Ten years ago, on Aug. 24, 2015, Alice Dreger submitted her resignation as a tenured professor at Northwestern University’s Feinberg School of Medicine. Dreger was protesting the censorship of an academic journal at Northwestern called Atrium, for which she had served as guest editor of the 2014 issue with the theme “Bad Girls.” That edition included a controversial essay by disability rights advocate William Peace, who wrote about receiving oral sex from a nurse in the 1970s. Northwestern officials removed Atrium’s online issues for 14 months, restoring access to it only after Dreger announced she was going public about the censorship.
Dreger wasn’t even the first professor to quit in protest over the censorship of Atrium. Kristi Kirschner, a clinical professor of medical humanities and bioethics, resigned in December 2014 because of the repression.
But Northwestern demanded a new editorial board (including a public relations official) to oversee the journal in the future, which Dreger called a “censorship committee.” The faculty editors of Atrium refused to accept administrative control over its content, and it has never published another issue.
Dreger recently wrote about her “disappointment (and that tablespoon of regret) at having accidentally caused the end of Atrium. For the magazine was such a gem.” But, of course, she didn’t cause the end of the journal—Northwestern administrators did by making unacceptable demands for control. The blame for censorship always must belong to the censor for suppressing controversy, and not the censored for causing controversy.
Dreger’s resignation, and the censorship that prompted it, received much less attention than it deserved. This year is also the 10th anniversary of another case at Northwestern that was far more publicized: The Title IX investigation of Laura Kipnis over her essay “Sexual Paranoia Strikes Academe” that examined the case of a Northwestern professor accused of sexually assaulting a graduate student. Two students filed a complaint of retaliation against Kipnis over her writing, and the university cleared her after a lengthy investigation. While Kipnis obviously should never have been investigated for expressing her opinions on a case of campus sexual misconduct, she never suffered any official penalty or censorship.
By contrast, the censorship of Atrium actually did lead to the demise of a respected academic journal (and the loss of the two professors who protested it). But while the Kipnis case fit a very popular narrative of politically correct leftists demanding suppression, the Atrium case exposed the reality on campus: Conservative censorship was more repressive but much less publicized than the trendy complaints about the PC police.
Another example of this at Northwestern occurred in 2016, when political science professor Jackie Stevens was suspended and banned from campus after she complained that an administrator had yelled at her and slammed a door. Without any evidence and in violation of its due process policies, Northwestern officials contended that Stevens posed an immediate violent threat to the campus and forced her to undergo a psychological evaluation (which found no danger) before lifting the suspension and banishment. Stevens had been a harsh critic of the administration and was a leader of the successful faculty effort to prevent a retired general without a Ph.D. from being appointed head of an international studies program.
Looking back at the Dreger resignation a decade ago, it’s hard to feel optimistic, because censorship on campus is even worse today. In the past year, Northwestern University’s actions have been some of the most repressive in the entire history of the institution. In February, Northwestern’s administration adopted the International Holocaust Remembrance Alliance definition of antisemitism, which the Foundation for Individual Rights and Expression has condemned because it “will chill campus speech.”
One little-known example of Northwestern’s censorship is shockingly reminiscent of what happened to Atrium, except that it’s much worse. In February, Northwestern officials took down the entire website of the Gender and Sexuality Resource Center in response to President Donald Trump’s executive order “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” GSRC director Matt Abtahi didn’t go public about the censorship, but wrote an April 14 email to his staff to explain the removal of the website: “This last month working with the lawyers and senior leadership at NU has been particularly gutting.”
He added, “The use of civil rights law and discrimination policy to advance these kinds of changes is alarming.” When Northwestern officials learned about the email, they immediately suspended Abtahi on April 18 and then fired him on April 29 and banned him from campus. Northwestern finally restored the GSRC website in May but censored all of the LGBTQ+ content. The censorship today is far worse than what happened to Atrium, which was finally restored online without censorship and no one was fired for questioning the repression.
But even more appalling has been Northwestern’s violation of the rights of journalism professor Steven Thrasher. After Thrasher defended a student encampment in spring 2024 to prevent police from arresting protesters, Northwestern’s administration retaliated several months later in the wake of Northwestern president Michael Schill’s testimony before members of Congress who called Thrasher a “goon” and demanded his firing.
Northwestern used its police powers to order Thrasher’s arrest, although the charges were immediately dismissed. In the fall of 2024, Northwestern suspended Thrasher from teaching for two quarters in violation of campus rules and claimed that he had violated professional norms by questioning the concept of “objectivity” in journalism. After a faculty committee cleared Thrasher of any wrongdoing, Northwestern was forced to reinstate him.
However, Thrasher was up for tenure in 2025, and Northwestern denied him tenure. When Thrasher publicly criticized that decision and blamed it on retaliation for his criticism of Israel, Northwestern’s administration promptly banned Thrasher from teaching in the spring quarter and the entire 2025–26 academic year, declaring, “Your public lobbying, mischaracterizations and efforts to encourage pressure from groups complicate and compromise the process of tenure review, decision making, and appeal. Therefore, we are concerned about your presence with students in our community.”
Obviously, criticizing the administration can never be grounds for banning a professor from the classroom for years without due process. Because tenure decisions are secretive, we don’t know if illegitimate, nonacademic judgments affected Thrasher’s case. But we do know that Northwestern’s excuses for twice suspending Thrasher are entirely illegitimate and violate basic norms of academic freedom.
(Full disclosure: I’m a member of the Illinois AAUP’s Committee A on Academic Freedom and Tenure, and we wrote two letters to Northwestern, condemning its initial suspension of Thrasher and its second suspension of Thrasher that denied him the right to teach during his terminal year after being denied tenure.)
Despite the extraordinary repression at Northwestern, where merely speaking out against the administration’s censorship can get you immediately banished, faculty and students are resisting efforts to silence dissent. On April 21, 2025, the entire faculty assembly at Northwestern voted 338 to 83 to support a resolution sponsored by the Northwestern AAUP (led by Jackie Stevens) that called upon the university to defend academic freedom, protect free speech and follow due process. But so far Northwestern refuses to back down from its embrace of censorship.
As Dreger wrote 10 years ago, “An institution in which the faculty are afraid to offend the dean is not an institution where I can in good conscience do my work. Such an institution is not a ‘university,’ in the truest sense of that word.”
Sadly, Dreger’s warning is going unheeded by Northwestern (and many other “universities”) that are part of a growing wave of repression on campus.
John K. Wilson was a 2019–20 fellow with the University of California National Center for Free Speech and Civic Engagement and is the author of eight books, including Patriotic Correctness: Academic Freedom and Its Enemies (Routledge, 2008), and his forthcoming book The Attack on Academia. He can be reached at [email protected], or letters to the editor can be sent to [email protected].
Alexandre de Moraes, the polarizing Brazilian Supreme Court Justice, is no friend to free speech. Though he is a popular figure within Brazil among those who see him as a protector of democracy, he has aggressively wielded his authority to censor, especially on the internet, with little transparency.
From his position in Brazil’s Supreme Court, de Moraes has doggedly pursued wide swaths of speech and speakers off and on the internet, as well as the tech companies hosting them. In a highly public incident last year, Brazil blocked X — and even threatened VPN users accessing it with massive fines — over the company’s noncompliance with de Moraes’ orders.
The actions of de Moraes, and Brazil’s Supreme Court more broadly, have repeatedly drawn the ire of the Trump administration. But chief among President Trump’s grievances is the prosecution of his political ally, former Brazilian President Jair Bolsonaro, who is accused of attempting a coup to overturn his 2022 election loss to President Luiz Inácio Lula da Silva.
How has the Trump administration responded?
Last month, the administration enacted a series of punishments against Brazil’s leadership and de Moraes specifically. In a July 30 executive order, Trump announced tariffs and other sanctions due to Brazil’s prosecution of Bolsonaro and other actions that “conflict with and threaten the policy of the United States to promote free speech and free and fair elections at home and abroad.” The order follows Trump’s weeks-earlier threat of tariffs over the “witch hunt” against Bolsonaro.
Secretary of State Marco Rubio also revoked the visas of de Moraes “and his allies on the court” and their families. And under the Global Magnitsky Human Rights Accountability Act, usually reserved for the most serious human rights abuses, the Department of the Treasury announced sanctions targeting any of de Moraes’s U.S. assets.
Unprincipled, partisan free speech advocacy is no free speech advocacy at all
There is plenty to debate about how to best protect free speech on the global internet, and around the world more generally, and what actions the United States can take in its defense. But, even though Brazil’s adversarial relationship with free expression is deeply alarming, it’s impossible to ignore the incongruity of the Trump administration putting itself in the position of diagnosing and treating government censorship.
Physician, heal thyself.
The opening months of Trump’s second term in office have offered a nonstop, headspinning bonanza of violations, threatened and enacted, against Americans’ First Amendment rights.
I write regularly in the Free Speech Dispatch about the myriad threats to freedom of expression, from Russia to the UK to India to Hong Kong. It’s painfully, brutally clear we need leadership to push back against the wave of global repression that threatens all of our rights. But that leadership must practice what it preaches and avoid simply using concerns about free speech as a pretext to fight partisan political battles. On both counts, this administration has failed.
You will make no converts to the free speech cause by proving right the critics who suspect its advocates are guided by partisan aims, not principled ones. Instead, you will breed cynicism and harm the very cause you claim to support.
This same posturing marred Vice President JD Vance’s objections to European censorship, an ugly trend that’s in dire need of principled critiques. Instead, Vance claimed that under Trump, the “new sheriff in town,” the administration “may disagree with your views, but we will fight to defend your right to offer them in the public square.”
The ugly reality is that the U.S. is rapidly ceding its moral authority to criticize foreign governments’ censorship, like that emanating from Brazil’s Supreme Court, when its own president and agencies are gleefully flouting the First Amendment and free speech principles day in and day out.
Perhaps most baffling was the administration’s objection to the Brazilian government’s targeting of Paulo Figueiredo, a Brazilian journalist, and “U.S. resident, for speech he made on U.S. soil.” Readers may also be able to think of some more government officials targetingimmigrants legally residing in the U.S. for protected speech made on U.S. soil — and they’re doing so from our White House and State Department, not thousands of miles away.
Global censorship is a real challenge, and it’s only getting worse. But until the U.S. removes the censorial beam from its own eye, we may find that other nations are unmoved by our criticisms and cures. Or, they may perhaps even be interested in doling them out to us.
Whenever a bill aimed at policing online speech is accused of censorship, its supporters often reframe the conversation around subjects like child safety or consumer protection. Such framing helps obscure government attempts to shape or limit lawful speech, yet no matter how artfully labeled such measures happen to be, they inevitably run headlong into the First Amendment.
Consider the headline-grabbing Kids Online Safety Act (KOSA). Re-introduced this year by Sens. Marsha Blackburn (R-Tennessee) and Richard Blumenthal (D-Connecticut) as a measure to protect minors, KOSA’s sponsors have repeatedlycharacterized its regulations as merely providing tools, safeguards, and transparency. But in practice, it would empower the federal government to put enormous pressure on platforms to censor constitutionally protected content. This risk of government censorship led KOSA to stall in the House last year after passing the Senate.
Child safety arguments have increasingly surfaced in states pursuing platform regulation, but closer inspection reveals that many such laws control how speech flows online, including for adults. Take Mississippi’s 2024 social media law (HB 1126), which was described as a child safety measure, that compelled platforms to verify every user’s age. Beneath that rhetoric, however, is the fact that age verification affects everyone, not just children. By forcing every user — adult or minor alike — to show personal identification or risk losing access, this law turned a child-safety gate into a universal speech checkpoint. That’s because identity checks function like a license: if you don’t clear the government’s screening, you can’t speak or listen.
A judge blocked HB 1126 last month, rejecting the attorney general’s argument that it only regulated actions, not speech, and finding that age verification gravely burdens how people communicate online. In other words, despite the bill’s intentions or rationales, the First Amendment was very much at stake.
Utah’s 2023 Social Media Regulation Act demanded similar age checks that acted as a broad mandate that chilled lawful speech. FIRE sued, the legislature repealed the statute, and its 2024 replacement — the Minor Protection in Social Media Act — met the same fate when a federal judge blocked it. Finding there was likely “no constitutionally permissible application,” the judge underscored the clear conflict between such regulations and the First Amendment.
Speech regulations often show up with different rationales, not just child safety. In Texas, HB 20 was marketed in 2021 as a way to stop “censorship” by large social media companies. By trying to paint the largest platforms as public utilities and treating content moderation decisions as “service features,” the legislature flipped the script on free expression by recasting a private actor’s editorial judgment as “conduct” the state could police. When the U.S. Court of Appeals for the Fifth Circuit upheld the law, in a decision that was later excoriated by the Supreme Court, the court repeated this inversion of the First Amendment: “The Platforms are not newspapers. Their censorship is not speech.”
Florida tried a similar strategy with a consumer-protection gloss. SB 7072 amended the state’s Deceptive and Unfair Trade Practices Act to include certain content moderation decisions, such as political de-platforming or shadow banning, exposing platforms to enforcement and penalties for their speech. Unlike the Fifth Circuit, the Eleventh Circuit blocked this law, calling platform curation “unquestionably” expressive and, therefore, protected by the First Amendment.
In July 2024, the Supreme Court took up the question when considering challenges to these two state laws in Moody v. NetChoice. Cutting through the branding, the Court rejected the idea that these laws merely regulated conduct or trade practices. Instead, it said content moderation decisions do have First Amendment protection and that the laws in Texas and Florida did, in fact, regulate speech.
The Court clarified in no uncertain terms that “a State may not interfere with private actors’ speech to advance its own vision of ideological balance.” And it added that “[o]n the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.”
California tried the dual framing of both child safety and consumer protection. AB 2273, the California Age Appropriate Design Code Act, was described as a child-safety bill that just regulated how apps and websites are built and structured, not their content. The bill classified digital product design features, such as autoplaying videos or default public settings, as a “material detriment” to minors as well as an unfair or deceptive act under state consumer-protection statutes. But this too failed and is now blocked because, the court noted, “the State’s intentions in enacting the CAADCA cannot insulate the Act from the requirements of the First Amendment.”
Multiple nationwide lawsuits now claim social media feeds are defective products, using product-liability law to attack the design of platforms themselves. But by calling speech a “product” or forcing it into a product liability claim, it recharacterizes the editorial decisions of lawful content as a product flaw, which attempts to shift the legal analysis from speech protections to consumer protection. State attorneys general, however, cannot erase the First Amendment protections that still apply.
A sound policy approach to online speech looks not at branding, but impact. Even when packaged in terms of child safety, consumer protection, or platform accountability, it is essential to ask whether the rule forces platforms to host, suppress, or reshape lawful content. Regardless of the policy goal or rhetorical framing, if a requirement ultimately pressures platforms to host or suppress lawful speech, expect judges to treat it as a speech regulation.
Unfortunately, re-branding speech regulations can obfuscate their censorial ends and make them politically attractive. That’s what’s happening with KOSA’s obvious appeal of protecting children, combined with the less obvious censorship threat from targeting “design features,” has made it popular in the Senate.
Giving the government power to censor online speech puts everyone’s liberty at risk. Just as Americans enjoy the right to read, watch, and talk about whatever we want offline, those protections extend to our speech online as well. Protecting free expression now keeps the marketplace of ideas open and guards us from sacrificing everyone’s right to free expression.
The Los Angeles Community College District (LACCD) may be facing state takeover within two years due to overextended hiring and budget mismanagement, as discussed during a May 2025 meeting of the Los Angeles Valley College (LAVC) Academic Senate. Faculty warned that the looming financial crisis could result in mass layoffs—including tenured staff—and sweeping program cuts.
Start Minutes LAVC Academic Senate
“R. Christian-Brougham: other campuses have brand new presidents doing strange things. If we don’t do things differently as a district, from the mouth of the president in two years we’ll be bankrupt and go into negative. Chancellor has responsibility C. Sustin asks for confirmation that it is the Chancellor that can and should step in to curb campus budgets and hirings. R. Christian-Brougham: the Chancellor bears responsibility, but in the takeover scenario, the Board of Trustees – all of them – would get fired E. Perez: which happened in San Francisco C. Sustin: hiring is in the purview of campuses, so they can’t directly determine job positions that move forward? R. Christian-Brougham: Chancellor and BoT could step in and fire the Campus Presidents, though. E. Perez: in next consultation with Chancellor, bringing this up. C. Maddren: Gribbons is not sitting back; he’s acting laterally and going upward E. Thornton: looping back to the example of City College of San Francisco: when the takeover happened there the reductions in force extended to multiple long-since-tenured members of a number of disciplines, including English. For this and so many other reasons, it was a reign of terror sort of situation. So we really need to push the Chancellor.”
The dire financial outlook comes as new scrutiny falls on LAVC’s Media Arts Department, already under fire for years of alleged fraud, resume fabrication, and manipulation of public perception. Central to these concerns is the department’s chair, Eric Swelstad, who also oversees a $40,000 Hollywood Foreign Press Association (Golden Globe) grant for LAVC students—a role now drawing sharp criticism in light of mounting questions about his credentials and conduct.
Over the past two months, a troubling wave of digital censorship has quietly erased years of documented allegations. In May 2025, nearly two years’ worth of investigative reporting—comprising emails, legal filings, and accreditation complaints—were scrubbed from the independent news site IndyBay. The removed content accused Swelstad of deceiving students and the public for over two decades about the quality and viability of the Media Arts program, as well as about his own professional qualifications.
In June 2025, a negative student review about Swelstad—posted by a disabled student—disappeared from Rate My Professor. These incidents form part of what appears to be a years-long campaign of online reputation management and public deception.
An AI-driven analysis of Rate My Professor entries for long-serving Media Arts faculty—including Swelstad, Arantxa Rodriguez, Chad Sustin, Dan Watanabe, and Jason Beaton—suggests that the majority of positive reviews were written by a single individual or a small group. The analysis cited “Identical Phrasing Across Profiles,” “Unusually Consistent Tag Patterns,” and a “Homogeneous Tone and Style” as evidence:
“It is very likely that many (possibly a majority) of the positive reviews across these faculty pages were written by one person or a small group using similar templates, tone, and strategy… The presence of clearly distinct voices, especially in the negative reviews, shows that not all content comes from the same source.”
A now-deleted IndyBay article also revealed emails dating back to 2016 between LAVC students and Los Angeles Daily News journalist Dana Bartholomew, who reportedly received detailed complaints from at least a dozen students—but failed to publish the story. Instead, Bartholomew later authored two glowing articles featuring Swelstad and celebrating the approval of LAVC’s $78.5 million Valley Academic and Cultural Center:
* *”L.A. Valley College’s new performing arts center may be put on hold as costs rise,”* Dana Bartholomew, August 28, 2017.
Among the most explosive allegations is that Swelstad misrepresented himself as a member of the Writer’s Guild of America (WGA), a claim contradicted by official WGA-West membership records, according to another redacted IndyBay report.
This appears to be the tip of the iceberg according to other also scrubbed IndyBay articles
Other questionable appointments, payments, and student ‘success stories’ in the Los Angeles Valley College Media Arts Department include:
* **Jo Ann Rivas**, a YouTube personality and former Building Oversight Committee member, was paid as a trainer and presenter despite reportedly only working as a casting assistant on the LAVC student-produced film *Canaan Land*.
* **Diana Deville**, a radio host and LAVC alumna with media credits, served as Unit Production Manager on *Canaan Land*, but her resume claims high-profile studio affiliations including DreamWorks, MGM, and OWN.
The film *Canaan Land*, made by LAVC Media Arts students, has itself raised eyebrows. Filmmaker Richard Rossi claimed that both it and his earlier student film *Clemente* had received personal endorsements from the late Pope Francis. These assertions were echoed on *Canaan Land*’s GoFundMe page, prompting public denials and clarifications from the Vatican in *The Washington Post* and *New York Post*:
Censorship efforts appear to have intensified following the publication of a now-removed article advising students how to apply for student loan discharge based on misleading or fraudulent education at LAVC’s Media Arts Department. If successful, such filings could expose the department—and the district—to financial liability.
But the highest-profile financial concern is the 2020 establishment of the **Hollywood Foreign Press Association’s $40,000 grant** for LAVC Media Arts students, administered by Swelstad:
As a disreputable academic administrator with a documented history of professional fraud spanning two decades and multiple student success stories that aren’t, future grant donors may reconsider supporting the Department programs – further pushing the Los Angeles Valley College and by extension the district as a whole towards financial insolvency.
More than 300 NIH employees criticized their director, Jay Bhattacharya, in the letter published Monday.
Jim Watson/AFP/Getty Images
Hundreds of staff at the National Institutes of Health are publicly condemning the agency’s actions in recent months, including firing thousands of workers and canceling research grants for projects that don’t align with the Trump administration’s ideologies.
In a letter sent Monday morning to Jay Bhattacharya, the Trump-appointed NIH director who gained notoriety for his criticism of the NIH’s handling of the COVID-19 pandemic, more than 300 employees from across the agency called on him to deliver on his promise to embrace dissent, which he has called “the very essence of science.”
“We are compelled to speak up when our leadership prioritizes political momentum over human safety and faithful stewardship of public resources,” states the letter, titled the Bethesda Declaration (Bethesda, Md., is the location of the NIH’s main campus) and modeled after Bhattacharya’s own Great Barrington Declaration, which condemned the NIH in 2020 for ignoring his calls to mostly cease pandemic-related precautions.
“This censorship is incompatible with academic freedom, which should not be applied selectively based on political ideology.”
In addition to accusing Bhattacharya of politicizing research, the letter published Monday also criticized the agency for “undermining” peer review, unilaterally capping indirect costs and firing NIH staff.
Bhattacharya is scheduled to appear before the Senate appropriations subcommittee today to discuss Trump’s proposal to cut $18 billion or about 40 percent from the NIH’s budget.
As artificial intelligence technologies make their way into political ads and campaigning, Americans are expressing growing concern. But they’re not just worried about deepfakes and deceptive content’s impact on elections — they also fear how the government might use the fight against misinformation to restrict free speech.
In a recently released FIRE poll of registered American voters, conducted by Morning Consult, one concern stood out: government regulation itself. Nearly half of respondents (45%) said they are “extremely” or “very” concerned that government regulation of election-related AI content could be abused to suppress criticism of elected officials. That’s a powerful signal that while Americans see the risks posed by AI, they don’t trust government regulators to police political expression fairly.
When asked to choose between protecting free speech in politics or stopping deceptive content, a plurality (47%) said protecting free speech in politics is more important, even if that means allowing some deceptive content. Just 37% prioritized stopping deceptive content, even at the expense of limiting speech that would otherwise be protected by the First Amendment. These sentiments are held across the political spectrum, but are stronger among Independents and Republicans, than among Democrats.
This isn’t just a preference — it’s a principled stand in favor of the core freedoms the First Amendment exists to protect. Political speech lies at the heart of those freedoms, and Americans clearly recognize that any government attempts to police what can or can’t be said pose a far greater threat to democracy than free speech itself.
Regulation threatens participation
The chilling effects are already measurable. About 28% of voters said they’d be less likely to share content on social media if the government began regulating AI-generated or AI-altered content. (That’s right: All content, not just AI-generated or AI-altered content.) That may not sound dramatic at first glance, but that’s more than the average voter turnout during the last midterm primaries. As our political culture is increasingly shaped online, discouraging speech — even unintentionally — can have real consequences for public discourse.
These findings suggest a troubling trajectory: Government regulations justified in the name of protecting the public from AI could end up silencing the public instead.
While some polls show that a similar percentage of voters (41%) say it’s important to protect people from misinformation, that concern cannot be used to justify censorship. About 39% said that preserving freedom of speech should be the government’s top priority when crafting AI laws. Only 12% said that view doesn’t describe them at all. In other words, most Americans believe that protecting speech isn’t just one goal among many — it’s the central concern.
And they’re right to think so. The First Amendment doesn’t permit the government to restrict speech simply because it believes the public might be misled. The solution to bad speech is more speech, not less.
These results should serve as a warning to policymakers: The public views efforts to regulate AI in political campaigns as a risk to free expression. FIRE has been actively engaged in legislative advocacy to safeguard First Amendment rights, including vague and overbroad bans or disclosure requirements imposed on AI content.
If voters already believe regulation will be abused — and are already pulling back from political expression using AI — that’s not just a theoretical harm. It’s a chilling effect in action.
Instead of rushing to regulate, elected officials should reaffirm their commitment to protecting political speech, no matter the medium. The technology may be new, but the principle is not: In a free society, the government doesn’t get to decide which ideas are too dangerous to be heard.
The poll was conducted May 13-15, 2025, among a sample of registered voters in the US. A total of 2,005 interviews were conducted online across the US for a margin of error of plus or minus 2 percentage points. Frequency counts may not sum to 2,005 due to weighting and rounding. Topline results are available here.
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.
