Tag: speech

  • Trump administration’s reasons for detaining Mahmoud Khalil threaten free speech

    Trump administration’s reasons for detaining Mahmoud Khalil threaten free speech

    It’s been three days since the government arrested and detained Mahmoud Khalil for deportation. This afternoon, the administration finally stated the basis for its actions. Its explanation threatens the free speech of millions of people.

    Yesterday, an administration official told The Free Press, “The allegation here is not that [Khalil] was breaking the law.” This was confirmed today by White House Press Secretary Karoline Leavitt, who announced Khalil is being targeted under a law that she characterized as allowing the secretary of state to personally deem individuals “adversarial to the foreign policy and national security interests of the United States of America.”

    Leavitt said Khalil “sid[ed] with terrorists,” “organized group protests” that “disrupted college campus classes and harassed Jewish American students and made them feel unsafe,” and distributed “pro-Hamas propaganda.” She also said the Department of Homeland Security is trying to track down “other individuals who have engaged in pro-Hamas activity” at Columbia University.

    The law Leavitt appears to be citing requires the secretary of state to have “reasonable ground to believe” the person’s “presence or activities in the United States . . . would have potentially serious adverse foreign policy consequences for the United States.”

    The administration is wielding this standard — deportation for people whose activities could cause “serious adverse foreign policy consequences for the United States” — to arrest and detain an individual graduate student. In explaining how he met this standard, the administration did not allege Khalil committed a crime. But it did explicitly cite the content of his speech,  characterizing it as “anti-American” and “pro-Hamas.” Protesting government policy is protected by the First Amendment, as is rhetorical support for a terrorist group (if not directly coordinated with it, which the government has not alleged here).

    Disrupting college classes and harassing students is not protected expression, to be sure, and Leavitt stated that Khalil organized protests that may have done so. But the administration has not detailed Khalil’s specific actions with respect to those protests, so it remains unclear whether Khalil himself violated any campus rules against discriminatory harassment. Whether any such violation justifies detention and deportation is a separate question. In either adjudication, Khalil must be afforded due process. 

    There are millions of people lawfully present in the United States without citizenship. The administration’s actions will cause them to self-censor rather than risk government retaliation. Lawful permanent residents and students on visas will fear a knock on the door simply for speaking their minds. 

    If constitutionally protected speech may render someone deportable by the secretary of state, the administration has free rein to arrest and detain any non-citizen whose speech the government dislikes. The inherent vagueness of the “adversarial to the foreign policy and national security interests” standard does not provide notice as to what speech is or is not prohibited. The administration’s use of it will foster a culture of self-censorship and fear. 

    This is America. We don’t throw people in detention centers because of their politics. Doing so betrays our national commitment to freedom of speech.

    FIRE social media post about the government’s detention of Mahmoud Khalil, March 10, 2025.

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  • Free speech advocates rally to support FIRE’s federal appeal to defend advocacy in public parks

    Free speech advocates rally to support FIRE’s federal appeal to defend advocacy in public parks

    Protesting in public parks is as American as apple pie. It’s at the heart of our First Amendment — and one of our nation’s most time-honored principles. That right does not disappear merely because a private entity operates the public park on the government’s behalf. 

    That’s why FIRE and the Law and Religion Clinic at the University of Texas School of Law are appealing a district court ruling that weakens this First Amendment right. And we are proud to be backed by a broad coalition of prominent organizations as “friends of the court.” 

    Here’s what happened. Several years ago, animal welfare advocates Daraius Dubash and Dr. Faraz Harsini took to Houston’s largest public park to raise awareness about the harms of industrialized farming. For Dubash, this activism is rooted in his Vedantic Hindu faith, which compels him to promote the teaching of ahimsa, or nonviolence. To communicate their message, Dubash and Harsini serve as co-organizers for an international nonprofit animal-rights group. Their signature event involves volunteers showing muted documentary footage of farming practices to passersby, while others remain available to answer questions.

    Dubash and Harsini’s right to peacefully advocate on this issue in a public park is beyond dispute. But on three separate occasions, the public park’s private management ordered them to leave. The fourth time, park management had Houston police arrest Dubash for criminal trespass and banned them both from showing their video footage in the park in the future. Why? Because the park’s private managers and city police deemed their message “offensive.”

    With the help of FIRE and the Law and Religion Clinic, Dubash and Harsini filed suit in 2023 against the City of Houston, the park management corporation, its then-president, and the arresting officers. But in September, 2024, the U.S. District Court for the Southern District of Texas dismissed their claims, ruling that none of the defendants were responsible for violating Dubash and Harsini’s constitutional rights in a public park. 

    We disagree. 

    FIRE and the Clinic appealed to the Fifth Circuit, arguing that the ruling effectively lets the government bypass the First Amendment by delegating the management of public spaces to private organizations. And the court’s limited interpretation of governmental liability would make it nearly impossible for anyone to challenge violation of their constitutional rights by municipalities or law enforcement. 

    Last week, 12 prominent organizations from across the ideological spectrum filed nine amicus curiae briefs in support of Dubash and Harsini:

     The ACLU of Texas argues the park management company was acting as a state actor and public-private partnerships “cannot serve as an end run around the First Amendment.” The brief also argues the district court erred by failing to hold the arresting officers accountable based on their “mistaken belief” that the park was private. As the brief explains, probable-cause findings must be based on “objective facts and circumstances rather than subjective beliefs.”

    Young America’s Foundation, Hamilton Lincoln Law Institute, and Advancing American Freedom explain that Houston cannot bypass its duty to protect free speech in its public spaces by granting oversight authority to a private third party. The brief also emphasizes the sweeping implications of the district court’s decision, including in the academic context where state universities are increasingly attempting to evade First Amendment protections by outsourcing park management to nominally private entities like student governments.

    Liberty Justice Center argues the district court’s decision “blurs the line between state and private actors,” allowing Houston to “contract out of its constitutional obligations.” We could not agree more.

     The Center for American Liberty, in a brief submitted through Reeves Law LLC, argues that maintaining a public park is a traditional and exclusive government function, with public parks serving “as public forums for the expression of speech,” whether or not they are managed by a private entity.

     The National Press Photographers Association, in a brief submitted through the First Amendment Clinic at Southern Methodist University Dedman School of Law, explains how the district court’s ruling “threatens the sanctity of the spaces where speech is deserving of the highest protection.”

     Law Enforcement Action Partnership and the National Police Accountability Project explain that accountability for law enforcement officers and municipalities is crucial to preserving public confidence in the police and the government, and that failing to hold police officers accountable “undermines public trust in law enforcement.” The brief also argues that municipalities should know their police officers “need training and guidance to appropriately respond” to peaceful expressive activity, and failing to provide that training is sufficient to establish municipal liability.

    Protect the First Foundation, in a brief submitted through the Religious Freedom Clinic at Harvard Law School and Schaerr Jaffe LLP, highlights that Dubash was motivated to proselytize nonviolence by his deeply held religious beliefs, and describes the long history and tradition of public proselytization, from the persecution of religious minorities in the colonies through the legal protections established by First Amendment jurisprudence.

    The Hindu American Foundation, in a brief submitted through Jackson Walker LLP, explains that Dubash’s religious motivation to advocate for nonviolence towards animals is consistent with Hindu teachings. The brief also argues that his “arrest, detention, and the ongoing prohibition on his method of proselytizing” do not pass constitutional muster.

    The American Hindu Coalition, in a brief submitted through the Free Exercise Clinic at Yale Law School, emphasizes the history of public parks and streets as centers of religious activity, how marginalized faiths rely on these spaces to exercise their faith, and that Dubash’s activism is rooted in his religious beliefs.

    Our clients and their counsel are grateful for the support of this impressive and diverse amicus coalition. This case will play a critical role in protecting the rights of other protesters and religious minorities to engage in protected expression as guaranteed under the First Amendment.

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  • Maine’s censure of lawmaker for post about trans student-athlete is an attack on free speech

    Maine’s censure of lawmaker for post about trans student-athlete is an attack on free speech

    Citizens elect representatives to advocate zealously on their behalf, empowering officials to vote according to their conscience and express themselves freely on controversial topics. That’s why the Maine House of Representatives’ recent actions are so alarming — withdrawing an elected representative’s right to speak or vote on the House floor for refusing to take down a Facebook post. 

    Three weeks ago, Representative Laurel Libby of Maine’s 64th District posted on Facebook that a high school athlete won first place in girls’ pole vaulting at the Class B state championship after having competed the year before in the boys’ event and finishing in a tie for fifth place.

    Libby’s post is constitutionally protected. She was speaking out about the policy in her state, set by the Maine High School Principals Association, that a high school athlete may participate in competitions for the gender with which they identify. Her post was also part of a nationwide debate. Maine Governor Janet Mills and President Trump have publicly sparred over the president’s executive order proposing to cut off education funding if states do not ban transgender athletes from competing in girls’ sports. 

    But just days after Libby’s post, the Maine House speaker and majority leader demanded she take it down. When she refused, the majority leader introduced a censure resolution — to be heard in the House the next day — because Libby’s post had included photos and the first name of the student, who is a minor. Libby sought to defend herself in the hastily called House vote, but was repeatedly cut off. The censure resolution passed 75-70 on a party-line vote. 

    If all the censure did was express disapproval of Libby’s actions, that would be one thing.

    A state legislative body is entitled to express displeasure with a member’s actions, which by itself does not violate the First Amendment, as the Supreme Court recently ruled.

    But in Libby’s case, the Maine House went further, much further. When Libby refused to apologize for her protected speech, the House speaker declared she would be barred from speaking on the House floor or voting on any legislation until she capitulated. Thus, the House majority party has precluded Libby from doing her job and effectively disenfranchised her constituents, end-running Maine constitutional provisions that say a representative cannot be expelled absent a two-thirds vote or recall election. 

    These actions are a clear example of retaliation based on constitutionally protected speech and amount to removal of an elected representative essentially because the House majority disagrees with her views or how she chose to express them. Sixty-nine years ago the U.S. Supreme Court held that a state legislature could not refuse to seat a duly elected member because of his public statements about the Vietnam War: “The manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy.” 

    This is still the law. Under the constitution, the Maine House cannot censor Libby as it has done.

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  • The National Institutes of Health shouldn’t use FIRE’s College Free Speech Rankings to allocate research funding — here’s what they should do instead

    The National Institutes of Health shouldn’t use FIRE’s College Free Speech Rankings to allocate research funding — here’s what they should do instead

    In December, The Wall Street Journal reported:

    [President-elect Donald Trump’s nominee to lead the National Institutes of Health] Dr. Jay Bhattacharya […] is considering a plan to link a university’s likelihood of receiving research grants to some ranking or measure of academic freedom on campus, people familiar with his thinking said. […] He isn’t yet sure how to measure academic freedom, but he has looked at how a nonprofit called Foundation for Individual Rights in Education scores universities in its freedom-of-speech rankings, a person familiar with his thinking said.

    We believe in and stand by the importance of the College Free Speech Rankings. More attention to the deleterious effect restrictions on free speech and academic freedom have on research at our universities is desperately needed, so hearing that they are being considered as a guidepost for NIH grantmaking is heartening. Dr. Bhattacharya’s own right to academic freedom was challenged by his Stanford University colleagues, so his concerns about its effect on NIH’s grants is understandable.

    However, our College Free Speech Rankings are not the right tool for this particular job. They were designed with a specific purpose in mind — to help students and parents find campuses where students are both free and comfortable expressing themselves. They were not intended to evaluate the climate for conducting academic research on individual campuses and are a bad fit for that purpose. 

    While the rankings assess speech codes that apply to students, the rankings do not currently assess policies pertaining to the academic freedom rights and research conduct of professors, who are the primary recipients of NIH grants. Nor do the rankings assess faculty sentiment about their campus climates. It would be a mistake to use the rankings beyond their intended purpose — and, if the rankings were used to deny funding for important research that would in fact be properly conducted, that mistake would be extremely costly.

    FIRE instead proposes three ways that would be more appropriate for NIH to use its considerable power to improve academic freedom on campus and ensure research is conducted in an environment most conducive to finding the most accurate results.

    1. Use grant agreements to safeguard academic freedom as a strong contractual right. 
    2. Encourage open data practices to promote research integrity.
    3. Incentivize universities to study their campus climates for academic freedom.

    Why should the National Institutes of Health care about academic freedom at all?

    The pursuit of truth demands that researchers be able to follow the science wherever it leads, without fear, favor, or external interference. To ensure that is the case, NIH has a strong interest in ensuring academic freedom rights are inviolable. 

    As a steward of considerable taxpayer money, NIH has an obligation to ensure it spends its funds on high-quality research free from censorship or other interference from politicians or college and university administrators.

    Why the National Institutes of Health shouldn’t use FIRE’s College Free Speech Rankings to decide where to send funds

    FIRE’s College Free Speech Rankings (CFSR) were never intended for use in determining research spending. As such, it has a number of design features that make it ill-suited to that purpose, either in its totality or through its constituent parts.

    Firstly, like the U.S. News & World Report college rankings, a key reason for the creation of the CFSRs was to provide information to prospective undergraduate students and their parents. As such, it heavily emphasizes students’ perceptions of the campus climate over the perceptions of faculty or researchers. In line with that student focus, our attitude and climate components are based on a survey of undergraduates. Additionally, the speech policies that we evaluate and incorporate into the rankings are those that affect students. We do not evaluate policies that affect faculty and researchers, which are often different and would be of greater relevance to deciding research funding. While it makes sense that there may be some correlation, we have no way of knowing whether or the degree to which that might be true.

    Secondly, for the component that most directly implicates the academic freedom of faculty, we penalize schools for attempts to sanction scholars for their protected speech, as tracked in our Scholars Under Fire database. While our Scholars Under Fire database provides excellent datapoints for understanding the climate at a university, it does not function as a systematic proxy for assessing academic freedom on a given campus as a whole. As one example, a university with relatively strong protection for academic freedom may have vocal professors with unpopular viewpoints that draw condemnation and calls for sanction that could hurt its ranking, while a climate where professors feel too afraid to voice controversial opinions could draw relatively few calls for sanction and thus enjoy a higher ranking. This shortcoming is mitigated when considered alongside the rest of our rankings components, but as discussed above, those other components mostly concern students rather than faculty.

    Thirdly, using CFSR to determine NIH funding could — counterintuitively — be abused by vigilante censors. Because we penalize schools for attempted and successful shoutdowns, the possibility of a loss of NIH funding could incentivize activists who want leverage over a university to disrupt as many events as possible in order to negatively influence its ranking, and thus its funding prospects. Even the threat of disruption could thus give censors undue power over a university administration that fears loss of funding.

    Finally, due to resource limitations, we do not rank all research universities. It would not be fair to deny funding to an unranked university or to fund an unranked university with a poor speech climate over a low-ranked university.

    Legal boundaries for the National Institutes of Health as it considers proposals for actions to protect academic freedom

    While NIH has considerable latitude to determine how it spends taxpayer money, as an arm of the government, the First Amendment places restrictions on how NIH may use that power. Notably, any solution must not penalize institutions for protected speech or scholarship by students or faculty unrelated to NIH granted projects. NIH could not, for example, require that a university quash protected protests as a criteria for eligibility, or deny a university eligibility because of controversial research undertaken by a scholar who does not work on NIH-funded research.

    While NIH can (and effectively must) consider the content of applications in determining what to fund, eligibility must be open to all regardless of viewpoint. Even were this not the case as a constitutional matter (and it is, very much so), it is important as a prudential matter. People would be understandably skeptical of, if not downright disbelieve, scientific results obtained through a grant process with an obvious ideological filter. Indeed, that is the root of much of the current skepticism over federally funded science, and the exact situation academic freedom is intended to avoid.

    Additionally, NIH cannot impose a political litmus test on an individual or an institution, or compel an institution or individual to take a position on political or scientific issues as a condition of grant funding.

    In other words, any solution to improve academic freedom:

    • Must be viewpoint neutral;
    • Must not impose an ideological or political litmus test; and
    • Must not penalize an institution for protected speech or scholarship by its scholars or students.

    Guidelines for the National Institutes of Health as it considers proposals for actions to protect academic freedom

    NIH should carefully tailor any solution to directly enhance academic freedom and to further NIH’s goal “to exemplify and promote the highest level of scientific integrity, public accountability, and social responsibility in the conduct of science.” Going beyond that purpose to touch on issues and policies that don’t directly affect the conduct of NIH grant-funded research may leave such a policy vulnerable to legal challenge.

    Any solution should, similarly, avoid using vague or politicized terms such as “wokeness” or “diversity, equity, and inclusion.” Doing so creates needless skepticism of the process and — as FIRE knows all too well — introduces uncertainty as professors and institutions parse what is and isn’t allowed.

    Enforcement mechanisms should be a function of contractual promises of academic freedom, rather than left to apathetic accreditors or the unbounded whims of bureaucrats on campus or officials in government, for several reasons. 

    Regarding accreditors, FIRE over the years has reported many violations of academic freedom to accreditors who require institutions to uphold academic freedom as a precondition for their accreditation. Up to now, the accreditors FIRE has contacted have shown themselves wholly uninterested in enforcing their academic freedom requirements.

    When it comes to administrators, FIRE has documented countless examples of campus administrators violating academic freedom, either due to politics, or because they put the rights of the professor second to the perceived interests of their institution.

    As for government actors, we have seen priorities and politics shift dramatically from one administration to the next. It would be best for everyone involved if NIH funding did not ping-pong between ideological poles as a function of each presidential election, as the Title IX regulations now do. Dramatic changes to how NIH conceives as academic freedom with every new political administration would only create uncertainty that is sure to further chill speech and research.

    While the courts have been decidedly imperfect protectors of academic freedom, they have a better record than accreditors, administrators, or partisan government officials in parsing protected conduct from unprotected conduct. And that will likely be even more true with a strong, unambiguous contractual promise of academic freedom. Speaking of which…

    The National Institutes of Health should condition grants of research funds on recipient institutions adopting a strong contractual promise of academic freedom for their faculty and researchers

    The most impactful change NIH could enact would be to require as a condition of eligibility that institutions adopt strong academic freedom commitments, such as the 1940 Statement of Principles on Academic Freedom and Tenure or similar, and make those commitments explicitly enforceable as a contractual right for their faculty members and researchers.

    The status quo for academic freedom is one where nearly every institution of higher education makes promises of academic freedom and freedom of expression to its students and faculty. Yet only at public universities, where the First Amendment applies, are these promises construed with any consistency as an enforceable legal right. 

    Private universities, when sued for violating their promises of free speech and academic freedom, frequently argue that those promises are purely aspirational and that they are not bound by them (often at the same time that they argue faculty and students are bound by the policies). 

    Too often, courts accept this and universities prevail despite the obvious hypocrisy. NIH could stop private universities’ attempts to have their cake and eat it too by requiring them to legally stand by the promises of academic freedom that they so readily abandon when it suits them.

    NIH could additionally require that this contractual promise come with standard due process protections for those filing grievances at their institution, including:

    • The right to bring an academic freedom grievance before an objective panel;
    • The right to present evidence;
    • The right to speedy resolution;
    • The right to written explanation of findings including facts and reasons; and
    • The right to appeal.

    If the professor exhausts these options, they may sue for breach of the contract. To reduce the burden of litigation, NIH could require that, if a faculty member prevails in a lawsuit over a violation of academic freedom, the violating institution would not be eligible for future NIH funding until they pay the legal fees of the aggrieved faculty member.

    NIH could also study violations of academic freedom by creating a system for those connected to NIH-funded research to report violations of academic freedom or scientific integrity.

    It would further be proper for NIH to require institutions to eliminate any political litmus tests, such as mandatory DEI statements, as a condition of grant eligibility.

    The National Institutes of Health can implement strong measures to protect transparency and integrity in science

    NIH could encourage open science and transparency principles by heavily favoring studies that are pre-registered. Additionally, to obviate concerns that scientific results may be suppressed or buried because they are unpopular or politically inconvenient, NIH could require its grant-funded research to make available data (with proper privacy safeguards) following the completion of the project. 

    To help deal with the perverse incentives that have created the replication crisis and undermined public trust in science, NIH could create impactful incentives for work on replications and the publication of null results.

    Finally, NIH could help prevent the abuse of Institutional Review Boards. When IRB review is appropriate for an NIH-funded project, NIH could require that review be limited to the standards laid out in the gold-standard Belmont Report. Additionally, it could create a reporting system for abuse of IRB processes to suppress, or delay beyond reasonable timeframes, ethical research, or violate academic freedom.

    The National Institutes of Health can incentivize study into campus climates for academic freedom

    As noted before, FIRE’s College Free Speech Rankings focus on students. Due to logistical and resource difficulties surveying faculty, our 2024 Faculty Report looking into many of the same issues took much longer and had to be limited in scope to 55 campuses, compared to the 250+ in the CFSR. This is to say there is a strong need for research to understand faculty views and experiences on academic freedom. After all, we cannot solve a problem until we understand it. To that effect, NIH should incentivize further study into faculty’s academic freedom.

    It is important to note that these studies should be informational and not used in a punitive manner, or to decide on NIH funding eligibility. This is because tying something as important as NIH funding to the results of the survey would create so significant an incentive to influence the results that the data would be impossible to trust. Even putting aside malicious interference by administrators and other faculty members, few faculty would be likely to give honest answers that imperiled institutional funding, knowing the resulting loss in funding might threaten their own jobs.

    Efforts to do these kinds of surveys in Wisconsin and Florida proved politically controversial, and at least initially, led to boycotts, which threatened to compromise the quality and reliability of the data. As such, it’s critical that any such survey be carried out in a way that maximizes trust, under the following principles:

    • Ideally, the administration of these surveys should be done by an unbiased third party — not the schools themselves, or NIH. This third party should include respected researchers across the political spectrum and no partisan slant.
    • The survey sample must be randomized and not opt-in.
    • The questionnaire must be made public beforehand, and every effort should be made for the questions to be worded without any overt partisanship or ideology that would reduce trust.

    Conclusion: With great power…

    FIRE has for the last two decades been America’s premier defender of free speech and academic freedom on campus. Following Frederick Douglass’s wise dictum, “I would unite with anybody to do right and with nobody to do wrong,” we’ve worked with Democrats, Republicans, and everyone in between (and beyond) to advance free speech and open inquiry, and we’ve criticized them in turn whenever they’ve threatened these values.

    With that sense of both opportunity and caution, we would be heartened if NIH used its considerable power wisely in an effort to improve scientific integrity and academic freedom. But if wielded recklessly, that same considerable power threatens to do immense damage to science in the process. 

    We stand ready to advise if called upon, but integrity demands that we correct the record if we believe our data is being used for a purpose to which it isn’t suited.

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  • Americans overwhelmingly support free speech — but 10% endorse calls to violence

    Americans overwhelmingly support free speech — but 10% endorse calls to violence

    Over 80% of Americans across party lines agree that exercising free speech involves dealing with disagreements — but that this should never lead to calls for violence.

    That’s according to a new survey by YouGov, highlighting that the American people understand the realities of free expression and the importance of civil discourse.

    But not all the data are encouraging.

    Though eight in 10 respondents said we should discourage calls to violence, about one in 10 said they weren’t sure — and another one in 10 actually disagreed.

    Also, roughly 78% of Americans believe freedom of speech doesn’t include freedom from consequences — including 76% of Republicans, up 16 points from 2022, and 86% of Democrats. That said, it’s difficult to know what to make of this without knowing whether respondents took “consequences” as referring to the court of public opinion or the iron fist of the state. After all, people have every right to judge each other for the things they say but the government cannot punish speech based on viewpoint.

    Reflecting recent findings by FIRE’s National Speech Index, the survey also reveals that 54% of respondents agree that the government is the biggest threat to free speech, up from 45% in YouGov’s 2022 survey. While Republican sentiment on this question has fallen over that period from 69% to 60%, Democrats have gone from 28% to 48%. 

    Even with the nine-point drop among Republicans and 20-point increase among Democrats, the former remain far more likely to view the government as the main threat to free speech. 

    On the other hand, the NSI found that 67% of conservatives and 83% of very conservative Americans have “a lot” or total confidence in President Donald Trump to protect their First Amendment rights, compared to only 11% of liberals and 12% of very liberal Americans. 

    But here’s a spot of good news. That same 2022 survey found that just below one-third of Americans believed limiting speech for some can expand free speech for all, including 24% of Republicans and a whopping 40% of Democrats. This year, however, while the figure for Republicans only fell by 2 percentage points, the percentage for Democrats dropped by an encouraging 12 points. 

    Still, compared to Republicans and the general population, Democrats are significantly more censorial when it comes to this question. 

    In line with this, the NSI results showed that 52% of conservatives but only 45% of liberals agree that “the First Amendment goes too far in the rights it guarantees.” Though here again, more information would be helpful in order to understand what specific limitations to free speech Democrats and Republicans have in mind. 

    As the Charlie Hebdo cartoonist Laurent Sourisseau has said, “When you have something to say, there is always someone somewhere with a very good reason to stop you from saying it.” 

    But of course, that doesn’t mean they should.

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  • Alex Kozinski on JD Vance’s censorship speech — First Amendment News 459

    Alex Kozinski on JD Vance’s censorship speech — First Amendment News 459

    The Wall Street Journal recently published an op-ed by former Ninth Circuit Judge Alex Kozinski in which he, among other things, praises Vice President JD Vance’s recent speech in Munich about the evils of censorship in Europe — which included references to Kozinski’s birthplace, Romania. 

    Judge Alex Kozinski

    True to form, the Kozinski article was bold in ways certain to provoke criticism. Below are a few “fair use” excerpts:

    JD Vance’s speech to the Munich Security Conference . . . mentioned the Romanian election twice and held it up as a cautionary tale of what can happen to societies that seek to coerce rather than persuade, suppress rather than debate.

    Could American elections be canceled next? Some states came close in 2024 by attempting to remove from their ballots the candidate who eventually won the presidency. There was no uproar; the Supreme Court had to intervene. . . If enough panic is stirred up, canceling elections isn’t inconceivable.

    Our legacy media have greeted Mr. Vance’s speech largely with disdain and horror. They are wrong. The speech is epic. It reminds Europeans and Americans that the values of the Enlightenment, as captured in our Constitution—not least the right to think, speak and debate freely—are the glue that binds us together. If we don’t defend those values, there isn’t much left worth defending. 

    Related

    Missouri Attorney General Andrew Bailey announced today that the United States District Court for the Western District of Louisiana granted his motion to block top officials in the federal government from continuing to violate the First Amendment rights of millions of Americans. The judge’s ruling is 155 pages long and includes 721 footnotes.

    The judge had harsh words for the federal officials. He noted that this is “the most massive attack against free speech in United States’ history,” that the Biden administration has “blatantly ignored the First Amendment’s right to free speech,” and that the Biden administration “almost exclusively targeted conservative speech.”

    Attorney General Bailey’s motion for preliminary injunction, which he filed with Louisiana Attorney General Jeff Landry, highlighted over 1,400 facts from more than 20,000 pages of evidence exposing the vast censorship enterprise coordinated across multiples [SIC] agencies within the federal government. [reversed on standing grounds in Murthy v. Missouri (2024)] 

    SCOTUS denies review in ‘buffer zone’ abortion clinic protest cases 

    The case is Coalition Life v. City of Carbondale (Paul Clement, counsel for Petitioner). Earlier this week the Court denied review, with Justice Thomas dissenting (and with Justice Alito voting to grant certiorari). In this case, the Justices were invited to reconsider and reverse Hill v. Colorado. 

    Clarence Thomas official SCOTUS portrait

    Justice Clarence Thomas

    Below are a few excerpts from Justice Thomas’ dissent:

    It is unclear what, if anything, is left of Hill. As lower courts have aptly observed, Hill is “incompatible” with our more recent First Amendment precedents. Price v. Chicago, 915 F. 3d 1107, 1117 (CA7 2019) (opinion of Sykes, J., joined by Barrett, J.). Start with McCullen v. Coakley, 573 U. S. 464 (2014). There, this Court unanimously held unconstitutional a Massachusetts law that prohibited anyone from entering a 35-foot buffer zone around an abortion facility. Id., at 471– 472, 497. In doing so, the Court determined that the law was content neutral because—rather than targeting certain kinds of speech such as protest, education, and counseling—the law prohibited virtually any speech within the buffer zone. Id., at 479. The Court made clear, however, that the law “would be content based if it required ‘enforcement authorities’ to ‘examine the content of the message’” to determine whether the law applied. Ibid. That position is irreconcilable with Hill, which the Court did not even bother to cite.

    Hill is likewise at odds with Reed v. Town of Gilbert, 576 U. S. 155 (2015). Reed involved a First Amendment challenge to a town’s sign code that regulated various categories of signs based on “the type of information they convey.” Id., at 159. Relying on Hill, the Ninth Circuit concluded that the sign code was content neutral, reasoning that the town “‘did not adopt its regulation of speech because it disagreed with the message conveyed’” and its “‘interests in regulat[ing] temporary signs are unrelated to the content of the sign.’” 576 U. S., at 162. That court then applied a lower level of scrutiny and upheld the code. Ibid. We reversed, holding that a speech regulation is content based—and thus “presumptively unconstitutional”—if it “draws distinctions based on the message a speaker conveys.” Id., at 163.

    Our post-Reed decisions have firmly established Hill’s diminished status. In City of Austin, for example, the majority ran as far as it could from Hill, even though Hill was the one “case that could possibly validate the majority’s aberrant analysis” on the constitutionality of restrictions on bill-board advertising. 596 U. S., at 86, 102 (opinion of THOMAS, J.). The majority nonetheless insisted that any alleged similarity was “a straw man,” rejecting the notion that its opinion had “‘resuscitat[ed]’” Hill, and reminding readers that it did “not cite” the decision at all. 596 U. S., at 76. Our latest word on Hill—expressed in a majority opinion joined by five Members of this Court—is that the decision “distorted [our] First Amendment doctrines.” Dobbs, 597 U. S., at 287, and n. 65. If Hill’s foundation was “deeply shaken” before Dobbs, see Price, 915 F. 3d, at 1119, the Dobbs decision razed it.

    [ . . . ]

    Hill has been seriously undermined, if not completely eroded, and our refusal to provide clarity is an abdication of our judicial duty.

    The Court also denied review in Turco v. City of Englewood, New Jersey (another abortion “buffer zone” case) (Justices Thomas and Alito voted to grant the petition).

    Defendants’ motion to dismiss complaint in Iowa pollster ‘fraud’ case

    Iowa pollster Ann Selzer with a Des Moines Register headline and Donald Trump silhouette in the background

    The plaintiffs “can no more sue a newspaper pollster for diverted resources than a farmer could sue a TV weatherman for crop damage due to unexpected frost.”

    Below are a few excerpts from the motion to dismiss in Trump v. Selzer (US Dist. Ct., S. Dist., Iowa, Case 4:24-cv-00449-RGE-WPK: Feb. 21) (Robert Corn-Revere, lead counsel for Defendants):

    FIRE Chief Counsel Bob Corn-Revere

    Robert Corn-Revere, lead counsel for Defendants.

    Introduction 

    Plaintiffs’ claims are barred by the First Amendment and the Court should dismiss them with prejudice. In the United States there is no such thing as a claim for “fraudulent news.” No court in any jurisdiction has ever held such a cause of action might be valid, and few plaintiffs have ever attempted to bring such outlandish claims. Those who have were promptly dismissed. [citations]

    There is good reason for this. History’s judgment repudiated the 1798 Sedition Act which prohibited “false, scandalous and malicious . . . writings against the government of the United States” or its president, and that fraught episode “first crystallized a national awareness of the central meaning of the First Amendment.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 273 (1964). Since then, courts at all levels have confirmed our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” id. at 270, holding that speech is presumptively protected unless it falls within one of a few limited and narrowly defined categories. United States v. Stevens, 559 U.S. 460, 468–70 (2010). Those categories do not include a general exception for “false speech,” United States v. Alvarez, 567 U.S. 709, 722 (2012). 

    Plaintiffs seek to illegitimately expand them to include “fake news,” a tag line that may play well for some on the campaign trail but has no place in America’s constitutional jurisprudence. In this regard, civil damages, no less than criminal sanctions, cannot lie against protected speech. Snyder v. Phelps, 562 U.S. 443 (2011); Sullivan, 376 U.S. at 277. 

    Even if such a cause of action existed, the Amended Complaint is fatally flawed on every level: Plaintiffs fail at the threshold to allege any recoverable damages, and do not state plausible claims, either on the law or on the facts as alleged. No court has ever accepted claims like these, and this Court should not be the first. 

    [ . . . ]

    Plaintiffs Illegitimately Seek to Create a New First Amendment Exception. 

    Mr. Trump and his co-plaintiffs assume “false news” falls outside the First Amendment’s protection, but over 200 years of American free speech law and practice prove otherwise. 

    “Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth—whether administered by judges, juries, or administrative officials—and especially one that puts the burden of proving truth on the speaker.” Id. at 271. 

    As the Supreme Court recently explained, “[o]ur constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.” Alvarez, 567 U.S. at 723. 

    “From 1791 to the present . . . the First Amendment has permitted restrictions upon the content of speech in a few limited areas, and has never include[d] a freedom to disregard these traditional limitations.” Stevens, 559 U.S. at 468 (cleaned up). These “historic and traditional categories long familiar to the bar” include obscenity, child pornography, defamation, fraud, incitement, fighting words, and speech integral to criminal activity. Id. (cleaned up) (collecting cases). Former Justice Souter observed that “[r]eviewing speech regulations under fairly strict categorical rules keeps the starch in the standards for those moments when the daily politics cries loudest for limiting what may be said.” Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 774 (1996) (Souter, J., concurring). Consequently, the Court steadfastly resists efforts to increase or expand the boundaries of these categories as “startling and dangerous” and has rejected any “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.” Stevens, 559 U.S. at 470, 472. 

    Plaintiffs try to shoehorn their claims into an existing category by calling the Iowa Poll “fake” and asserting actionable “fraud” occurred. But “in the famous words of Inigo Montoya from the movie The Princess Bride, ‘You keep using that word. I do not think it means what you think it means.’” [citation] As a matter of basic law, Plaintiffs’ allegations about polls and news stories they dislike have nothing to do with fraud. [reference] I.B. They also sprinkle the complaint with loose talk of “election interference,” [citation], although they stop short of including a separate claim on that basis, perhaps out of awareness that “no court has held that a scheme to rig an election itself constitutes money or property fraud.” [citation] 

    Categories of unprotected speech are defined by precise legal tests, and Plaintiffs cannot stretch those boundaries to serve a political narrative. The Supreme Court routinely rejects attempts to broaden those limits based on assertions that the speech at issue is somehow “like” a recognized exception. See, e.g., Stevens, 559 U.S. at 470–71 (Other “descriptions are just that— descriptive. They do not set forth a test that may be applied as a general matter . . . .”); Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 793–96 (2011) (rejecting “attempt to shoehorn speech about violence into obscenity,” citing a lack of “longstanding tradition in this country” restricting such speech); Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 55–56 (1988) (rejecting bid to leave “outrageous” speech unprotected because it “does not seem to us to be governed by any exception to the . . . First Amendment”); Alvarez, 567 U.S. at 721–22 (“The Government has not demonstrated that false statements . . . should constitute a new category of unprotected speech” based on a “tradition of proscription.”) (quotation omitted). 

    Because the categories are governed by history and tradition, the Plaintiffs could not have chosen a worse candidate for inclusion than “fake news.” America’s first experience with prohibiting false news — the Sedition Act of 1798 — expired under its own terms, and all fines assessed under that misbegotten law were remitted. President Thomas Jefferson denounced it as an unconstitutional “nullity, as absolute and palpable as if Congress had ordered us to fall down and worship a golden image.” Sullivan, 376 U.S. at 272–76. While the Supreme Court never adjudicated the Sedition Act’s attempt to punish “false” writings about public officials, “the attack upon its validity has carried the day in the court of history,” defined “the central meaning of the First Amendment,” id., and conditioned “the fabric of jurisprudence woven across the years.” [citation] 

    Plaintiffs’ quest to punish “fake news” not only ignores this history, it also fumbles the conceptual basis for unprotected speech categories, which the Court first described as speech “of slight social value.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). Here, Plaintiffs seek to create a new First Amendment exception for speech that has always received the highest level of constitutional protection — political speech and commentary. In a word, it just doesn’t fit. 

    The Supreme Court has repeatedly reaffirmed that the First Amendment “‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.” Citizens United v. FEC, 558 U.S. 310, 339 (2010) (citation omitted). Speech about the political process is “at the core of our First Amendment freedoms,” Republican Party of Minn. v. White, 536 U.S. 765, 774 (2002), because a “major purpose” of the First Amendment was to protect “free discussion of . . . candidates.” Mills v. Alabama, 384 U.S. 214, 218 (1966). Accordingly, the “First Amendment affords the broadest protection” to “[d]iscussion of public issues and debate on” the political process. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346 (1995) (citation omitted). Political polling is “speech protected by the First Amendment” both because it “requires a discussion between pollster and voter” and the resulting poll itself “is speech.” [citation]

    The First Amendment accords speech in this area wide berth because “erroneous statement[s] [are] inevitable in free debate, and [they] must be protected if the freedoms of expression are to have the breathing space that they need to survive.” Sullivan, 376 U.S. at 271– 72 (cleaned up). Efforts to regulate “truth” in political commentary are thus presumptively unconstitutional and subject to strict scrutiny. [citations] Bottom line, political polls and news reports are not the stuff of which First Amendment exceptions are made. 

    Related

    The Associated Press sues Trump administration 

    The Associated Press sued three Trump administration officials Friday over access to presidential events, citing freedom of speech in asking a federal judge to stop the 10-day blocking of its journalists.

    [ . . . ]

    The AP says its case is about an unconstitutional effort by the White House to control speech — in this case refusing to change its style from the Gulf of Mexico to the “Gulf of America,” as President Donald Trump did last month with an executive order. “The press and all people in the United States have the right to choose their own words and not be retaliated against by the government,” the AP said in its lawsuit, which names White House Chief of Staff Susan Wiles, Deputy Chief of Staff Taylor Budowich and Press Secretary Karoline Leavitt.

    Emergency hearing request and motion in opposition 

    Related

    Executive Watch


    WATCH VIDEO: Trump escalates attacks on the free press

    Forthcoming scholarly article: Lakier & Douek on stalking and the First Amendment

    Professors Genevieve Lakier (left) and Evelyn Douek (right)

    Professors Genevieve Lakier (left) and Evelyn Douek (right)

    In Counterman v. Colorado, the Supreme Court decided an imaginary case. It held that Billy Ray Counterman’s conviction could not stand because it did not meet the First Amendment requirements for prosecutions based on threats. But this is puzzling because Counterman was not in fact convicted for making threats. He was convicted of stalking, under a law that does not require that the defendant threaten anyone in order to be guilty of the crime. 

    This Article argues that the Supreme Court’s confusion about the most basic facts of the case was not an aberration but instead reflects broader pathologies in First Amendment jurisprudence. These pathologies are a consequence of the impoverished view of the First Amendment’s boundaries depicted in the Court’s recent decisions, which suggest that the First Amendment’s doctrinal terrain can be described by a simple list of historically unprotected categories. 

    This thin account of the First Amendment, and the doctrinal distortions it creates, are not inevitable, however. The Article argues for an alternative, more multi-dimensional approach to the question of the First Amendment’s boundaries — one that rests on a richer understanding of the traditions of speech regulation in the United States — and sketches out its implications for the law of stalking and, potentially, many other areas of free speech law. Courts do not need to deny the facts of the cases they adjudicate to craft a First Amendment jurisprudence that is doctrinally coherent, historically informed, and normatively desirable. 

    ‘So to Speak’ podcast: Corn-Revere and London on censorship at home and abroad


    From JD Vance’s free speech critique of Europe to the Trump administration barring the Associated Press from the Oval Office, free speech news is buzzing. General Counsel Ronnie London and Chief Counsel Bob Corn-Revere unpack the latest developments.

    More in the News

    2024-2025 SCOTUS term: Free expression and related cases

    Cases decided 

    • Villarreal v. Alaniz (Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
    • Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
    • TikTok Inc. and ByteDance Ltd v. Garland (The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)

    Review granted

    Pending petitions 

    Petitions denied

    Last scheduled FAN

    This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.

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  • The FTC is overstepping its authority — and threatening free speech online

    The FTC is overstepping its authority — and threatening free speech online

    Federal Trade Commission Chair Andrew Ferguson reached out to followers on X yesterday asking for “public submissions from anyone who has been a victim of tech censorship (banning, demonetization, shadow banning, etc.), from employees of tech platforms.” His post was accompanied by a press release from the FTC and a forum for comments on their website, both making the same requests. 

    This outreach is being conducted, according to Ferguson, “to better understand how technology platforms deny or degrade users’ access to services based on the content of their speech or affiliations, and how this conduct may have violated the law.”

    In reality, the chair is angling to label editorial decisions he doesn’t like “unfair or deceptive trade practices.” But consumer protection law is no talisman against the First Amendment, and the FTC has no power here.

    The simplified formulation of Ferguson’s argument is this: If social media platforms are not adhering to their content policies, or “consistent” (whatever that means) in their enforcement, they are engaging in “false advertising” that harms consumers.

    Calling something censorship doesn’t make it so, and framing content moderation as “unfair or deceptive trade practices” does not magically sidestep the First Amendment. 

    Now, it is true that the FTC can generally act against deceptive marketing. That’s because pure commercial speech — that is, speech which does no more than propose a commercial transaction — possesses “a lesser protection” under the First Amendment than other forms of protected speech. And commercial speech that is false or misleading receives no First Amendment protection at all. But when speech — even in a commercial context — expresses opinions about social policy, government power over that speech gives way to the First Amendment.

    Content policies and moderation decisions made by private social media platforms are inherently subjective editorial judgments. In the vast majority of cases, they convey opinions on social policy as well as what expression they find desirable in their communities. Attempts to control or punish those editorial judgments violate the First Amendment.

    The Supreme Court recently made clear that these subjective decisions enjoy broad First Amendment protection. In Moody v. NetChoice, the Court rebuffed direct attempts by Texas and Florida to regulate content moderation decisions to remediate allegedly “biased” enforcement of platform rules:

    The interest Texas asserts is in changing the balance of speech on the major platforms’ feeds, so that messages now excluded will be included. To describe that interest, the State borrows language from this Court’s First Amendment cases, maintaining that it is preventing “viewpoint discrimination.” Brief for Texas 19; see supra, at 26–27. But the Court uses that language to say what governments cannot do: They cannot prohibit private actors from expressing certain views. When Texas uses that language, it is to say what private actors cannot do: They cannot decide for themselves what views to convey. The innocent-sounding phrase does not redeem the prohibited goal. The reason Texas is regulating the content-moderation policies that the major platforms use for their feeds is to change the speech that will be displayed there. Texas does not like the way those platforms are selecting and moderating content, and wants them to create a different expressive product, communicating different values and priorities. But under the First Amendment, that is a preference Texas may not impose.

    This is no less true when the government attempts to regulate through the backdoor of “consumer protection.”

    To illustrate the problem: Imagine a claim that platforms are engaging in unfair trade practices by removing some “hate speech,” but not speech that aligns with a certain view. What constitutes “hate speech” is entirely subjective. For the FTC to assess whether a “hate speech” policy has been applied “consistently” (or at all), they would have to supplant the platform’s subjective judgment with the government’s own “official” definition of “hate speech” — which, as you can probably already guess, will likely not be the same as anyone else’s. 

    And this illustration is not the product of wild imagination. In fact, FIRE is litigating this very question before the U.S. Court of Appeals for the Second Circuit right now. In Volokh v. James, FIRE is challenging a New York law requiring social media platforms to develop and publish policies for responding to “hateful conduct” and to provide a mechanism for users to complain about the same. Our motion for a preliminary injunction, which the district court granted, argued that the First Amendment prohibits the government from substituting its judgments about what expression should be permitted for a platform’s own:

    Labeling speech as “hateful” requires an inherently subjective judgment, as does determining whether speech serves to “vilify, humiliate, or incite violence.” The Online Hate Speech Act’s definition is inescapably subjective—one site’s reasoned criticism is another’s “vilification”; one site’s parody is another’s “humiliation”—and New York cannot compel social media networks to adopt it. . . . The definition of “hateful,” and the understanding of what speech is “vilifying,” “humiliating,” or “incites violence,” will vary from person to person . . .

    The First Amendment empowers citizens to make these value judgments themselves, because speech that some might consider “hateful” appears in a wide variety of comedy, art, journalism, historical documentation, and commentary on matters of public concern. 

    Ferguson and the FTC’s actions are particularly egregious given the fact that it has been made perfectly — and repeatedly — clear in the past that these kinds of editorial decisions are outside of their authority.

    LAWSUIT: New York can’t target protected online speech by calling it ‘hateful conduct’

    Press Release

    Today, the Foundation for Individual Rights and Expression sued New York Attorney General Letitia James, challenging a new state law that forces websites and apps to address online speech that someone, somewhere finds humiliating or vilifying.


    Read More

    In 2004, the political advocacy groups MoveOn and Common Cause asked the FTC to act against Fox News’ use of the “Fair and Balanced” slogan, arguing that it was false and misleading. Then-FTC Chair Tim Muris appropriately replied, “There is no way to evaluate this petition without evaluating the content of the news at issue. That is a task the First Amendment leaves to the American people, not a government agency.”

    In 2020, the nonprofit advocacy group Prager University argued in a lawsuit that YouTube violated its free speech rights by restricting access to some of its videos and limiting its advertising. They claimed that as a result, the platform’s statements that “everyone deserves to have a voice” and “people should be able to speak freely” constituted deceptive marketing. However, the U.S. Court of Appeals for the Ninth Circuit rejected this claim, holding that the platform’s statements are “impervious to being quantifiable” and, as a result, were non-actionable.

    The bottom line is this: Calling something censorship doesn’t make it so, and framing content moderation as “unfair or deceptive trade practices” does not magically sidestep the First Amendment. And as always, beware — authority claimed while one is in power will still exist when one is not.

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  • 60 Minutes and Vice President Vance put Europe’s worrying speech restrictions into the spotlight

    60 Minutes and Vice President Vance put Europe’s worrying speech restrictions into the spotlight

    Free speech in Europe is under debate at the moment, and for good reason. For anyone who is concerned about the preservation of free expression on a global scale, the restrictions on speech — including online speech — in countries like the United Kingdom and Germany in recent years have been alarming. 

    I’ve long written about international threats to free expression at FIRE — including in our newsletter, the Free Speech Dispatch — to help Americans better understand the broader state of speech, and how our First Amendment fits into the global stage. The current spotlight on speech restrictions abroad should once again remind us of the value of protecting our rights here at home. 

    Policing the ‘limits’ of Germany’s speech

    A CBS 60 Minutes segment that aired over the weekend is particularly disturbing, both because of the extent to which Germany polices speech and the casual disregard the prosecutors interviewed showed toward freedom of expression. 

    One of the prosecutors, when asked how targets respond to raids — sometimes conducted pre-dawn — of their homes and electronics, said that they are surprised to discover that they have committed a crime. “You have free speech as well, ” Dr. Matthäus Fink said, “but it also has its limits.” 

    Indeed it does, online and off. Just look at how German police and prosecutors have responded to speech that has the potential to offend in recent years. 

    A 64-year-old man is facing charges not just for alleged antisemitic posts, but also for calling a German politician a “professional idiot.” An American writer living in Germany may be sentenced to years in prison for satirically using a swastika to criticize the country’s COVID policies. Berlin police literally cut off the power to a pro-Palestinian conference because of “the potential for hate speech.” Then they shut down a pro-Palestinian protest because they couldn’t be sure if Irish protesters were saying something hateful in a foreign language — better censored than sorry. And what of the arrests of people who share, even unknowingly, a fake quote, because “the accused bears the risk of spreading a false quote without checking it”? Or of the man whose home was raided at dawn for tweeting at a local politician, “You are such a penis”?

    And it’s not only Germany that targets insults of politicians. Just yesterday, news broke that a musician from the band Placebo has been charged with defamation for “contempt of the institutions” after calling Italian Prime Minister Giorgia Meloni a “piece of shit, fascist, racist” during a 2023 music festival.

    Free speech is under threat in Europe, whether it’s online speech, blasphemy, or public protests.

    In case you thought arrests over insults were a fluke, the prosecutors featured by 60 Minutes are here to assure you: That’s the intention, not a byproduct. When interviewer Sharyn Alfonsi asked, “Is it a crime to insult somebody in public?,” all three confirmed it was, with Fink suggesting punishment for online insult could be even more severe “because in internet, it stays there.” Reposts, too, can be criminal. 

    Fink went on to defend prosecutorial action against the man who called a politician a “penis,” suggesting this and similar crass language has “nothing to do with … political discussions or a contribution to a discussion.” The notion that prosecutors should use the power of the state to shape the civility of political discourse should alarm anyone concerned about the state of expression in Germany and online.

    Vance criticizes European leaders’ speech policing

    Last week, Vice President JD Vance gave a much-discussed speech about “shared values” at the Munich Security Conference. In it, Vance took European leadership to task over censorship of conservative and religious speech, particularly in the UK. “Free speech, I fear, is in retreat,” Vance said. 

    The speech prompted pushback from European officials who objected to Vance’s diagnosis. Business Secretary Jonathan Reynolds, for example, said in response to Vance’s discussion of religious speech, “let’s be clear, we don’t have blasphemy laws in the UK.”

    That isn’t so clear at all. 

    In just the past few months alone, the UK managed to have multiple blasphemy controversies. (Not to mention the UK’s many other recent free speech woes covered in FIRE’s Free Speech Dispatch, which are too numerous to discuss in full here.) 

    In November, the Advertising Standards Authority banned comedian Fern Brady from using an advertisement for her stand-up tour that depicted Brady as the Virgin Mary because it could cause “serious offence” to Christians. Then Member of Parliament Tahir Ali called on Prime Minister Keir Starmer to create “measures to prohibit the desecration of all religious texts and the prophets of the Abrahamic religions” — also known as a blasphemy law.

    And early this month, Greater Manchester Police arrested a man “on suspicion of a racially aggravated public order offence” for publicly burning a Quran. An assistant chief constable said police “made a swift arrest at the time and recognise the right people have for freedom of expression, but when this crosses into intimidation to cause harm or distress we will always look to take action when it is reported to us.” 

    Harm? Distress? These concepts are vast enough to fit the entirety of Big Ben. It is, as writer Kenan Malik puts it, “a form of blasphemy restriction but in secular garb.”

    Labour Deputy Prime Minister Angela Rayner is also establishing a council to create an official government definition of Islamophobia. Depending on the council’s ultimate definition, and whether and how it is used by government agencies to respond to Islamophobia, it could implicate UK citizens’ ability to speak freely about important religious issues. (As FIRE has written repeatedly in the context of the International Holocaust Remembrance Alliance’s definition of anti-Semitism in the U.S., codification of these definitions into official policy can risk punishment or chilling of protected speech about political and religious matters.) 

    Outside of the UK, Europe’s restrictions on blasphemy are growing — and show no signs of stopping. Indeed, the Manchester man arrested for burning a Quran did so in response to the Jan. 29 assassination in Sweden of Iraqi refugee Salwan Momika, known for his well-publicized and controversial public Quran burnings. Just after Momika’s killing, a Swedish court found Salwan Najem, another Iraqi refugee who burned Qurans with Momika, guilty of incitement against an ethnic group. Momika faced similar charges, which were only dropped upon his death.

    The United Nations Human Rights Council encourages these kinds of prosecutions, passing a 2023 resolution advising countries to “address, prevent and prosecute acts and advocacy of religious hatred.” Denmark did so, enacting a law criminalizing desecration of holy texts later that year. 

    Vance’s support of speech abroad is undermined by Trump admin’s early censorship efforts

    Free speech is under threat in Europe, whether it’s online speech, blasphemy, or public protests. But it simply isn’t possible to square Vance’s criticism of European censorship with the recent actions of the administration in which he serves.

    In his speech, Vance said “there is a new sheriff in town” and “under Donald Trump’s leadership, we may disagree with your views, but we will fight to defend your right to offer them in the public square.” Vance also objected to “shutting down media.” 

    Has Vance checked in on what the sheriff is doing? 

    The president is directly targeting people for their speech, which frustrates the United States’ ability to credibly — and rightfully — advocate for free speech on the world stage. Take, for example, the White House’s decision last week to indefinitely bar the Associated Press from spaces including the Oval Office and Air Force One over its failure to adopt the government-preferred term “Gulf of America.” Press Secretary Karoline Leavitt confirmed that the White House was punishing what it deems misinformation, saying that “if we feel that there are lies being pushed by outlets in this room, we are going to hold those lies accountable.” In his speech, Vance criticized the Biden administration for “threaten[ing] and bull[ying]” private companies into censoring “so-called misinformation.”

    Vance, however, is aware of the AP decision — and supports it. In response to journalist Mehdi Hasan’s post asking Vance if he’d seen the ban, he wrote yesterday afternoon: “Yes dummy. I think there’s a difference between not giving a reporter a seat in the WH press briefing room and jailing people for dissenting views. The latter is a threat to free speech, the former is not. Hope that helps!”

    That’s rationalizing censorship. 

    He’s right that banning a journalist from press events isn’t the same as imprisoning them. Obviously some punishments are worse than others, but any punishment based on a journalist’s viewpoint is a free speech violation. As my colleague Aaron Terr explained last week, explicitly barring a news outlet on the basis of viewpoint — and its failure to adopt the state’s preferred terminology — is a serious threat to free speech, one Americans should oppose regardless of who is in the Oval Office.

    Vance also said in Munich, “Speaking up and expressing opinions isn’t election interference.” He’s right. There is perhaps no one who needs to hear that message more than President Donald Trump, who praised Vance’s speech but is nevertheless suing Iowa pollster J. Ann Selzer for her polling in the 2024 election — calling it “election interference.” (FIRE represents Selzer.) 

    FIRE’s defense of pollster J. Ann Selzer against Donald Trump’s lawsuit is First Amendment 101

    News

    A polling miss isn’t ‘consumer fraud’ or ‘election interference’ — it’s just a prediction and is protected by the First Amendment.


    Read More

    Another member of the Trump administration, Elon Musk, separately called this weekend for journalists at 60 Minutes to receive “a long prison sentence” for “deliberate deception to interfere with the last election,” referring to the journalists’ editing of an interview with then-Vice President Kamala Harris, not the segment on Germany’s online speech policing. Instead, hours later, he shared a clip of that segment with the caption, “Thank the Lord that America has freedom of speech!”

    Elected officials should press their colleagues around the world to stand by the values of free expression. Vance’s articulation of those rights is necessary. But being effective requires credibility. That’s why FIRE believes our commitment to nonpartisanship, and our dedication to defending the right to speak regardless of preference or popularity, is our most important value. 

    If we undermine these freedoms at home, it’s harder to advocate them abroad to an already skeptical body politic. 

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  • Love, loyalty, and liberty: ASU alumni unite to defend free speech

    Love, loyalty, and liberty: ASU alumni unite to defend free speech

    Late last year, a group of Arizona State University alumni gathered on the rooftop of the Canopy Hotel — high enough to see the headlights snake through the city of Tempe, but low enough to feel the pounding bass line of Mill Avenue’s nightlife. 

    Though the setting was casual, the conversation was anything but. A simple question had brought them together: What obligations do alumni have to their alma mater? 

    For most graduates, the answer is simple. Come back for Homecoming, buy the sweatshirt, scribble a check when the fundraising office calls. Thanks for your generosity! Click. 

    But for the assembled Sun Devils — spanning the classes of ’85 to ’24 — their connection to ASU is more than rah–rah nostalgia. They feel a duty to protect what made the university worth attending in the first place. 

    And so, that evening, they formed ASU Alumni for Free Speech. Their mission? “To promote and strengthen free expression, academic freedom, and viewpoint diversity, both on campus and throughout the global ASU community.” 

    The group’s inaugural chairman is Joe Pitts, ASU class of ’23 — whose beard, broad shoulders, and sage intellect belie his youth. For him, alumni should be more than mere spectators or “walking check books,” as he puts it, “endlessly giving and expecting little in return.” Instead, they should be invested stakeholders. 

    Pitts says it’s now fashionable to view a college diploma as little more than a fancy receipt. People think, I paid my tuition, endured the required courses, and behold: I’m credentialed! A neat little market transaction — no lingering ties, no ongoing investment.

    But this mindset, Pitts argues, is both morally bankrupt and pragmatically wrong-headed. As a practical matter, he says, “the value of your degree is tied to the reputation of your school — if your alma mater improves over time, your degree becomes more prestigious. If it declines, so does the respect it commands.” 

    And in the cutthroat world of status-signaling and social capital that matters — a lot. 

    ASU alumni have already petitioned the Arizona Board of Regents, urging them to adopt a policy of institutional neutrality, which would prevent the university from taking positions on current political issues and weighing in on the cause-du-jour.

    As a moral matter, “spending four years (or even more) at a university inevitably shapes you in some way,” Pitts says. “And in most cases, it’s for the better — even if we don’t exactly realize it at the time.” Think about it: how many unexpected friendships or serendipitous moments of clarity, insight, rebellion, and revelation do we owe our alma mater? 

    To discard that connection the moment you graduate — to treat it like an expired gym membership — isn’t just ungrateful. It’s a rejection of one’s own formation.

    But beyond these considerations, Pitts insists that what united them on the Canopy Hotel rooftop last year was — love, actually. Not the saccharine, Hallmark kind or the fleeting thrill of a Tinder rendezvous, but the sort of love that drives men to build cathedrals and forge legacies.

    Echoing St. Thomas Aquinas, Pitts says, “We love ASU, and to love is to will the good of the other — not to sit idly by.” And what is the good? It’s a campus where students unapologetically speak their minds; where professors dare to probe the perilous and the provocative; where administrators resist the temptation to do their best Big Brother impression! 

    Fortunately for ASU Alumni for Free Speech, their alma mater is already a national leader when it comes to free speech on campus — though, as Pitts notes, that’s “a damn low bar.”

    ASU ranks 14 out of 251 schools in FIRE’s 2025 College Free Speech Rankings, and has maintained a “green light” rating from FIRE since 2011, meaning its official policies don’t seriously imperil free expression. In 2018, ASU adopted the Chicago principles, committing to the “free, robust, and uninhibited sharing of ideas” on campus.

    The university didn’t stop there. This spring, ASU will launch a Center for Free Speech alongside an annual Free Speech Forum. 

    But despite these credentials, the specter of censorship still lingers at ASU, and the numbers tell the tale:

    • 68% of ASU students believe shouting down a speaker is at least rarely acceptable.
    • 35% believe violence can sometimes be justified to silence speech.
    • 37% self-censor at least once or twice a month. 
    • Over one-third of surveyed ASU faculty admit to self-censorship in their writing.

    And so — like the cavalry cresting the hill — ASU Alumni for Free Speech arrives just in time.

    “When controversy inevitably arises on a campus of 100,000 students,” Pitts argues, “the defense of free expression shouldn’t be left solely to outside organizations or political bodies. Instead, those speaking up should be people who genuinely care about ASU and have its best interests at heart.”

    ASU Alumni for Free Speech aims to be that voice. “In the long run, we want to have a seat at the table,” Pitts explains. “We want to build relationships not just with the ASU administration but also with the Arizona Board of Regents.”

    Along with FIRE, ASU alumni have already petitioned the Arizona Board of Regents, urging them to adopt a policy of institutional neutrality, which would prevent the university from taking positions on current political issues and weighing in on the cause-du-jour.

    SIGN THE PETITION TO ADOPT INSTITUTIONAL NEUTRALITY!

    Pitts and the rest of ASU Alumni for Free Speech are tired of playing cheerleader. They’re here to ensure that ASU flourishes not just today, but for every Sun Devil yet to step onto Palm Walk for the first time.

    “Sometimes that may look like applause,” Pitts says. “Other times, that may look like criticism.” 

    In either case, he insists, it’s an act of love.

    If you’re ready to join ASU Alumni for Free Speech, or if you’re interested in forming a free speech alumni alliance at your alma mater, contact Bobby Ramkissoon at [email protected]. We’ll connect you with like-minded alumni and offer guidance on how to effectively protect free speech and academic freedom for all. 

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  • The left should reclaim free speech mantle (opinion)

    The left should reclaim free speech mantle (opinion)

    If progressive or even not-so-progressive Jewish students invited comedian Sacha Baron Cohen to their university to perform his riotous parody “In My Country There Is Problem,” with its call-and-pogrom chorus “throw the Jew down the well / so my country can be free,” would Cohen be allowed on campus? If the song were indeed sung, and a few humorless, unthinking listeners were distressed by the lyrics, or at least claimed to be, would the Jewish students face discrimination and harassment charges under the university’s disciplinary code?

    Today, probably. Would they be found responsible for discrimination and harassment based on national origin? Again, probably. And what if a student band wished to parody the parody with a song titled something like, “Throw Chris Rufo Down the Well So My University Can Be Free”? Could the song be sung against the backdrop of students’ sensitivities and the reciprocated rage of today’s young conservative white men?

    In her recently published opinion essay for Inside Higher Ed, Joan W. Scott skewered the Foundation for Individual Rights and Expression and its vice president for campus advocacy, Alex Morey, for condemning the American Association of University Professors. Scott’s criticism of Morey’s criticism goes like this: Morey lambasted AAUP president Todd Wolfson’s expression of “disappointment” over Donald Trump’s re-election, arguing that Wolfson’s explicit partisanship betrays the AAUP’s purported commitment to academic freedom. Scott countered that FIRE is a libertarian wolf donning academic freedom drag. FIRE, explains Scott, is “dedicated to the absolutist principle of individual free speech,” a principle that is “not,” Scott italicizes, synonymous with academic freedom. In turn, Scott elaborates on academic freedom as “individual and collective rights of faculty as they pursue the mission of higher education in a democracy.”

    We agree with Scott that FIRE—with its many right-wing funding sources as Scott lists them—is unlikely to have our backs if and when the federal government comes to shut down diversity, equity and inclusion programs and cultural studies departments on campus (i.e., queer and Black studies). We respect, too, that Scott knows more about the history and purpose of academic freedom than we do.

    And yet, we worry that the line she draws between free speech and academic freedom—the former ideological and libertarian, the latter true and good—cedes too much. Indeed, her distinction hands “free speech” over to the conservative groups championing their anti-educational causes under its banner, and her dismissal of free speech defenses as apologia for racism lets stand, unnuanced, the left-originating but now right-appropriated proposition that combative, controversial speech is necessarily harmful in an egalitarian university environment. It is the quick conversion of (at times highly provocative) political speech into hate speech that allows “from the river to the sea” to be branded as categorically harassing antisemitism—a conversion that would so quickly ban Jews from sending up antisemitism (“throw the Jew down the well”), ban musicians from joking about drowning Rufo or prohibit, for that matter, marginalized groups from reappropriating slurs to divest them of their injurious force.

    In short, we think there is still good reason—several good reasons—for the academic left to defend speech, both as elemental to academic freedom and as a democratic value unto itself.

    We and nearly every colleague we know have stories of students hastily claiming talk—talk of sex, Israel, Palestine and criticism of affirmative action—as intimidating, harassing or discriminating. It seems to us that a robust defense of academic freedom must include healthy skepticism, but not outright cynicism, of the proposition that words injure. Skepticism, not cynicism, because words may hurt people, further subordinate marginalized groups and erode democratic ideals. David Beaver’s and Jason Stanley’s recently published The Politics of Language draws on critical race and feminist theory to show how some speech acts—affective, nondeliberative and/or racist dog whistles—function to polarize and degrade.

    But we also know, especially in the wake of spurious discrimination claims against campus activists and academics protesting Israel’s military campaigns, that conservative stakeholders are weaponizing the idea of words as weapons, alleging atmospheres of harassment to chill political speech—a project, we must concede, that the left paved the way for.

    Indeed, around 2013, as trigger warnings gained traction on college campuses, the right repackaged “free speech” as the inalienable freedom of anyone to speak on any topic without consequence, especially if that consequence is the loss of a platform. Instead of drawing on the left’s history of free speech advocacy, scholars of “identity knowledges” centered attention on the moral wrongness of offensive speech and the intolerability of feeling unsafe. This shift left progressives defending feelings rather than ideas, collapsing political discord with dehumanization—or, as Sarah Schulman argues, conflict with abuse. Now, with free speech reduced to melodrama, even the Christian right claims to protect its constituents against “harm”—whether from critical race theory or drag shows—rendering the issue a conceit of the culture wars.

    In his much-ridiculed op-ed for The New York Times published last year, linguist John McWhorter lamented that he and his students were unable to listen to John Cage’s silent “4:33” during class, as the silence would have been interrupted by the sound of student protests. The irony that McWhorter chided the protesters for impeding his students from appreciating Cage’s invitation to listen to “the surrounding noise” of the environs was not lost on McWhorter’s critics.

    What was not commented on, though, was McWhorter’s contention that if a group of students had been shouting “DEI has got to die” with the same fervor with which they were shouting for Palestine’s self-determination, then the protests “would have lasted roughly five minutes before masses of students shouted them down and drove them off the campus. Chants like that would have been condemned as a grave rupture of civilized exchange, heralded as threatening resegregation and branded as a form of violence.”

    Whether correct or not, McWhorter’s speculation is not baseless. We want to insist, though, that there are left, not just libertarian, grounds to defend, for example, a student protest against DEI initiatives. They include: respecting and celebrating the university as a space of open dialogue and debate; the possibility that you might learn something from someone with whom you disagree; the opportunity to lampoon, parody or otherwise countermand whatever worse-than-foolish statement the opposition is making; the opportunity, as John Stuart Mill taught us, to strengthen your own ideas and arguments alongside and against the ideas of others; and finally, avoiding the inevitable backlash of “the cancel,” whereby censored conservatives rebrand themselves as truth-telling victims of the “woke.”

    Granted, some of these grounds for defending speech tilt more liberal or libertarian than pure left, whatever that means, but we nonetheless maintain that it is self-defeating for us to carry the banner for “academic freedom” while consigning “free speech” to the province of white grievance. This is especially true for those of us teaching queer and critical sexuality studies, where classrooms and related spaces of activism and dialogue are increasingly circumscribed, the harm principle ever more unprincipled. Consider the case of Aneil Rallin, who in 2022 was accused by Soka University of America of teaching “triggering” sexual materials to his students in a course called Writing the Body, and whose case—while taken up by FIRE—was met with little alarm from the academic left.

    It also applies to those of us who still recognize satire, irony and social commentary in an age of breathtaking literalism. In 2011, the Dire Straits song “Money for Nothing” (1985) was temporarily banned from Canadian radio for its use of the f-slur, even though the term was intended as a commentary on working-class homophobia. The drive to censor and demonize without regard for social context has arguably gotten stronger in the years since.

    From the recent historical record, it seems to us that the enforcement of bureaucratic speech restrictions often damages campus culture and democratic norms more than the speech acts themselves. Indeed, the better question than is X speech act harmful is, to crib from Wendy Brown, when—if ever and at what costs—are speech restrictions the remedy for injury?

    Debating DEI programs, myths of meritocracy and so on is the stuff of academic freedom. A speech act like “DEI must die” is provocative, abrasive and worth publicly disparaging, but it is not the same as hate speech. Song parodies will not save us from the dark years ahead for public education, academic freedom and egalitarian pedagogies of all kinds. But our battle preparations demand standing up for, not surrendering, free speech.

    Joseph J. Fischel is an associate professor of women’s, gender and sexuality studies at Yale University.

    Kyler Chittick is a Ph.D. candidate in the Department of Political Science at the University of Alberta.

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