At the same time, we asked OCR to give colleges additional guidance so they have a better idea of what type of speech or conduct might run afoul of its “Dear Colleague” letter. OCR has not yet done so, and with the compliance deadline set for tomorrow, we fear institutions will over-correct and engage in campus censorship.
In fact, we’ve already seen evidence of exactly that.
Grand View University in Iowa, for instance, reportedly cancelled its planned International Women’s Day activities, allegedly to comply with federal DEI directives. This, even though Bondi’s Feb. 6 memo exempts “educational, cultural, or historical observances — such as Black History Month, International Holocaust Remembrance Day, or similar events — that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination.”
This type of overcompliance — in this case, cancelling activities or events that are expressly exempted from enforcement — unnecessarily degrades the extracurricular educational environment at higher education institutions and harms the student learning experience.
As we said last week: OCR is bound by the First Amendment and cannot order or compel colleges and universities to violate it. If there is a conflict between federal guidance and the First Amendment, the First Amendment prevails. Whether institutions are overcomplying out of fear of losing federal funding, or in an attempt to prove a point about the directive’s vague language, colleges and universities like Grand View must not preemptively shut down speech.
OCR’s new Title VI letter: FIRE’s analysis and recommendations
News
The Department of Education should provide more clarity about its ‘Dear Colleague Letter’ to ensure protected speech isn’t censored on campus.
This isn’t the first time institutions have overread government directives to justify censorship. In 2021, for example, Idaho passed the “No Public Funds for Abortion Act.” In implementing the bill, the University of Idaho demanded that faculty not “promote or advocate in favor of abortion” or discuss “abortion or contraception” in classroom conversations unless they remained “neutral.” FIRE wrote to the university explaining that such a reading was flatly at odds with the First Amendment. In a thorough memorandum, Idaho Attorney General Raúl Labrador agreed, explaining that the “plain text of the Act does not prohibit public university employees from engaging in speech relating to academic teaching and scholarship that could be viewed as supporting abortion,” thus ending that censorship policy at the University of Idaho.
In that same vein, OCR cannot force schools to violate the First Amendment, a point we’ve hammered since the Obama-era OCR’s “Dear Colleague” letters forced institutions to adopt harassment policies that did exactly that.
OCR must be clear about the type of conduct that runs afoul of its new directives so that institutions are on notice about what’s permissible and what is prohibited. The office has yet to address vagueness in the “Dear Colleague” letter about “institutional programming” that might violate Title VI. That silence is creating a lot of confusion and preemptive censorship, especially when paired with President Trump’s Jan. 21 executive order declaring that government contractors — which includes many institutions of higher education — cannot “operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.”
FIRE again urges institutions to hold the line on defending the free speech and academic freedom rights of their students and faculty. And we again ask OCR and the federal government to respect those same rights by immediately clarifying that their directives don’t require colleges and universities to violate those well-established rights.
Last week, a federal court enjoined two executive orders — including the Jan. 21 executive order — that prohibit, among other things, “promoting DEI” in violation of federal anti-discrimination law. The district court held the orders violate the First and Fifth Amendments because they discriminate on the basis of viewpoint and content, and are unconstitutionally vague.
While the government will likely appeal and we won’t know the final resolution for some time, the court’s analysis properly identified the orders’ ambiguity as a damning constitutional flaw. What, precisely, constitutes “promoting DEI” in ways that violate anti-discrimination laws? Can colleges host or sponsor speakers on DEI-related topics? Can institutions advertise DEI-related coursework or promote academic research? Restrictions on these activities would violate the First Amendment, but government attorneys were unable to clarify the meaning of the order when asked by the judge. Precision matters, especially when it comes to restrictions on expression. Vague pronouncements that sweep in protected debate, discussion, and programming raise constitutional and practical problems.
The best way forward for colleges is obvious, even if it might not be easy: Irrespective of the federal DEI directives, ditch speech-restrictive, orthodoxy-enforcing DEI bureaucracies and stand up for free expression and academic debate — in every political season.
As Len Gutkin, editor at The Chronicle of Higher Education, recently wrote: “Colleges should draw a sharp distinction between, on the one hand, DEI used in hiring, promotion, and training, and, on the other, curricular and disciplinary offerings.”
That’s the right balance. FIRE again urges institutions to hold the line on defending the free speech and academic freedom rights of their students and faculty. And we again ask OCR and the federal government to respect those same rights by immediately clarifying that their directives don’t require colleges and universities to violate those well-established rights.
The Wall Street Journal recently published an op-ed by former Ninth Circuit Judge Alex Kozinski in which he, among other things, praises Vice President JD Vance’s recent speech in Munich about the evils of censorship in Europe — which included references to Kozinski’s birthplace, Romania.
Judge Alex Kozinski
True to form, the Kozinski article was bold in ways certain to provoke criticism. Below are a few “fair use” excerpts:
JD Vance’s speech to the Munich Security Conference . . . mentioned the Romanian election twice and held it up as a cautionary tale of what can happen to societies that seek to coerce rather than persuade, suppress rather than debate.
Could American elections be canceled next? Some states came close in 2024 by attempting to remove from their ballots the candidate who eventually won the presidency. There was no uproar; the Supreme Court had to intervene. . . If enough panic is stirred up, canceling elections isn’t inconceivable.
Our legacy media have greeted Mr. Vance’s speech largely with disdain and horror. They are wrong. The speech is epic. It reminds Europeans and Americans that the values of the Enlightenment, as captured in our Constitution—not least the right to think, speak and debate freely—are the glue that binds us together. If we don’t defend those values, there isn’t much left worth defending.
Related
Missouri Attorney General Andrew Bailey announced today that the United States District Court for the Western District of Louisiana granted his motion to block top officials in the federal government from continuing to violate the First Amendment rights of millions of Americans. The judge’s ruling is 155 pages long and includes 721 footnotes.
The judge had harsh words for the federal officials. He noted that this is “the most massive attack against free speech in United States’ history,” that the Biden administration has “blatantly ignored the First Amendment’s right to free speech,” and that the Biden administration “almost exclusively targeted conservative speech.”
Attorney General Bailey’s motion for preliminary injunction, which he filed with Louisiana Attorney General Jeff Landry, highlighted over 1,400 facts from more than 20,000 pages of evidence exposing the vast censorship enterprise coordinated across multiples [SIC] agencies within the federal government. [reversed on standing grounds in Murthy v. Missouri (2024)]
SCOTUS denies review in ‘buffer zone’ abortion clinic protest cases
Below are a few excerpts from Justice Thomas’ dissent:
It is unclear what, if anything, is left of Hill. As lower courts have aptly observed, Hill is “incompatible” with our more recent First Amendment precedents. Price v. Chicago, 915 F. 3d 1107, 1117 (CA7 2019) (opinion of Sykes, J., joined by Barrett, J.). Start with McCullen v. Coakley, 573 U. S. 464 (2014). There, this Court unanimously held unconstitutional a Massachusetts law that prohibited anyone from entering a 35-foot buffer zone around an abortion facility. Id., at 471– 472, 497. In doing so, the Court determined that the law was content neutral because—rather than targeting certain kinds of speech such as protest, education, and counseling—the law prohibited virtually any speech within the buffer zone. Id., at 479. The Court made clear, however, that the law “would be content based if it required ‘enforcement authorities’ to ‘examine the content of the message’” to determine whether the law applied. Ibid. That position is irreconcilable with Hill, which the Court did not even bother to cite.
Hill is likewise at odds with Reed v. Town of Gilbert, 576 U. S. 155 (2015). Reed involved a First Amendment challenge to a town’s sign code that regulated various categories of signs based on “the type of information they convey.” Id., at 159. Relying on Hill, the Ninth Circuit concluded that the sign code was content neutral, reasoning that the town “‘did not adopt its regulation of speech because it disagreed with the message conveyed’” and its “‘interests in regulat[ing] temporary signs are unrelated to the content of the sign.’” 576 U. S., at 162. That court then applied a lower level of scrutiny and upheld the code. Ibid. We reversed, holding that a speech regulation is content based—and thus “presumptively unconstitutional”—if it “draws distinctions based on the message a speaker conveys.” Id., at 163.
Our post-Reed decisions have firmly established Hill’s diminished status. In City of Austin, for example, the majority ran as far as it could from Hill, even though Hill was the one “case that could possibly validate the majority’s aberrant analysis” on the constitutionality of restrictions on bill-board advertising. 596 U. S., at 86, 102 (opinion of THOMAS, J.). The majority nonetheless insisted that any alleged similarity was “a straw man,” rejecting the notion that its opinion had “‘resuscitat[ed]’” Hill, and reminding readers that it did “not cite” the decision at all. 596 U. S., at 76. Our latest word on Hill—expressed in a majority opinion joined by five Members of this Court—is that the decision “distorted [our] First Amendment doctrines.” Dobbs, 597 U. S., at 287, and n. 65. If Hill’s foundation was “deeply shaken” before Dobbs, see Price, 915 F. 3d, at 1119, the Dobbs decision razed it.
[ . . . ]
Hill has been seriously undermined, if not completely eroded, and our refusal to provide clarity is an abdication of our judicial duty.
Defendants’ motion to dismiss complaint in Iowa pollster ‘fraud’ case
The plaintiffs “can no more sue a newspaper pollster for diverted resources than a farmer could sue a TV weatherman for crop damage due to unexpected frost.”
Below are a few excerpts from the motion to dismiss in Trump v. Selzer(US Dist. Ct., S. Dist., Iowa, Case 4:24-cv-00449-RGE-WPK: Feb. 21) (Robert Corn-Revere, lead counsel for Defendants):
Robert Corn-Revere, lead counsel for Defendants.
Introduction
Plaintiffs’ claims are barred by the First Amendment and the Court should dismiss them with prejudice. In the United States there is no such thing as a claim for “fraudulent news.” No court in any jurisdiction has ever held such a cause of action might be valid, and few plaintiffs have ever attempted to bring such outlandish claims. Those who have were promptly dismissed. [citations]
There is good reason for this. History’s judgment repudiated the 1798 Sedition Act which prohibited “false, scandalous and malicious . . . writings against the government of the United States” or its president, and that fraught episode “first crystallized a national awareness of the central meaning of the First Amendment.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 273 (1964). Since then, courts at all levels have confirmed our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” id. at 270, holding that speech is presumptively protected unless it falls within one of a few limited and narrowly defined categories. United States v. Stevens, 559 U.S. 460, 468–70 (2010). Those categories do not include a general exception for “false speech,” United States v. Alvarez, 567 U.S. 709, 722 (2012).
Plaintiffs seek to illegitimately expand them to include “fake news,” a tag line that may play well for some on the campaign trail but has no place in America’s constitutional jurisprudence. In this regard, civil damages, no less than criminal sanctions, cannot lie against protected speech. Snyder v. Phelps, 562 U.S. 443 (2011); Sullivan, 376 U.S. at 277.
Even if such a cause of action existed, the Amended Complaint is fatally flawed on every level: Plaintiffs fail at the threshold to allege any recoverable damages, and do not state plausible claims, either on the law or on the facts as alleged. No court has ever accepted claims like these, and this Court should not be the first.
[ . . . ]
Plaintiffs Illegitimately Seek to Create a New First Amendment Exception.
Mr. Trump and his co-plaintiffs assume “false news” falls outside the First Amendment’s protection, but over 200 years of American free speech law and practice prove otherwise.
“Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth—whether administered by judges, juries, or administrative officials—and especially one that puts the burden of proving truth on the speaker.” Id. at 271.
As the Supreme Court recently explained, “[o]ur constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.” Alvarez, 567 U.S. at 723.
“From 1791 to the present . . . the First Amendment has permitted restrictions upon the content of speech in a few limited areas, and has never include[d] a freedom to disregard these traditional limitations.” Stevens, 559 U.S. at 468 (cleaned up). These “historic and traditional categories long familiar to the bar” include obscenity, child pornography, defamation, fraud, incitement, fighting words, and speech integral to criminal activity. Id. (cleaned up) (collecting cases). Former Justice Souter observed that “[r]eviewing speech regulations under fairly strict categorical rules keeps the starch in the standards for those moments when the daily politics cries loudest for limiting what may be said.” Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 774 (1996) (Souter, J., concurring). Consequently, the Court steadfastly resists efforts to increase or expand the boundaries of these categories as “startling and dangerous” and has rejected any “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.” Stevens, 559 U.S. at 470, 472.
Plaintiffs try to shoehorn their claims into an existing category by calling the Iowa Poll “fake” and asserting actionable “fraud” occurred. But “in the famous words of Inigo Montoya from the movie The Princess Bride, ‘You keep using that word. I do not think it means what you think it means.’” [citation] As a matter of basic law, Plaintiffs’ allegations about polls and news stories they dislike have nothing to do with fraud. [reference] I.B. They also sprinkle the complaint with loose talk of “election interference,” [citation], although they stop short of including a separate claim on that basis, perhaps out of awareness that “no court has held that a scheme to rig an election itself constitutes money or property fraud.” [citation]
Categories of unprotected speech are defined by precise legal tests, and Plaintiffs cannot stretch those boundaries to serve a political narrative. The Supreme Court routinely rejects attempts to broaden those limits based on assertions that the speech at issue is somehow “like” a recognized exception. See, e.g., Stevens, 559 U.S. at 470–71 (Other “descriptions are just that— descriptive. They do not set forth a test that may be applied as a general matter . . . .”); Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 793–96 (2011) (rejecting “attempt to shoehorn speech about violence into obscenity,” citing a lack of “longstanding tradition in this country” restricting such speech); Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 55–56 (1988) (rejecting bid to leave “outrageous” speech unprotected because it “does not seem to us to be governed by any exception to the . . . First Amendment”); Alvarez, 567 U.S. at 721–22 (“The Government has not demonstrated that false statements . . . should constitute a new category of unprotected speech” based on a “tradition of proscription.”) (quotation omitted).
Because the categories are governed by history and tradition, the Plaintiffs could not have chosen a worse candidate for inclusion than “fake news.” America’s first experience with prohibiting false news — the Sedition Act of 1798 — expired under its own terms, and all fines assessed under that misbegotten law were remitted. President Thomas Jefferson denounced it as an unconstitutional “nullity, as absolute and palpable as if Congress had ordered us to fall down and worship a golden image.” Sullivan, 376 U.S. at 272–76. While the Supreme Court never adjudicated the Sedition Act’s attempt to punish “false” writings about public officials, “the attack upon its validity has carried the day in the court of history,” defined “the central meaning of the First Amendment,” id., and conditioned “the fabric of jurisprudence woven across the years.” [citation]
Plaintiffs’ quest to punish “fake news” not only ignores this history, it also fumbles the conceptual basis for unprotected speech categories, which the Court first described as speech “of slight social value.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). Here, Plaintiffs seek to create a new First Amendment exception for speech that has always received the highest level of constitutional protection — political speech and commentary. In a word, it just doesn’t fit.
The Supreme Court has repeatedly reaffirmed that the First Amendment “‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.” Citizens United v. FEC, 558 U.S. 310, 339 (2010) (citation omitted). Speech about the political process is “at the core of our First Amendment freedoms,” Republican Party of Minn. v. White, 536 U.S. 765, 774 (2002), because a “major purpose” of the First Amendment was to protect “free discussion of . . . candidates.” Mills v. Alabama, 384 U.S. 214, 218 (1966). Accordingly, the “First Amendment affords the broadest protection” to “[d]iscussion of public issues and debate on” the political process. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346 (1995) (citation omitted). Political polling is “speech protected by the First Amendment” both because it “requires a discussion between pollster and voter” and the resulting poll itself “is speech.” [citation]
The First Amendment accords speech in this area wide berth because “erroneous statement[s] [are] inevitable in free debate, and [they] must be protected if the freedoms of expression are to have the breathing space that they need to survive.” Sullivan, 376 U.S. at 271– 72 (cleaned up). Efforts to regulate “truth” in political commentary are thus presumptively unconstitutional and subject to strict scrutiny. [citations] Bottom line, political polls and news reports are not the stuff of which First Amendment exceptions are made.
Related
The Associated Press sues Trump administration
The Associated Press sued three Trump administration officials Friday over access to presidential events, citing freedom of speech in asking a federal judge to stop the 10-day blocking of its journalists.
[ . . . ]
The AP says its case is about an unconstitutional effort by the White House to control speech — in this case refusing to change its style from the Gulf of Mexico to the “Gulf of America,” as President Donald Trump did last month with an executive order. “The press and all people in the United States have the right to choose their own words and not be retaliated against by the government,” the AP said in its lawsuit, which names White House Chief of Staff Susan Wiles, Deputy Chief of Staff Taylor Budowich and Press Secretary Karoline Leavitt.
Emergency hearing request and motion in opposition
Associated Press v. Budowich(Dist. Ct., Dist. of Col., Feb. 24, (case No. 25-0532 (TNM)) (Edward R. Martin, Jr., US Atty., Defendants’ Opposition to Plaintiff’s Motion for a Temporary Restraining Order))
Forthcomingscholarly article: Lakier & Douek on stalking and the First Amendment
Professors Genevieve Lakier (left) and Evelyn Douek (right)
In Counterman v. Colorado, the Supreme Court decided an imaginary case. It held that Billy Ray Counterman’s conviction could not stand because it did not meet the First Amendment requirements for prosecutions based on threats. But this is puzzling because Counterman was not in fact convicted for making threats. He was convicted of stalking, under a law that does not require that the defendant threaten anyone in order to be guilty of the crime.
This Article argues that the Supreme Court’s confusion about the most basic facts of the case was not an aberration but instead reflects broader pathologies in First Amendment jurisprudence. These pathologies are a consequence of the impoverished view of the First Amendment’s boundaries depicted in the Court’s recent decisions, which suggest that the First Amendment’s doctrinal terrain can be described by a simple list of historically unprotected categories.
This thin account of the First Amendment, and the doctrinal distortions it creates, are not inevitable, however. The Article argues for an alternative, more multi-dimensional approach to the question of the First Amendment’s boundaries — one that rests on a richer understanding of the traditions of speech regulation in the United States — and sketches out its implications for the law of stalking and, potentially, many other areas of free speech law. Courts do not need to deny the facts of the cases they adjudicate to craft a First Amendment jurisprudence that is doctrinally coherent, historically informed, and normatively desirable.
‘So to Speak’ podcast: Corn-Revere and London on censorship at home and abroad
From JD Vance’s free speech critique of Europe to the Trump administration barring the Associated Press from the Oval Office, free speech news is buzzing. General Counsel Ronnie London and Chief Counsel Bob Corn-Revere unpack the latest developments.
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 (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
Last scheduled FAN
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.
“Censorship” built into rapidly growing generative artificial intelligence tool DeepSeek could lead to misinformation seeping into students’ work, scholars fear.
But with students likely to start using the tool for research and help with assignments, concerns have been raised that it is censoring details about topics that are sensitive in China and pushing Communist Party propaganda.
When asked questions centering on the 1989 Tiananmen Square massacre, reports claim that the chat bot replies that it is “not sure how to approach this type of question yet,” before adding, “Let’s chat about math, coding and logic problems instead!”
When asked about the status of Taiwan, it replies, “The Chinese government adheres to the One China principle, and any attempts to split the country are doomed to fail.”
Shushma Patel, pro vice chancellor for artificial intelligence at De Montfort University—said to be the first role of its kind in the U.K.—described DeepSeek as a “black box” that could “significantly” complicate universities’ efforts to tackle misinformation spread by AI.
“DeepSeek is probably very good at some facts—science, mathematics, etc.—but it’s that other element, the human judgment element and the tacit aspect, where it isn’t. And that’s where the key difference is,” she said.
Patel said that students need to have “access to factual information, rather than the politicized, censored propaganda information that may exist with DeepSeek versus other tools,” and said that the development heightens the need for universities to ensure AI literacy among their students.
Thomas Lancaster, principal teaching fellow of computing at Imperial College London, said, “From the universities’ side of things, I think we will be very concerned if potentially biased viewpoints were coming through to students and being treated as facts without any alternative sources or critique or knowledge being there to help the student understand why this is presented in this way.
“It may be that instructors start seeing these controversial ideas—from a U.K. or Western viewpoint—appearing in student essays and student work. And in that situation, I think they have to settle this directly with the student to try and find out what’s going on.”
However, Lancaster said, “All AI chat bots are censored in some way,” which can be for “quite legitimate reasons.” This can include censoring material relating to criminal activity, terrorism or self-harm, or even avoiding offensive language.
He agreed that “the bigger concern” highlighted by DeepSeek was “helping students understand how to use these tools productively and in a way that isn’t considered unfair or academic misconduct.”
This has potential wider ramifications outside of higher education, he added. “It doesn’t only mean that students could hand in work that is incorrect, but it also has a knock-on effect on society if biased information gets out there. It’s similar to the concerns we have about things like fake news or deepfake videos,” he said.
Questions have also been raised over the use of data relating to the tool, since China’s national intelligence laws require enterprises to “support, assist and cooperate with national intelligence efforts.” The chat bot is not available on some app stores in Italy due to data-related concerns.
While Patel conceded there were concerns over DeepSeek and “how that data may be manipulated,” she added, “We don’t know how ChatGPT manipulates that data, either.”
Let’s begin with President Donald Trump’s second inaugural address (Jan. 20), if only to contrast it with last week’s condemnation of his lawsuit against J. Ann Selzer, the Des Moines Register, and its parent company Gannett (see also FAN 451, 449 and 436).
Ready? Here it goes:
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.
Never again will the immense power of the state be weaponized to persecute political opponents, something I know something about. We will not allow that to happen. It will not happen again. Under my leadership, we will restore fair, equal, and impartial justice under the constitutional rule of law.
Never again! It will not happen again! Stop all government censorship!
And there’s more: When it comes to free speech, all views will be treated with “impartial justice.” Against that promissory note, let us turn to his unprecedented executive order as discussed below.
Executive Order: Jan. 20, 2025
By the authority vested in me as President by the Constitution and the laws of the United States of America, and section 301 of title 3, United States Code, it is hereby ordered as follows:
What follows is a brief description of the Executive Order along with some preliminary comments.
Section 1. Purpose
This section opens with an attack on the Biden administration’s alleged “trampl[ing of] free speech rights” when it comes to “online platforms.” Such abridgments, it is asserted, were done in the name of combating “misinformation,” “disinformation,” and “malinformation” in order to advance the Biden administration’s “preferred narrative.”
Note at the outset that this section is primarily addressed to reversing the Biden administration’s apparent censorship of online expression. Even so, there is a generalized statement: “Government censorship of speech is intolerable in a free society.”
Keep that in mind when it comes to what is set out in Section 4 below.
Section 2. Policy
This section focuses on four commitments: (i) securing free speech rights of all “American[s]”; (ii) mandating that “no [federal] agent engages in or facilitates” abridgments of free speech; (iii) ensuring that no “taxpayer resources” are used to abridge free speech; and (iv) identify and correct any past federal abridgments of free speech.
Unlike Section 1, the explicit focus of this section is not confined to any free speech abridgments committed by the previous administration. The focus is on securing free speech rights of “citizens.” Hence, the policy is directed to an affirmative obligation of the Executive branch to protect free speech rights. The operative action words are “secur[ing],” “ensur[ing],”and“identify[ing].”
Thus, there is a duty to ensure that no federal officers are used or taxpayer dollars expended in violation of the Speech Clause of the First Amendment. Also, unlike Section 1, much of Section 2 applies to all free speech rights and not those confined to social media. There is also a promise to investigate for any and all existing abridgments of free speech committed by “past misconduct by the Federal Government.”
Section 3. Ending Censorship of Protected Speech
Like Section 1, this section focuses on the actions of the past administration (i.e., abridgments committed “over the past four years”). This section, unlike section 2, explicitly applies to federal departments and agencies, though it also applies to federal officers, agents and employees. Such agencies and departments must comply with the requirements of Section 2.
The second portion of this section deals with the investigative powers of the attorney general working “in consultation with the heads of executive departments and agencies.” Again, this investigation is confined to wrongs committed by the past administration. Following such investigations, a “report” shall be submitted to the President suggesting “remedial actions.”
Much of this section seems repetitive of what is set out in Section 2, save for the references to federal departments and agencies and the need for investigation followed by a report to the President. Note that under Section 3, remedial action is suggested, whereas under Section 4, per this Executive Order, remedial action against the United States and its officers is prohibited.
Section 4. General Provisions
In order to appreciate the import of this clause, it is best to quote the final provision (sub-section (c) it in its entirety (with emphasis added):
This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
The opening provisions of this Section refer to authorizations of grants of executive power. The Order is to be implemented consistent with the “applicable law and subject to the availability of appropriations.”
Importantly, While the First Amendment is a prohibition against the federal government and all its officers, this Executive Order:
applies to free speech wrongs committed during “the last 4 years” or “past misconduct by the Federal Government” or abridgments occurring “over the last 4 years,” though there is a passing mention of securing the free speech rights of all “American[s].”
Yet even as against such past alleged free speech wrongs, the sole remedy is by way of corrective action taken by the Executive Branch.
If such corrective action, or any other actions taken by Executive officials in pursuance of this Executive Order, themselves abridge First Amendment rights, there is no independent remedy secured by the Order.
FIRE weighs in with its own free speech recommendations to the President
Below are the four general categories of recommendations made (see link above for specifics):
Support the Respecting the First Amendment on Campus Act
Address the abuse of campus anti-harassment policies
Rein in government jawboning
Protect First Amendment rights when it comes to AI
“As president, Trump inherits the privilege and the obligation to defend the First Amendment rights of all Americans, regardless of their viewpoint — and FIRE stands ready to help in that effort.”
Justice Ketanji Brown Jackson in free expression mode at the Inauguration?
Justice Ketanji Brown Jackson at the inauguration of Donald Trump on Jan. 20, 2024. (Imagn Images)
Excerpts from Virginia Court of Appeals decision in Patel v. CNN, Inc.
Kash Patel, seen here at the 2023 Conservative Political Action Conference, is President Donald Trump’s nominee to head the FBI. (Consolidated News Photos / Shutterstock.com)
An excerpt from today’s Virginia Court of Appeals decision in Patel v. CNN, Inc., decided by Judge Rosemarie Annunziata, joined by Judge Vernida Chaney (the opinions weigh in at over 12,000 words, so I only excerpt some key passages).
Abortion picketing case lingers on docket
The cert. petition in the abortion picketing case, with Paul Clement as lead counsel, has been on the Court’s docket since July 16 of last year. It has been distributed for conferences seven times, the last being Jan. 21. In his petition, Mr. Clement (joined by Erin Murphy) explicitly called on the Court to “overrule Hill v. Colorado.” (See FAN 433, July 31, 2024))
Paul Clements and Erin Murphy
More in the News
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 (The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)
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.
Last year, FIRE launched the Free Speech Dispatch, a regular series covering new and continuing censorship trends and challenges around the world. Our goal is to help readers better understand the global context of free expression. The previous entry covered Australia’s ban on teen social media, South Korea’s martial law decree, and more. Want to make sure you don’t miss an update? Sign up for our newsletter.
China’s censorship in the news — and in the U.S.
Late last month, a New York man pleaded guilty in Brooklyn Federal Court to his role in running a secret Chinese government police station in Manhattan. The Chinese government is accused of setting up over a hundred such stations worldwide and using them to surveil, threaten, and silence dissidents outside its borders. His prosecution is the latest in a series of Department of Justice efforts to combat foreign governments’ targeting their critics within U.S. borders.
On a related note, President Joe Biden established a “China Censorship Monitor and Action Group” in December. The group’s mission is to “monitor and address the effects of any efforts by the PRC to censor or intimidate, in the United States or in any of its possessions or territories, any United States person, including a United States company that conducts business in the PRC, exercising its freedom of speech.”
If you’re a gamer, you might be excited about the popular new video game “Marvel Rivals.” But you may be disappointed to learn that the game comes with some strings attached — namely, users cannot make political statements that the Chinese Communist Party dislikes. The game, created by Marvel and Chinese developer NetEase, blocks users from typing phrases in the chat function including “Tiananmen Square,” “free Taiwan,” “free Hong Kong,” “free Tibet,” and “Taiwan is a country.” What is allowed? Negative commentary about Taiwan.
On a somber anniversary, a glimmer of hope for blasphemers
Sign reading Je Suis Charlie at a memorial for the victims of the Charlie Hebdo magazine terror attacks in 2015. (conejota / Shutterstock.com)
Jan. 7 marked the tenth anniversary of the Charlie Hebdo attacks, in which cartoonists and staff from satirical French magazine Charlie Hebdo were killed by gunmen over the magazine’s depictions of the Prophet Muhammad. The magazine commemorated the date with a contest for the “funniest and meanest” depictions of God.
As I wrote about the anniversary, we have failed to protect blasphemers since the killings and, in some ways, the legal realities are getting even worse for those accused of transgressing against deities. But there are a couple of bright spots in the wake of the commemoration.
WATCH: UK to create blasphemy laws?
A BBC report released on the anniversary itself announced that Nigerian humanist Mubarak Bala was set free from prison after a nearly five year legal battle. Bala was initially sentenced to 24 years in prison for blasphemous Facebook posts. His sentence was reduced last year, and although he has now been released, he is not exactly free. Bala is in hiding in a safe house, due to concerns that he will be attacked by vigilantes or mobs.
And, now, Spain is looking to set a good example, with the Socialist party’s introduction of a bill that would, among other things, repeal the country’s blasphemy law that hands out fines to offenders. This law “rarely achieves convictions and yet it is constantly used by extremist and fundamentalist organisations to persecute artists, activists (and) elected representatives, subjecting them to costly criminal proceedings,” the party’s spokesperson said.
The legislation was prompted by a lawsuit “brought by Abogados Cristianos (Christian Lawyers) against comedienne Lalachus after she, in a state television appearance during New Year’s Eve celebrations, brandished an image of Jesus on which the head of the cow mascot for a popular TV program had been superimposed.”
The latest in speech rulings and regulations
From the UK to Germany to Singapore: Police are watching what you post
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Police detained a pro-Palestinian activist in London under the UK’s Terrorism Act for, as the arresting officer put it, “making a hate speech.”
Lithuania’s Constitutional Court ruled as unconstitutional a provision in the country’s Law on the Protection of Minors from Negative Effects of Public Information, which stated that information about non-traditional families was harmful to minors and could be restricted.
Irish media regulator Coimisiún na Meán released a decision last month warning Meta to take “specific measures” to reduce the “dissemination of terrorist content” on Facebook and report its progress. The nature of the “terrorist content” remains unclear.
The UK’s Investigatory Powers Tribunal issued a ruling finding that an “undercover surveillance operation” by the Police Service of Northern Ireland and Metropolitan Police to identify journalists’ sources was “disproportionate” and “undermined” media protections
Albania announced a one-year ban on TikTok, with the country’s prime minister blaming the app for violence among young people, including the recent stabbing death of a 14-year-old. (The Supreme Court is deliberating the TikTok ban here in the United States, a ban FIRE opposes as a First Amendment violation.)
On Christmas Day, Vietnam enacted a new decree requiring social media users to verify their identity, a tool that’s ripe for abuse in a country known for its crusade to silence online government critics.
Maker of infamous Pegasus spyware loses to WhatsApp in California court
NSO Group Technologies is a cyber-intelligence firm known for its proprietary spyware Pegasus. (poetra / Shutterstock.com)
Meta’s WhatsApp won a major victory in the U.S. District Court for the Northern District of California against the NSO Group, an Israel-based spyware company. The NSO Group was accused of exploiting WhatsApp to install its infamous Pegasus spyware program into over a thousand phones.
Pegasus, sold to governments around the world by NSO Group, became the center of blockbuster reporting in recent years over its use to target human rights activists and journalists — and the wife of Jamal Khashoggi, the U.S. based journalist who was brutally murdered in the Saudi consulate in 2018.
Deepening repression continues into 2025
The new year unfortunately doesn’t mean an end to repressive trends around the world, some of which have been building for years or even decades.
Hong Kong is once again attempting to punish its exiled pro-democracy activists. Late last month, Hong Kong police offered large rewards for information assisting in the arrest of activists now in the UK and Canada who are accused of national security law violations. Then the city’s government canceled the passports of seven activist “absconders,” including some based in the U.S. “You will become a discarded soldier, you will have no identity,” Secretary for Security Chris Tang said at a press conference. “After I cancelled your passport, you cannot go anywhere.” And early this week, police raided a pollster’s home and office over claims he assisted a “wanted person who has absconded overseas.”
Meanwhile, critics are still being punished regularly within Hong Kong. A 19-year-old student is battling charges that he insulted China’s national anthem by turning his back while it played at a World Cup qualifier. He pleaded not guilty this month.
A teenage girl spent the holidays in pre-trial detention in St. Petersburg, Russia, after being detained on charges of “public calls for committing terrorist activities or public justification of terrorism.” The 16-year-old allegedly put on her school’s bulletin board flyers celebrating “Heroes of Russia” — Russian troops who defected to fight for Ukraine.
It’s difficult to imagine any more ways the Taliban could dream up to suppress the expression and presence of women of Afghanistan, but they found another. A government spokesman announced that existing buildings and new construction would be required to obscure or eliminate windows showing “the courtyard, kitchen, neighbour’s well and other places usually used by women,” as the sight of them could “lead to obscene acts.”
Human rights lawyer Arnon Nampa, whose repeat and unjust prosecutions I’ve discussed in previous Dispatch entries, has once again been sentenced to prison for his commentary about Thailand’s monarchy. This time he’s been sentenced to nearly three years in prison over an anti-monarchy Harry Potter-themed 2020 protest. In total, that puts him at almost 19 years in prison.
Apple and Google pulled VPNs from their app stores in India in response to an order from the Indian Ministry of Home Affairs, an act that “marks the first significant implementation of India’s 2022 regulatory framework governing VPN apps.” These regulations require VPN providers to keep for five years records of users’ names and identifying information.
A Uyghur woman was sentenced to 17 years in prison for engaging in “illegal underground religious activity” by teaching about Islam to her sons and neighbor.
Kenya’s president claimed for months that allegations of forced disappearances of activists connected to a youth protest movement were “fake news” but now appears to admit the government’s responsibility and promises an end to the kidnappings. “What has been said about abductions, we will stop them so Kenyan youth can live in peace, but they should have discipline and be polite so that we can build Kenya together,” president William Ruto said last month.
This month, Vietnamese lawyer Tran Dinh Trien went on trial for “infringing upon the interests of the state” in three Facebook posts criticizing the chief justice of the Supreme People’s Court of Vietnam. He’s potentially facing up to seven years in prison.
And last week, María Corina Machado, opposition leader against Venezuelan President Nicolás Maduro, was “violently intercepted” and arrested after exiting a protest in Caracas. Machado had previously been in hiding from an arrest warrant issued against her. She’s since been released but her team alleges that she “was forced to record several videos” before being set free.
Recently unbanned Satanic Verses is popular in India’s bookstores — for now
Salman Rushdie, author of “The Satanic Verses” speaks at the 75th Frankfurt Book Fair on Oct. 21, 2023.
In November, I noted that India’s ban on Salman Rushdie’s controversial bestseller “The Satanic Verses” was ending for an absurd reason: No one could find the decades-old order from customs authorities banning its import.
The book is now available in the country’s shops and appears to be a hit. One store manager said he was selling out of copies, despite the book’s higher-than-average cost. But not everyone is thrilled by its popularity. Groups calling for a reinstatement of the ban include the Forum Against Blasphemy and the All India Muslim Jamaat, whose president said, “No Muslim can tolerate seeing this hateful book on any bookstore shelf.”
