Imagine the government forcing you to label your
all-natural milk product as “imitation.”
Florida tried to make one dairy farm do just that,
sparking a First Amendment question: Where’s the line between a
business’s right to speak and protecting consumers from
deception?
In this episode, we explore how far free speech
protections go for commercial speech with:
Timestamps:
00:00 Intro
05:03 What exactly is commercial speech?
08:25 The evolution of commercial speech law
13:59 Early regulation of commercial speech
23:03 What is false or misleading commercial
speech?
26:04 Controversial regulations of non-misleading
commercial speech
On Monday, August 11th at 4 p.m. Eastern Time, Nico
will be speaking with former Treasury Secretary/Harvard University
president,
Larry Summers, and FIRE President/CEO,
Greg Lukianoff. They will discuss the Trump
administration’s campaign against elite universities, including
Harvard, what outcomes we can expect from that campaign, and what
those outcomes might mean for free speech, academic freedom, and
university independence.
Enjoy listening to the podcast? Donate to FIRE today and
get exclusive content like member webinars, special episodes, and
more. If you became a FIRE Member
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ALLENTOWN, Pa., July 23, 2025 — In a bizarre scene, a police officer in Allentown, Pennsylvania, drove his patrol cruiser down a sidewalk at a man who was protesting police misconduct by filming outside a police station.
Today the Foundation for Individual Rights and Expression filed a lawsuit defending Phil Rishel’s rights to film and criticize police activity in public spaces — behavior that is protected by the First Amendment — without being assaulted or retaliated against for doing so.
“The retaliation over my speech confirms that there is a huge issue with the culture of the Allentown Police Department,” said Phil. “These officers have a disdain for the rights of the people they’re sworn to protect — and I hope my lawsuit changes things for the better.”
Since 2015, the City of Allentown, Pennsylvania, has paid at least $2 million related to claims of police misconduct. In 2023, Phil began protesting in Allentown by non-disruptively recording police activity while standing on public sidewalks outside local police precincts.
On March 26, 2024, Phil went to the Hamilton Street police station, where he stood on a public sidewalk and recorded what he could see in plain view. Approximately 15 minutes after he arrived, an officer approached him and briefly paused while looking at a “No Trespassing” sign. Phil responded, “Yeah, that’s a nice sign. Too bad it doesn’t apply to the public sidewalk.” The officer then silently walked away from Phil into the depths of the garage and up a vehicle ramp. Phil called out after him about his disregard of a sign next to the ramp that read: “PEDESTRIANS MUST USE STAIRS ONLY.”
About 10 minutes later, the officer drove his patrol car out of the garage and sharply turned onto the sidewalk towards Phil while blaring the siren. The officer pursued him down the sidewalk, even driving around a lamppost in his way and back onto the sidewalk to chase Phil. The officer then exited the car, went into the office, and emerged with a police sergeant. They accused Phil of loitering and banned him from the public sidewalk under threat of arrest.
The next day, Phil returned to the same public sidewalk outside the Hamilton Street station’s parking garage and picked up where he left off, recording police activity in plain view. The same sergeant threatened to arrest him for returning and told him that filming the police “is not a First Amendment right,” while also claiming that Phil’s profanity the previous day constituted disorderly conduct. Ultimately, he charged Phil with disorderly conduct and loitering via a criminal citation sent in the mail.
At the hearing on the criminal charge, the sergeant testified that Phil was in an area closed for construction and blocked pedestrian traffic and the parking garage entrance, but none of this was true, as shown by the video Phil took that day. Based on the sergeant’s testimony, the court found Phil guilty on the loitering charge, although the conviction was reversed on appeal. The disorderly conduct charge was dismissed by the lower court based on longstanding Pennsylvania case law.
The First Amendment protects citizens’ right to film police officers and their activities. It also protects individuals who verbally criticize police and their actions, even by cursing or using profane language.
FIRE’s lawsuit seeks to enforce these established constitutional rights for Phil and other Allentown citizens. The complaint seeks a declaration that the Allentown police violated First Amendment rights, an injunction against the City of Allentown for failing to provide adequate training to its police officers about protecting and respecting First Amendment rights, and an award of damages to Phil for the treatment he received.
“Citizens trying to hold police officers accountable should not be punished,” said FIRE attorney Zach Silver. “Public officials, including police officers, must uphold the law and respect citizens’ right to record police and to use harsh language, not bully them into silence.”
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.
This June, high school students from across the country assembled in our nation’s capital to offer a glimpse of one of the most important things in America — the future of the First Amendment.
Held at American University in Washington, D.C., FIRE’s Free Speech Forum mixed big ideas with bigger conversations, bringing together 200 high schoolers to explore, deepen, and celebrate their interest in free speech. Thanks to the collaborative efforts of our generous donors, dedicated staff, enthusiastic counselors, and our incredible students, the forum was a resounding success, leaving us with a feeling of immense pride and a renewed belief in the power of young voices to shape the future of free expression.
Throughout the week-long event, students had the opportunity to hear from world-renowned free speech advocates, engage in respectful discussions with their peers on pressing political issues, and explore the capital’s treasure trove of historic landmarks. But as one student remarked, the main highlight was simply “being around others who are also interested in civil discourse!”
The conference kicked off in earnest with a keynote address by musician and activist Daryl Davis, who is known for convincing members of the Ku Klux Klan to renounce the group. Davis captivated the audience with his tales of attending KKK rallies as a black man, bringing Klan leaders inside his home for interviews, and even walking one Klansman’s wife down the aisle at her wedding. Through his commitment to civil dialogue, Davis has persuaded dozens of Klan officials to abandon their racist beliefs, and continues to inspire future generations of free speech advocates.
As one student reflected, “Opening with Daryl Davis made a big impact because it forced us to consider if this man can hear this hateful speech and still believe in free expression, then we should be able to do so as well.”
WATCH VIDEO: An accomplished blues musician, Daryl Davis has dedicated decades of his life to a mission that defies conventional wisdom. Through the transformative power of conversation, Davis fearlessly takes on the challenging task of convincing members of the Ku Klux Klan and other extremist groups to renounce their deep-seated bigotry.
Students also had the opportunity to meet former congressman and FIRE advisory councilmember Justin Amash during a live taping of FIRE Executive Vice President Nico Perrino’s So to Speak podcast. Campers thoughtfully engaged the former representative with questions about his time in office and his future political aspirations.
Capping off our keynote speakers for the week was Mary Beth Tinker, the plaintiff in the landmark Supreme Court decision Tinker v. Des Moines (1969). In 1965, Tinker and her brother wore black armbands in protest of the Vietnam War and were subsequently punished under the school’s code of conduct. Tinker’s victory in the Supreme Court paved the way for generations of students to enjoy greater First Amendment rights in the classroom. Tinker gave students an inspiring testimony about advocating for expression and taking an active role in defending causes you believe in. Her legendary story and lifelong dedication to public service was a striking reminder of students’ power to make an impact on a national scale.
During the week, students learned the “dos and don’ts” of productive civil discourse, how to engage with opposing perspectives, the fundamentals of First Amendment case law, and how to connect and network with their peers in ways that foster lifelong personal and professional relationships. Breakout sessions like our model debate tournament gave students the chance to think on their feet and work together to form cohesive arguments about a variety of topics. In the session titled “Protected vs. Unprotected,” students tested their critical thinking skills by analyzing potential real-world speech scenarios and determining their protected status under the First Amendment.
Free Speech Forum attendees and counselors explore the Supreme Court building in Washington, D.C.
As the week progressed, it became clear that whether it was a lively discussion in the dining hall, a spirited debate on the walk to sessions, or the inquisitive questions posed to our speakers, students were engaged and used each opportunity to learn and mold their own perspectives, all while keeping an open mind and a curious attitude. One student said one of the things that most influenced their view on free speech was the “different debates and conversations we had amongst ourselves — on topics not everyone agreed with.”
In addition, students had the chance to explore their nation’s capital beyond American’s campus, venturing to some of D.C.’s iconic museums and federal buildings. The National Archives, Library of Congress, Supreme Court, and Capitol Building each played host to scores of forum attendees, who supplemented their First Amendment education by standing at the sites where America’s enduring commitment to free speech has been cemented.
And in true FIRE fashion, students who debated fervently in the classroom still managed to become friends outside of it. We would be remiss not to mention the impromptu piano sing-along during our game night when counselors and campers alike started belting out Ed Sheeran and Bruno Mars hits. The Free Speech Forum talent show was no snoozer either, featuring speed cubing, magic tricks, and cohort acapella. The show was capped off with a group of students presenting a new FIRE flag representing the forum’s transformative impact on our campers.
“My daughter had an incredible experience,” one parent commented. “She particularly appreciated the chance to connect with other like-minded students from diverse backgrounds.” The parent added, “My daughter left the program feeling more confident in her ability to advocate for causes she cares about and to contribute to open, respectful dialogue.”
It’s no surprise our Saturday dismissal was accompanied by teary goodbyes, the exchanges of contact information, and promises to stay in touch. We as interns hope students take what they learned at the conference to their communities and campuses, advocating for an America in which no one fears the censorious axe of the government, and in which political differences are resolved with mutually respectful discourse.
In Free Speech Coalition v. Paxton, the U.S. Supreme Court broke new ground in applying relaxed First Amendment scrutiny to state-imposed burdens on lawful adult access to obscene-for-minors content. The decision appeared outcome-driven to uphold laws that require websites with specified amounts of sexually explicit material to verify users’ ages. However, the Court indicated the holding applies only “to the extent the State seeks only to verify age,” such that, if handled in a principled manner, FSC v. Paxton should have relevance only for speech to which minors’ access may be constitutionally restricted.
FSC v. Paxton involved Texas HB 1181’s mandate that online services use “reasonable age verification methods” to ensure those granted access are adults if more than a third of the site’s content is “sexual material harmful to minors,” which the Court treated as content First Amendment law defines as “obscene for minors.” If an adult site knowingly fails to age-verify, Texas’ attorney general may recover civil penalties of up to $10,000 per day, and $250,000 if a minor actually accesses pornographic content. HB 1811 is one of over 20 state adult-content age-verification laws recently passed or enacted.
Obscenity is among the few categories of speech the First Amendment doesn’t protect. In 1973’s Miller v. California, the Court defined obscenity as speech that (1) taken as a whole appeals primarily to a “prurient interest” in sex (i.e., morbid, unhealthy fixation with it); (2) depicts or describes sexual or excretory conduct in ways patently offensive under contemporary community standards; and (3) taken as a whole, lacks serious literary, artistic, political, or scientific value. The Court has limited the test’s scope to what it calls “hardcore pornography.” Material that is “obscene for minors” is that which satisfies the Miller test as adjusted to minors. Sexually explicit material can thus be obscene for minors but fully protected for adults.
Under these tests, the government may ban obscene speech and restrict access by those under 18 to speech that is “obscene for minors,” but it cannot cut off adults’ access to non-obscene sexual material.
It’s long been accepted that, to access adult, potentially obscene-for-minors material in the physical world, showing identification to prove age may be required. So, a law requiring ID to access such content online might seem analogous on its face.
But online age-verification imposes risks physical ID checks do not. An adult bookstore clerk doesn’t save a photocopy of your license or track the content you access. Nor will hackers, therefore, try to access the ID. These are just some of the reasons surveys consistentlyshow a majority of Americans do not want to provide ID to access online speech — whether adult material or other content, like social media.
Texas’ HB 1181 is similar to two federal statutes the Supreme Court invalidated around the turn of the millennium. In 1997, the Court in Reno v. ACLU unanimously struck down portions of the Communications Decency Act that criminalized transmitting “obscene or indecent” content. And in 2002’s Ashcroft v. ACLU, it considered whether the Child Online Protection Act violated the First Amendment in seeking to prevent children’s access to “material harmful to minors” in a way that incorporated age verification.
For decades, the Court has held statutes that regulate speech based on its content must withstand judicial review under strict scrutiny, which requires the government to demonstrate that the law is necessary to serve a compelling government interest and is narrowly tailored to achieve it using the “least restrictive means.” For laws restricting access to online speech, the Court held the laws in Reno and Ashcroft unconstitutional because they failed strict scrutiny. These cases followed in the footsteps of Sable Communications vs. FCC (1989) and United States v. Playboy (2000), in which the Court applied strict scrutiny to invalidate laws governing adult material transmitted by phone and on cable television stations, respectively.
But in FSC v. Paxton, the Court subjected Texas’ age-verification law for online adult content to only intermediate scrutiny. Under this standard of review, a speech regulation survives if it addresses an important government interest unrelated to suppression of speech, directly advances that interest in a direct and material way, and does not burden substantially more speech than necessary. The Court justified applying a lower level of scrutiny on the ground that minors have no First Amendment right to access speech that is obscene to them. Accordingly, it reasoned, even if adults have the right to access “obscene for minors” material, it is “not fully protected speech.” From there, the Court concluded that “no person — adult or child — has a First Amendment right to access speech that is obscene to minors without first submitting proof of age.” And it upheld the Texas law under intermediate scrutiny, concluding the regulations only incidentally restrict speech that can be accessed by adults.
The upshot is, going forward, it will be easier to justify laws restricting minors’ access to off-limits expression even if the law burdens adults’ access to material that is otherwise lawful for them.
At the same time, the majority opinion sought to limit the type of content that can be restricted only to material that meets the legal definition of “obscene-for-minors” material, and not anything that might be considered generally inappropriate.
As the Court held in Brown v. Entertainment Merchants Assn. (2011), “minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.” And in Reno, which involved similar attempts to limit provision of online content to minors, the Court held the government could not ban “patently offensive” and “indecent” (but not obscene) material for everyone in the name of protecting children.
Free Speech Coalition should not be read as approving age verification laws for online speech generally that do not specifically target “obscene for minors” material. Its narrow focus will not support the recent spate of social media age-verification laws that have met significant judicial disapproval. Such laws have been enjoined in Arkansas, Mississippi, California, Utah, Texas, Ohio, Indiana, Florida, and most recently last week, when a federal court held Georgia’s version “highly likely [to] be unconstitutional” because it interferes with minors’ rights “to engage in protected speech activities.”
The risk, of course, is that governments will seek to leverage FSC v. Paxton decision beyond its limited holding, and/or that lower courts will misuse it, to justify prohibiting or regulating protected speech other than that obscene as to minors. In defending laws that implicate the First Amendment, the government often argues it is regulating only conduct, or unprotected speech, or speech “incidental” to criminal conduct.
Courts for the most part have seen through these attempts at evasion, and where a speech regulation applies based on topic discussed or idea or message expressed, or cannot be justified without reference to its function or content, courts apply strict scrutiny. Under FSC, however, would-be regulators have another label they can use — “partially protected speech” — and the hope that invoking it will lead to intermediate scrutiny.
Only time will tell if the Court will keep the starch in its First Amendment standards notwithstanding what should be the purple cow of FSC v. Paxton.
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]
Beginning next week, First Amendment News (FAN) will be moving to Substack. Be sure to sign up and follow us there for future installments!
“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.
