Tag: Laws

5 laws FIRE wants on the books to protect free speech

Even with the robust protections offered to us by the First Amendment and the decades of decisions made by our federal and Supreme courts, defending free speech is still difficult business. Infringements on our rights often take advantage of loopholes and gaps in our legal frameworks, leading to actions — particularly from those in power — that violate our expressive rights and chill free speech.

That’s why FIRE has long championed a variety of proposals to help safeguard free expression from government attacks and abuse, including federal legislation. But what would that legislation look like?

Here are five legislative proposals FIRE has recommended to Congress to bolster free speech rights for everyone and make censorship by federal officials more difficult — no matter what party is in power.

Improve transparency and accountability for jawboning

“Jawboning” refers to situations in which a government official informally coerces a private party to censor constitutionally protected speech.

For example, when the head of New York’s Department of Financial Services threatened to wield her regulatory powers over several insurance companies unless they stopped doing business with the National Rifle Association — because she didn’t like its viewpoint — that was textbook jawboning. The NRA sued, and the Supreme Court unanimously ruled that these acts, if proven, are unconstitutional.

More recently, when FCC Chairman Brendan Carr threatened Disney and ABC over talk show host Jimmy Kimmel’s comments regarding the Charlie Kirk assassination, leading to Kimmel’s suspension, that was also a clear case of jawboning. “We can do this the easy way or the hard way,” Carr said. “These companies can find ways to take action on Kimmel or there is going to be additional work for the FCC ahead.”

Jawboning is a growing threat to free speech as more discourse happens on social media, where the government can reach out to platforms behind closed doors and censor speech without anyone else — including the speaker — knowing the government was involved. When this happens, civil society and the public cannot track what’s happening or adequately respond. Often, it’s only through the leaks of information after the fact that we even become aware it happened at all, as we saw with the Twitter Files.

What is jawboning? And does it violate the First Amendment?

Indirect government censorship is still government censorship — and it must be stopped.

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As we’ll get into more deeply below, we’d like to see legislation to help deter these kinds of First Amendment violations, including jawboning, by allowing people to sue federal officials for damages when they violate constitutional rights.

However, for this to be effective against jawboning on social media platforms, we will need greater transparency into the government’s communications with tech companies. To achieve that, FIRE recommends Congress pass legislation to require federal officials to publicly report their communications with social media companies about user content on their platforms. One option is FIRE’s Social Media Administrative Reporting Transparency (or SMART) Act, which accompanied our Report on Social Media.

By forcing officials to either hold off on jawboning or do it out in public, where they’ll be subject to scrutiny and possible damage awards, we can curb backdoor censorship.

Codify First Amendment protections on campus

FIRE also recommends Congress pass the Respecting the First Amendment on Campus Act, or similar campus speech legislation, to better protect First Amendment rights at public universities by putting existing constitutional protections into federal statute.

This includes ending “free speech zones,” where speech is restricted campuswide except for small, designated areas — often remote and easily ignored — effectively nullifying student expression. It also includes the prohibition of excessive security fees that colleges sometimes impose on events involving controversial speakers, as a thinly veiled attempt to stop the event from happening.

Free Speech Zones

Free speech zones limit expressive activity to small and/or out-of-the-way areas. They are usually unconstitutional on college campuses.

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We’ve also long supported legislative efforts to rectify the Department of Education’s abuse of antidiscrimination law to suppress protected speech. One important thing Congress can do is to codify the Supreme Court’s Davis standard for when peer-on-peer harassment creates a hostile environment in violation of federal civil rights laws, including Title VI of the Civil Rights Act, or its sister statute, Title IX. Under Davis, protected speech only rises to a violation of these statutes if it is:

So severe, pervasive, and objectively offensive, and . . . so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.

The Education Department under both Presidents Obama and Biden explicitly claimed that Davis did not apply to its regulatory activities (only to civil lawsuits brought under federal antidiscrimination laws). Nor is the Trump administration following Davis in its Title VI enforcement efforts. Instead, under each administration, the Education Department has concocted similar-sounding standards that (unlike Davis) can allow a single instance of protected speech to violate Title VI or IX. This pressures schools to suppress any speech that is deemed hurtful to protected groups, leading campuses to commit an endless stream of free speech violations. The Davis standard prevents this while still ensuring the Department can address actual, undeniable discriminatory harassment.

We also recommend pairing the Davis codification with a codification of religion as a protected class under Title VI, and codification of longstanding federal guidance that says Jewish students and other groups of shared ethnicity can avail themselves of Title VI, based on its protections against discrimination on the basis of national origin. Taking these steps would create another protection against genuine student harassment without infringing on other students’ free speech rights.

Let people sue federal officials for damages when they violate constitutional rights

Much of the censorship federal officials engage in is already illegal. In many cases, these officials are committing straightforward constitutional and statutory violations, and asserting authority that they simply don’t have.

When state officials violate constitutional rights, including under the First Amendment, victims can sue them to obtain monetary damages and can collect attorneys’ fees. This provides a direct, personal incentive for state officials to respect Americans’ rights.

Unfortunately, that doesn’t exist at the federal level. Federal officials can only be sued to get the violations to stop, not to actually get compensation or accountability. This gives officials an incentive to continue their unconstitutional behavior because they have no skin in the game. They may be stopped after the fact, but they aren’t personally deterred from committing the violation in the first place.

FIRE recommends Congress pass legislation to let people sue for damages when federal officials violate someone’s constitutional rights. This would create a stronger incentive for federal officials to respect Americans’ rights by giving victims teeth when fighting back.

Create strong anti-SLAPP rules in federal court

A strategic lawsuit against public participation, or SLAPP, is a frivolous lawsuit someone files in order to punish a critic or opponent for their speech. The idea of a SLAPP is not to win on the merits of the case, but to retaliate against someone exercising their First Amendment rights. People who engage in SLAPPs do this by dragging their targets through a costly court process, or getting them to settle and retract their speech to avoid such costs.

Too often, the powerful use SLAPPs to send a clear, speech-chilling message: “Speak out against me, and I will ruin you.”

Most of these lawsuits come from private individuals and corporations, but lawsuits by government officials against their critics — including news outlets — have also become a problem in recent years. California Gov. Gavin Newsom, for example, filed a defamation lawsuit against Fox News in June, arguing that host Jesse Watters “misleadingly edited a video” to claim that Newsom lied about a phone call he’d had with President Trump. Or consider President Trump’s $15 million suit, filed last month against Penguin Random House and The New York Times for news articles he claims were designed to limit his prospects in the 2024 presidential election.

For the rich, free speech — for others, a SLAPP in the face

Texas lawmakers once stood up for free speech. Now, some seem more interested in helping the rich sue critics into silence.

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Many states have passed robust protections against SLAPPs, which speed up the process to dismiss frivolous cases and require the person who filed the SLAPP to pay the other side’s attorneys’ fees. However, plaintiffs can often evade state anti-SLAPP laws by filing in federal court. FIRE recommends Congress pass a federal anti-SLAPP law to plug that gap.

Remove the FCC’s ability to regulate broadcast content

Last, but certainly not least, FIRE also recommends Congress pass legislation to clarify that the FCC has no authority to regulate content on broadcast TV and radio.

In every other medium of communication, the First Amendment bars the government from regulating the content of protected speech unless the action can survive strict constitutional scrutiny. Broadcast TV and radio, however, have been treated somewhat differently. Because the “airwaves” were historically seen as a finite resource, and one of only a small number of ways to share speech with a mass audience, the Supreme Court allowed the FCC to engage in some regulation of content by broadcasters.

But that leeway has always been minimal, and the Communications Act specifically denies the FCC the power of censorship. Courts over the past five decades have also grown increasingly skeptical of the few areas of content regulation that were considered permissible. Recently, FCC officials have ignored these developments and mischaracterized the FCC’s “public interest” authority as a blank check to regulate content. It isn’t — and never was.

Congress can play an important role by clarifying that the “scarcity rationale,” which was originally thought to support different constitutional treatment for the broadcast medium, has long since been eclipsed by technological changes. It actually said so once before, when it adopted the Telecommunications Act of 1996, but it should be more explicit this time by also deleting the few areas where the statute authorizes content regulation.

This should make clear that recent examples of the FCC’s misuse of the public interest standard are being beyond its authority. A prime instance of this is Chairman Carr’s invocation of the public interest standard to threaten ABC over the content of Jimmy Kimmel’s speech. This would also make clear that historic examples, such as the Democratic National Committee’s campaign during the Kennedy administration of filing FCC complaints to silence conservative radio commenters, were illegitimate.

Carr’s threats to ABC are jawboning any way you slice it

ABC suspended Jimmy Kimmel hours after FCC Chair Brendan Carr suggested they could face consequences for remarks Kimmel made in the aftermath of Charlie Kirk’s murder.

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Another recent example of the FCC’s weaponization of its authorities is the FCC’s various actions to dust off an obscure policy against “news distortion” as a way to oversee broadcasters’ editorial judgments. As FIRE has noted in an FCC filing, that policy, originally designed to address “deliberate distortion or staging” of news events, was almost never invoked or enforced. That is for good reason: FCC commissioners understood that the commission could not function as the nation’s speech police. And until the past few months, the commission realized both the Communications Act and the First Amendment barred any attempt to revitalize the news distortion policy. Congress should remind the FCC of that fact.

Earlier this year, FIRE filed a comment encouraging the FCC to withdraw these and all of its other content-based regulations. A few of those regulations are required by federal law, and so it’s up to Congress to repeal them. Others are just within the FCC’s interpretation of its authority. To address those, we recommend Congress explicitly bar the FCC from regulating any constitutionally protected content.

Why this matters now, and why it will always matter

The bottom line with all of these proposed laws is simple: we must limit the government’s power to censor either directly or indirectly.

Although free speech issues are getting more attention this year as a result of the current administration’s actions, the threats these laws are designed to address began before our current political turmoil, and will continue long after it ends — unless Congress steps in to do something about it. Our goal is not to merely prevent one side or the other from abusing their power and targeting protected speech; it is to prevent any administration from doing so. This approach is the only way to successfully protect our First Amendment rights and the democratic culture it is meant to preserve.

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November 10, 2025
Anti-SLAPP laws protect Davids from being silenced by Goliaths

The First Amendment was born out of colonial attempts to silence the press with libel laws. Yet more than two centuries later, the wealthy and powerful still use the legal system to bully critics into submission through meritless defamation lawsuits — also known as strategic lawsuits against public participation, or SLAPPs.

One recent example comes from Seymour, Indiana, where attorney Brett Hays sued local resident Anthony Couch over things Couch said on his Facebook page, Seymour Immigration. The page calls itself a “media/news company” and says it aims to “show the destruction of Seymour IN brought on by the illegal immigration problem in Seymour IN and the nation.”

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Couch wrote that Hays “is making a killing on representing illegal immigrant crimes” and quoted Hays’ website, which stated, “Even undocumented individuals have rights which they can and should exercise,” offering to help them understand those rights. In a separate post that didn’t mention Hays, Couch wrote, “Notice most if not all are listed as WYTE….this is how they keep the immigrant crime numbers down.” Hays says Couch’s posts, which accuse him of professional “misconduct and unfitness,” are false and damaging — so he’s suing Couch for defamation and wants a judge to make him take down the posts.

But those posts are actually a textbook example of protected opinion. Hays doesn’t deny that he defends people accused of crimes or that his website offers help to undocumented immigrants. Couch’s take, that Hays is “making a killing,” is just an opinion and a common figure of speech, not a factual claim that can be proven true or false. The First Amendment protects this kind of criticism, regardless of whether it is fair, eloquent, or well-reasoned.

The court sided with Couch for now, denying Hays’ request for an emergency order that would’ve forced Couch to delete his Facebook posts. In its decision, the Court said Couch never claimed “that Hays committed any act of incompetence as an attorney,” and that the phrase “making a killing” is “at worst hyperbole or a snide comment.” The court also noted that the other statement Hays complained about didn’t even mention him by name, and appeared to be a complaint about the legal system in general. In response to Hays’ lawsuit, Couch filed an anti-SLAPP motion — a move to dismiss lawsuits meant to silence speech — which the court hasn’t yet ruled on.

SLAPPs like this are filed fairly routinely. FIRE has defended multiple speakers against SLAPPs and SLAPP threats. One of our clients, Iowa pollster J. Ann Selzer, was sued by President Donald Trump for “election interference” and violations of the Iowa Consumer Fraud Act after her 2024 pre-election poll showed Kamala Harris leading Trump by three points — despite Trump ultimately carrying the state by more than 13. In fact, a federal court just dismissed a copycat lawsuit filed against Selzer by a subscriber to The Des Moines Register, styled as a class action, which FIRE also defended.

VICTORY! Federal district court dismisses class-action suit against pollster J. Ann Selzer

Federal district court tosses ‘fake news’ lawsuit against pollster J. Ann Selzer, affirming First Amendment protections for election commentary.

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To combat this weaponization of the courts, often by those with significant power and resources, many states have enacted anti-SLAPP laws. These laws protect journalists, news organizations, and ordinary citizens who publicly voice their opinions, expediting the dismissal of meritless defamation lawsuits before they drain defendants’ time and money. As of now, 38 states plus Washington, D.C. have anti-SLAPP laws on the books.

The strength of anti-SLAPP protections varies by state, but most follow the same two-step process. First, the individual being sued files a motion to strike the SLAPP, arguing that the case targets their speech on an issue of public concern. If they can show that, the burden flips: the plaintiff then has to prove their lawsuit actually has merit.

Think of it as an expedited mini-trial that lets judges quickly toss out frivolous claims and spares defendants the time and court costs of full-blown litigation. If the plaintiff can’t make their case, the lawsuit gets tossed — and in many states, the plaintiff has to pay the defendant’s legal fees. That fee-shifting rule discourages people from filing bogus suits and encourages lawyers to take on free speech cases for clients who otherwise would not be able to afford defending themselves.

While the Selzer case is high-profile given the parties involved, SLAPPs involving everyday Americans like Anthony Couch are all too common — and far less visible. Thankfully, Indiana not only has an anti-SLAPP law on the books, but one robust enough to earn a B+ rating from the Institute for Free Speech. Under that law, discovery is paused once the defendant files an anti-SLAPP motion, and successful defendants can recover attorney’s fees. However, if the anti-SLAPP motion is deemed frivolous, the defendant must pay the plaintiff’s attorney’s fees instead.

The anti-SLAPP hearing in Couch’s case has been set for Feb. 20. Indiana’s strong anti-SLAPP protections give defendants like Couch a fighting chance to avoid costly, drawn-out litigation and hold would-be censors accountable for misusing the judicial process to suppress criticism. The fee-shifting provision may also encourage local attorneys to represent Couch, who is currently defending himself, and other unjustly targeted speakers.

The Seymour Immigration page remains active, and Couch does not seem deterred by the lawsuit, likely buoyed by the protections Indiana law affords. But without those safeguards, his story might not be one of defiance, but of silence.

FIRE defends the individual rights of all Americans to free speech and free thought — no matter their views. FIRE’s proven approach to advocacy has vindicated the rights of thousands of Americans through targeted media campaigns, correspondence with officials, open records requests, litigation, and other advocacy tactics. If you think your rights have been violated, submit your case to FIRE today.

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November 7, 2025
How ‘anti-woke’ laws and cancel culture combine to chill classroom speech
Over the past several years, some politicians have tried to ban or limit discussion of controversial ideas in higher education, particularly those related to critical race theory, gender identity, and diversity, equity, and inclusion.

FIRE has been on the front lines of this fight, opposing bills that target classroom speech and challenging those that become law. We’ve warned legislators that attempts to ban ideas from the college classroom are unconstitutional. As the Supreme Court explained, the First Amendment “does not tolerate laws that cast a pall of orthodoxy over the classroom.”

Many legislatures now write their bills to avoid crossing this constitutional line. When they do not, courts often step in. Florida’s “Stop WOKE Act,” for example — part of which FIRE has challenged in court — currently faces a preliminary injunction blocking the enforcement of its classroom provisions.

LAWSUIT: FIRE challenges Stop WOKE Act’s limits on how Florida professors can teach about race, sex

First Amendment doesn’t allow Florida law to declare which concepts are too challenging for students and faculty to discuss in a college classroom.

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Perhaps in part because of this roadblock, some actors have taken a more indirect approach to removing disfavored ideas from the classroom: a mix of “anti-woke” laws and cancel culture designed to intimidate schools into doing what the state cannot do directly.

This process involves some or all of the following steps: a politician passes an “anti-woke” law, someone misinterprets the law and claims a professor violated it, outrage erupts and people demand the school take action, school administrators cave to the pressure and punish the teacher, the school announces reviews of curricula, and then other schools follow suit.

Here’s how that cycle works in detail — and why it’s chilling classroom speech.

Step 1: “Anti-woke” laws set the stage

Texas A&M senior lecturer Melissa McCoul began the summer semester teaching ENGL 360: Literature for Children, a course she had taught 12 times that focused on “representative writers, genres, texts and movements.” During the third week of class, they were reading Jude Saves the World, a novel about a 12-year-old who identifies as nonbinary. As part of their discussion, McCoul displayed an image of the “gender unicorn,” a graphic device used to educate children about gender identity, expression, and sexuality.

Whatever one’s personal views, it should not be a surprise that a children’s literature course would focus on how contemporary children’s authors approach the major social issues of the day, such as gender ideology. Faculty at public colleges also have a First Amendment right to share their views, and to invite students who disagree to challenge them. In fact, McCoul acknowledged in the course syllabus that some of the class materials would spark “differing opinions” and that students were “not required to agree.”

This was a chance for open dialogue, until it wasn’t.

A student in McCoul’s class raised her hand and asserted that President Trump’s executive order on gender identity somehow made the discussion illegal. The student subsequently reached out to school President Mark Welsh, who defended the inclusion of LGBT content in professional-track courses. He explained to her that students “want to understand the issues” that affect the people they will work with.

Nevertheless, the school canceled the class for the summer, citing “the emotions” generated by this controversy. That’s no reason to cancel a class, but the school did not punish McCoul or cancel her class for the fall semester. Instead, they agreed that her course would be taken out of the core curriculum and more clearly marked as a special topics class.

But then, on Sept. 8, Texas State Representative Brian Harrison posted video of the student’s exchange with McCoul on X and wrote a letter to the Trump administration calling for an “investigation into discriminatory DEI practices.” The assistant attorney general for the Justice Department’s Civil Rights Division, Harmeet K. Dhillon, called the incident “deeply concerning” and said her division would “look into this.” Gov. Greg Abbott said McCoul acted “contrary to Texas law” without actually citing any specific laws (though Abbott directed state agencies earlier this year to align their practices and policies to recognize only two sexes).

Crucially, neither Abbott’s directive nor Trump’s order bans discussion of gender identity in college classrooms. Doing so, after all, would be unconstitutional. Instead, they largely instruct Texas and federal agencies to recognize only two sexes in official government work, not to police classroom speech.

Step 2: An outrage campaign demands punishment

Harrison’s Sept. 8 post kicked off a cascade of calls to discipline McCoul. It was also only the first in a long thread of posts that set off a social media firestorm. Before long, other high profile government figures like Abbott and Dhillon were chiming in. Others with large social media followings picked up the story. A routine classroom discussion had been reframed to the public as a legal violation requiring immediate sanction.

Step 3: The school caves to pressure

Soon after, Texas A&M fired McCoul. The school also demoted College of Arts and Sciences’ Dean Mark Zoran and the English Department head Emily Johansen.

President Welsh justified these moves by alleging McCoul taught “content that was inconsistent with the published course description.” The apparent basis for this assertion was that McCoul’s course was renumbered as ENGL 394, rather than a 400-level number that would supposedly mark it as a special-topics class. But McCoul and Johansen dispute this, noting that 394 places the course outside the core curriculum and qualifies it as a special-topic class. Other faculty agreed that there is little difference between these designations.

Whatever the case, the public pressure only continued to build. Harrison demanded that Texas A&M terminate Welsh. Texas’s lieutenant governor, Dan Patrick, echoed the call, saying that Welsh’s “ambivalence on the issue and his dismissal of the student’s concerns by immediately taking the side of the professor is unacceptable.” Barely a week later, Welsh announced his resignation, following McCoul out the door.

Step 4: Administrators announce curricular reviews

If this story ended only with a professor being fired for her protected speech, that would be bad enough. And driving out a university president is even more alarming, because it shows how these campaigns scare people into silence or submission. But Texas A&M System Chancellor Glenn Hegar then announced that he and the board of regents would audit all courses across all 12 schools in the A&M System.

Neither Hegar nor the board explained how it would carry out the course review, leaving faculty members guessing as to what materials would be under their microscope. But in a campaign like this one, a chilling vagueness is part of the point. In the aftermath of seeing a fellow professor fired for her classroom speech, one has to imagine that many will choose to avoid addressing sensitive topics in the future. And this will only serve to rob Texas A&M students of the opportunity to engage with challenging and topical issues.

Step 5: Other schools get the message

Although this controversy started with one class taught by one professor at one Texas A&M campus, the ripple effects rapidly reached campuses across the state. According to reporting at the time, multiple school systems launched reviews:
- Texas Tech told faculty that teaching must comply with “current state and federal law recogniz[ing] only two human sexes.”
- The University of North Texas system ordered an expedited review of courses and programs, including syllabi, for compliance with “all current applicable state and federal laws, executive orders, and court orders.”
- A University of Texas system spokesperson said they were reviewing “gender identity” courses for legal compliance.
- The Texas State University System told each campus to review academic programming “in light of recent inquiries.”
- Texas Woman’s University System said it was reviewing academic courses and programs for compliance.
And that, in a nutshell, is how vague laws and online outrage came together in a toxic cocktail that resulted in a fired professor, a removed dean and department head, and a university president’s resignation, not to mention several systemwide university audits of entire course catalogues — all starting with a single student’s complaint that discussing a children’s book was “illegal.”

A growing problem

This practice of overreading laws and executive orders in order to target protected speech is, unfortunately, not just limited to Texas. In July, at the University of North Carolina at Chapel Hill, the Oversight Project reportedly filed a records request for syllabi and materials from roughly 70 courses containing terms such as: “Diversity, Equity, Inclusion, and Belonging,” “gender identity,” “intersectionality,” “white privilege,” “cultural humility,” “racial equity,” “implicit bias,” “microaggressions,” “queer,” and “sexuality.”

The stated purpose of this request is to evaluate and publicize “compliance with current Executive Orders issued by the President of the United States.” But again, Trump’s executive orders have no bearing on whether these words can be used in class materials. Suggesting otherwise and going on a fishing expedition for controversial class materials only further chills protected speech.

Sometimes the pressure is quieter, but no less chilling. At the University of Alabama, Dana Patton, director of the Witt Fellows Program, says she was told by university officials that a “very powerful person” in the state capital believed her program violated state law. This person reportedly asserted, among other things, that “divisive concepts (were) embedded” in the program. Patton responded by removing course content, including three documentaries, from one of her classes because they can prompt a “visceral reaction” and “feelings of guilt and anger” in students. This is self-censorship driven by fear of political blowback, not educational judgment.

How not to reform higher ed

As government officials increasingly look for ways to reform higher education, they must remember that efforts to ban controversial ideas from academia are not merely unconstitutional, they’re harmful regardless of their legal legitimacy. Such efforts frustrate an essential purpose of university life: young Americans should be able to explore and grapple with a wide variety of ideas, even those that many find offensive.

Amy Wax is academic freedom’s canary in the coal mine

Penn’s chilling decision to punish the controversial professor calls tenure protections at private universities into question

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The debates in this country around gender and sexuality will not subside because of censorship in Texas. Indeed, classroom debates on this topic have the potential to leave both conservative and liberal students with a richer understanding of the issue. But some young Texans will now be robbed of this opportunity. Many others will be left with impoverished versions of those conversations, stripped of anything controversial that would draw the ire of government officials.

We should expect college students to be fearless when faced with ideas they dislike, regardless of the partisan valence of those ideas. As FIRE said when critics on the left came after conservative University of Pennsylvania professor Amy Wax, “Any university that would attempt to shield its community from offense would soon see the death of intellectual vitality, and the waning of its influence in society.”

If lawmakers want to reform higher education or bolster viewpoint diversity, they should do so by passing laws that protect the speech rights of all students and faculty — like FIRE’s model legislation — and they should focus on bringing more ideas onto public campuses, not removing those they dislike through vague assertions of illegality and targeted pressure campaigns.
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October 24, 2025
More states adopt laws defining ‘man’ and ‘woman,’ adding to Title IX divide
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Dive Brief:
- More states are defining what it means to be a man and woman in state law, with Texas poised to become the 14th Republican-leaning state to do so since 2023. The state’s sex definition bill was approved last week and now awaits Gov. Greg Abbott’s signature.
- Two additional states — Nebraska and Indiana — regulate the definition of sex through state executive orders, according to the Movement Advancement Project, a nonprofit that tracks legislation related to LGBTQ+ issues.
- While the impact of these laws may vary from state to state, they set the stage to prevent transgender students from accessing facilities and joining athletic teams aligning with their gender identities.
Dive Insight:

Proponents of sex definition legislation say it protects women and girls from sex discrimination based on “immutable biological differences” that can be seen before or at birth. Advocates have used the same argument in recent years to interpret Title IX, the federal civil rights law preventing sex discrimination in education programs, to separate transgender students from girls and women athletic teams and spaces.

The Texas legislation, for example, says “biological differences between the sexes mean that only females are able to get pregnant, give birth, and breastfeed children” and that “males are, on average, bigger, stronger, and faster than females.” These differences, it says, “are enduring and may, in some circumstances, warrant the creation of separate social, educational, athletic, or other spaces in order to ensure individuals’ safety and allow members of each sex to succeed and thrive.”

The language closely mirrors an executive order issued by President Donald Trump upon his return to the Oval Office in January. That order established that “it is the policy of the United States to recognize two sexes, male and female.” The order said “these sexes are not changeable and are grounded in fundamental and incontrovertible reality,” and that the concept of “gender identity” is “disconnected from biological reality and sex and existing on an infinite continuum.”

The language was also reflected in a draft resolution agreement proposed to the Maine Department of Education by the U.S. Department of Education after a short, one-month investigation by the federal agency’s Office for Civil Rights found the state was violating Title IX in its policy allowing transgender students to participate in girls’ and women’s sports teams.

The agreement, which Maine refused to sign, would have had the state department and public schools define “females” and “males” in their policies and require the state to publicize the definitions on its website.

The Maine agency would have been required to notify schools that “there are only two sexes (female and male) because there are only two types of gametes (eggs and sperm); and the sex of a human — female or male — is determined genetically at conception (fertilization), observable before birth, and unchangeable.”

“Gender” would be the same as “sex” under the agreement.

The case is currently pending with the U.S. Department of Justice, which took over enforcement of the investigation and its findings after the state refused to sign the agreement.

The agreement would have also required the state to change its records to erase transgender girls’ athletic accomplishments on girls’ sports teams, which is also a potential side effect of the legislation in 13 states defining sex.

Those opposing recent sex definition laws say they are transphobic, as they don’t recognize transgender people’s gender identity.

“These laws could have dangerous implications for transgender people when it comes to bathrooms, identity documents, and other areas of law or policy,” MAP said, “but because these government gender regulation laws are often vaguely written, the actual impact of these laws remains to be seen in each state.”
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May 30, 2025
Three Laws for Curriculum Design in an AI Age (opinion)

Almost a third of students report that they don’t know how or when to use generative AI to help with coursework. On our campus, students tell us that they worry if they don’t learn how to use AI, they will be left behind in the workforce. At the same time, many students worry that technology undermines their learning.

Here’s Gabby, an undergraduate on our campus: “It turned my writing into something I didn’t say. It makes it harder for me to think of my ideas and makes everything I think go away. It replaces it with what is official. It is correct, and I have a hard time not agreeing with it once ChatGPT says it. It overrides me.”

Students experience additional anxiety around accusations of unauthorized use of AI tools—even when they are not using them. Here’s another student: “If I write like myself, I get points off for not following the rubric. If I fix my grammar and follow the template, my teacher will look at me and assume I used ChatGPT because brown people can’t write good enough.”

Faculty guidance in the classroom is critical to addressing these concerns, especially as campuses increasingly provide students with access to enterprise GPTs. Our own campus system, California State University, recently rolled out an AI strategy that includes a “landmark” partnership with companies such as OpenAI, and a free subscription to Chat GPT Edu for all students, faculty and staff.

Perhaps unsurprisingly, students are not the only ones who feel confused and worried about AI in this fast-moving environment. Faculty also express confusion about whether and under what circumstances it is OK for their students to use AI technology. In our roles at San Francisco State University’s Center for Equity and Excellence in Teaching and Learning (CEETL), we are often asked about the need for campuswide policies and the importance of tools like Turnitin to ensure academic integrity.

As Kyle Jensen noted at a recent American Association of Colleges and Universities event on AI and pedagogy, higher ed workers are experiencing a perceived lack of coherent leadership around AI, and an uneven delivery of information about it, in the face of the many demands on faculty and administrative time. Paradoxically, faculty are both keenly interested in the positive potential of AI technologies and insistent on the need for some sort of accountability system that punishes students for unauthorized use of AI tools.

The need for faculty to clarify the role of AI in the curriculum is pressing. To address this at CEETL, we have developed what we are calling “Three Laws of Curriculum in the Age of AI,” a play on Isaac Asimov’s “Three Laws of Robotics,” written to ensure that humans remained in control of technology. Our three laws are not laws, per se; they are a framework for thinking about how to address AI technology in the curriculum at all levels, from the individual classroom to degree-level road maps, from general education through graduate courses. The framework is designed to support faculty as they work their way through the challenges and promises of AI technologies. The framework lightens the cognitive load for faculty by connecting AI technology to familiar ways of designing and revising curriculum.

The first law concerns what students need to know about AI, including how the tools work as well as their social, cultural, environmental and labor impacts; potential biases; tendencies toward hallucinations and misinformation; and propensity to center Western European ways of knowing, reasoning and writing. Here we lean on critical AI to help students apply their critical information literacy skills to AI technologies. Thinking about how to teach students about AI aligns with core equity values at our university, and it harnesses faculty’s natural skepticism toward these tools. This first law—teaching students about AI—offers a bridge between AI enthusiasts and skeptics by grounding our approach to AI in the classroom with familiar and widely agreed-upon equity values and critical approaches.

The second part of our three laws framework asks what students need to know in order to work with AI ethically and equitably. How should students work with these tools as they become increasingly embedded in the platforms and programs they already use, and as they are integrated into the jobs and careers our students hope to enter? As Kathleen Landy recently asked, “What do we want the students in our academic program[s] to know and be able to do with (or without) generative AI?”

The “with” part of our framework supports faculty as they begin the work of revising learning outcomes, assignments and assessment materials to include AI use.

Finally, and perhaps most crucially (and related to the “without” in Landy’s question), what skills and practices do students need to develop without AI, in order to protect their learning, to prevent deskilling and to center their own culturally diverse ways of knowing? Here is a quote from Washington University’s Center for Teaching and Learning:

“Sometimes students must first learn the basics of a field in order to achieve long-term success, even if they might later use shortcuts when working on more advanced material. We still teach basic mathematics to children, for example, even though as adults we all have access to a calculator on our smartphones. GenAI can also produce false results (aka ‘hallucinations’) and often only a user who understands the fundamental concepts at play can recognize this when it happens.”

Bots sound authoritative, and because they sound so good, students can feel convinced by them, leading to situations where bots override or displace students’ own thinking; thus, their use may curtail opportunities for students to develop and practice the kinds of thinking that undergird many learning goals. Protecting student learning from AI helps faculty situate their concerns about academic integrity in terms of the curriculum, rather than in terms of detection or policing of student behaviors. It invites faculty to think about how they might redesign assignments to provide spaces for students to do their own thinking.

Providing and protecting such spaces undoubtedly poses increased challenges for faculty, given the ubiquity of AI tools available to students. But we also know that protecting student learning from easy shortcuts is at the heart of formal education. Consider the planning that goes into determining whether an assessment should be open-book or open-note, take-home or in-class. These decisions are rooted in the third law: What would most protect student learning from the use of shortcuts (e.g., textbooks, access to help) that undermine their learning?

University websites are awash in resource guides for faculty grappling with new technology. It can be overwhelming for faculty, to say the least, especially given high teaching loads and constraints on faculty time. Our three laws framework provides a scaffold for faculty as they sift through resources on AI and begin the work of redesigning assignments, activities and assessments to address AI. You can see our three laws in action here, in field notes from Jennifer’s efforts to redesign her first-year writing class to address the challenges and potential of AI technology.

In the spirit of connecting the new with the familiar, we’ll close by reminding readers that while AI technology poses new challenges, these challenges are in some ways not so different from the work of curriculum and assessment design that we regularly undertake when we build our courses. Indeed, faculty have long grappled with the questions raised by our current moment. We’ll leave you with this quote, from a 1991 (!) article by Gail E. Hawisher and Cynthia L. Selfe on the rise of word-processing technology and writing studies:

“We do not advocate abandoning the use of technology and relying primarily on script and print for our teaching without the aid of word processing and other computer applications such as communication software; nor do we suggest eliminating our descriptions of the positive learning environments that technology can help us to create. Instead, we must try to use our awareness of the discrepancies we have noted as a basis for constructing a more complete image of how technology can be used positively and negatively. We must plan carefully and develop the necessary critical perspectives to help us avoid using computers to advance or promote mediocrity in writing instruction. A balanced and increasingly critical perspective is a starting point: by viewing our classes as sites of both paradox and promise we can construct a mature view of how the use of electronic technology can abet our teaching.”

Anoshua Chaudhuri is the senior director of the Center for Equity and Excellence in Teaching and Learning and professor of economics at San Francisco State University.

Jennifer Trainor is a faculty director at the Center for Equity and Excellence in Teaching and Learning and professor of English at San Francisco State University.

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April 30, 2025
AI is new — the laws that govern it don’t have to be

On Monday, Virginia Governor Glenn Youngkin vetoed House Bill 2094, the High-Risk Artificial Intelligence Developer and Deployer Act. The bill would have set up a broad legal framework for AI, adding restrictions to its development and its expressive outputs that, if enacted, would have put the bill on a direct collision course with the First Amendment.

This veto is the latest in a number of setbacks to a movement across many states to regulate AI development that originated with a working group put together last year. In February, that group broke down — further indicating upheaval in a once ascendant regulatory push.

While existing laws may or may not be applied prudently, the emerging trend away from hasty lawmaking and toward more deliberation bodes well for the intertwined future of AI and free speech.

At the same time, another movement has gained steam. A number of states are turning to old laws, including those prohibiting fraud, forgery, discrimination, and defamation, which have long managed the same purported harms stemming from AI in the context of older technology.

Gov. Youngkin’s HB 2094 veto statement echoed the notion that existing laws may suffice, stating, “There are many laws currently in place that protect consumers and place responsibilities on companies relating to discriminatory practices, privacy, data use, libel, and more.” FIRE has pointed to these abilities of current law in previous statements, part of a number of AI-related interventions we’ve made as the technology has come to dominate state legislative agendas, including in states like Virginia.

The simple idea that current laws may be sufficient to deal with AI initially eluded the thinking of many lawmakers but now is quickly becoming common sense in a growing number of states. While existing laws may be applied in ways prudent and not, the emerging trend away from hasty lawmaking and toward more deliberation bodes well for the intertwined future of AI and free speech.

The regulatory landscape

AI offers the promise of a new era of knowledge generation and expression, and these developments come at a critical juncture as AI development continues to advance towards that vision. Companies are updating their models at a breakneck pace, epitomized by OpenAI’s popular new image generation tool.

Public and political interest, fueled by fascination and fear, may thus continue to intensify over the next two years — a period during which AI, still emerging from its nascent stage, will remain acutely vulnerable to threats of new regulation. Mercatus Center Research Fellow and leading AI policy analyst Dean W. Ball has hypothesized that 2025 and 2026 could represent the last two years to enact the laws that will be in place before AI systems with “qualitatively transformative capabilities” are released.

With AI’s rapid development and deployment as the backdrop, states have rushed to propose new legal frameworks, hoping to align AI’s coming takeoff with state policy objectives. Last year saw the introduction of around 700 bills related to AI, covering everything from “deepfakes” to the use of AI in elections. This year, that number is already approaching 900-plus.

Texas’s TRAIGA, the Texas Responsible Artificial Intelligence Governance Act, has been the highest-profile example from this year’s wave of restrictive AI bills. Sponsored by Republican State Rep. Giovanni Capriglione, TRAIGA has been one of several “algorithmic discrimination” bills that would impose liability on developers, deployers, and often distributors of AI systems that may introduce a risk of “algorithmic discrimination.”

Other examples include the recently vetoed HB 2094 in Virginia, Assembly Bill A768 in New York, and Legislative Bill 642 in Nebraska. While the bills have several problems, most concerning are their inclusion of a “reasonable care” negligence standard that would hold AI developers and users liable if there is a greater than 50% chance they could have “reasonably” prevented discrimination.

Such liability provisions incentivize AI developers to handicap their models to avoid any possibility of offering recommendations that some might deem discriminatory or simply offensive — even if doing so curtails the models’ usefulness or capabilities. The “chill” of these kinds of provisions threatens a broad array of important applications.

In Connecticut, for instance, Children’s Hospitals have warned how the vagueness and breadth of such regulations could limit health care providers’ ability to use AI to improve cancer screenings. These bills also compel regular risk reports on the models’ expressive outputs, similar to requirements that were held as unconstitutional under the First Amendment in other contexts by a federal court last year.

So far, only Colorado has enacted such a law. Its implementation, spearheaded by the statutorily authorized Colorado Artificial Intelligence Impact Task Force, won’t assuage any skeptics. Even Gov. Jared Polis, who conceived the task force and signed the bill, has said it deviates from standard anti-discrimination laws “by regulating the results of AI system use, regardless of intent,” and has encouraged the legislature to “reexamine the concept” as the law is finalized.

With a mandate to resolve this and other points of tension, the task force has come up almost empty-handed. In its report last month, it reached consensus on only “minor … changes,” while remaining deadlocked on substantive areas such as the law’s equivalent language to TRAIGA on reasonable care.

The sponsors of TRAIGA reached a similar impasse as it came under intense political scrutiny. Rep. Capriglione responded earlier this month by dropping TRAIGA in favor of a new bill, HB 149. Among HB-149’s provisions, many of which run headlong into protected expression, is a proposed statute that holds “an artificial intelligence system shall not be developed or deployed in a manner that intentionally results in political viewpoint discrimination” or that “intentionally infringes upon a person’s freedom of association or ability to freely express the person’s beliefs or opinions.”

But this new language overlooks a landmark Supreme Court ruling just last year that laws in Texas and Florida with similar prohibitions on political discrimination for social media raised significant First Amendment concerns.

A more modest alternative

An approach different from that taken in Colorado and Texas appears to be taking root in Connecticut. Last year, Gov. Ned Lamont signaled he would veto Connecticut Senate Bill 2, a bill similar to the law Colorado passed. In reflecting on his reservations, he noted, “You got to know what you’re regulating and be very strict about it. If it’s, ‘I don’t like algorithms that create biased responses,’ that can go any of a million different ways.”

At a press conference at the time of the bill’s consideration, his office suggested existing Connecticut anti-discrimination laws could already apply to AI use in relevant areas like housing, employment, and banking.

Attempting to solve all theoretical problems of AI, before the contours of its problems become clear, is not only impractical but risks stifling innovation and expression in ways that may be difficult to reverse.

Scholars Jeffrey Sonnenfeld and co-author Stephen Henriques of Yale’s School of Management expanded on the idea, noting Connecticut’s Unfair Trade Practices Act would seem to cover major AI developers and small “deployers” alike. They argue that a preferable route to new legislation would be for the state attorney general to clarify how existing laws can remedy the harms to consumers that sparked Senate Bill 2 in the first place.

Connecticut isn’t alone. In California, which often sets the standard for tech law in the United States, two bills — AB 2930, focusing on liability for algorithmic discrimination in the same manner as the Colorado and Texas bills, and SB 1047, focusing on liability for “hazardous capabilities” — both failed. Gov. Gavin Newsom, echoing Lamont, stressed in his veto statement for SB 1047, “Adaptability is critical as we race to regulate a technology still in its infancy.”

Newsom’s attorney general followed up by issuing extensive guidance on how existing California laws — such as the Unruh Civil Rights Act, California Fair Employment and Housing Act, and California Consumer Credit Reporting Agencies Act — already provide consumer protections for issues that many worry AI will exacerbate, such as consumer deception and unlawful discrimination.

New Jersey, Oregon, and Massachusetts have offered similar guidance, with Massachusetts Attorney General Andrea Joy Campbell noting, “Existing state laws and regulations apply to this emerging technology to the same extent as they apply to any other product or application.” And in Texas, where HB 149 still sits in the legislature, Attorney General Ken Paxton is currently reaching settlements in cases about the misuse of AI products in violation of existing consumer protection law.

Addressing problems

The application of existing laws, to be sure, must comport with the First Amendment’s broad protections. Accordingly, not all conceivable applications will be constitutional. But the core principle remains: states that are hitting the brakes and reflecting on the tools already available give AI developers and users the benefit of operating within established, predictable legal frameworks.

And if enforcement of existing laws runs afoul of the First Amendment, there is an ample body of legal precedent to provide guidance. Some might argue that AI poses different questions from prior technology covered by existing laws, but it departs in neither essence or purpose. Properly understood, AI is a communicative tool used to convey ideas, like the typewriter and the computer before it.

If there are perceived gaps in existing laws as AI and its uses evolve, legislatures may try targeted fixes. Last year, for example, Utah passed a statute clarifying that generative AI cannot serve as a defense to violations of state tort law — for example, a party cannot claim immunity from liability simply because an AI system “made the violative statement” or “undertook the violative act.”

Rather than introducing entirely new layers of liability, this provision clarifies accountability under existing statutes.

Other ideas floated include “regulatory sandboxes,” a voluntary way for private firms to test applications of AI technology in collaboration with the state in exchange for certain regulatory mitigation, the aim being to offer a learning environment for policymakers to study how law and AI interact over time, with emerging issues addressed by a regulatory scalpel rather than a hatchet.

This reflects an important point. The trajectory of AI is largely unknowable, as is how rules imposed now will affect this early-stage technology down the line. Well-meaning laws to prevent discrimination this year could preclude broad swathes of significant expressive activity in coming years.

FIRE does not endorse any particular course of action, but this is perhaps the most compelling reason lawmakers should consider the more restrained approach outlined above. Attempting to solve all theoretical problems of AI before the contours of problems become clear is not only impractical, but risks stifling innovation and expression in ways that may be difficult to reverse. History also teaches that many of the initial worries will never materialize.

As President Calvin Coolidge observed, “If you see 10 troubles coming down the road, you can be sure that nine will run into the ditch before they reach you and you have to battle with only one of them.” We can address those that do materialize in a targeted manner as the full scope of the problems become clear.

The wisest course of action may be patience. Let existing laws do their job and avoid premature restrictions. Like weary parents, lawmakers should take a breath — and maybe a vacation — while giving AI time to grow up a little.

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March 28, 2025
Trump Signs Executive Order on Enforcement of Immigration Laws, Potentially Leading to Increased Worksite Enforcement Action
by CUPA-HR | January 29, 2025

Along with several immigration-related executive orders and actions issued on Inauguration Day, President Trump signed an executive order titled “Protecting the American People Against Invasion.” The EO sets several directives for U.S. Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS) to enforce immigration law against immigrants without permanent legal status in the U.S. and could implicate employers the government deems as “facilitating” the presence of such individuals.

Sections 4 and 5 of the EO establish civil and criminal enforcement priorities for relevant federal agencies. Specifically, the EO directs the secretary of Homeland Security to enable ICE and USCIS to set priorities for their agencies that would ensure successful enforcement of final orders of removal. Additionally, Section 8 of the EO directs increased enforcement action in the form of civil fines and penalties. The EO directs the secretary of Homeland Security to ensure assessment and collection of all fines and penalties from individuals unlawfully present in the U.S. and, notably, those who facilitate such individuals’ presence in the U.S.

Depending on how the agencies respond to this order, these three sections of the EO could lead to an uptick in worksite enforcement action. As a result of this EO, agencies could take increased enforcement action for employment-related immigration law, which could lead to agency actions such as Form I-9 audits and potential investigations and worksite visits related to immigration compliance. Employers who are not in compliance with federal immigration laws could be considered as entities that potentially “facilitate” the presence of immigrants without permanent legal status, which could lead to significant fines and other penalties for the employers.

Next Steps for HR Leaders

CUPA-HR has always worked to help you ensure that your institution’s Form I-9 processes are in compliance with federal requirements, and we’ve partnered with USCIS for many years to provide periodic guidance, support and resources. We also understand that it is sometimes a challenge to ensure total compliance for large, sprawling campuses and that some of you have employees at worksites across your state, the country and the globe. Through speeches and actions like this executive order, the Trump administration has made it clear that they intend to focus enforcement efforts on immigrants without permanent legal status and businesses employing them. As noted above, it is possible that there could be I-9 audits and site visits to ensure compliance. Penalties for noncompliance could include very large fines and loss of federal funding.

In light of this EO, it is vital for institutions to review their compliance with immigration laws regarding employment eligibility and work authorization. There are several questions HR leaders should ask themselves when reviewing compliance:

If you were notified tomorrow that your institution’s Form I-9 records were going to be audited in the coming weeks, where would your institution be most vulnerable?

What actions do you need to take today to address any potential vulnerabilities?

Do your presidents, provosts and other campus leaders understand and appreciate the magnitude of this potential challenge?

What changes do you need to make to your institution’s hiring and onboarding practices now to ensure compliance moving forward?

CUPA-HR will continue to monitor for any additional updates related to the Form I-9 and other hiring processes related to work authorization. If you need additional guidance or resources, please review the CUPA-HR I-9/E-Verify Toolkit.

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January 29, 2025