The U.S. Department of Education’s Office for Civil Rights announced today it agrees with a federal court ruling that appropriately found the Biden-era Title IX rules to unconstitutionally restrict student First Amendment rights.
Those rules, effective in August 2024, infringed on constitutionally protected speech related to sex and gender. They also rolled back crucial due process rights for those accused of sexual misconduct on campus, increasing the likelihood that colleges would arrive at unreliable conclusions during those proceedings. OCR announced it will instead enforce the 2020 rules adopted during the first Trump administration which carefully considered the rights of complainants and respondents alike, while providing robust free speech and due process protections.
The following can be attributed to Tyler Coward, FIRE lead counsel for government affairs:
The return to the 2020 rules ensures that all students — whether they are the accused or the accuser — will receive fair treatment and important procedural safeguards. That includes the right of both parties to have lawyers present during hearings, the right for both attorneys to cross-examine the other party and witnesses, and the right to receive all of the evidence in the institution’s possession. Colleges are also required to adopt a speech-protective definition of sexual harassment that enables schools to punish genuine harassment instead of merely unpopular speech.
Restoring the Trump administration’s rules means that students can once again feel secure that their rights to due process and free speech will be respected while ensuring administrators have the tools they need to punish those who engage in sexual misconduct and harassment.
A new poll from the Foundation for Individual Rights and Expression finds that conservative and very conservative Americans have more confidence that President Trump will protect their First Amendment rights than Gov. Gavin Newsom or the Supreme Court. Liberal and very liberal Americans are skeptical that any of them will protect their first amendment rights, though they are most confident in Newsom.
The fifth installment of FIRE’s National Free Speech Index further reveals that there is a partisan disagreement about the security of free speech in America and whether or not it is headed in the right direction. When it comes to whether people are able to freely express their views, conservatives are more likely to think that things in America are heading in the right direction and are likely to think that the right to freedom of speech is secure in America today, compared to liberals.
This was not the case three months ago.
Overall, when it comes to whether people are able to freely express their views, 41% of Americans think things in America are heading in the right direction, up 5% from October when 36% of Americans felt this way. Yet, compared to last year, liberals and conservatives have swapped their perspectives on the direction freedom of speech is headed in America in this month’s survey. In July of last year, 31% of very liberal and 45% of liberal Americans reported that freedom of speech in America is headed in the right direction while just 16% of conservative and 20% of very conservative Americans reported the same. Then, in October, 46% of very liberal and 49% of liberal Americans reported the same while just 18% of conservative and 30% of conservative Americans did.
This month however, more conservative (52%) and very conservative (49%) Americans reported thinking things in America are heading in the right direction when it comes to freedom of speech compared to moderate (42%), liberal (34%) or very liberal (31%) Americans. After October last year, a drastic shift in ideological perspective on the state of free speech occurred between liberals and conservatives. While liberal and very liberal Americans were more likely to think that things in America were heading in the right direction in October, in January, conservative and very conservative Americans are now the ones most likely to report the same.
In addition, last year, very liberal and liberal Americans reported much more confidence than conservative and very conservative Americans in the security of free speech in America. In July, 41% of very liberal and 30% of liberal Americans reported that the right of freedom of speech in America was “not at all” or “not very” secure while 49% of conservative and 61% of very conservative Americans reported the same.
In October, the partisan divide grew larger, with 32% of very liberal and 27% of liberal Americans reporting that the right of freedom of speech in America was “not at all” or “not very secure” while 55% of conservative and 60% of very conservative Americans reported the same.
The large partisan divide between the liberals and conservatives and the swap in their political viewpoints on free speech this month may be startling but a clear indication of how Americans are reacting to the outcome of the presidential election.
Yet, this month, liberals and conservatives have swapped their perspectives on the security of free speech in America, with 46% of very liberal and 36% of liberal Americans reporting “not at all” or “not very secure” and 29% of conservative and 41% of very conservative Americans reporting the same, showcasing conservatives’ growing trust that their free speech rights are secure.
Moderates, on the other hand, have remained consistent in their views over the last six months, with approximately 40% of moderates reporting that the freedom of speech in America was “not at all” or “not very secure”.
This quarter’s survey makes evident the ideological trends among Americans and their perspectives on the security and condition of their free speech rights. The large partisan divide between the liberals and conservatives and the swap in their political viewpoints on free speech this month may be startling but a clear indication of how Americans are reacting to the outcome of the presidential election.
J. Ann Selzer planned to step back from election polling at the end of 2024. She had spent three decades working with The Des Moines Register and other media outlets, earning a reputation as “the best pollster in politics” for her consistent and reliable work. Selzer’s polls had correctly predicted the winner of every presidential race in Iowa since 2008, and she was hoping to end her election-related work with one last accurate survey of public opinion.
“Polling is a science of estimation, and science has a way of periodically humbling the scientist,” she said in a November 17 farewell column for The Register. “So, I’m humbled, yet always willing to learn from unexpected findings.”
Iowa pollster J. Ann Selzer
President Donald Trump, however, doesn’t seem to think “humbled” is enough. That same day, Trump took to Truth Social to accuse Selzer of intentionally fabricating her poll and committing possible election fraud. A month later, he sued Selzer and The Register for alleged election interference and violations of the Iowa Consumer Fraud Act.
It’s difficult to imagine a more thorough and obvious violation of basic First Amendment principles than this lawsuit. Polling the electorate is election participation, not interference—and reporting your findings is protected speech whether your findings turn out to be right or wrong. Iowa’s laws on election “interference” are about conduct such as using a counterfeit ballot or changing someone else’s ballot. This does not and cannot include asking voters questions about their votes.
Any attempt to punish and chill reporting of unfavorable news or opinion is an affront to the First Amendment. Our rights as Americans, and participants in our democracy, depend on it.
Trump’s claims of consumer fraud have even less merit. Consumer fraud laws target sellers who make false statements or engage in deception to get you to buy something, like a sleazy car salesman rolling back the odometer on an old sedan. This cannot logically—or legally—apply to a newspaper pollster who makes a wrong prediction.
Consumer fraud statutes have no place in American politics or in regulating the news. But it has become an increasingly popular tactic to use such laws in misguided efforts to police political speech. For example, a progressive nonprofit tried to use a Washington state consumer protection law in an unsuccessful lawsuit against Fox News over its COVID-19 commentary. And attorneys general on the right used the same, “We’re just punishing falsehoods” theory to target progressive outlets. Both Missouri Attorney General Andrew Bailey and Texas Attorney General Ken Paxton opened investigations into the nonprofit Media Matters for America for allegedly manipulating X’s algorithm with “inauthentic behavior.” In the Texas suit, Paxton argues that he can use the state’s Deceptive Trade Practices Act to punish speech even if it is “literally true,” so long as officials think it’s misleading.
Efforts to prohibit purportedly false statements in politics are as old as the republic. Indeed, our First Amendment tradition originated from colonial officials’ early attempts to use libel laws against the press.
America rejected this censorship after officials used the Sedition Act of 1798 to jail newspaper editors for publishing “false” and “malicious” criticisms of President John Adams. After Thomas Jefferson defeated Adams in the election of 1800, he pardoned and remitted the fines of those convicted, writing that he considered the act “to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.”
Trump’s allegations against Selzer are so baseless that you’d be forgiven for wondering why he even bothered. That is, until you realize that these claims are filed not because they have any merit or stand any chance of success, but in order to impose punishing litigation costs on his perceived opponents. The lawsuit is the punishment.
Lawsuits are costly, time-consuming, and often disastrous to people’s personal lives and reputations. If you have the threat of legal action hanging over you for what you’re about to say, you will think twice before saying it—and that’s the point.
In fact, Trump has a habit of doing this. He once sued an architecture columnist for calling a proposed Trump building “one of the silliest things anyone could inflict on New York or any other city.” The suit was dismissed. He also sued author Timothy L. O’Brien, business reporter at The New York Times and author of “TrumpNation: The Art of Being The Donald,” for writing that Trump’s net worth was much lower than he had publicly claimed. The suit was also dismissed.
But winning those lawsuits wasn’t the point, and Trump himself said so. “I spent a couple of bucks on legal fees, and they spent a whole lot more,” he said. “I did it to make his life miserable, which I’m happy about.” Back in 2015, he even threatened to sue John Kasich, then-governor of Ohio and a fellow Republican candidate for president, “just for fun” because of his attack ads.
This tactic is called a “strategic lawsuit against public participation,” or SLAPP for short, and it’s a tried-and-true way for wealthy and powerful people to punish their perceived enemies for their protected speech. It’s also a serious threat to open discourse and a violation of our First Amendment freedoms.
FIRE’s defense of pollster J. Ann Selzer against Donald Trump’s lawsuit is First Amendment 101
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A polling miss isn’t ‘consumer fraud’ or ‘election interference’ — it’s just a prediction and is protected by the First Amendment.
Lawsuits are costly, time-consuming, and often disastrous to people’s personal lives and reputations. If you have the threat of legal action hanging over you for what you’re about to say, you will think twice before saying it—and that’s the point. Trump’s dubious legal theory is a blatant abuse of the legal process, one that we cannot let stand. If we sued people every time we thought someone else was wrong about politics, nobody would speak about politics. A lawsuit requires a credible basis to believe your rights have been violated. You have to bring facts to court, not baseless allegations.
That is why my organization, the Foundation for Individual Rights and Expression (FIRE), is defending Selzer pro bono against Trump’s SLAPP suit. By providing legal support free of charge, we’re helping to remove the financial incentive of SLAPP suits—just as we did when a wealthy Idaho landowner sued over criticism of his planned airstrip, when a Reddit moderator was sued for criticizing a self-proclaimed scientist, and when a Pennsylvania lawmaker sued a graduate student for “racketeering.”
The protection of unfettered freedom of expression is critical to our political process. Any attempt to punish and chill reporting of unfavorable news or opinion is an affront to the First Amendment. Our rights as Americans, and participants in our democracy, depend on it.
At the University of Texas at Dallas, a new independent newspaper is bearing witness to an authoritarian streak undermining student rights on campus. Last week, The Retrograde published its first print edition — cementing its status as the successor to The Mercury, the historic student newspaper that administrators silenced last spring for expressing dissenting opinions.
The new paper’s name — a reference to the astrological phenomenon of “Mercury in retrograde” — also references student journalists’ perception that the university is “going in reverse” on important issues like free speech.
“We are seeing the school backslide and we want to make sure that each step backwards is criticized and documented,” said Gregorio Olivares Gutierrez, former editor-in-chief of The Mercury and current editor of The Retrograde.
Concerns about academic freedom on college campuses spurred an interest in journalism for Gutierrez, a UT Dallas sophomore studying political science and philosophy. In an interview with FIRE, Gutierrez explained that he joined The Mercury in October 2023, “mainly because I was hearing a lot of commotion around the removal of DEI from the classroom.”
Although Senate Bill 17 — which Texas passed in 2023 to ban DEI offices, training, and statements at public universities — included exceptions for teaching and research, headlines revealed in November 2024 that administrators were, in fact, subjecting teaching and research to “intense scrutiny” under the law.
As Gutierrez tells it, he saw warning signs at the University of North Texas, UT Dallas’ closest neighbor in the statewide system, where administrators unilaterally removed references to concepts like diversity and critical race theory from course titles and syllabi. “Despite these being higher-ed concepts, you couldn’t even talk about them,” Gutierrez said. FIRE wrote a letter to North Texas on Dec. 6, 2024, urging administrators “to refrain from unlawfully ordering changes to faculty’s pedagogical material as part of UNT’s overreaching compliance with state law.”
We are seeing the school backslide and we want to make sure that each step backwards is criticized and documented.
At UT Dallas, Gutierrez describes the emergence of a similar climate, where faculty “are scared that what they’re going to say isn’t allowed or that it will get them in trouble,” or might be “a mark against them” in tenure review.
Gutierrez says The Mercury was a watchdog not just at UT Dallas, but within the statewide system.
Retrograde editor Gregorio Olivares Gutierrez
“Anytime [Governor] Greg Abbott wants to crack down on higher ed,” Gutierrez told FIRE, “he usually starts with UT Austin, and then the other presidents in the UT system will either . . . do the same themselves or . . . get the consequences thrown their way.” And these changes affect UT Dallas. As Gutierrez explains it, “if there’s something’s going on in one Texas school, it’s very likely that our administration is going to like what they see and try to incorporate that into our campus policy.”
It was exactly this watchdog role that got Gutierrez and The Mercury into trouble. Last spring, after a police crackdown on First Amendment-protected protests at UT Austin, Gutierrez recalls asking, “If encampments form at UT Dallas, what will we do? How do we protect our student journalists if there are police there? Can we make sure that we’re not getting arrested while doing this important coverage?”
The Mercury’s journalists were not arrested by the state troopers that UT Dallas deployed to break up pro-Palestinian protests, but the newspaper’s relationship with the administration deteriorated after its coverage criticized the university for quashing peaceful protests. In the end, administrators forced Gutierrez out, firing him as editor-in-chief and then firing more staff when they went on strike in protest. To make it worse, administrators completed these terminations without following official policy on the removal of editors — denying due process to Gutierrez and his colleagues.
It would have been very easy for us to just roll over and let the campus administration do whatever they wanted with the student newspaper. But that would be a failure on our part to do proper journalism. It would be a huge dereliction of our duty as student journalists.
Over a thousand people signed The Mercury’s solidarity petition after Gutierrez was fired. Not only that, as Gutierrez recounted to FIRE, “The student government passed multiple resolutions denouncing the actions from campus administration and then supporting our new endeavors with The Retrograde, officially recognizing it as the student newspaper. And the faculty’s academic senate has also been in support of us. They passed a resolution, which was just like — We’ll support the student government’s decision.”
For the student journalists behind The Mercury, the administration’s attempt to silence them marked the beginning of a new chapter for independent student expression.
Gutierrez told FIRE that The Retrograde is working to get 501(c)(3) status and is currently registered as a nonprofit in the state of Texas. This move would give the newspaper full control over its operations — unlike The Mercury, which was beholden to administrators and faculty on the university-sponsored Student Media Oversight Board.
The first issue of The Retrograde independent student newspaper at UT Dallas published on Jan. 21, 2025.
But this new era of editorial freedom has not come without challenges. Gutierrez told FIRE that although “we do what we want as student journalists and we don’t have to fear campus reprisal when it comes to our actions, the administration has been very insistent that they don’t want this structure to exist at all.” While The Retrograde is free from direct retaliation, the university has engaged in what Gutierrez calls a “subtle form of censorship” by directing inquiries to PR officials, ensuring that the official university response is the only one that gets heard.
Administrators at UT Dallas have a lengthy history of suppressing transparency and keeping student voices under their control. During Gutierrez’s freshman year, he recalls a cat torturer being exposed in a front page article in The Mercury as an employee of the university. Although the investigation was thorough and newsworthy, Gutierrez says, “The university didn’t like that we were talking about it . . . They were like, oh, we’re dealing with this internally, so you don’t need to make it public.” And in the spring of 2020, when the paper covered a series of suicides on campus, administrators allegedly removed copies of the paper from campus kiosks.
For Gutierrez, reporting on matters of public concern is often a question of safety.
“Students want to know that the people at the testing center [like the cat torturer] might not all be the safest individuals in that very specific circumstance,” he says, “and yet campus administrators don’t talk about stuff like that.”
Despite these challenges, Gutierrez believes student journalists have a sacred obligation to uphold the freedoms promised by the Constitution. “It would have been very easy for us to just roll over and let the campus administration do whatever they wanted with the student newspaper. But that would be a failure on our part to do proper journalism. It would be a huge dereliction of our duty as student journalists,” he added, “to allow this huge infringement upon the First Amendment to occur on campus.”
FIRE to University of Texas at Dallas: Stop censoring the student press
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Join FIRE in demanding UT Dallas compensate journalists, protect student media from interference.
Gutierrez credits FIRE, the Student Press Law Center, and the Society of Professional Journalists for stepping in with support, resources, and advice. He encourages other student journalists to reach out to these groups if censorship comes their way.
“I think it’s really important for student journalists facing censorship to reach out to others, work together and fight back against the current regime of censorship that a lot of universities are so fond of,” he concluded.
The Retrograde’s plans to hold UT Dallas administrators accountable are as ambitious as ever. After the May 1, 2024 police raid on a peaceful protest at UT Dallas, Gutierrez and his fellow journalists filed a public records request.
“Right now, we’re working through over 1,500 pages of emails that we’ve gotten from our FOIA request,” said Gutierrez, “and a lot of the information in there is damning.”
You can take action to remind President Richard Benson that UT Dallas is a public institution that must abide by the First Amendment and uphold freedom of the press, even when the administration disagrees with student reporting. As Gutierrez says, “I hope it will shame our university administrators into acting normally for once.”
The University of Chicago is known for its commitment to free
speech and academic freedom. Why are these values important to the
university? Where do they originate? And how do they help
administrators navigate conflicts and controversies?
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In one of his final acts as president, Joe Biden granted a posthumous pardon to Marcus Mosiah Garvey Jr., the influential civil rights leader and founder of the UniversalMarcus Garvey Negro Improvement Association (UNIA), clearing his name of a 1923 mail fraud conviction that many have long viewed as unjust.
The pardon, announced just before the Martin Luther King Jr. holiday, came after years of advocacy from Howard University School of Law professors and students, led by Professor Justin Hansford, who worked closely with Garvey’s son, Dr. Julius Garvey.
“In the words of Dr. Martin Luther King, Marcus Garvey was ‘the first man of color in the history of the United States to lead and develop a mass movement,’” said Hansford, who published Jailing a Rainbow: The Unjust Trial and Conviction of Marcus Garvey last year. “He was convicted of mail fraud in a trial widely recognized as a miscarriage of justice.”
The pardon effort gained significant support from 21 members of Congress, primarily from the Congressional Black Caucus, who urged Biden to “honor his work for the Black community, remove the shadow of an unjust conviction, and further your administration’s promise to advance racial justice.” Last year, Diverse featured a podcast on the subject.
Garvey, Jamaica’s first national hero, was convicted in 1923 on one count of mail fraud related to his role as president of the Black Star Line shipping company. He received the maximum sentence of five years imprisonment and a $1,000 fine.
The UNIA founder was a pioneering advocate for human rights and Pan-Africanism, building a movement that reached 6 million members across 40 countries.
The presidential pardon marks the end of a century-long struggle to clear Garvey’s name. Previous attempts included congressional hearings in 1987 led by Representatives John Conyers and Charlie Rangel, who introduced resolutions to exonerate him.
The exoneration comes 84 years after Garvey’s death in 1940, affirming his innocence and recognizing his significant contributions to civil rights and human rights advocacy worldwide.
Earlier this month, the U.S. Court of Appeals for the D.C. Circuit found that the law to ban TikTok in the United States did not violate Americans’ First Amendment rights. Never before has Congress taken the extraordinary step of effectively banning a platform for communication, let alone one used by half the country.
The First Amendment requires an explanation of why such a dramatic restriction of the right to speak and receive information is necessary, and compelling evidence to support it. The government failed to provide either.
What little Congress did place on the public record includes statements from lawmakers raising diffuse concerns about national security and, more disturbingly, their desire to control the American public’s information diet in a way that strikes at the heart of the First Amendment.
Today, FIRE and a coalition of organizations filed an amicus brief urging the Supreme Court to reverse the decision.
FIRE is proud to be joined by the following organizations and individuals for today’s brief:
The Institute for Justice
Reason Foundation
The Future of Free Speech
The Woodhull Freedom Foundation
The First Amendment Lawyers Association
Stop Child Predators
The Pelican Institute for Public Policy
CJ Pearson
Will Creeley, legal director at FIRE: “The government doesn’t have the power to pull the plug on TikTok without demonstrating exactly why such a dramatic step is absolutely necessary. It has failed to publicly lay out the case for cutting off an avenue of expression that 170 million of us use. The First Amendment requires a lot more than just the government’s say-so. Fifty years after the publication of the Pentagon Papers, Americans understand that invoking ‘national security’ doesn’t grant the government free rein to censor. By failing to properly hold the government to its constitutionally required burden of proof, the court’s decision erodes First Amendment rights now and in the future.”
Jacob Mchangama, executive director of The Future of Free Speech and senior fellow at FIRE: “For decades, the United States has been the global gold standard for free speech protections. The unprecedented bipartisan push to effectively shut down TikTok — an online platform where millions exercise their right to free expression and access information — represents a troubling shift from this proud legacy. If enacted, this ban would make the U.S. the first free and open democracy to impose such sweeping restrictions, drawing uncomfortable parallels with authoritarian regimes like Somalia, Iran, and Afghanistan, which use similar measures to suppress dissent and control their populations. This is not just about a single app; it is a litmus test for the resilience of First Amendment principles in the digital age. The Supreme Court must ensure that Congress is held to the highest standard before permitting actions of such profound consequence. A TikTok ban risks setting a dangerous precedent that undermines the very freedoms distinguishing democracies from autocracies.”
The D.C. Circuit’s decision justifies the Act’s sweeping censorship by invoking “free speech fundamentals.” In so doing, it confuses the First Amendment values at stake, and sacrifices our constitutional tradition of debate and dialogue for enforced silence. The D.C. Circuit’s misguided reasoning is sharply at odds with longstanding First Amendment precedent, violating the constitutional protections it claims to preserve. Instead of following the instructive example set by Taiwan, which has eschewed a blanket TikTok ban in favor of robust counterspeech, the D.C. Circuit’s logic echoes the authoritarianism of North Korea and Iran.
