On March 20, President Trump signed an executive order titled “Improving Education Outcomes by Empowering Parents, States, and Communities.” The order directs the secretary of education to “take all necessary steps to facilitate the closure of the Department of Education and return authority over education to the States and local communities while ensuring the effective and uninterrupted delivery of services, programs, and benefits on which Americans rely.”
The order additionally states that the secretary of education “shall ensure that the allocation of any Federal Department of Education funds is subject to rigorous compliance with Federal law and Administration policy.” According to the order, this includes compliance with federal requirements to terminate “illegal discrimination obscured under the label ‘diversity, equity, and inclusion’” and to terminate programs that promote gender ideology.
With respect to higher education, the executive order asserts that closure of the ED “would drastically improve program implementation.” It specifically discusses ED’s role in managing the federal student loan debt portfolio, and it claims that ED “is not a bank, and it must return bank functions to an entity equipped to serve America’s students.”
It is still unknown how Secretary McMahon will execute this order. Despite Trump’s clear intentions to close ED, Congress would still need to pass legislation to officially dissolve the department. It remains to be seen whether McMahon and the Trump administration will move ED’s subagencies and their functions to other federal agencies as speculated.
More information is needed from ED to understand how this order will be implemented. CUPA-HR will continue to monitor for additional news and guidance from ED as it relates to the order.
Several future posts are in the works, as well as a Resources Page, so stay tuned. – rklc
Professor Timothy Zick
Presidents and suppressive campaigns: Today’s unprecedented practices
Executive Watch is an effort to record and analyze the many First Amendment-related conflicts and concerns arising during the second administration of President Donald Trump. One of the challenges in assessing the administration’s approach to the press and critics is to identify and explain what is distinct or unique about it. After all, the policies and actions of every administration have raised First Amendment issues and concerns. John Adams had reporters jailed under the Sedition Act, Richard Nixon had his “enemies list,” President Obama’s Department of Justice was criticized for prosecuting reporters in national security cases, and President Biden’s administration was accused of pressuring social media platforms to censor disfavored speech.
However, as I explained in my introductory post for Executive Watch, what is distinct about the current president and administration is the depth and breadth of the campaign they are waging against critics, both inside and outside government.
The current situation represents an unprecedented and coordinated effort to use courts, governmental agencies, and even private individuals to engage in retribution, intimidate media and non-media critics, impose official orthodoxies, and punish dissent.
Civil lawsuits as engines of leverage and intimidation
“I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.” — Donald J. Trump
One aspect of the broader current agenda involves the filing of civil defamation, consumer fraud, and other lawsuits against the press and others who publish disfavored information or opinions critical of Trump or his administration.
Like any other citizen, a political candidate, president, or ex-president has the right to file lawsuits and seek redress for reputational or other harms. Indeed, prior to Trump, at least one ex-president did so. However, the extent to which Trump has relied, and continues to rely, on defamation and other civil lawsuits against media and non-media defendants is a unique aspect of a broader campaign against political critics. No other political candidate or president has wielded the civil lawsuit as a political sword quite as Trump has.
When it comes to civil litigation, Trump is in a league of his own. By one account, Trump has been involved in more than 4,000 civil lawsuits over the years, ranging from business disputes to defamation and other actions. Even for someone like Trump, who has been involved in a variety of complex business ventures, that is a remarkable number of civil actions.
One lesson Trump likely learned from his litigation experience is that lawsuits can be an effective form of leverage in business and other dealings. Indeed, even if a claim has no or little legal merit, it can be useful in terms of exhausting, intimidating, and silencing opponents.
For a long time, many of Trump’s civil lawsuits were business-related. However, since he became a political candidate, Trump’s filing of defamation actions has significantly spiked. As a political candidate and officeholder, he has pursued several defamation lawsuits against media and non-media defendants.
Trump has sued CNN, The Washington Post, and The New York Times, as well as local media outlets, for critical coverage of his campaign and first term as president. For example, he brought a $475 million defamation lawsuit against CNN over the network’s use of the term “the Big Lie” to describe his false claims that he won the 2020 election. That claim was dismissed. More recently, Trump brought a $20 billion civil action against “60 Minutes” and CBS for allegedly editing an interview with Kamala Harris in ways that obscured or improved her answers to questions.
Trump also sued ABC News and George Stephanopoulos for stating that he had been found liable for “rape” in a civil case. Finally, Trump sued The Des Moines Register and its parent company, Gannett, for publishing a flawed poll showing Trump trailing Harris in the 2024 presidential election in Iowa. He also filed suit against the pollster herself, J. Ann Selzer. All of this despite Trump ultimately winning Iowa handily, raising questions about what damages he allegedly suffered.
Trump has also filed civil lawsuits against non-media defendants. For example, he has sued the Pulitzer Board for recognizing The New York Times for its reporting on the Russia investigation. (That suit has been allowed to proceed, at least for now.)
Trump and his lawyers have also been expanding their civil suit repertoire. He sued CBS and the defendants in the Iowa case for consumer fraud and election interference. His lawsuit against CBS also contains a claim under the Lanham Act, which provides civil damages for false advertising. These suspect allegations target core press functions and political speech.
Additionally, Trump has vowed to file many more civil lawsuits against those who publish unflattering opinions or disfavored information. He has claimed such legal action is necessary to “straighten out the press” and punish those he accuses of fraud and election interference.
Poor litigation track record
For all his litigation experience, Trump has a very poor track record in civil lawsuits, particularly those claiming defamation. In fact, he nearly always loses — sometimes very badly. Trump has even been ordered to pay media defendants substantial damages for filing harassing and frivolous defamation lawsuits. Some states have laws that impose liability on plaintiffs for bringing so-called SLAPPs (Strategic Lawsuit Against Public Participation) — essentially, defamation actions intended to silence or intimidate critics. Trump has been found liable for damages under such laws.
This is one context in which Trump may not mind being a loser or even paying damages. Weaponizing civil lawsuits and courts is not about restoring Trump’s damaged reputation, recovering damages, protecting consumers, ensuring the integrity of elections, or any other legitimate private or public interest. Rather, they are a means of punishing critics and chilling, through expensive and often frivolous litigation, the publication of unfavorable or unflattering information and opinion.
Civil lawsuits as political weapons
“Donald Trump is abusing the legal system to punish speech he dislikes. If you have to pay lawyers and spend time in court to defend your free speech, then you don’t have free speech.” — Adam Steinbaugh
Like many other aspects of the Trump administration’s agenda, civil lawsuits serve important political purposes. They are part of the campaign to suppress dissent, undermine the press, and entrench executive power.
Decades of litigation have likely convinced Trump that the prospect of defending against frivolous and strategically harassing claims will either convince defendants to settle, trim their critical reporting, or both. In that sense, civil lawsuits are an effective means of intimidating, leveraging, and silencing opponents.
The civil lawsuits communicate political narratives about the press as an institution, hoping to further weaken its public standing. Many of Trump’s civil complaints present hyperbolic and unsupported claims concerning Trump, the press, or both. They also highlight longstanding grievances against the media and other critics. Regardless of their outcome, Trump will be applauded by political supporters for waging war against the press, which Trump continues to describe as “the enemy of the American people.”
In a broader sense, civil lawsuits are part of a campaign to entrench executive power by undermining or eliminating institutions — including the press, agencies, lawyers, and universities — that can check the administration’s political and other narratives. Destroying the credibility of media and non-media fact-checkers and harassing them in civil suits, often through exorbitant demands for damages, serves these larger goals.
Regardless of their merit, Trump’s lawsuits force defendants to consider whether it is worth publishing truthful information or opinions that reflect poorly on him or his administration. The ordinary demands and pressures of civil litigation are even more pronounced when the plaintiff is the president of the United States. Judges may be reluctant to dismiss frivolous claims as a result of Trump’s status, and juries in some jurisdictions may be inclined to side with the president against his critics.
Past as prelude: The Sullivan story and its current importance
Using civil lawsuits as a cudgel against the media and other critics is an abusive practice that threatens to chill communication of opinions and facts. Although unprecedented for a presidential candidate or president, weaponizing defamation and other civil lawsuits to suppress criticism and chill reporting is not a new tactic.
During the Civil Rights Era, local southern officials relied on pro-plaintiff standards to censor and intimidate both media outlets and civil rights activists. Through frequent lawsuits, local and state officials sought to control the narrative about racial segregation.
Recognizing the chilling effect of this litigation tactic, in its 1964 decision New York Times Co. v. Sullivan the Supreme Court adopted a demanding standard of proof applicable to public officials who sued for allegedly defamatory statements about the conduct of their official duties. Under that precedent, public officials must show the statements were made with “actual malice,” i.e., that the defendant knew they were false when published or published them with reckless disregard for their truth. The Court later extended the actual malice standard to suits brought by public figures, including those like Trump who have gained extensive public notoriety.
Sullivan was a direct response to early SLAPPs, which were filed to censor local and national reporting about the extent and effects of racial segregation. As the Court recognized, because no double jeopardy limit applied in the civil context, defamation lawsuits could be even more chilling to a free press than the threat of criminal prosecution.
Anthony Lewis
Indeed, as Anthony Lewis observed in his book about the Sullivan case, by 1964, southern officials had brought $300 million in libel claims against the press for truthfully reporting on civil rights abuses. Sullivan’s protective standard — which the president favors eliminating — has been an effective shield for defendants sued by Trump. Without it, media and non-media defendants may face sizable damage awards for publishing even truthful criticism of Trump or the administration.
To be sure, the press does not always act responsibly. Media outlets and reporters can be held liable for knowingly or recklessly publishing false statements about public officials or figures. At the same time, as anti-SLAPP legislation shows, expensive lawsuits and the threat of civil damages can undermine the ability of the press and others to share vitally important information with the public. Trump and his lawyers have upped the ante with consumer fraud and other claims, which must still be rebutted even if frivolous.
In the hands of political officials, including presidents, abusive civil lawsuits can significantly undermine efforts to check power and educate the public.
Troubling successes — and possible responses
Trump has had some recent success in his civil lawsuits. For example, ABC News settled a defamation lawsuit, agreeing to donate $15 million to Trump’s presidential library and issue an apology for George Stephanopolous’s comments about the civil sexual assault verdict (which the trial judge held was “substantially true” in another Trump defamation lawsuit). CBS and “60 Minutes” are reportedly also considering a settlement, even though legal experts agree the lawsuit is based on a frivolous theory that a news network can be held liable for how it edits interviews.
Meanwhile, Trump has already extracted (if that is the right word) hefty settlements from Meta and X, for seemingly defensible decisions they made to de-platform or restrict Trump based on violations of their terms of service. A judge had dismissed Trump’s action against Twitter (now X), which was based on the First Amendment.
Of course, as law students in my classes know, the First Amendment constrains state action, not the private actions of social media platforms.
WATCH VIDEO: Firing the Watchdogs | 60 Minutes Full Episodes
There are many reasons a defendant might want to settle a civil lawsuit. One reason being to avoid a protracted and costly court proceeding, to avoid discovery, or to avoid the risk of a jury verdict. However, settlement of SLAPPs raise concerns about press obeisance and lack of independence. Rather than defend core First Amendment press prerogatives and functions, large media corporations with regulatory or other business before the Trump administration may be making balance sheet decisions.
As some commentators have suggested, social and media legacy companies may be settling meritless cases to grease the regulatory skids for pending mergers and other potential benefits from the Trump administration. Some have even suggested that some of these settlements may constitute a novel form of political corruption. Thus, one commentator referred to settling frivolous civil lawsuits brought by Trump as “a novel pathway to engage in political bribery.” (Of course, even if the practice fits that description, the administration can simply refuse to enforce political corruption laws against settling defendants.)
There are several means of combatting the weaponization of civil lawsuits. The most direct and obvious is to defend against these lawsuits and offer a robust First Amendment defense. As history shows, weaponizing civil lawsuits has dangerous implications for the freedoms of the press and speech. Trump’s aggressive resort to defamation and other civil lawsuits also highlights the importance of retaining Sullivan’s press-protective standard. Defendants ought to put up substantial and sustained resistance to lawsuit weaponization.
Anti-SLAPP statutes can also provide a deterrent. A federal anti-SLAPP law would make this important protection more widely available. Thus far, Trump has not been much deterred by anti-SLAPP liability. However, making such protections available regardless of jurisdiction would provide all defendants an opportunity to dismiss harassing defamation claims.
There are also actions judges can take to punish and deter abusive civil lawsuits. Judges have the power to dismiss baseless or frivolous claims on their own, and to sanction lawyers who file them. Some commentators have urged judges to refuse to approve media settlements of frivolous claims brought by Trump, on the grounds that they are the product of duress or fraud, or are otherwise against public policy.
Like agency employees, private employers, lawyers, universities, and others who have been subject to executive actions meant to punish or chill expression, media and non-media defendants currently face a critical choice: capitulate or fight.
For the sake of the First Amendment, let us hope the targets of strategic civil lawsuits defend them vigorously.
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.
On March 14, the U.S. Court of Appeals for the 4th Circuit issued a decision allowing the Trump administration to enforce Executive Orders 14151 and 14173, both of which target “illegal … DEI preferences, mandates, policies, programs, and activities” in the public and private sectors and in federal contracts. The 4th Circuit’s decision effectively overrules a February 21 preliminary injunction issued in a U.S. District Court in Maryland that had blocked the administration from enforcing some provisions in the orders.
As a reminder, orders 14151 and 14173 revoke prior executive orders, including Executive Order 11246, which required federal contractors to maintain affirmative action plans. Among other things, orders 14151 and 14173 also mandate that:
federal agencies include provisions in federal contracts requiring that contractors agree to comply with nondiscrimination laws and certify they do not operate any DEI programs that violate discrimination laws;
the Office of Management and Budget terminate all “‘diversity,’ ‘equity,’ ‘equitable decision-making,’ ‘equitable deployment of financial and technical assistance,’ ‘advancing equity,’ and like mandates, requirements, programs, or activities, as appropriate;” and
each agency “identify up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars.”
CUPA-HR will continue to share further developments regarding the lawsuits challenging orders 14151 and 14173.
This audio is auto-generated. Please let us know if you have feedback.
Dive Brief:
Diversity, equity, inclusion and accessibility best practices are not illegal, said Massachusetts Attorney General Andrea Joy Campbell and Illinois AG Kwame Raoul, in a multi-state DEIA at work guidance.
In the Feb. 13 letter, the AGs said the federal government lacks the power to issue executive orders that prohibit “otherwise lawful activities in the private sector or mandates the wholesale removal of these policies and practices within private organizations, including those that receive federal contracts and grants.”
The AGs of Arizona, California, Connecticut, Delaware, Hawaii, Maine, Maryland, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode Island and Vermont joined in issuing the guidance.
Dive Insight:
The letter came as a response to constituent concerns about the continued viability of DEIA, the AGs said, mainly in light of President Donald Trump’s executive orders.
The primary EO in question, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” includes a directive that “order[s] all agencies to enforce our longstanding civil-rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.”
The executive order alleges that colleges, along with other organizations, have “adopted and actively use dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called … ‘diversity, equity, inclusion, and accessibility.’”
Campbell and Raoul said the order “conflates unlawful preferences in hiring and promotion with sound and lawful best practices for promoting diversity, equity, inclusion, and accessibility in the workforce.”
While the judge did not prevent the U.S. Department of Justice from proceeding with its investigation of private-sector DEI programs, Judge Adam Abelson held that the plaintiffs would likely succeed with their First and Fifth amendment claims, as well as claims alleging violations of the separation of powers clause.
Prior to the most recent guidance, Democrat attorney generals have made it their priority to speak up about DEI: Last summer, the AGs defended the American Bar Association’s diversity requirements for law schools.
More recently, the Democrat AGs said that the U.S. is “on the brink of dictatorship” due to Trump’s executive orders challenging the scope of the Constitution.
A key takeaway for HR? “Properly developed and implemented initiatives aimed at ensuring that diverse perspectives are included in the workplace help prevent unlawful discrimination,” the AGs said.
On February 21, a U.S. district judge issued a preliminary injunction against portions of two of the Trump administration’s executive orders regarding DEI programs. The decision, issued in U.S. District Court for the District of Maryland, blocks federal agencies from taking action to withhold federal funding from federal contractors that conduct programs or initiatives related to DEI.
The preliminary injunction strikes down three separate provisions across these executive orders:
EO 14151 requires the federal government to terminate all equity-related grants or contracts within 60 days (known as the “Termination Provision”).
EO 14173 requires that every grant recipient or federal contractor affirm its compliance with all federal antidiscrimination laws and that it does not operate any DEI programs (known as the “Certification Provision”).
EO 14173 directs the attorney general, in consultation with other relevant agencies, to promulgate a report with recommendations to enforce civil rights laws and encourage the private sector to end DEI practices. The report is required to identify “the most egregious and discriminatory DEI practitioners in each sector of concern.” It also requires each agency to identify up to nine potential civil compliance investigations as a way to deter DEI programs or principles. The EO lists institutions of higher education with endowments over $1 billion as potential targets for the civil compliance investigations (known as the “Enforcement Threat Provision”).
The National Association of Diversity Officers in Higher Education, the American Association of University Professors, Restaurant Opportunities Centers United, and the mayor and city council of Baltimore, Maryland, challenged these three provisions, arguing that they violate free speech rights under the First Amendment and are unconstitutionally vague — violating the Fifth Amendment. Plaintiffs additionally alleged four types of irreparable harm: threat of loss of funds, uncertainty regarding future operations, loss of reputation, and chilled speech.
The court ultimately ruled that the plaintiffs were likely to succeed on their constitutional complaints and adequately demonstrated a sufficient likelihood of irreparable harm. The decision concluded that EO 14173 offers no guidance or notice of what the government now considers illegal DEI, and that plaintiffs showed “substantial evidence of the risks of such arbitrariness,” and that by “threatening the private sector with enforcement actions based on those vague, undefined standards, the Enforcement Threat Provision is facially unconstitutional under the due process clause of the Fifth Amendment.”
The preliminary injunction means that federal agencies may not:
pause, freeze, impede, block, cancel or terminate any awards, contracts or obligations, or change any current obligation terms on the basis of the Termination Provision;
require any contractor to make any certification or other representation pursuant to the Certification Provision; or
bring any enforcement action under the False Claims Act in relation to the Enforcement Threat Provision.
The injunction does not speak to actions that federal agencies may have already taken in response to both executive orders. Nonetheless, the Trump administration will likely appeal the ruling. Given that the policies raised in these executive orders will hold widespread implications for federal contractors in the higher education community, CUPA-HR will continue to share further developments.
The appointment of a new chief executive for UK Research and Innovation (UKRI) could not happen at a more crucial time.
With public finances under strain, the case for public investment in R&D needs to be made cogently and needs to focus both on addressing the UK’s five government missions and on sustaining the fantastic research asset which the UK university sector represents. The list of issues for the new appointee will no doubt be lengthy, but we put forward the following as a possible shortlist of priorities.
1. The interface (pipeline) between research councils and Innovate UK
One of the main goals in establishing UKRI was to ensure a smooth pipeline from the research undertaken by the individual research councils to the industrial/end user base thereby bringing both economic and societal benefit. However, despite years of intent this pipeline seems as obstructed as ever. The fundamental question remains: to what extent is the role of Innovate UK to aid the transition of the outcomes resulting from research council funding versus simply supporting UK-based enterprises in their own research?
Currently there are disconnects between the research priorities, often defined by government and implemented by the research councils, and the Innovate UK funding mechanism to ensure they are exploited. There are some exceptions here of course: the Creative Industries Clusters was a good example of a joint initiative between AHRC and Innovate UK which did integrate industry demand to local research strengths.
A key priority for the new chief executive is to join up the pipeline more effectively across the whole range of industry sectors and ensure a very clear role for Innovate UK in partnership with the research councils and the subsequent interface to the National Wealth Fund or British Business Bank.
2. Articulating and agreeing the balance between UKRI spend on government priorities and investment in the research base of the future
As we have argued elsewhere on Wonkhe, the nation needs UKRI to fund both the research required by current government priorities relating to industrial strategies or societal challenges, and invest in the broader research base that, in the words of science minister Patrick Vallance, will feed the “goose that lays the golden egg” of our research base and the opportunities of tomorrow.
Currently, this balance is, at best, hidden from view, suiting neither the needs of government nor the future aspirations of the sector. We urge UKRI to quantify this balance historically and to articulate a proposal to government for moving forward. We also require balance between the budget committed in the long-term to institutes, infrastructure, international subscriptions, and facilities vs. the shorter-term funding into the wider research and innovation community. Balancing these priorities requires a strengthening of the relationship, and open discussion, between UKRI, DSIT and wider government.
3. Ensuring UKRI is relevant to the government’s regional economic development agenda
As part of the government’s economic agenda, driving productivity growth in the tier-2 cities outside the South-East and the wealthier places in the UK is key to executing its growth mission. There is a clear tension here in UKRI acting as the key funding agency for public R&D spending driven solely by excellence, and a regional economic development mission, for which additional criteria apply. This tension must be addressed and not ignored.
The creation of innovation accelerators in which additional funding was provided by government, but UKRI was involved in evaluating the merit of proposals, is a good example of how UKRI can drive change. As the government develops new levers to address and fund regional economic development, UKRI should play a key role in ensuring that this dovetails with the research and innovation base of the nation.
4. Creating a highly skilled workforce
As is becoming clear, the number of doctoral students supported by UKRI continues to fall – an issue highlighted, for example, by Cambridge vice chancellor Deborah Prentice in a recent Guardian interview. This is particularly clear in areas which have traditionally relied upon UKRI funding, such as the engineering and physical sciences. The corresponding research effort is in part bolstered by an increase in the number of fee-paying overseas students, but this does little to create the UK-based workforce industry needs.
UKRI needs to prioritise funding and work with government to find new ways of addressing the skills the nation needs if we are to drive a productive knowledge-based economy. The skills required extend beyond doctoral degrees to include technical professionals and engineers.
5. Sector confidence around REF as a rigorous, fair process, supportive of excellence
The HE sector is in financial turmoil, manifested in the unprecedented number of UK higher education institutions currently implementing severance schemes. Ongoing uncertainties over the REF process, from the portability of outputs and the lack of an essential mechanism to ensure a diversity of authors (current proposals have no cap on the number of outputs that can be submitted from any one individual) to the absence of clarity on the people, culture and environment template’s support for excellence need resolution.
This resolution is required, firstly so that research strategies institutions put in place prior to any census date have time to drive the changes required given that REF is meant to be formative as well as summative; and secondly so that institutions can efficiently deliver their REF returns to a standard and detail a government should expect to provide assurance over the future quality related (QR) spend.
6. The importance and accountability of QR
Virtually everyone in the sector embraces the notion that QR is central to the agility and sustainability of the UK research base. This certainty is matched with uncertainty within government as to the value for money this investment provides. If we are to maintain this level of trust in the sector’s ability to derive benefit from this investment, collectively we need to do a better job at showing how QR is central to the agility of our investment in the research outcomes of tomorrow and not simply a plugging of other, non-research related, financial holes. As both assessor and funder UKRI can lead and co-ordinate this response.
7. Completion of the new funding service (the software needs to work!)
The joint electronic submission system (Je-S) was outdated and potentially no longer supportable. Its back room equivalent, Siebel, even worse. Their replacement, the new funding service is an acceptable portal to applicants but seemingly still provides inadequate assurances for a system from which to make financial commitments. This shortcoming seems almost incomprehensible given it was an in-house development.
Moving beyond the essential financial controls it seems to offer little by way of the AI assistance in the identification of reviewers that the software behind the submission systems for many of our research publications has offered for decades. Whether we lack the skills or investment to solve these issues is unclear, but the inefficiency of the current situation is wasteful of perhaps an even more precious resource, namely the time of UKRI staff to add human value to our research landscape. This seeming lack of skills and the systems we require is worrying too to the future REF exercise, even once the framework is known.
8. Evidencing the effects of change
Of course the world should and must move on. As a funder of research, it is appropriate that UKRI experiments with better ways of funding, becoming an expert in metascience. Changes inspired by ideology are fine, but it is essential that these changes are then assessed to see if the outcomes are those we desired.
One example is the narrative CV, a well-meaning initiative to recognise a wider definition of excellence and an equality of opportunity. Is this what it achieved? Do we acknowledge the risks associated with AI or the unintended consequence of favouring the confident individual with English as their first language? While not advocating a return to the tradition of lists CV, we urge a formal reporting of outcomes achieved through the narrative CV using both quantitative and qualitative data and an evidenced based plan to move forward.
Looking to the future
We realise that criticism is easy and solutions are hard to find. So in case of doubt, we would like to finish with a call out to UKRI’s greatest resource, namely at all levels its committed and highly professional staff. We know at first hand the dedication of its workforce which is committed to fairly supporting the community, the research they do and the impact it creates.
The role of chief executive of UKRI provides vital leadership not just to UKRI but to the sector as a whole, and the sector must unite to stand behind the new incumbent in solving the challenges that lie ahead.
As President Donald Trump churned out more than 80 executive orders over the past three weeks, sending the higher education community into a panic, some students were surprised to see a lack of campus protests—even at institutions traditionally rife with activism.
“I haven’t seen a whole lot, which is kind of uncharacteristic of our campus,” said Alana Parker, a student at American University in Washington, D.C. Though she’s heard of certain student political groups protesting on Capitol Hill, things have been quiet on campus.
“I don’t really know why that is, because, in my opinion, there should be more of an outcry. But from my perspective, I think people feel really disenfranchised and like there’s nothing we can do,” she said.
It’s a stark contrast from two semesters ago, when AU was one of dozens of campuses that made national news after pro-Palestinian students set up encampments in opposition to their universities’ investments in companies with ties to Israel.
Students and faculty at AU—and on campuses across the nation—also protested in 2017 after Trump prohibited individuals from seven majority-Muslim nations from entering the United States, according to a news report from the time.
Angus Johnston, a historian of student protest movements and a professor at Hostos Community College, said that he’s not entirely surprised that campuses seem relatively calm. Over the past 20 years, institutions have grown less and less permissive of student protests, culminating in a harsh crackdown on pro-Palestinian protests in spring 2024—in some cases involving police arrests. Since then, many campuses have introduced new—or enforced existing—rules restricting when, where and how students can demonstrate.
Aron Ali-McClory, a national co-chair of the Young Democratic Socialists of America, said that universities’ restrictions on free speech are “100 percent a factor” in why there aren’t many protests happening on campuses right now.
But they noted that the YDSA is mobilizing, just in different ways. Many campus chapters are currently focused on campaigning for their institutions to become “sanctuary campuses,” in the vein of sanctuary cities, municipalities that do not comply with federal immigration laws. Ali-McClory said the chapters involved in that movement are currently distributing petitions, informing their peers about the movement and handing out “know your rights” materials that aim to inform immigrants of how to handle conversations and interactions with immigration officers.
“Looking at what our YDSA chapters are doing across the country, we’re seeing people pivoting to meet the moment on their campus. A lot of that looks less like, ‘Let’s go out and do a protest’ and more, ‘How do we make material gains when the cards are stacked against us?’” they said.
Parker, the AU student, has also chosen to make her voice heard in a different way. An editor of the student newspaper, The Eagle, she and her colleagues penned a staff editorial calling on the university to speak out against Trump’s executive orders, particularly those targeting immigrants and diversity, equity and inclusion efforts. She said the article seemed to be effective: A few days after its publication, the institution sent an email to the campus community, signed by President Jonathan Alger, outlining resources available for immigrant students and employees.
Alger also addressed DEI, writing, “As we continue fostering an inclusive and welcoming community, we are working with teams across campus to determine the impacts on our inclusive excellence strategy and programs.”
‘A Powerful Force’
A handful of campuses have seen protests, primarily in response to their institutions taking steps to comply with Trump’s executive orders by shuttering DEI offices or removing DEI-related language and resources from webpages, for example.
At Missouri State University, students staged a protest after administrators announced they would close the Office of Inclusive Engagement and end other DEI programs “in response to changes nationwide and anticipated actions regarding DEI at the state level.”
According to the student newspaper, The Standard, 50 students gathered outside the main administrative building on Jan. 31 to call for the removal of the university’s president and to advocate for the passage of two bills that would require Missouri schools to teach about Black history and “the dehumanization of marginalized groups.”
At Stanford University, a group of about 15 students participated in a chalking event, writing messages of dissent, like “DEI makes Stanford Stanford,” on bike paths around White Plaza, a central outdoor area on campus.
“Here at Stanford, the important thing to me was that my leaders at my school knew that there would be people who would resist anything that they did to cave to Trump,” said freshman Turner Van Slyke, who organized the demonstration. “I think those leaders just knowing that there’s going to be resistance can be a powerful force for maintaining decency against Trump.”
Various other studentnewssources have reported that students at their institutions have joined outside groups in protesting at their state capitols, hoping to register their objections to Trump’s orders with governors and state representatives.
Johnston noted that more protests may erupt elsewhere as students begin to see the ways that the executive orders are impacting their campuses more directly.
“There’s a lot of stuff that is happening now that is essentially a hand grenade or a time bomb that’s going to explode in days or weeks or months,” he said. “To a large extent, I think this stuff is not having direct impact on a lot of [students] as of yet. Some stuff may be beginning to percolate down to the campus level. But a lot of this is real stuff that is happening, but the effects of it are not being felt directly by students just yet.”
On February 5, President Trump signed an executive order titled “Keeping Men Out of Women’s Sports.” The order aims to bar transgender women and girls from participating in women’s sports by directing agencies to withdraw federal funding from schools that refuse to comply with the order.
The EO claims that, in recent years, educational institutions and athletic associations have allowed men to compete in women’s sports, which the Trump administration believes denies women and girls equal opportunity to participate in competitive sports, thus violating Title IX. As a result, the EO sets policy to “rescind all funds from educational programs that deprive women and girls of fair athletic opportunities” and to “oppose male competitive participation in women’s sports more broadly.”
With respect to the specific actions ordered, the EO directs the secretary of education to ensure compliance with the court order to vacate the Biden administration’s Title IX rule and to take other actions to ensure that the 2024 regulations do not have effect. It also directs the secretary to take action to “protect all-female athletic opportunities” by setting forth regulations and policy guidance that clearly specifies and clarifies “that women’s sports are reserved for women.”
Notably, the EO further directs all federal agencies to review grants to educational programs and to rescind funding to programs that fail to comply with policy set forth in the EO. Institutions with grant programs deemed to be noncompliant with this order could, therefore, risk losing federal funding for that program.
The EO also seeks quick enforcement by federal agencies. The EO orders the Department of Education to prioritize Title IX enforcement actions against educational institutions and athletic associations that “deny female students an equal opportunity to participate in sports and athletic events.” The Department of Justice is also tasked with providing resources to relevant agencies to ensure “expeditious enforcement” of the policy set forth in the EO.
Finally, the EO directs the assistant to the president for domestic policy to convene both major athletic organizations and state attorneys general to promote policies consistent with Title IX and identify best practices in enforcing equal opportunities for women to participate in sports.
On February 6, the NCAA updated its policy regarding transgender student-athlete participation in response to the EO. According to the NCAA, the new policy limits competition in women’s sports to student-athletes assigned female at birth, but it allows student-athletes assigned male at birth to practice with women’s teams and receive benefits while practicing with them. For men’s sports, student-athletes may participate in practice and competition regardless of their sex assigned at birth or their gender identity, assuming all other eligibility requirements are met.
Institutions should review their policies and practices in light of the EO and the NCAA’s policy change. CUPA-HR will continue to monitor for Title IX updates and keep members apprised of new enforcement under the Trump administration.
To lift a line from the songwriter extraordinaire of our era, “the times they are a- changin’.” Indeed, they are — and this is certainly true in our own corner of the world, the world of free speech.
For better and worse, Donald Trump and his agents are rearranging the structure of free expression in America. Only a few weeks into his presidency, things are proceeding at a breakneck speed, with a flurry of executive orders flying out the windows of the White House. Even early on, there is a sense that what will follow may well mark one of those pinpoints in our history when that “experiment” of which Holmes spoke is tested. Whatever else happens, it is important that there is some record of these times and what happened in them. To that end, we will soon launch a new segment within FAN called “Executive Watch” to track it all: the President’s orders, the executive agencies’ actions, the activities of the President’s affiliates, and Mr. Trump’s personal undertakings.
Enter Professor Timothy Zick, the William and Mary Law School Robert & Elizabeth Scott Research Professor and John Marshall Professor of Government and Citizenship.
WATCH VIDEO: Trump Calls For Changes To First Amendment, Demands “Mandatory One-Year In Jail” For U.S. Flag Burning.
By chronicling such information and then analyzing it, the hope is that our readers will have a more informed sense of the state of free speech at a time when so much is in flux. There is the hope that “Executive Watch” will prompt further discussion of that vital freedom that is at the core of constitutional government in America.
FBI agents file First Amendment class action
While FBI agents may be at-will employees who can, generally speaking, be fired for “any reason or no reason,” they can’t be fired for an unconstitutional reason, or as punishment for the exercise of their constitutional rights (e.g. he can’t fire all the African-American agents, or all the agents registered as Democrats).
The Complaint, filed in DC District Court, is posted here. Plaintiffs are “employees of the FBI who worked on Jan. 6 and/or Mar-a-Lago cases, and who have been informed that they are likely to be terminated in the very near future for such activity.” They “intend to represent a class of at least 6,000 current and former FBI agents and employees who participated in some manner in the investigation and prosecution of crimes and abuses of power by Donald Trump, or by those acting at his behest.”
Knight Institute on need for fact-checking platform
[Recently] Meta announced changes . . . to its content moderation policies, including that it’s replacing third-party fact checking with a Community Notes model that allows users to publicly flag content they believe to be incorrect or misleading.
The following can be attributed to Katherine Glenn Bass, the Knight Institute’s research director:
Katy Glenn Bass
“Mark Zuckerberg’s announcement today is a stark reminder that many of the biggest platforms we use to communicate about issues of public importance are owned by billionaires who are not accountable to us. Apart from the obvious effort to signal political allegiance, the impact of the announced changes will not be clear for some time. But if we have any hope of measuring or understanding what is happening on these platforms, we need strong protections for the independent researchers and journalists who study them, and better mechanisms for ensuring they can access platform data.”
In 2019, more than 200 researchers signed an open letter in support of the Knight Institute’s efforts to persuade Facebook to amend its terms of service to establish a “safe harbor” for public-interest journalism and research on the platform. Read more about that effort here.
Shibley on Harvard’s anti-Semitism settlement
Robert Shibley
Just one day after President Trump took office, Harvard agreed to settle two lawsuits brought against it by Jewish students that alleged the university ignored “severe and pervasive anti-Semitism on campus” and created “an unbearable educational environment” in the wake of the October 7, 2023, Hamas attack on Israel and the ongoing war in Gaza.
While the settlement language itself does not appear to be public, a press release filed on the official docket of The Louis D. Brandeis Center for Human Rights Under Law v. President and Fellows of Harvard College included some details. Most notably, Harvard agreed to adopt the International Holocaust Remembrance Alliance’s (IHRA’s) definition of anti-Semitism. FIRE’s worry, shared by many others — including the definition’s primary author — is that, when added to policies used to punish discriminatory harassment on American campuses, the definition is too likely to be used to punish speech that is critical of Israel or its government but that is not motivated in animus against Jews or Israelis.
FIRE has repeatedly proposed steps to address anti-Semitic discrimination on campus that would safeguard students from harassment while protecting freedom of speech, most recently in our inauguration-day letter to President Trump. Getting this right is important; any proposal that chills or censors protected speech on campus won’t pass constitutional muster at public universities, won’t square with free speech promises at private universities (like Harvard), and won’t effectively address anti-Semitism.
Nevertheless, attempts to codify the IHRA definition of anti-Semitism into laws or regulations are nothingnew. FIRE posted a roundup of the widespread civil libertarian opposition to its codification last year, when Congress considered adopting it as federal law. Among those opponents is the definition’s primary author, Kenneth Stern, who spoke at length with FIRE’s Nico Perrino on our So to Speak podcast about why it’s not the right tool for the job of regulating speech. As Stern wrote back in 2016 for The New York Times: “The definition was intended for data collectors writing reports about anti-Semitism in Europe. It was never supposed to curtail speech on campus. . . . And Jewish students are protected under the law as it now stands.” (Perhaps “as it is now written” would have been more precise; whether colleges follow the law is a different issue.)
As Stern predicted in that piece:
If this bill becomes law it is easy to imagine calls for university administrators to stop pro-Palestinian speech. Even if lawsuits alleging Title VI violations fail, students and faculty members will be scared into silence, and administrators will err on the side of suppressing or censuring speech.
Stern’s prediction is about to receive ground testing at Harvard, and likely at other universities that may follow its lead.
Forthcoming book: New edition of Neier’s ‘Defending My Enemy’
A new edition of the most important free speech book of the past half-century, with a new essay by the author on the ensuing fifty years of First Amendment controversies.
When Nazis wanted to express their right to free speech in 1977 by marching through Skokie, Illinois — a town with a large population of Holocaust survivors — Aryeh Neier, then the national director of the ACLU and himself a Holocaust survivor — came to the Nazis’ defense. Explaining what many saw as a despicable bridge too far for the First Amendment, Neier spelled out his thoughts about free speech in his 1977 book Defending My Enemy.
Now, nearly fifty years later, Neier revisits the topic of free speech in a volume that includes his original essay along with an extended new piece addressing some of the most controversial free speech issues of the past half-century. Touching on hot-button First Amendment topics currently in play, the second half of the book includes First Amendment analysis of the “Unite the Right” march in Charlotteville, campus protest over the Israel/Gaza war, book banning, trigger warnings, right-wing hate speech, the heckler’s veto, and the recent attempts by public figures including Donald Trump to overturn the long-standing Sullivan v. The New York Times precedent shielding the media from libel claims.
Including an afterword by longtime free speech champion Nadine Strossen, Defending My Enemy offers razor-sharp analysis from the man Muck Rack describes as having “a glittering civil liberties résumé.”
Praise for Defending My Enemy
“Aryeh Neier’s Defending My Enemy is as relevant today as it was when it was first published. The book is a powerful reminder of why free speech matters—not just for the voices we agree with, but for the voices we abhor. Neier’s story of defending Nazis’ rights to speak in Skokie underscores a timeless truth: If we want to preserve freedom for ourselves, we must be willing to defend it for others, no matter how deeply we disagree. At a time when censorship is on the rise globally, Defending My Enemy stands as a bold and principled call to action. Every advocate of free expression needs to read this book—and more importantly, live its lessons.” — Greg Lukianoff
Forthcoming scholarly article: ‘Output of machine learning algorithms isn’t entitled to First Amendment protection’
Machine learning algorithms increasingly mediate our public discourse – from search engines to social media platforms to artificial intelligence companies. And as their influence on online speech swells, so do questions of whether and how the First Amendment may apply to their output. A growing chorus of scholars has expressed doubt over whether the output of machine learning algorithms is truly speech within the meaning of the First Amendment, but none have suggested a workable way to cleanly draw the line between speech and non-speech.
This Article proposes a way to successfully draw that line based on a principle that we call “speech certainty” – the basic idea that speech is only speech if the speaker knows what he said when he said it. This idea is rooted in the text, history, and purpose of the First Amendment, and built into modern speech doctrines of editorial discretion and expressive conduct. If this bedrock principle has been overlooked, it is because, until now, all speech has been imbued with speech certainty. Articulating its existence was never necessary. But machine learning has changed that. Unlike traditional code, a close look at how machine learning algorithms work reveals that the programmers who create them can never be certain of their output. Because that output lacks speech certainty, it’s not the programmer’s speech.
Accordingly, this Article contends that the output of machine learning algorithms isn’t entitled to First Amendment protection. With the Supreme Court signaling its intent to address unresolved questions of online speech, we are poised to enter a new era of First Amendment jurisprudence in the coming years. As we do, scholars, practicing attorneys, and judges can no longer ignore how the algorithms underlying online speech actually work – and how they have changed with the advent of machine learning.
Without recognizing this paradigm shift in algorithmic speech, we risk sleepwalking into a radical departure from centuries of First Amendment jurisprudence. By failing to distinguish between traditional and machine learning algorithms, current consensus about algorithmic speech suggests that the Constitution should, for the first time in its history, protect speech that a speaker does not know he has said. Speech certainty provides a novel and principled approach to conceptualizing machine learning algorithms under existing First Amendment jurisprudence.
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.
On January 29, President Trump signed an executive order titled “Additional Measures to Combat Anti-Semitism.” The order directs certain federal agencies to use appropriate legal tools to “prosecute, remove, or otherwise hold to account the perpetrators of unlawful anti-Semitic harassment and violence.”
Background
The new EO directly connects to and expands upon Trump’s EO 13899, “Combating Anti-Semitism,” that was signed in December 2019. The 2019 EO tasks federal departments and agencies charged with enforcing Title VI of the Civil Rights Act to use the law to investigate potential cases of discrimination against Jewish individuals where such action does not run contrary to rights protected under other federal laws.
The Biden administration did not rescind EO 13899, and they pursued regulations at the Department of Education to amend Title VI for cases involving discrimination based on shared ancestry or ethnic characteristics. The proposed rule, which was not published during the Biden administration but was most recently included in the Fall 2024 Regulatory Agenda, indicated that the regulations were in part in response to EO 13899.
2025 Executive Order
The new EO states that it reaffirms EO 13899 and “directs additional measures to advance the policy thereof in the wake of the Hamas terrorist attacks of October 7, 2023.” It takes direct aim at institutions of higher education, stating that the attacks resulted in “an unprecedented wave of vile anti-Semitic discrimination, vandalism, and violence … especially in our schools and on our campuses.”
In response to these claims, the EO directs all federal agencies to submit a report within 60 days of the order that identifies “all civil and criminal authorities or actions within the jurisdiction of that agency, beyond those already implemented under Executive Order 13899, that might be used to curb or combat anti-Semitism.” Notably, the order directs these agency reports to include “an inventory and analysis of all pending administrative complaints … against or involving institutions of higher education alleging civil rights violations related to or arising from post-October 7, 2023, campus anti-Semitism.”
The EO provides additional requirements for the reports submitted by the U.S. attorney general and the secretary of education. Specifically, the order directs the attorney general’s report to include “an inventory and analysis of all court cases against or involving institutions of higher education alleging civil rights violations related to or arising from” antisemitism that potentially occurred after the October 2023 attacks. The attorney general is also required to indicate whether they intend to or have taken any action with respect to the cases at institutions of higher education. Moreover, the secretary of education is tasked with submitting additional inventory and analysis of Title VI complaints related to antisemitism that were filed to the Office for Civil Rights after the October 7 attacks.
Finally, the EO directs the secretaries of state, education and homeland security to report recommendations to familiarize “institutions of higher education with the grounds for inadmissibility under 8 U.S.C. 1182(a)(3) so that such institutions may monitor for and report activities by alien students and staff relevant to those grounds” and to ensure “that such reports about aliens lead, as appropriate and consistent with applicable law, to investigations and, if warranted, actions to remove such aliens.”
Next Steps
As explained above, the EO directs agencies to promulgate reports for the president within the next 60 days. Additional information and guidance are needed from relevant agencies to determine next steps for institutions of higher education. CUPA-HR will keep members apprised of additional updates related to Title VI enforcement and public policy related to antisemitism on campus.
