what the Trump administration is doing, what the consequences are for Harvard and other affected universities, and what constitutional issues are raised by the administration’s actions in denying Harvard access to federal research funds. In the process, we get a short course on First Amendment doctrine relating to viewpoint discrimination and unconstitutional conditions.
Trump’s lackey: FCC Chairman Brendan Carr
FCC Commissioner Brendan Carr
“He has . . . abandoned the FCC’s posture as an independent regulator in favor of an openly personal embrace of Trump.”
Four months into his tenure as head of America’s top communications regulator, Brendan Carr appears to be running a Trumpian playbook to transform a long-independent agency.
Immediately after being promoted by President Donald Trump to chair the Federal Communications Commission, on Jan. 20, Carr launched investigations into top media companies, including NPR, PBS and Comcast.
Related
Latest update of Zick’s Executive Orders repository
SCOTUS denies review in middle school ‘two genders’ shirt case
This past Monday the Supreme Court denied review (7-2) in L.M. v. Town of Middleborough. The issue raised in that case was whether school officials may presume substantial disruption or a violation of the rights of others from a student’s silent, passive, and untargeted ideological speech simply because that speech relates to matters of personal identity, even when the speech responds to the school’s opposing views, actions, or policies.
Summary of facts: “In this case, L.M.’s [middle] school prohibited him from wearing a non-obscene, non-vulgar shirt stating, ‘There Are Only Two Genders,’ because the message ‘would cause students in the LGBTQ+ community to feel unsafe.’. The school even banned him from wearing the same shirt on which he covered the words ‘Only Two’ with a piece of tape on which he wrote “CENSORED” so that the message read, ‘There Are [CENSORED] Genders.’”
The petition had been distributed for conference twelve times.
Justice Clarence Thomas wrote a dissent. Justice Samuel Alito also wrote a separate dissent, which in part read:
This case presents an issue of great importance for our Nation’s youth: whether public schools may suppress student speech either because it expresses a viewpoint that the school disfavors or because of vague concerns about the likely effect of the speech on the school atmosphere or on students who find the speech offensive. In this case, a middle school permitted and indeed encouraged student expression endorsing the view that there are many genders. But when L. M., a seventh grader, wore a t-shirt that said “There Are Only Two Genders,” he was barred from attending class. And when he protested this censorship by blocking out the words “Only Two” and substituting “CENSORED,” the school prohibited that shirt as well.
The First Circuit held that the school did not violate L. M.’s free-speech rights. It held that the general prohibition against viewpoint-based censorship does not apply to public schools. And it employed a vague, permissive, and jargon-laden rule that departed from the standard this Court adopted in Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969).
FBI reopens probe into Dobbs Supreme Court leak
The FBI will launch new probes into the 2023 discovery of cocaine at the White House during President Joe Biden’s term and the 2022 leak of the Supreme Court’s draft opinion overturning Roe v. Wade, a top official announced on Monday. Dan Bongino, a rightwing podcaster-turned-FBI deputy director, made the announcement on X, saying that he had requested weekly briefings on the cases’ progress. . . .
‘So to Speak’ podcast: Heather Mac Donald on Trump & free speech
“[M]y reaction to everything that Trump is doing, and I agree almost across the board with his substantive aims whether it’s with regards to the universities, whether it’s regards to immigration, is what would we feel if the democratic administrations were doing this exact same thing in favor of their values? Everything we’re doing sets a precedent. Again, I acknowledge the precedent has already been set. . . . I’m still very nervous about the government using power because even though I’m not deeply libertarian, I do think that the hope of a neutral arbiter of a government that is restrained by rules that are content-free that are politics-free is one of the biggest yearnings of humanity, at least in the west.” — Heather Mac Donald
Heather Mac Donald discusses the Trump administration’s free speech record amidst its battles with higher ed, mainstream media, law firms, and more.
Mac Donald is a Thomas W. Smith Fellow at the Manhattan Institute. Her most recent book is “When race trumps merit: How the pursuit of equity sacrifices excellence, destroys beauty, and threatens lives.”
Related
Heather Mac Donald, “The White House’s Clumsy Attack on Harvard,” City Journal (April 15) (“The administration is growing ever bolder in its crusade against the institutions responsible for left-wing ideology — whether elite law firms or universities. That crusade is unquestionably justified. Its targets deserve little sympathy. . .”)
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
Mahmoud v. Taylor (argued April 22 / free exercise case: issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.)
Thompson v. United States (decided: 3-21-25/ 9-0 w special concurrences by Alito and Jackson) (interpretation of 18 U. S. C. §1014 re “false statements”)
Beginning next week, First Amendment News (FAN) will be moving to Substack. Be sure to sign up and follow us there for future installments!
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.
There’s some very weird, strange and dangerous shit going on out there right now. In America, they are persecuting people for using their right to free speech and voicing their dissent. This is happening now. — Bruce Springsteen (May 14)
Was “the Boss” being partisan there? Donald Trump thought so:
“This dried out ‘prune’ of a rocker (his skin is all atrophied!) ought to KEEP HIS MOUTH SHUT until he gets back into the Country, that’s just ‘standard fare.’ Then we’ll all see how it goes for him!”
Just goes to show that there are two sides, both of them “partisan.” The singer has his partisan views, and so does the suppressor. We just need to chill, get along, and hear both sides. Ah yes, a Kumbaya embrace — yuck!
The ‘Big Chill’
Do you remember those “nonpartisan” folks who were so outraged by what was going on in the cancel culture world of college campuses? How they lamented the way the censorial mindset was choking the First Amendment? Oh, those First Amendment champions were so incensed.
And fair enough, things were wildly out of control and those liberals responsible for supporting or allowing such censorship had to be called out. Again, fair enough. Of course, those who tolerated college censorship (dare I say “liberals”?) are now livid by what is going on. Rightfully so.
But where are those guardians of free speech (dare I say “conservatives”) now? When never a day goes by when the Trump administration does not abridge the First Amendment with wild abandon?
Censorship is censorship!
Given where we are today, I’m tired of such rhetorical gaming. Censorship is censorship, period! The hell with the thinking that one must walk on “nonpartisan” eggshells before speaking too loudly or too often against censorship when it is as constant as it is today under this administration.
Take heed: It was not partisan to boldly condemn John Adams or Woodrow Wilson or Joseph McCarthy for their crusades of suppression. And it was not partisan to call out their supporters who sat silently in the face of such tyranny. In such a world, there are not “two sides” such that the likes of Bill Maher could dine with “nonpartisan” delight with a “measured” opponent of free expression.
Seven free expression groups speak out — Yes!
Thus, I was delighted to learn that seven groups had written an open letter to “universities, media organizations, law firms, and businesses” to stand up against the “Trump administration’s multi-front assault on First Amendment freedoms.”
Before I say more, let me quote from the timely and important open letter that these seven groups just released. First this: “In little more than 100 days, President Trump and the agencies under his control have threatened First Amendment rights through a breathtaking array of actions.”
After that introduction, they listed an indictment of free speech abridgments, and in a style reminiscent of the indictment in the Declaration of Independence, they have delineated specific things the administration has done (I have added bullets to their text):
They have sought to control speech and association by imposing unconstitutional conditions on a wide range of federal grantees and contractors.
They have sanctioned lawyers for their representation of people whom the president views as political enemies.
They have arrested, detained, and threatened to deport international students — including lawful permanent residents — solely because of their participation in lawful political protest.
They have purged crucial datasets from government websites, gutted agency offices responsible for compliance with the Freedom of Information Act, and imposed new and indefensible restraints on public employees’ right to speak on matters of public concern.
They have invoked civil rights laws to justify extensive and unwarranted intrusions into universities’ autonomy and academic freedom.
Resurrecting a policy introduced during President Trump’s first term, they have barred legal scholars from providing information and expertise to the International Criminal Court.
They have banned the Associated Press from the White House press pool because it declined to update its stylebook to refer to the Gulf of Mexico as the “Gulf of America.”
Books have been removed from U.S. military service academy libraries, and other federally operated educational institutions, because they do not conform to the administration’s ideological preferences, and federal funds are being used as a cudgel to censor curriculum and promote the administration’s viewpoints in schools.
The Federal Communications Commission has threatened to revoke the licenses of television and radio networks and stations whose reporting the administration disfavors.
As Professor Timothy Zick has so ably documented, the Trump administration’s assault on free expression is unprecedented. The following assessment from the seven groups echoes what is reliably set off in detailed form in Zick’s repository over at First Amendment Watch:
There have been other times in our nation’s history that witnessed sustained and misguided efforts to suppress speech. All of our organizations have opposed both Democratic and Republican administrations when they abridged First Amendment freedoms — as all of them, at various points, have done. But we share the view that the Trump administration’s actions, taken together, represent an extraordinary and in some ways unprecedented challenge to First Amendment rights and the values they embody [emphasis added]. These actions call for a forceful, uncompromising response. Some institutions have countered in exactly this way, to their credit.
Where the hell are other free speech groups and individuals?
Against that backdrop, I ask: where the hell are all those other groups, who when it came to campus censorship were so outspoken in defense of free expression? Why don’t they have their own open letters? Why are so many of those groups not openly endorsing the courageous assessments of those who, like Judge Michael Luttig, condemn the tyranny that is Trump? Too many conservative and liberal groups are afraid to speak out, afraid to put their names on the line.
Judge Michael Luttig
What we are witnessing today is a BIG CHILL effect of enormous magnitude. Some liberals (in law firms, universities, think tanks, and elsewhere) are afraid to speak out, lest they be attacked by one of the president’s executive orders. By the same token, some conservatives are afraid to speak out (on their blogs or elsewhere) for fear that they will lose stock in their ideological world, or fall victim to Trump’s wrath.
Bottom line: Tyranny is tyranny, and condemning it is not partisan — it’s American!
Recent samples of the BIG CHILL in suppressive operation
The decision by nine of America’s biggest law firms to “bend the knee” to President Trump drew condemnation among lawyers across the political spectrum, including from attorneys inside the firms who quit or launched resistance campaigns. Others have chosen a less career-limiting form of rebellion.
That would be offering leaks to Above the Law, a pugnacious legal industry website best known for scoops about law firm annual bonuses, snarky coverage of legal news and salacious stories of barristers behaving badly. But since March, when Mr. Trump began targeting for retribution top law firms whose clients and past work he does not like, Above the Law has become a rage read for lawyers incensed at the firms that accommodated him.
Fueled by a stream of inside-the-conference-room exclusives, Above the Law delivers a daily public spanking to what it calls “The Yellow-Bellied Nine.” Those are the elite firms that pledged a collective $1 billion in free legal work to Mr. Trump after he signed executive orders threatening to bar their lawyers from federal buildings, suspend their security clearances and cancel their government contracts.
Coming next week on FAN: Timothy Zick on institutional independence and democratic backsliding
Although the Trump Administration’s agenda regarding freedom of expression can appear chaotic, one consistent strategy has been attacking institutions that are essential to checking executive power. It is no accident that many of President Trump’s Executive Orders and the agency actions they direct have targeted the media, universities and faculty, law firms, libraries, and museums. These and other entities are sometimes referred to as “First Amendment institutions” or “knowledge institutions,” because they contribute to and facilitate public discourse and are necessary to a free and open society.
‘[Re]Distributed for Conference’ — SCOTUS mantra in some First Amendment cases
Apparently, the Justices are so overworked with all the Trump emergency appeals that they have to continue to pause on what to do with some of the First Amendment cases on their docket. For example, consider the following petitions:
Jessica Levinson on Comey, protected speech, and DOJ investigation
Professor Jessica Levinson
Questions are swirling following the launch of a federal investigation into former FBI Director James Comeyover a now-deleted social media post of seashells arranged in the numbers “8647” on the beach. (“Eighty-six” is commonly understood to mean “get rid of.” President Trump is the 45th and 47th President of the United States.) Was Comey calling for the assassination of Trump? Or was he, as he has since stated, expressing a political opinion about Trump?
If Comey’s post amounted to a siren song, beseeching others to kill the president, he can be punished for his speech. But should Comey’s post be viewed as political advocacy, which I argue it should, he is entitled to the full protection of the First Amendment.
The genuine threat is not that a president’s life is in danger, but that the Trump administration is attempting to silence the speech of political adversaries. Even if it is unlikely that Comey faces anything more than a slap on the wrist for his post, the decision to open an investigation in and of itself should be worrisome. Comey has access to the media and resources to defend himself. Not everyone does. And the prospect of chilling political speech critical of government officials should concern all of us.
Statement from the Institute for Free Speech on party coordination limits
The Institute for Free Speech commends the Department of Justice’s decision in National Republican Senatorial Committee v. FEC to acknowledge that federal limits on coordinated expenditures between political parties and their candidates violate the First Amendment. In a dramatic and unusual shift, the DOJ is now asking the Supreme Court to overturn its 2001 decision in Colorado Republican Federal Campaign Committee v. FEC (Colorado II).
“The Solicitor General’s recommendation that the Court grant the petition is a commendable move that acknowledges the First Amendment flaws in these limits,” said Institute President David Keating. “As we argued in our amicus brief, the factual basis underpinning Colorado II has been proven wrong by real-world evidence.”
The Institute’s brief demonstrated that over half the states allow unlimited party coordination, including 17 states that also restrict individual contributions—yet there is no evidence of these arrangements leading to corruption. The DOJ’s brief now acknowledges this reality, recognizing that the law represents a “prophylaxis-upon-prophylaxis approach” that fails heightened First Amendment scrutiny.
“When more than half the states manage to operate elections without restricting coordinated party expenditures and without giving rise to any relevant quid pro quo corruption, it is hard to believe that the law is ‘necessary to prevent the anticipated harm,’” noted the Institute’s brief.
The NRSC case challenges federal limits on how much political parties can spend in coordination with their candidates under 52 U.S.C. 30116(d). These restrictions severely burden the core function of political parties—to support and promote their candidates.
[ . . . ]
To read the Institute’s amicus brief in the case National Republican Senatorial Committee v. FEC, click here. To read the Solicitor General’s just-filed brief, click here. To read Institute Senior Attorney Brett Nolan’s expert analysis on the Sixth Circuit’s decision in NRSC, click here.
Claim: The ‘deluge of pornography has had a negative impact on modern society’
Christine Emba
It’s hard not to see a connection between porn-trained behaviors — the choking, slapping and spitting that have become the norm even in early sexual encounters — and young women’s distrust of young men. And in the future, porn will become only more addictive and effective as a teacher, as virtual reality makes it more immersive and artificial intelligence allows it to be customizable. (For a foretaste of where this might end up, you can read a recent essay by Aella, a researcher and sex worker, on Substack defending A.I. child porn.)
In her new book “Girl on Girl: How Pop Culture Turned a Generation of Women Against Themselves,” Sophie Gilbert critiques the mass culture of the 1990s and 2000s, noting how it was built on female objectification and hyperexposure. A generation of women, she explains, were persuaded by the ideas that bodies were commodities to be molded, surveilled, fetishized or made the butt of the joke, that sexual power, which might give some fleeting leverage, was the only power worth having. This lie curdled the emerging promise of 20th-century feminism, and as our ambitions shrank, the potential for exploitation grew.
[ . . . ]
[W]hile Ms. Gilbert is unsparing in her descriptions of pornography’s warping effect on culture and its consumers, she’s curiously reluctant to acknowledge what seems obvious: Porn hasn’t been good for us. While her descriptions of the cultural landscape imply that the mainstreaming of hard-core porn has been a bad thing, she pulls her punches.” (emphasis added)
Forthcoming scholarly essay on ‘Fascist Government Speech’
Professor G. Alex Sinha
On the day he was sworn in for a second term, President Trump issued pardons and commutations to all of his supporters who attacked the U.S. Capitol on January 6, 2021. This sweeping act of clemency gave legal effect to a longstanding grievance: Ever since the attack, which disrupted congressional certification of his 2020 election defeat, President Trump has consistently glorified the attackers and denounced their prosecutors. In defending the clemencies two days after issuing them, President Trump reiterated familiar themes — once more refusing to acknowledge that he lost the 2020 election, celebrating the patriotism of his supporters, and maligning those who pursued their accountability through what became the largest criminal investigation in U.S. history.
President Trump’s script was so familiar that it obscured a constitutional novelty. For most of the time between the January 6 attack and the subsequent clemencies, President Trump was not the president. He was a private citizen, and his speech about January 6 was protected by the First Amendment even to the extent that it was false or dangerous. But, by noon on January 20, 2025, he was once again President Trump—a government official, speaking on behalf of the government, and thus uttering government speech. Government speech is not protected by the First Amendment, but rather by an evolving set of Court-fashioned rules known collectively as the government-speech doctrine. In an instant, his comments took on an entirely new constitutional cast.
Ordinarily, this transition would be unremarkable; it occurs whenever a private citizen assumes a governmental role. But, combined with their content, President Trump’s statements — on this subject and many others — create a serious First Amendment problem. His remarks are deeply and distinctly illiberal, calibrated to undermine, falsely, the democratic legitimacy of a previous administration and to rewrite the history of an insurrectionist threat that would have allowed him to maintain power by violent and anti-democratic means. It is fascist speech, which invites wildly different constitutional analysis depending on its source.
Accordingly, this paper introduces and evaluates the concept of fascist government speech — a category we can no longer afford to ignore. Our First Amendment free-speech rights spring in substantial part from a commitment to self-governance, and the protections that follow generally extend to private fascist speech as part of a forceful commitment to free debate that courts and scholars have long believed would facilitate a robust democracy. By contrast, the basis of the government-speech doctrine is functional necessity, a recognition that our democratic self-governance would be rendered ineffective if the government could not spread its message. That backstory simply cannot justify protecting fascist government speech, which directly undermines the basis for governmental communicative prerogatives. Yet the doctrine, as constituted, ultimately does protect fascist government speech. Worse still, the doctrine operates to abrogate private free-speech claims, a result that is distinctly perverse when the abrogation functions to amplify fascist government speech. This paper therefore argues for significant revision to the government-speech doctrine to blunt the threat of fascist government speech.
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
Mahmoud v. Taylor (argued April 22 / free exercise case: issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.)
Thompson v. United States (decided: 3-21-25/ 9-0 w special concurrences by Alito and 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.
“[T]he privilege of the writ of habeas corpus can be suspended in a time of invasion. So it’s an option we’re actively looking at.” — Stephen Miller (May 9)
“[T]his strikes me as raising the temperature to a whole new level.” — Stephen Vladeck (May 9)
“No one should be arrested and locked up for their political views”— Esha Bhandari (ACLU lawyer for Rümeysa Öztürk)
So much of the constitutional damage done (much of it irreversible) by the president’s executive orders is accomplished by what I tag their “So what?” stratagem, which is indifferent to the law or what courts rule. It is a tactic that strikes at the heart of constitutional government as we know it. Like so much else with this administration, it is done in lawless plain view and thus becomes increasingly normalized as Congress remains silent, the attorney general and cabinet officials remain subservient, and Democrats remain ineffective.
The objective: Rendering judicial rulings ineffectual
Some six decades ago, political science Professor Martin Shapiro underscored the importance of judicial review in safeguarding free speech rights. The book was titled “Freedom of Speech: The Supreme Court and Judicial Review.” The significance of that point was recently highlighted when Judge William K. Sessions ordered Tufts University doctoral student Rümeysa Öztürk free from unlawful detention at a South Louisiana ICE Processing Center. Ditto when Judge Geoffrey Crawford ordered the release of Mohsen Mahdawi, a Palestinian Columbia student who had been detained by immigration authorities when he went to his U.S. citizenship interview.
Judicial review is vital to our system of constitutional government. Since at least 1803, the governing principle has been that the Supreme Court and lower courts are the final arbiters of the Constitution, subject only to the amendment process. But laws have staying power only insofar as they are obeyed. When ignored, their efficacy depends on judicial enforcement. Their rulings are thus entitled to respect. Such respect has been honored . . . until now.
Trump could suspend habeas corpus, Stephen Miller says | LiveNOW from FOX
In brazen and bizarre ways, the Trump administration’s strategy has been to subvert that constitutional principle.
Consider this: What if the government acts in flagrant unlawful ways with the intent that its objectives will be realized whenever judicial relief comes too late to prevent them? Or what if judicial relief proves ineffective in correcting the larger non-litigated fallout of such orders? That is the Trump administration’s playbook, and it has already proven rather successful — it is their “Trump card,” so to speak.
That tactic poses a clear and present danger to our First Amendment freedoms, among others.
Examples of the ‘So what?’ stratagem
The fear principle: Issue an executive order, enforceable by the attorney general, targeting a particular law firm. Make demands of that law firm. Most such firms will capitulate while countless unnamed others will take their marching orders from those threats. Such coercion succeeds even if the initial order was wildly unconstitutional, and it does so in the absence of judicial review. Even if successfully challenged in the courts, there are still the costs of litigation and the potential loss of clients.
Effective intimidation: Issue an executive order, enforceable by one or more federal agencies, targeting a particular university. Make demands of that university and threaten it with loss of federal funding and/or the revocation of its 501(c)(3) tax status. Here again, such an “enemies’ list” of threats is unconstitutional. Such intimidation is nonetheless effective in at least two ways: First, it is a shot across the bow to other universities to fall in line. Second, it forces the university that contests the matter to incur the costs (financial and otherwise) of trial and appellate litigation. Thus, the resulting “victory” has its punitive consequences.
Frustrating judicial relief: Issue an executive order, enforceable by one or more federal agencies, targeting immigrants. Proceed secretly and with great dispatch to deport such persons. The aim is either to preclude judicial review (as in the case of Kilmar Ábrego García) or to frustrate it by secretly seizing people and whisking them off to Trump-friendly jurisdictions. In those instances in which the government loses in a federal district court, the plan is to seek emergency review in the Supreme Court and argue that such decisions are left largely, or solely, to the prerogative of the executive branch.
Irreparable damage:Ignore the law, breach it with reckless abandon. Here, the idea is to completely destroy the targeted party in such a way that judicial relief will never be able to make such parties whole again. There is no better example of this than the outrageous facts in Pippenger v. United States DOGE Service, et al. (U.S. Dist.. Ct., D.C. Case No. 1:25-cv-01090). Pursuant to an executive order, on March 17, DOGE engaged “in the literal trespass and takeover by force of the U.S. Institute for Peace’s headquarters… Once physically inside the Institute’s headquarters, DOGE personnel and others . . . plundered the offices in an effort to access and gain control of the Institute’s infrastructure, including sensitive computer systems,” which included accounts, records, files, other records, files, and emails, which may have also been destroyed. Though the Institute for Peace is an independent nonprofit corporation established by Congress in 1984, its property was seized, and its nearly 300 D.C.-based employees were fired.
The United States Institute of Peace in Washington, D.C. (JHVEPhoto / Shutterstock.com)
Among other things, what is troubling about this power grab (one that deserves wide attention in legal circles and law school classrooms) is that while the administration claims that it is only “reduc[ing] the performance of [the Institute’s] statutory functions and associated personnel to the minimum presence and function required by law,” it lacks such legal authority. Meanwhile, DOGE is trying to gift itself the Institute’s $500 million building. During a hearing on the matter, federal Judge Beryl Howell noted that even if she rules for the Institute, “that win makes no promises” on how difficult, or possible, it will be to put USIP back together. “A bull in a China shop breaks a lot of things.”
Chill, coerce, suppress, and then evade
In these instances and others, the stratagem is to coerce and suppress so as to render judicial review either impossible or ineffective. Moreover, there is the chilling effect that such actions have on anyone at odds with Trump and his confederates. Simply consider the law firms, universities, and even media outlets that have complied, either in the absence of any judicial ruling or despite it.
All of this occurs sans congressional oversight, even as that body’s constitutional powers are breached with autocratic abandon. And despite her confirmation promise, Attorney General Pam Bondi has weaponized her office to gratify the kingly dictates of her boss.
As for the federal courts, there “have been over 200 cases where judges in the United States have anonymously received pizzas from individuals, where they didn’t order that. The implicit threat there is: ‘We know where you live.’” Consider it part of a Trump-inspired stratagem.
Part of that stratagem is the Trump administration’s tactic of denying or evading, as the following exchange between Second Circuit Judge Barrington Parker and government lawyer Drew Ensign, reported by Erik Uebelacker at Courthouse News Service, reveals:
“Does the government contest that the speech in both cases was protected speech?” Parker asked.
“Your Honor, we have not taken a position on that,” Ensign replied.
“Help my thinking along, take a position,” Parker demanded.
“Your Honor, I don’t have the authority to take a position on that right now,” Ensign said.
Will the Supreme Court trump the ‘Trump card’?
And then there is the Supreme Court, which is flooded with emergency appeals from the Trump administration. While Chief Justice Roberts has tried to calm the waters with calls to end the intimidation of judges, his pleas have been ignored. Furthermore, Roberts and his colleagues face the specter that if they displease the president, their rulings might also be disregarded, either directly or indirectly.
Trump’s strategy is to free himself of any constitutional checks and balances. The frightening truth is that we are veering in that direction, and Mr. Miller’s latest threat is another bad omen, yet another “Trump card.”
Just how far this authoritarian game continues will determine the future of our constitutional democracy.
Levitsky, Way, and Ziblatt on the road to authoritarianism
How . . . can we tell whether America has crossed the line into authoritarianism? We propose a simple metric: the cost of opposing the government. In democracies, citizens are not punished for peacefully opposing those in power. They need not worry about publishing critical opinions, supporting opposition candidates or engaging in peaceful protest because they know they will not suffer retribution from the government. In fact, the idea of legitimate opposition — that all citizens have a right to criticize, organize opposition to and seek to remove the government through elections — is a foundational principle of democracy.
Robert Corn-Revere on the president punishing his enemies
Trump has made “lawfare” the official policy of his administration.
[ . . . ]
For the Trump administration, no grievance is too petty to escape outsized retribution. After the White House limited access by the Associated Press for refusing to relabel the body of water between Florida and Mexico the “Gulf of America,” federal courts ruled that this act of viewpoint-based retaliation was a violation of the First Amendment. The administration defied that order until April 15, when an AP journalist was allowed into a White House event for the first time since February.
Even this, however, seems to be short-lived. The next day, the White House announced a new media policy which would once again restrict journalists at their own discretion — a move which the Associated Press argues is an attempt to evade the court order.
‘So to Speak’ podcast: The state of cancel culture in America
The co-authors of “The Canceling of the American Mind” discuss its new paperback release and where cancel culture stands a year and a half after the book’s original publication.
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
Mahmoud v. Taylor(argued April 22 / free exercise case: issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.)
Thompson v. United States (decided: 3-21-25/ 9-0 w special concurrences by Alito and 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.
“It was nearly impossible to get anyone on camera for this story [on Trump’s attacks on lawyers and law firms], because of the fear now running through our system of justice.” — Scott Pelle, “60 Minutes” (May 4)
That observation prompted my colleague, Angel Eduardo, to caution that we are now in “uncharted and horrifying territory” — a territory governed by coerced compliance. Against that backdrop comes the latest installment of Executive Watch, authored by Professor Timothy Zick.
In the weeks and months ahead, more FAN posts will appear discussing yet other First Amendment issues related to the Trump administration, its executive orders, and related matters. If this seems excessive, it is because (as Zick and I discuss in a forthcoming scholarly article) the suppressive actions taken by this administration are unprecedented in both their breadth and depth.
Vigilance in the service of freedom is no vice, and apathy in response to despotism is no virtue.
Related
Professor Zick’s post is set out below followed by a few news items, including two new federal district court rulings involving First Amendment challenges to anti-DEI executive orders and a NYU Law School item about punishing protestors. — rklc
During his first term as president, Donald Trump signaled that he was not committed to pluralism and expressive liberty when it came to matters like patriotism, public protest, and other forms of dissent. During his second term, Trump has issued multiple executive orders that attempt to impose official orthodoxies or understandings regarding race, gender, patriotism, and other subjects.
My previous post explained how Trump has used executive orders to instigate a whole-of-government assault on free speech, and how that campaign has affected nearly every corner of American life. This post focuses on how Trump has used executive orders to try to purge concepts and ideas from public and private realms and to dictate what is orthodox when it comes to matters Americans sharply disagree on.
Many of Trump’s orders are not only viewpoint discriminatory; their expressly stated purpose is to eradicate certain ideas or ideologies and replace them with officially approved alternatives. Although they seek to impose official ideologies by striking disfavored ideas or concepts, many of the Orders utterly fail to define key concepts, including “diversity, equity, and inclusion (DEI),” “discriminatory equity ideology,” “radical gender ideology,” and “hateful ideology.”
As I explained in my previous installment, such glaring vagueness has a real chilling effect. Faced with losses of many billions in funding or revenue, or with ruinously expensive investigations or prosecutions, many have decided to capitulate or over-comply, scrubbing any potentially offending terms and concepts from trainings, lectures, websites, and other fora.
In 1943, the Supreme Court decided West Virginia State Board of Education v. Barnette, which invalidated a state law mandating that students salute the flag and recite the Pledge of Allegiance at the beginning of each school day. In an iconic and justly famous opinion, Justice Robert H. Jackson wrote:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
Trump’s use of executive orders to impose or coerce adoption of official orthodoxies or views is contrary to a foundational First Amendment principle: The government cannot dictate to Americans what ideas they can support or promote or what they believe.
President Trump’s orthodoxies
Presidents have historically used executive orders to change policies and priorities regarding a wide range of matters, from the scope of anti-discrimination laws, to matters relating to service in the military, to the protection of religious or other liberties. For example, a president might instruct executive agencies to adopt specific legal or policy positions on enforcement of anti-discrimination laws or the protection of Second Amendment rights. And, of course, presidents can engage in their own speech about these and other matters, including through executive orders.
Trump has utilized executive orders for some of these purposes, though in novel ways (and for far more trivial ones, such as dictating what kind of straw can be used in federal buildings). But many of his orders do not merely change enforcement policies or call for agencies to regulate the actions of those who are subject to agency jurisdiction. The First Amendment “tell” in the orders is that they direct agencies to root out and censor the “promotion” of disfavored ideas or concepts.
Many of the president’s executive orders reflect his own personal frustrations and grievances, including the promotion of ideas he believes should never have been expressed, and that the federal government should now use its vast powers to suppress. Thus, a central purpose of the orders is to purge disfavored ideas and concepts from schools, companies, libraries, museums, foundations, and scientific research.
The following examples illustrate these points:
Race
An executive order describes DEI programs as “radical” and “wasteful.” It instructs agencies to coordinate the termination of “all discriminatory programs, including illegal DEI and diversity, equity, inclusion, and accessibility (DEIA) mandates, policies, programs, preferences, and activities in the federal government, under whatever name they appear.” Further, Trump ordered all federal agencies and commissions to provide the director of the Office of Management and Budget with lists of “[f]ederal contractors who have providedDEI training or DEI training materials to agency or department employees” and “[f]ederal grantees who received Federal funding to provide or advance DEI, DEIA, or ‘environmental justice’ programs, services, or activities since Jan. 20, 2021.”
Here as elsewhere, and absent any definitional guidelines, a second order also targets DEI. It requires an office within the Department of Labor to “immediately cease . . . [p]romotingdiversity.” What’s more, the president orders federal agencies to “[e]xcise references to DEI and DEIA principles, under whatever name they may appear, from Federal acquisition, contracting, grants, and financial assistance procedures.”
“Radical DEI,” an executive order proclaims, must be replaced by “individual dignity, hard work, and excellence,” which are identified as “fundamental to American greatness.”
Promoting, advocating, or even mentioning “DEI” is also forbidden in the private sector. The president orders agencies to root out DEI and in its place “advance in the private sector the policy of individual initiative, excellence, and hard work.” To that end, the president orders agencies to identify the “most egregious and discriminatory DEI practitioners” within their jurisdictions and to propose investigations of private sector companies to investigate their use of “DEI.”
“Basing Federal policy on truth,” the order proclaims, “is critical to scientific inquiry, public safety, morale, and trust in government itself.” The order criticizes understandings of sex or gender that go beyond biology for “[i]nvalidating the true and biological category of ‘woman.’”
The president rejected “the false claim that males can identify as and thus become women and vice versa” and proclaimed the administration’s intent not to “regard this false claim as true.”
Trump decreed that “every agency and all Federal employees acting in an official capacity on behalf of their agency shall use the term ‘sex’ and not ‘gender’ in all applicable Federal policies and documents.”
The order required agency heads to “implement changes to require that government-issued identification documents, including passports, visas, and Global Entry cards, accurately reflect the holder’s sex,” as defined in the order. Further, it requires that “[a]gencies shall remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology.”
In a guidance document sent to all agencies, the acting director of the Office of Personnel Management instructed agency heads to review any programs that “promoteor inculcategender ideology,” place on immediate leave any employees whose job descriptions involve “inculcatingor promotinggender ideology,” remove “all outward facing media . . . that inculcate or promotegender ideology,” disable any email features that “prompt users for their pronouns,” cancel trainings and end “resource groups” that “inculcate or promotegender ideology,” and ensure that any agency forms use “sex” instead of “gender” and list only “male” or “female” as options.
In another order relating to gender, the president characterizes service in the Armed Forces by transgender individuals as a form of “radical gender ideology” that harms the military. The order declares that “adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle, even in one’s personal life.” Further, it declares that “a man’s assertion that he is a woman, and his requirement that others honor this falsehood, is not consistent with the humility and selflessness required of a service member.” The Order directs the Secretary of Defense to end all pronoun use in the U.S. Armed Forces and take steps to ban transgender individuals from entering or remaining in service.
Official views about gender and gender identity are reflected in other executive orders. For example, an order concerning federal funding for K-12 schools tasks multiple agencies with recommending ways to “rescind Federal funds, to the maximum extent consistent with applicable law” that “directly or indirectly support or subsidize the instruction, advancement, or promotion of gender ideology or discriminatory equity ideology.” Regarding federal funding, the order states “Federal funds shall not be used to promote gender ideology. Each agency shall assess grant conditions and grantee preferences and ensure grant funds do not promote gender ideology.”
Patriotism
The executive order “Ending Radical Indoctrination in K-12 Schooling” conditions federal funding on the adoption by K-12 schools of “patriotic” curricula and threatens to withhold funding from any schools that teach that the United States is “fundamentally racist, sexist or otherwise discriminatory.”
The order defines “patriotic education” to mean “a presentation of the history of America” that is “inspiring” and “ennobling,” that emphasizes “how the United States has admirably grown closer to its noble principles, and that embraces “the concept that celebration of America’s greatness and history is proper.”
Trump’s personal conceptions of patriotism are also reflected in executive orders pertaining to immigration and deportation. One order provides that resident aliens who express “hatred for America,” “bear hostile attitudes toward [American] citizens, culture, government, institutions, or founding principles,” or “espouse hateful ideology” will be subject to deportation — a threat the administration has now made good on by deporting international students who have engaged in pro-Palestine protests and expression. The order instructs the Secretary of State and other agencies to “recommend any additional measures to be taken that promote a unified American identity and attachment to the Constitution, laws, and founding principles of the United States.”
American history
In an executive order titled “Restoring Truth and Sanity to American History,” Trump declares, “It is the policy of my administration to restore Federal sites dedicated to history, including parks and museums, to solemn and uplifting public monuments that remind Americans of our extraordinary heritage, consistent progress toward becoming a more perfect Union, and unmatched record of advancing liberty, prosperity, and human flourishing.” Without even a hint of irony, the order then states, “Museums in our Nation’s capital should be places where individuals go to learn — not to be subjected to ideologicalindoctrination or divisivenarratives that distort our shared history.”
The “Truth and Sanity” order tasks the vice president and other administration officials with “seeking to remove improper ideology from such properties.” An accompanying “Fact Sheet” boasts that the president has ordered officials “to work to eliminate improper, divisive, or anti-American ideology from the Smithsonian and its museums, education and research centers, and the National Zoo.” Further, Trump vows to remove “divisiveideology” he claims the prior administration adopted — apparently by imposing an ideology that portrays American history only in the most positive light.
Declaring (and leveraging) official ‘Truths’
As the highlighted language above shows, Trump’s executive orders could not be more transparent about their intent: to declare official “truth” and “falsity” regarding race, gender, and other matters and to punish the “promotion,” advocacy, or even references to competing ideas or ideologies. The orders call on agencies to ban or punish the “promotion” of “diversity” and “radical gender ideology,” instruction that is not “patriotic,” and speech that communicates “hostile attitudes” toward American culture or institutions. The orders declare the “truth” of biological sex and forbid the “promotion” of any other conception, while also banning pronouns and the word “gender” in federal programs. The Trump administration seeks to remove so-called “anti-American ideology” from museums.
As I explained in my previous installment, the effect of the administration’s purported “truth-declaring” on expression has been nothing short of extraordinary. Executive agencies have responded, sometimes with absurd results — including removing exhibits about Jackie Robinson, cancelling celebrations of prominent black or female figures, removing books by black authors from libraries, and scrubbing information about the “Enola Gay” from the Department of Defense website.
Similar effects have occurred outside the government. Corporations, universities, and other federal funding recipients have likewise reacted to the president’s orders by removing disfavored words or concepts from websites and other public-facing documents. Universities have cancelled presentations based on concerns that the content of lectures will run afoul of the orders, broadcast stations have been warned that their licenses may be revoked based on DEI policies, and nonprofits have been instructed to remove potentially offending words and phrases from their grant documents.
The effort to punish expression the administration dislikes or disagrees with extends beyond the areas discussed. For example, a Trump executive order targets a former official who served in his first administration for publicly declaring that the 2020 presidential election was not affected by election fraud — a position contrary to Trump’s own oft-repeated (and oft-debunked) “stolen” election narrative.
The administration has defended the orders by claiming that they merely announce new policies and target unlawfully discriminatory actions by funding grantees and others. Some even purport to preserve protection for speech that promotes or advocates what the orders define as “unlawful employment or contracting practices.” But these claims are belied by the orders themselves, which again repeatedly declare “truth” and “falsity” regarding ideas, ban “promotion” or “advocacy” of forbidden ideologies, and purport to dictate which ideas are and are not “anti-American.”
Despite their questionable validity, the orders have been exceptionally successful in terms of censoring and controlling speech. One of the principal reasons for this success is that the orders are generally vague or unclear about what is allowed and forbidden. Thus, although the concept of DEI is critical to determining whether a grantee is entitled to federal funds, none of the executive orders to date have bothered to provide any official and meaningful definition of the concept. Nor is it clear what to them constitutes “hateful ideology,” “anti-American ideology,” “unpatriotic” instruction, or other forbidden expression. To further illustrate the point, the Trump administration has been clear that it views gender as solely a biological concept; however, it has not been clear about what might constitute “radical gender ideology” or what actions will be treated as “promoting” it.
By design, such ambiguity fosters ideological suppression. As Clint Smith observed in an Atlantic article concerning the administration’s insistence that museums not display “divisive” or “anti-American ideology”:
What does it mean for something to be improper if the administration’s understanding of what is acceptable excludes anything that might make white Americans feel bad? Is the statue of Thomas Jefferson surrounded by bricks inscribed with the names of people he enslaved improper? Is a slave cabin that once sat on the grounds of a plantation in South Carolina improper? Are the shackles that were once locked around the feet of enslaved children improper? Is Harriet Tubman’s silk shawl improper? Is Nat Turner’s Bible improper? Is Emmett Till’s casket improper? Are the photographs of men and women who were lynched as white audiences looked on improper?
This kind of vagueness and uncertainty stifles legitimate speech activity. Faced with ambiguity backed by agency enforcement, many grantees will err on the side of avoiding or excising what government officials might view as “false” ideas, forbidden “promotion,” or disfavored language.
The administration has used the pronouncement of its purported “truths” and forbidden “promotion” as leverage — to threaten investigations, agency actions, and funding denials. Thus, the orders state that any grantee who engages in forbidden DEI or promotes “gender ideology” is subject to an Equal Employment Opportunity Commission investigation and substantial funding loss. Charges of engaging in DEI and promoting “radical gender ideology” have provided a pretextual basis for governmental investigations and sanctions against law firms, universities, corporations, broadcasters, and others. For the administration, the lack of clear standards allows it to declare that grantees and others are in default, hence triggering lengthy and invasive investigations. To avoid the sanctions, some targeted entities and individuals have simply folded. The administration has similarly relied on vague definitions or standards regarding so-called “anti-Semitism” to intimidate and coerce universities into “settling” unproven claims.
The undemocratic benefits of vagueness
Thus far, the administration’s lack of clarity has worked in its favor. Given the ambiguity, it can be difficult to demonstrate that the government’s funding decisions are based on disagreement with viewpoints as opposed to responses to what it considers discriminatory practices or shifting policy positions.
Trump’s reliance on vague directives and implicit threats requires that courts treat “jawboning” and other informal means of coercion as just as problematic as more direct forms of suppression. The Supreme Court held in a recent decision that New York officials could not coerce financial institutions to cease dealings with the National Rifle Association. Likewise, the Trump administration is allowed to seek to persuade funding grantees and the Nation that its conceptions of race, gender, patriotism, and history are “true.” But it cannot coerce grantees to accept those “truths” through sanction or suppression of speech.
However this issue is resolved in courts, we should be aware that much of the damage has already been done. As Justice Jackson explained in Barnette, coercing individuals and institutions to accept official orthodoxies “invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.” More ominously, Jackson warned, allowing officials to dictate what is “true” or “false” in the field of contested ideas leads only to “the unanimity of the graveyard.”
Elections have consequences . . . but imposing orthodoxies cannot be one of them
Governments are entitled to communicate their views about race, gender, patriotism, and other subjects. Further, no one has a legal or constitutional right to federal funding. However, if the government is going to make federal funding available, it cannot deny or remove it based on a grantee’s promotion or advocacy of disfavored ideas or concepts. It cannot punish instructors for teaching or discussing DEI, scientists for conducting research focused on “diverse” or “disadvantaged” patient populations, or museums for communicating “divisive” viewpoints about American culture and history.
One of the key tenets of our First Amendment freedoms is that sometimes minority rights must trump majoritarian will. This is especially true when certain viewpoints are protected while others are prosecuted. By that measure, compelled orthodoxy is an affront to those free speech principles that distinguish our Madisonian democracy from other regimes that give lip service, if that, to such worthy principles.
Court denies First Amendment challenge in anti-DEI case
Plaintiffs are three nonprofit organizations that incorporate DEI into their work. They also contract with and receive funding from several federal agencies. Concerned that President Trump’s executive orders will prevent them from fulfilling their organizational missions, Plaintiffs sued to enjoin a host of agencies and officials from enforcing the orders. They moved for a preliminary injunction over a week later, arguing that eight provisions of the orders are unconstitutional under the First or Fifth Amendment — or both. More specifically, Plaintiffs contend that the challenged provisions are impermissibly vague, chill protected speech, and amount to unlawful viewpoint discrimination.
But Plaintiffs have not shown that they are likely to succeed on any of those claims, so the extraordinary relief of a preliminary injunction is unwarranted. For half the challenged provisions, Plaintiffs fail to establish a prerequisite to success on the merits: standing. Presidential directives to subordinates that inflict no concrete harm on private parties — or at least not on these parties — do not present a justiciable case or controversy. And for the remaining provisions, Plaintiffs’ constitutional claims falter for various reasons. Two throughlines explain most of them. The government need not subsidize the exercise of constitutional rights to avoid infringing them, and the Constitution does not provide a right to violate federal antidiscrimination law. And those pressure points are even harder to overcome for Plaintiffs, who bring facial rather than as-applied challenges.
Preliminary injunction remains in force in challenge to anti-DEI order
This Court remains of the view that Plaintiffs have shown a strong likelihood of success on the merits of their facial free speech and vagueness claims, as this Court previously explained. . . . The Challenged Provisions forbid government contractors and grantees from engaging in “equity-related” work and from “promoting DEI” in ways the administration may consider to violate antidiscrimination laws; they demand that the “private sector” “end . . . DEI” and threaten “strategic enforcement” to effectuate the “end[ing]” of “DEI”; and they threaten contractors and grantees with enforcement actions with the explicit purpose of ‘deter[ring]’ such ‘programs or principles.’ . . . This Court remains deeply troubled that the Challenged Provisions, which constitute content-based, viewpoint-discriminatory restrictions on speech (in addition to conduct), have the inherent and ineluctable effect of silencing speech that has long been, and remains, protected by the First Amendment. And they do so through impermissibly vague directives that exacerbate the speech-chilling aspects of the Challenged Provisions.
Historically, the metaphor used to describe the effect of laws that restrict speech is “chill.” The more apt metaphor here is “extinguish.” Part of the explicit purpose and effect of the Challenged Provisions is to stifle debate — to silence selected viewpoints, selected discourse — on matters of public concern. They forbid government contractors and grantees from engaging in discourse — including speech such as teaching, conferences, writing, speaking, etc. — if that discourse is “related” to “equity.” And they direct the “private sector” to “end” diversity, to “end” equity, and to “end” inclusion. See J21 Order § 4(b) (directing agencies to “encourage the private sector to end . . . DEI”). “End” is not a mere “chill.” “Deter[rence]” is not a side-effect of the Challenged Provisions; their explicit goal is to “deter” not only “programs” but “principles” — i.e. ideas, concepts, values. After all, the opposite of inclusion is exclusion; the opposite of equity is inequity; and, at least in some forms, the opposite of diversity is segregation.
The government has apparently concluded, and takes the position, that particular employment practices, for example related to hiring or promotion, constitute discrimination in ways that violate Title VI or Title VII. But the Challenged Provisions do far, far more than announce a change in enforcement priorities within the bounds of existing law. For as vague as the Challenged Provisions are about some matters, see ECF No. 44 at 36-44, 53-55, there can be no serious question that the direct and necessary impact of those provisions — and purposeful, to the extent that matters — is to extinguish discourse throughout civil society on what makes our society diverse, the different perspectives we each bring to bear based our respective upbringing, family history, community, economic circumstances, race, national origin, gender, ability, sexual orientation, or the like. These executive directives seek to extinguish discourse about our shared history. They seek to extinguish discourse about how to strive toward greater inclusivity, or even what that means, or whether that is a worthy goal.
[ . . . ]
Upon consideration of the motion to vacate the preliminary injunction, ECF No. 77, and the response and reply thereto, and after oral argument on April 10, 2025, and for the reasons provided above, it is ORDERED that the motion is DENIED.
NYU Law School saga — right to take exams and lawfully protest reinstated
Pro-Palestine law students at New York University have secured a major victory against the university administration’s attempts to silence protests. On May 4, the NYU administration confirmed that 31 law students who had been barred from campus and prohibited from sitting for final exams, unless they sign away their right to protest, are now permitted to take their exams.
“This type of public pressure, the backlash that [the administration] got from not allowing students to sit for exams, was not something that they expected,” said one of the affected NYU law students, who spoke to Peoples Dispatch about this latest decision.
The NYU administration had sent a message out to 31 law students, barring them from campus including to take exams, unless they signed a “Use of Space Agreement” which included the language “you may not participate in any protest activity or disruptive activity on Law School property.” The law students who received the message are accused of participating in peaceful sit-in protests on March 4 and April 29, at NYU’s library and outside the office of the dean of the law school.
These student activists have pointed out that this is a form of protest permitted by the school’s own outlined policies. NYU’s Guidance and Expectations on Student Conduct explicitly states that “peacefully protesting on University property” is a type of “permitted” protest.
Tinker-type case distributed for conference nine times
The case is L.M. v. Town of Middleborough. The issue raised in the case is whether school officials may presume substantial disruption or a violation of the rights of others from a student’s silent, passive, and untargeted ideological speech simply because that speech relates to matters of personal identity, even when the speech responds to the school’s opposing views, actions, or policies.
The case has been on the docket since early October of last year. Since then it has been distributed for conference eight times between Dec. 6, 2024 and May 2, 2025. Eighteen states have filed an amicus brief in support of the petitioner.
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
Mahmoud v. Taylor (argued April 22 / free exercise case: issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.)
Thompson v. United States (decided: 3-21-25/ 9-0 w special concurrences by Alito and 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.
“Under my watch, the partisan weaponization of the Department of Justice will end. America must have one tier of justice for all.” — Pamela Bondi (confirmation hearing for U.S. attorney general, Jan. 15, 2025)
“After years and years of illegal and unconstitutional federal efforts to restrict free expression, I will also sign an executive order to immediately stop all government censorship and bring back free speech to America.” — Donald J. Trump (Jan. 20, 2025, inaugural address)
“Government censorship of speech is intolerable in a free society.” — Donald J. Trump (Jan. 20, 2025, executive order)
So many lies, so many orders, so much suppression. The “flood” of free expression abridgments continues to be dizzying and depressing.
Unprecedented! That is the word for this new form of silencing that is spreading like a deadly cancer.
The rules of the past cease to be honored. Retribution has replaced righteousness. Fear triumphs over courage. A one-party-led Congress has abdicated its authority. Judicial review is derided. And our system of justice as constituted is unable to adequately address the wrongs perpetuated by an authoritarian figure aided by his confederates. A blitzkrieg takeover of the federal government seeks to vest unchecked power in the Executive while normalizing suppression on the vile pretense of advancing free speech and equality — a page right out of Orwell’s “1984.”
In some respects, we are witnessing what constitutes a threat perhaps as great as the Sedition Act of 1798, the Civil War actions taken by Lincoln, and the World War I, Cold War, and Vietnam War abridgments of free speech. Nonetheless, the number and frequency of such abridgments make it difficult to comprehend the cumulative gravity of this threat to our First Amendment freedoms.
Within the Trump administration’s first 100 days, the government has ushered in a new era of direct and indirect suppression of speech. Meanwhile, cases are being litigated, individuals and institutions are being silenced, books banned, “settlements” coerced, scientific research squelched, history erased, while lower court rulings struggle to be relevant. And all of this, in its many forms, has occurred in the absence of any near-final resolution by the Supreme Court, as if that too might be slighted someday soon.
We are beyond any “there are evils on both sides” mentality, much as we were beyond it in 1798. Recall that while John Adams, the lawyer, championed free speech in his writings, he later backed the Alien and Sedition Acts as “the Federalist” president.
Calling out tyranny is not partisan; it is American! And yet, many are relatively detached, silent, and clueless.
Trump’s “flood the zone” tactics have taxed the American mind to such an extent that few can barely, if at all, remember yesterday’s free speech abridgments let alone those of last week or last month. The result: who remembers all of the trees leveled not to mention any big picture of the forest devastated in the process? What to do?
Enter “First Amendment Watch” and the Zick Resource Report
Thanks to Professor Stephen Solomon and Susanna Granieri over at First Amendment Watch (FAW), there is a meaningful way to begin to get a conceptual hold on what has occurred within the first 100 days of the Trump administration and its attacks on free speech.
Happily, FAW today released what is surely the most important First Amendment resource documenting the numerous First Amendment abridgments committed by the Trump administration within its first 100 days. This invaluable resource was prepared by Professor Timothy Zick.
Professor Timothy Zick
Though the full resource repository is available over at FAW, its table of contents is reproduced below:
Introduction by Timothy Zick
I. First Amendment-Related Executive Orders and Memoranda
A. Freedom of Speech and Censorship B. Foreign Terrorism and National Security C. Law Firms D. Retribution Against Former Government Officials E. Diversity, Equity, and Inclusion F. Gender and Gender Identity G. K-12 Education H. Museums, Libraries, and Public Broadcasting I. Political Donations J. University Accreditors
II. First Amendment-Related Litigation
A. Lawsuits Challenging Executive Orders, Guidance, and Policies
1. Diversity, Equity and Inclusion 2. Immigration 3. Educational Funding 4. Law Firms 5. Gender and Gender Identity 6. Data and Scientific Inquiry 7. Libraries and Museums 8. Public Broadcasting
B. Retaliatory Dismissal and Other Employment Lawsuits C. Lawsuits Filed by Media and Journalists D. Defamation and Other Civil Lawsuits Filed By Donald Trump
III. Commentary and Analysis
A. Actions Against the Press and Journalists B. Defamation and Other Civil Lawsuits C. Broadcast Media D. Social Media E. Education
1. DEI Programming and Initiatives 2. Antisemitism Investigations and Demands 3. Academic Freedom 4. K-12 Curriculum
F. Immigration Enforcement
1. International Students 2. Foreign Scholars 3. Immigration Activism
G.Public Employees H. Private Sector
1. Law Firms 2. Individual Critics and Enemies
I. Transparency, Data, and Information
1. Data, Information, and Scientific Research 2. Museums and Libraries 3. Public Broadcasting 4. Misinformation and Disinformation 5. “DOGE” and Transparency
J. Grants and Funding K. Protests and Demonstrations
1. Campus Protests 2. Public Protests
L. Governmental Orthodoxy
1. Race and DEI 2. Gender and Gender Identity 3. History and Patriotism
M. Retribution and Chilling Speech N. Investigations O. The Bigger Picture P. Tracking All Trump 2.0 Lawsuit
Related
Coming Next Week
The next installment of Professor Timothy Zick’s ongoing posts is titled “Executive Orders and Official Orthodoxies.”
Justice Department to go after reporters’ records in government leak cases
Senate Judiciary Committee considers the nomination of Pamela Bondi for Attorney General on Jan. 15, 2025. (Maxim Elramsisy / Shutterstock.com)
The Justice Department is cracking down on leaks of information to the news media, with Attorney General Pam Bondi saying prosecutors will once again have authority to use subpoenas, court orders and search warrants to hunt for government officials who make “unauthorized disclosures” to journalists.
New regulations announced by Bondi in a memo to the staff obtained by The Associated Press on Friday rescind a Biden administration policy that protected journalists from having their phone records secretly seized during leak investigations — a practice long decried by news organizations and press freedom groups.
The new regulations assert that news organizations must respond to subpoenas “when authorized at the appropriate level of the Department of Justice” and also allow for prosecutors to use court orders and search warrants to “compel production of information and testimony by and relating to the news media.”
The memo says members of the press are “presumptively entitled to advance notice of such investigative activities,” and subpoenas are to be “narrowly drawn.” Warrants must also include “protocols designed to limit the scope of intrusion into potentially protected materials or newsgathering activities,” the memo states.
Former FCC Chairs attack FCC’s attack on First Amendment principles
(T. Schneider / Shutterstock.com)
As former chairmen of the Federal Communications Commission (FCC) — one appointed by a Democrat, the other by a Republican — we have seen firsthand how the agency operates when it is guided by its mission to uphold the public interest. But in just over two months, President Donald Trump and his handpicked FCC Chair Brendan Carr have upended 90 years of precedent and congressional mandates to transform the agency into a blatantly partisan tool. Instead of acting as an independent regulator, the agency is being weaponized for political retribution under the guise of protecting the First Amendment.
Their actions fall into two categories. First, the president used executive orders (EOs) to strip the agency of its independence, making it subservient to the White House. Second, the chairman has exploited the commission’s powers to undermine the very First Amendment rights it is supposed to uphold.
Mchangama on the ‘New McCarthyism’
Jacob Mchangama
Despite being Danish, I’ve always found America’s civil-libertarian free speech tradition more appealing than the Old World’s model, with its vague terms and conditions. For much of my career, I’ve been evangelizing a First Amendment approach to free speech to skeptical Europeans and doubtful Americans, who are often tempted by laws banning “hate speech,” “extremism,” and “disinformation.” That appreciation for the First Amendment is something I share with many foreigners — Germans, Iranians, Russians — who now call America home.
[ . . . ]
It’s now clear that the government is targeting noncitizens for ideas and speech protected by the First Amendment. The most worrying example (so far) is a Turkish student at Tufts University, apparently targeted for co-authoring a student op-ed calling for, among other things, Tufts to divest from companies with ties to Israel. One report estimates that nearly 300 students from universities across the country have had their visas revoked so far.
Instead of correcting this overreach, the government has doubled down. U.S. Citizenship and Immigration Services recently announced that it would begin screening the social media posts of aliens “whose posts indicate support for antisemitic terrorism, antisemitic terrorist organizations, or other antisemitic activity.” Shortly after, the X account of USCIS posted about a “robust social media vetting program” and warned: “EVERYONE should be on notice. If you’re a guest in our country — act like it.” And four days later, White House homeland security adviser Stephen Miller promised to deport “anyone who preaches hate for America.” What that means is anybody’s guess — and seems to depend entirely on subjective assessments.
[ . . . ]
Had America been known for deporting, rather than welcoming, dissent, I would never have made it my home. That might not have been much of a loss. But consider this: 35 percent of U.S.-affiliated academic Nobel laureates are immigrants, and nearly half of all American unicorn startups have founders born outside the country. How many of these brilliant minds would have chosen the United States if they risked exile for crossing the speech red lines of the moment?
As a European who owes my freedom in life thus far to the America that fought Nazism and defeated communism, I feel a responsibility to speak out when this country strays from its founding ideals. I came to America for its freedom, not just to enjoy it, but to defend it — even if that puts me at risk.
Related
New scholarly article on commencement speaker provocateurs
This Article explores an untheorized area of First Amendment doctrine: students’ graduation speeches at public universities or private universities that embrace free speech principles, either by state statute, state constitutional law, or internal policy. Responding to recent graduation speech controversies, it develops a two-tier theory that reconciles a multiplicity of values, including students’ expressive interests, universities’ institutional interests in curating commencement ceremonies and preventing reputational damage, and the interests of captive audiences in avoiding speech they deem offensive or profane.
The Article challenges the prevailing view that university students’ graduation speeches implicate individual First Amendment rights. It develops a site-specific understanding of the ritualistic sociology of the university commencement speech, which the Article argues is firmly within the managerial purview of the university. But it also argues that heavy-handed administrative regulation of student graduation speeches has the potential to undermine the academic freedom of students and professors.
Reflecting on the history of the university commencement speech in the American intellectual tradition, it urges university administrators to exercise their authority to regulate speeches through transparent standards, a longitudinal view, and collaborative negotiation with student speakers.
It concludes by discussing the conceptual dangers of turning the First Amendment into a metonym for every instance of speech abridgment within a managerial sphere.
‘So to Speak’ podcast: Rabban and Chemerinsky on academic freedom
Our guests today signed onto a statement by a group of 18 law professors who opposed the Trump administration’s funding threats at Columbia on free speech and academic freedom grounds.
Since then, Northwestern, Cornell, Princeton, Harvard, and nearly 60 other colleges and universities are under investigation with their funding hanging in the balance, allegedly for violations of civil rights law.
To help us understand the funding threats, Harvard’s recent lawsuit against the federal government, and where universities go from here are:
David Rabban — distinguished teaching professor at The University of Texas at Austin School of Law
Erwin Chemerinsky — distinguished professor of law and dean at UC Berkeley Law.
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
Mahmoud v. Taylor (argued April 22 / free exercise case: issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.)
Thompson v. United States (decided: 3-21-25/ 9-0 w special concurrences by Alito and 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.
“Look, I get it. It doesn’t matter who he is at a private dinner with a comedian. It matters who he is on the world stage. I’m just taking it as a positive that this person exists.” – Bill Maher, recounting his dinner with President Trump, HBO
“I knew I couldn’t change his views, but we need to talk to the other side — even if it has invaded and annexed other countries and committed unspeakable crimes against humanity.” – Larry David, “My Dinner with Adolf,” The New York Times
By and large, I have long appreciated Bill Maher’s “Real Time” comic stings. Just the sort of thing that social comedy should do. In 2002, we shared a stage as recipients of a Hugh Hefner First Amendment Award. It was an honor, even though I found him rather full of himself.
That said, after watching my fill of Rachel Maddow and others, I take escapist pleasure in watching Bill slay any variety of righteous types with his comic axe. That is, until I watched the April 11 episode of “Real Time,” the one where he joked about his dinner at the White House with President Trump.
While Maher did note Trump’s attacks on him, and his counter-attacks on Trump, he did so in a way that made Trump seem like little more than a nice guy with different views. Maher normalized the man who time and again has attacked First Amendment values with authoritarian abandon — the very values Maher champions.
Ah, Bill’s dinner with Donald was so delightfully memorable: Donald was “gracious and measured.” And catch this: he’s no “crazy person,” said Maher, though he “plays a crazy person on TV.” Moreover, he’s “much more self-aware than he lets on.” He’s “just not as fucked up as I thought [he] was.”
Oh, the private Donald was so tolerant, so engaging, so rational, and so open to hearing the other side. Ya just got to get to know the guy, break bread with him, warts and all. Hell (and that’s the word), in person he is actually “measured,” even if he presents a real threat to constitutional democracy and a clear and present danger to almost every value of First Amendment law.
The folks at “Fox And Friends” loved the Maher/Trump “Kumbaya” moment, though they did not buy Maher’s private/public distinction regarding Trump’s personality. Hardly. For them, what Maher portrayed was the real Trump: “What Bill Maher saw was what the American public as a whole has come to see. . . He’s not pretending to be something he isn’t. And that’s what stood out.”
All of it made me want to puke!
“You know,” I said to my wife Susan, “I wonder what he’d say if he met Hitler and found him to be ‘gracious.’”
Cut to Tuesday morning: It’s early, and Susan says, “You gotta read this Larry David piece in the Times. It’s titled ‘My Dinner With Adolf.’ It tracks what Maher said about Trump while mocking Maher every inch of the way.”
Ok, match on!
Just as sometimes one must “fight fire with fire,” so too sometimes one must fight “comedy with comedy.” Enter Larry David. Here’s how his satiric response to Maher’s dinner with Trump opens:
Imagine my surprise when in the spring of 1939 a letter arrived at my house inviting me to dinner at the Old Chancellery with the world’s most reviled man, Adolf Hitler. I had been a vocal critic of his on the radio from the beginning, pretty much predicting everything he was going to do on the road to dictatorship. No one I knew encouraged me to go. “He’s Hitler. He’s a monster.” But eventually I concluded that hate gets us nowhere. I knew I couldn’t change his views, but we need to talk to the other side — even if it has invaded and annexed other countries and committed unspeakable crimes against humanity.
Larry David at the induction ceremony for Mary Steenburgen into the Hollywood Walk of Fame (Shutterstock.com)
And here’s how David ends his deliciously jeering counter to Maher:
Two hours later, the dinner was over, and the Führer escorted me to the door. “I am so glad to have met you. I hope I’m no longer the monster you thought I was.” “I must say, mein Führer, I’m so thankful I came. Although we disagree on many issues, it doesn’t mean that we have to hate each other.” And with that, I gave him a Nazi salute and walked out into the night.
Note to Bill: You gotta curb your enthusiasm for your “gracious” and “measured” friend. Tyranny isn’t funny, it’s evil!
Hold on! Maher got worse when Banon arrived:
Awful as his naïve Trump dinner fiasco was, I was nonetheless eager to hear Maher’s interview with Steve Bannon thereafter. When he wasn’t joking around, the good news was that Bill asked tough questions. The bad news was that, save for an opening exchange about Trump’s third-term aspirations, Maher really didn’t press Bannon every time he responded with an evasive answer. He just let it sit there and moved on to another tough question followed by more evasive answers . . . followed by “bro bonding.”
Really Bill! What the fuck happened to your strong sting, bro? You were more like a soft butterfly.
Remember:
‘60 Minutes’ producer quits over journalistic independence
Bill Owens
CBS News entered a new period of turmoil on Tuesday after the executive producer of “60 Minutes,” Bill Owens, said that he would resign from the long-running Sunday news program, citing encroachments on his journalistic independence.
In an extraordinary declaration, Mr. Owens — only the third person to run the program in its 57-year history — told his staff in a memo that “over the past months, it has become clear that I would not be allowed to run the show as I have always run it, to make independent decisions based on what was right for ‘60 Minutes,’ right for the audience.”
“So, having defended this show — and what we stand for — from every angle, over time with everything I could, I am stepping aside so the show can move forward,” he wrote in the memo, which was obtained by The New York Times.
‘60 Minutes’ has faced mounting pressure in recent months from both President Trump, who sued CBS for $10 billion and has accused the program of “unlawful and illegal behavior,” and its own corporate ownership at Paramount, the parent company of CBS News.
Paramount’s controlling shareholder, Shari Redstone, is eager to secure the Trump administration’s approval for a multibillion-dollar sale of her company to Skydance, a company run by the son of the tech billionaire Larry Ellison.”
Comments offered to FAN by Floyd Abrams and Ira Glasser
“It is deeply troubling that Bill Owens, whose leadership of ‘60 Minutes’ as its executive producer has been repeatedly honored through the years, has been obliged to resign because of pressure from the Trump Administration and ABC’s new corporate owner. It is a blow to independent journalism and a great loss to the American public.” — Floyd Abrams
“Unless the Supreme Court radically changes First Amendment law, Trump’s suit has no legal merit. If Paramount isn’t interested in defending CBS’ right to criticize public officials, it ought to sell CBS to someone who is, and stick to the entertainment business. What Edward R. Murrow and Walter Cronkite constructed, Shari Redstone [executive chairwoman of Paramount Global] is tearing down.” — Ira Glasser
Related
Coming Next Wednesday
Zick’s Resources Compilation of Executive Actions Affecting First Amendment Rights
Coming as soon as next Wednesday, Professor Stephen Solomon and his colleagues over at First Amendment Watch will launch Professor Timothy Zick’s invaluable Resources pages, replete with a comprehensive, topical, and hyperlinked set of references to virtually all of the Trump executive orders and related actions affecting free expression. This user-friendly and topic-specific resources page provides the most detailed and yet across-the-board account of what has happened within the last 100 days of this Administration in matters concerning the First Amendment.
Jury rules against Palin in defamation against The New York Times
The New York Times did not libel former Alaska Gov. Sarah Palin in a 2017 editorial that contained an error she claimed had damaged her reputation, a jury concluded Tuesday. Former Alaska Gov. Sarah Palin campaigned for the state’s U.S. House seat in 2022 with the support of President Trump. She did not win.
The jury deliberated a little over two hours before reaching its verdict. A judge and a different jury had reached the same conclusion about Palin’s defamation claims in 2022, but her lawsuit was revived by an appeals court.
Palin was subdued as she left the courthouse and made her way to a waiting car, telling reporters: “I get to go home to a beautiful family of five kids and grandkids and a beautiful property and get on with life. And that’s nice.”
FIRE fires back in Trump pollster fraud suit
“This lawsuit is, as the Bard put it, a tale ‘full of sound and fury, signifying nothing.’”
This case is built entirely on a tissue of shopworn campaign rhetoric and fever-dream conspiracy theories, yet even accepting Plaintiffs’ wild factual assertions as true, the Complaint lacks any plausible legal theory on which to grant relief. The allegations of “fraudulent news” are an affront to basic First Amendment law, and Plaintiffs continue to butcher elementary concepts like duty, reliance, causation, and damages under Iowa law. The Court should dismiss the Amended Complaint.
Arguments
Plaintiffs’ Claim That Election Polls and the News Coverage They Generate Can Be Labelled “Fraud” Unprotected by the First Amendment is Utterly Baseless.
There is No General First Amendment Exception for False Speech.
Election Polling is Not Commercial Speech and is Fully Protected Election News Coverage.
No Case Law Supports Plaintiffs’ Theory of Liability.
Plaintiffs’ Claims are Facially Deficient Under Iowa Law
Plaintiffs Fail to Plead a Cognizable ICFA Claim.
Plaintiffs Fail to Plead a Fraudulent Misrepresentation Claim.
Plaintiffs Fail to Plead a Negligent Misrepresentation Claim.
Piercing the Corporate Veil.
Conclusion
This lawsuit is, as the Bard put it, a tale “full of sound and fury, signifying nothing.” William Shakespeare, Macbeth, Act 5, Scene 5. Once you get past the groundless assertions, campaign-style hyperbole, and overheated conspiracy theories, there is nothing left. No legal basis whatsoever supports the claims, and Plaintiffs’ opposition to the motions to dismiss reveals both shocking unfamiliarity with basic concepts of First Amendment law and a disregard of the pleading requirements for fraud or misrepresentation under Iowa law. As one court summed it up in another of President Trump’s attacks on free speech: “This case should never have been brought. Its inadequacy as a legal claim was evident from the start. No reasonable lawyer would have filed it. Intended for a political purpose, none of the counts of the amended complaint stated a cognizable legal claim.” Trump v. Clinton, 653 F.Supp.3d at 1207. The Court should dismiss this case with prejudice.
Attorneys for Defendants J. Ann Selzer, and Selzer & Company: Robert Corn-Revere, Conor T. Fitzpatrick, Greg H. Greubel, and Matthew A. McGuire
School district ordered to pay attorney fees to censored parent
Bret Nolan (Federalist Society)
A federal judge has ordered that the Sheridan County (WY) School District must pay attorneys’ fees following a lawsuit with Harry Pollak, a parent censored during a 2022 school board meeting
Following a lengthy legal dispute, the United States District Court for the District of Wyoming has awarded attorneys’ fees totaling $156,000 to the litigation team representing Harry Pollak of Sheridan County. Mr. Pollak was represented by Institute for Free Speech Senior Attorney Brett Nolan and local counsel Seth Johnson.
Mr. Pollak initially filed suit against the Sheridan County School District in March 2022 after he was cut off from speaking from speaking critically about the superintendent at a school board meeting. The board cited a policy against discussing “personnel matters” as the reason for censoring him, and it called the police to escort him out of the building.
Last fall, the district court ruled in favor of Mr. Pollak, declaring that the school board violated his First Amendment rights and awarded him nominal damages of $17.91 (a symbolic amount referring to the year the First Amendment was ratified). The court also permanently enjoined the board from enforcing its policy to prevent speakers like Mr. Pollak who want to criticize school staff by name.
[ . . . ]
To read the full fees order, Pollak v. Wilson, et al., click here.
Mchangama and Marami on deportation and dissent
The Trump administration is invoking a clause of the Immigration and Nationality Act of 1952 that allows the Secretary of State broad discretion to deport anyone he believes “would have potentially serious adverse foreign policy consequences for the United States.” As such, a recently released memo detailing the government’s case against the most prominent of the activists, Mahmoud Khalil, refrains from charging him with any crime. On Friday, a Louisiana immigration judge upheld the Government’s decision to deport Khalil. Constitutional scholars debate whether and to what extent the First Amendment protects noncitizens in such cases, and the Supreme Court may eventually weigh in.
But the question is not only constitutional — it is foundational. Is deporting foreigners for expressing disfavored views compatible with a robust commitment to a culture of free speech?
As it turns out, history has a lot to tell us about states that exclude foreigners with controversial opinions and those that welcome non-native dissenters.
[ . . . ]
From Zenger to Hitchens, from Abrams to Arendt, it has often been immigrants who tested the boundaries of the First Amendment — and in doing so, helped define its meaning. To now deport people for unpopular opinions is not merely a constitutional gray zone. It is a betrayal of the very idea that truth and progress emerge from argument, not conformity.
Silencing foreign voices won’t make America safer. It will make it smaller and less resilient. A confident, free nation doesn’t banish speech — it engages it.
The odd couple: Franks and Corn-Revere in dialogue (and debate) at Brooklyn Law School event
FIRE Chief Counsel Robert Corn-Revere (left) and Professor Mary Anne Franks
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
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
Mahmoud v. Taylor (Free exercise case — Issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.)
Thompson v. United States (Decided: 3-21-25/ 9-0 w special concurrences by Alito and 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.
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.
