Tag: speech

Supreme Court case upholding age-verification for online adult content newly references ‘partially protected speech,’ gives it lesser First Amendment scrutiny

In Free Speech Coalition v. Paxton, the U.S. Supreme Court broke new ground in applying relaxed First Amendment scrutiny to state-imposed burdens on lawful adult access to obscene-for-minors content. The decision appeared outcome-driven to uphold laws that require websites with specified amounts of sexually explicit material to verify users’ ages. However, the Court indicated the holding applies only “to the extent the State seeks only to verify age,” such that, if handled in a principled manner, FSC v. Paxton should have relevance only for speech to which minors’ access may be constitutionally restricted.

FSC v. Paxton involved Texas HB 1181’s mandate that online services use “reasonable age verification methods” to ensure those granted access are adults if more than a third of the site’s content is “sexual material harmful to minors,” which the Court treated as content First Amendment law defines as “obscene for minors.” If an adult site knowingly fails to age-verify, Texas’ attorney general may recover civil penalties of up to $10,000 per day, and $250,000 if a minor actually accesses pornographic content. HB 1811 is one of over 20 state adult-content age-verification laws recently passed or enacted.

Obscenity is among the few categories of speech the First Amendment doesn’t protect. In 1973’s Miller v. California, the Court defined obscenity as speech that (1) taken as a whole appeals primarily to a “prurient interest” in sex (i.e., morbid, unhealthy fixation with it); (2) depicts or describes sexual or excretory conduct in ways patently offensive under contemporary community standards; and (3) taken as a whole, lacks serious literary, artistic, political, or scientific value. The Court has limited the test’s scope to what it calls “hardcore pornography.” Material that is “obscene for minors” is that which satisfies the Miller test as adjusted to minors. Sexually explicit material can thus be obscene for minors but fully protected for adults.

Under these tests, the government may ban obscene speech and restrict access by those under 18 to speech that is “obscene for minors,” but it cannot cut off adults’ access to non-obscene sexual material.

It’s long been accepted that, to access adult, potentially obscene-for-minors material in the physical world, showing identification to prove age may be required. So, a law requiring ID to access such content online might seem analogous on its face.

But online age-verification imposes risks physical ID checks do not. An adult bookstore clerk doesn’t save a photocopy of your license or track the content you access. Nor will hackers, therefore, try to access the ID. These are just some of the reasons surveys consistently show a majority of Americans do not want to provide ID to access online speech — whether adult material or other content, like social media.

Texas’ HB 1181 is similar to two federal statutes the Supreme Court invalidated around the turn of the millennium. In 1997, the Court in Reno v. ACLU unanimously struck down portions of the Communications Decency Act that criminalized transmitting “obscene or indecent” content. And in 2002’s Ashcroft v. ACLU, it considered whether the Child Online Protection Act violated the First Amendment in seeking to prevent children’s access to “material harmful to minors” in a way that incorporated age verification.

For decades, the Court has held statutes that regulate speech based on its content must withstand judicial review under strict scrutiny, which requires the government to demonstrate that the law is necessary to serve a compelling government interest and is narrowly tailored to achieve it using the “least restrictive means.” For laws restricting access to online speech, the Court held the laws in Reno and Ashcroft unconstitutional because they failed strict scrutiny. These cases followed in the footsteps of Sable Communications vs. FCC (1989) and United States v. Playboy (2000), in which the Court applied strict scrutiny to invalidate laws governing adult material transmitted by phone and on cable television stations, respectively.

But in FSC v. Paxton, the Court subjected Texas’ age-verification law for online adult content to only intermediate scrutiny. Under this standard of review, a speech regulation survives if it addresses an important government interest unrelated to suppression of speech, directly advances that interest in a direct and material way, and does not burden substantially more speech than necessary. The Court justified applying a lower level of scrutiny on the ground that minors have no First Amendment right to access speech that is obscene to them. Accordingly, it reasoned, even if adults have the right to access “obscene for minors” material, it is “not fully protected speech.” From there, the Court concluded that “no person — adult or child — has a First Amendment right to access speech that is obscene to minors without first submitting proof of age.” And it upheld the Texas law under intermediate scrutiny, concluding the regulations only incidentally restrict speech that can be accessed by adults.

The upshot is, going forward, it will be easier to justify laws restricting minors’ access to off-limits expression even if the law burdens adults’ access to material that is otherwise lawful for them.

At the same time, the majority opinion sought to limit the type of content that can be restricted only to material that meets the legal definition of “obscene-for-minors” material, and not anything that might be considered generally inappropriate.

As the Court held in Brown v. Entertainment Merchants Assn. (2011), “minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.” And in Reno, which involved similar attempts to limit provision of online content to minors, the Court held the government could not ban “patently offensive” and “indecent” (but not obscene) material for everyone in the name of protecting children.

Free Speech Coalition should not be read as approving age verification laws for online speech generally that do not specifically target “obscene for minors” material. Its narrow focus will not support the recent spate of social media age-verification laws that have met significant judicial disapproval. Such laws have been enjoined in Arkansas, Mississippi, California, Utah, Texas, Ohio, Indiana, Florida, and most recently last week, when a federal court held Georgia’s version “highly likely [to] be unconstitutional” because it interferes with minors’ rights “to engage in protected speech activities.”

Thus, properly understood, FSC v. Paxton should have limited implications — including that it shouldn’t extend to general age-verification laws in the social media context.

The risk, of course, is that governments will seek to leverage FSC v. Paxton decision beyond its limited holding, and/or that lower courts will misuse it, to justify prohibiting or regulating protected speech other than that obscene as to minors. In defending laws that implicate the First Amendment, the government often argues it is regulating only conduct, or unprotected speech, or speech “incidental” to criminal conduct.

Courts for the most part have seen through these attempts at evasion, and where a speech regulation applies based on topic discussed or idea or message expressed, or cannot be justified without reference to its function or content, courts apply strict scrutiny. Under FSC, however, would-be regulators have another label they can use — “partially protected speech” — and the hope that invoking it will lead to intermediate scrutiny.

Only time will tell if the Court will keep the starch in its First Amendment standards notwithstanding what should be the purple cow of FSC v. Paxton.

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July 14, 2025
Speech therapy association proposes eliminating ‘DEI’ in its standards

Scores of speech therapists across the country erupted last month when their leading professional association said it was considering dropping language calling for diversity, equity and inclusion and “cultural competence” in their certification standards. Those values could be replaced in some standards with a much more amorphous emphasis on “person-centered care.”

“The decision to propose these modifications was not made lightly,” wrote officials of the American Speech-Language-Hearing Association (ASHA) in a June letter to members. They noted that due to recent executive orders related to DEI, even terminology that “is lawfully applied and considered essential for clinical practice … could put ASHA’s certification programs at risk.”

Yet in the eyes of experts and some speech pathologists, the change would further imperil getting quality help to a group that’s long been grossly underserved: young children with speech delays who live in households where English is not the primary language spoken.

“This is going to have long-term impacts on communities who already struggle to get services for their needs,” said Joshuaa Allison-Burbank, a speech language pathologist and Navajo member who works on the Navajo Nation in New Mexico where the tribal language is dominant in many homes.

In a written statement after this story published, a spokesperson for the association stressed that the proposed changes have not been finalized, and said that member feedback is currently under review.

“ASHA remains steadfast in our belief that all health care services should be non-discriminatory and address the needs of every individual,” the spokesperson added. She characterized the proposed changes as “an evolution, not a retreat,” and noted that person-centered care aims to ensure “clinicians are equipped to deliver services tailored to each person’s context, including their lived experience, language background, cultural identity, and home environment.”

Across the country, speech therapists have been in short supply for many years. Then, after the pandemic lockdown, the number of young children diagnosed annually with a speech delay more than doubled. Amid that broad crisis in capacity, multilingual learners are among those most at risk of falling through the cracks. Less than 10 percent of speech therapists are bilingual.

A shift away from DEI and cultural competence — which involves understanding and trying to respond to differences in children’s language, culture and home environment — could have a devastating effect at a time when more of both are needed to reach and help multilingual learners, several experts and speech pathologists said.

They told me about a few promising strategies for strengthening speech services for multilingual infants, toddlers and preschool-age children with speech delays — each of which involves a heavy reliance on DEI and cultural competence.

Embrace creative staffing. The Navajo Nation faces severe shortages of trained personnel to evaluate and work with young children with developmental delays, including speech. So in 2022, Allison-Burbank and his research team began providing training in speech evaluation and therapy to Native family coaches who are already working with families through a tribal home visiting program. The family coaches provide speech support until a more permanent solution can be found, said Allison-Burbank.

Home visiting programs are “an untapped resource for people like me who are trying to have a wider reach to identify these kids and get interim services going,” he said. (The existence of both the home visiting program and speech therapy are under serious threat because of federal cuts, including to Medicaid.)

Use language tests that have been designed for multilingual populations. Decades ago, few if any of the exams used to diagnose speech delays had been “normed” — or pretested to establish expectations and benchmarks — on non-English-speaking populations.

For example, early childhood intervention programs in Texas were required several years ago to use a single tool that relied on English norms to diagnose Spanish-speaking children, said Ellen Kester, the founder and president of Bilinguistics Speech and Language Services in Austin, which provides both direct services to families and training to school districts. “We saw a rise in diagnosis of very young (Spanish-speaking) kids,” she said. That isn’t because all of the kids had speech delays, but due to fundamental differences between the two languages that were not reflected in the test’s design and scoring. (In Spanish, for instance, the ‘z’ sound is pronounced like an English ‘s.’)

There are now more options than ever before of screeners and tools normed on multilingual, diverse populations; states, agencies and school districts should be selective, and informed, in seeking them out, and pushing for continued refinement.

Expand training — formal and self-initiated — for speech therapists in the best ways to work with diverse populations. In the long-term, the best way to help more bilingual children is to hire more bilingual speech therapists through robust DEI efforts. But in the short term, speech therapists can’t rely solely on interpreters — if one is even available — to connect with multilingual children.

That means using resources that break down the major differences in structure, pronunciation and usage between English and the language spoken by the family, said Kester. “As therapists, we need to know the patterns of the languages and what’s to be expected and what’s not to be expected,” Kester said.

It’s also crucial that therapists understand how cultural norms may vary, especially as they coach parents and caregivers in how best to support their kids, said Katharine Zuckerman, professor and associate division head of general pediatrics at Oregon Health & Science University.

“This idea that parents sit on the floor and play with the kid and teach them how to talk is a very American cultural idea,” she said. “In many communities, it doesn’t work quite that way.”

In other words, to help the child, therapists have to embrace an idea that’s suddenly under siege: cultural competence,

Quick take: Relevant research

In recent years, several studies have homed in on how state early intervention systems, which serve children with developmental delays ages birth through 3, shortchange multilingual children with speech challenges. One study based out of Oregon, and co-authored by Zuckerman, found that speech diagnoses for Spanish-speaking children were often less specific than for English speakers. Instead of pinpointing a particular challenge, the Spanish speakers tended to get the general “language delay” designation. That made it harder to connect families to the most tailored and beneficial therapies.

A second study found that speech pathologists routinely miss critical steps when evaluating multilingual children for early intervention. That can lead to overdiagnosis, underdiagnosis and inappropriate help. “These findings point to the critical need for increased preparation at preprofessional levels and strong advocacy … to ensure evidence-based EI assessments and family-centered, culturally responsive intervention for children from all backgrounds,” the authors concluded.

Carr is a fellow at New America, focused on reporting on early childhood issues.

Contact the editor of this story, Christina Samuels, at 212-678-3635, via Signal at cas.37 or samuels@hechingerreport.org.

This story about the speech therapists association was produced by The Hechinger Report, a nonprofit, independent news organization focused on inequality and innovation in education. Sign up for the Hechinger newsletter.

The Hechinger Report provides in-depth, fact-based, unbiased reporting on education that is free to all readers. But that doesn’t mean it’s free to produce. Our work keeps educators and the public informed about pressing issues at schools and on campuses throughout the country. We tell the whole story, even when the details are inconvenient. Help us keep doing that.

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July 9, 2025
High school speech and debate allows students to find common ground

This story about high school speech and debate was produced by The Hechinger Report, a nonprofit, independent news organization focused on inequality and innovation in education. Sign up for the Hechinger newsletter.

DES MOINES, Iowa — Macon Smith stood in front of a nearly empty classroom 1,000 miles from home. He asked his opponent and the two judges in the room if they were ready to start, then he set a six-minute timer and took a deep breath.

“When tyranny becomes law, rebellion becomes duty,” he began.

In front of Macon, a 17-year-old high school junior, was a daunting task: to outline and defend the argument that violent revolution is a just response to political oppression.

In a few hours, Macon would stand in another classroom with new judges and a different opponent. He would break apart his entire argument and undo everything he had just said.

“An eye for an eye makes the whole world blind,” Macon started.

It doesn’t really matter what opinion Macon holds on violence or political oppression. In this moment in front of the judges, he believes what he’s saying. His job is to get the judges to believe with him.

Related: A lot goes on in classrooms from kindergarten to high school. Keep up with our free weekly newsletter on K-12 education.

Macon was one of more than 7,000 middle and high school students to compete in the National Speech and Debate Tournament this summer in Iowa, run by an organization that is celebrating a century in existence.

In that time, the National Speech and Debate Association has persevered through economic and social upheaval. It is entering its next era, one in which the very notion of engaging in informed and respectful debate seems impossible. The organizers of this event see the activity as even more important in a fracturing society.

“I don’t think there’s an activity in the world that develops empathy and listening skills like speech and debate,” said Scott Wunn, the organization’s president. “We’re continuing to create better citizens.”

Macon Smith, a rising senior from Bob Jones Academy in South Carolina, competes in the third round of the Lincoln-Douglas Debate at the National Speech and Debate Tournament in Iowa this summer. Credit: Meenakshi Van Zee for The Hechinger Report

Though the tournament is held in different cities around the country, for the 100th anniversary, the organizers chose to host it in Des Moines, where the association’s headquarters is based.

Preparing for this competition was a year in the making for Macon, who will be a senior at Bob Jones Academy, a Christian school in Greenville, South Carolina, this fall. Students here compete in more than two dozen categories, such as Original Oratory, in which they write and recite their own 10-minute speeches, or Big Questions, where they attempt to argue broad, philosophical ideas.

Macon’s specialty, the Lincoln-Douglas Debate, is modeled after a series of public, three-hour debates between Abraham Lincoln and Sen. Stephen Douglas in 1858. In this event, two students have just 40 minutes to set up their arguments, cross-examine each other and sway the judges.

“Even if I don’t personally believe it, I can still look at the facts and determine, OK, this is a good fact, or it’s true, and argue for that side,” Macon said.

Debaters often have to tackle topics that are difficult, controversial and timely: Students in 1927 debated whether there was a need for a federal Department of Education. In 1987, they argued about mandatory AIDS testing. In 2004, they debated whether the United States was losing the war on terror. This year, in the Public Forum division, students debated whether the benefits of presidential executive orders outweigh the harms.

Related: Teaching social studies in a polarized world

While the speech and debate students practiced for their national event, adults running the country screamed over each other during a congressional hearing on state sanctuary policies. A senator was thrown to the floor and handcuffed during a press conference on sending the National Guard to immigration enforcement protests in Los Angeles. Most Americans feel political discourse is moving in the wrong direction — both conservatives and progressives say talking politics with someone they disagree with has become increasingly stressful and frustrating.

Speech and debate club, though, is different.

“First of all, it gives a kid a place to speak out and have a voice,” said Gail Nicholas, who for 40 years has coached speech and debate at Bob Jones Academy alongside her husband, Chuck Nicholas, who is Macon’s coach. “But then also learn to talk to other people civilly, and I think that’s not what’s being modeled out there in the real world right now.”

Macon Smith, a rising senior from Bob Jones Academy in South Carolina, shows off the notes that he took during debates at the National Speech and Debate Tournament in Iowa. Credit: Meenakshi Van Zee for The Hechinger Report

On the second day of the competition in a school cafeteria in West Des Moines, Macon was anxiously refreshing the webpage that would show the results of his rounds to learn whether he would advance to semifinals.

For most of the school year, Macon spent two days a week practicing after school, researching and writing out his arguments. Like many competitors, he has found that it’s easy to make snap judgments when you don’t know much about an issue. Decisively defending that view, to yourself and to others, is much harder.

“I tend to go in with an opinion and lose my opinion as the topic goes on,” said Daphne DiFrancesco, a rising senior from Cary Academy in Cary, North Carolina.

Traveling for regional events throughout the school year means Macon has become friends with students who don’t always share his conservative views. He knows this because in debate, discussing politics and religion is almost unavoidable.

“It doesn’t make me uncomfortable at all,” Macon said. “You don’t want to burn down a bridge before you make it with other people. If you stop your connection with a person right at their political beliefs, you’re already cutting off half of the country. That’s not a good way to conduct yourself.”

Macon, and other students in the clubs, said participating has made them think more deeply about their own beliefs. Last year, Macon debated a bill that would defund Immigration and Customs Enforcement, an agency he supports. After listening to other students, he developed a more nuanced view of the organization.

“When you look at the principle of enforcing illegal immigration, that can still be upheld, but the agency that does so itself is flawed,” he said.

Related: ‘I can tell you don’t agree with me’:’ Colleges teach kids how to hear differing opinions

Henry Dieringer, a senior from L.C. Anderson High School in Austin, Texas, went into one competition thinking he would argue in favor of a bill that would provide work permits for immigrants, which he agrees with. Further research led him to oppose the idea of creating a federal database on immigrants.

“It made me think more about the way that public policy is so much more nuanced than what we believe,” Henry said.

On the afternoon of the second day of the national tournament, Macon learned he didn’t advance to the next round. What’s sad, he said, is he probably won’t have to think this hard about the justness of violent revolution ever again.

“There’s always next year,” Macon said.

Callista Martin, 16, a rising senior from Bainbridge High School in Washington state, also didn’t make the semifinals. Callista and Macon met online this year through speech and debate so they could scrimmage with someone they hadn’t practiced with before. It gave them the chance to debate someone with differing political views and argument styles.

Macon Smith, a rising senior from Bob Jones Academy in South Carolina, takes notes during a round of the Lincoln-Douglas Debate at the National Speech and Debate Tournament in Iowa. Credit: Meenakshi Van Zee for The Hechinger Report

“In the rounds, I’m an entirely different person. I’m pretty aggressive, my voice turns kind of mean,” Callista said. “But outside of the rounds, I always make sure to say hi to them before and after and say things I liked about their case, ask them about their school.”

Talking to her peers outside of rounds is perhaps the most important part of being in the club, Callista said. This summer, she will travel to meet with some of her closest friends, people she met at debate camps and tournaments in Washington.

Since Callista fell in love with speech and debate as a freshman, she has devoted herself to keeping it alive at her school. No teacher has volunteered to be a coach for the debate club, so the 16-year-old is coaching both her classmates and herself.

A lack of coaches is a common problem. Just under 3,800 public and private high schools and middle schools were members of the National Speech and Debate Association at the end of this past school year, just a fraction of the tens of thousands of secondary schools in the country. The organization would like to double its membership in the next five years.

That would mean recruiting more teachers to lead clubs, but neither educators nor schools are lining up to take on the responsibility, said David Yastremski, an English teacher at Ridge High School in New Jersey who has coached teams for about 30 years.

It’s a major time commitment for teachers to dedicate their evenings and weekends to the events with little supplemental pay or recognition. Also, it may seem like a risk to some teachers at a time when states such as Virginia and Louisiana have banned teachers from talking about what some call “divisive concepts,” to oversee a school activity where engaging with controversial topics is the point.

“I primarily teach and coach in a space where kids can still have those conversations,” Yastremski said. “I fear that in other parts of the country, that’s not the case.”

Related: A school district singled out by Trump says it teaches ‘whole truth history’

Dennis Philbert, a coach from Central High School in Newark, New Jersey, who had two students become finalists in the tournament’s Dramatic Interpretation category, said he fears for his profession because of the scrutiny educators are under. It takes the fun out of teaching, he said, but this club can reignite that passion.

“All of my assistant coaches are former members of my team,” Philbert said. “They love this activity [so much] that they came back to help younger students … to show that this is an activity that is needed.”

On the other side of Des Moines, Gagnado Diedhiou was competing in the Congressional Debate, a division of the tournament that mimics Congress and requires students to argue for or against bills modeled after current events. During one round, Gagnado spoke in favor of a bill to shift the country to use more nuclear energy, for a bill that would grant Puerto Rico statehood, and against legislation requiring hospitals to publicly post prices.

Gagnado Diedhiou, a senior from Eastside High School in South Carolina, competing in the first round of the Congressional Debate at the National Speech and Debate Tournament in Iowa in June. Credit: Meenakshi Van Zee for The Hechinger Report

Just like in Congress, boys outnumbered girls in this classroom. Gagnado was the only Black teenager and the only student wearing a hijab. The senior, who just graduated from Eastside High School in Greenville, South Carolina, is accustomed to being in rooms where nobody looks like her — it’s part of the reason she joined Equality in Forensics, a national student-led debate organization that provides free resources to schools and students across the country.

“It kind of makes you have to walk on eggshells a little bit. Especially because when you’re the only person in that room who looks like you, it makes you a lot more obvious to the judges,” said Gagnado, who won regional Student of the Year for speech and debate in her South Carolina district this year. “You stand out, and not always in a good way.”

Camille Fernandez, a rising junior at West Broward High School in Florida, said the competitions she has participated in have been dominated by male students. One opponent called her a vulgar and sexist slur after their round was over. Camille is a member of a student-led group — called Outreach Debate — trying to bridge inequities in the clubs.

“A lot of people think that debate should stay the same way that it’s always been, where it’s kind of just — and this is my personal bias — a lot of white men winning,” Camille said. “A lot of people think that should be changed, me included.”

Despite the challenges, Gagnado said her time in debate club has made her realize she could have an influence in the world.

“With my three-minute speech, I can convince a whole chamber, I can convince a judge to vote for this bill. I can advocate and make a difference with some legislation,” said Gagnado, who is bound for Yale.

About 10,000 people attended the National Speech and Debate Tournament in Iowa this June during the organization’s centennial anniversary. Credit: Meenakshi Van Zee for The Hechinger Report

A day before the national tournament’s concluding ceremony, a 22-year-old attendee rushed the stage at the Iowa Event Center in Des Moines during the final round of the Humorous Interpretation speech competition, scaring everyone in the audience. After he bent down to open his backpack, 3,000 people in the auditorium fled for the exits. The man was later charged with possession of a controlled substance and disorderly conduct. For a brief moment, it seemed like the angry discourse and extreme politics from outside of the competition had become a part of it.

In response, the speech and debate organization shifted the time of some events, limited entrances into the building and brought in metal detectors, police officers and counselors. Some students, Gagnado among them, chose not to return to the event.

Still, thousands of attendees stayed until the end to celebrate the national champions. During the awards ceremony, where therapy dogs roamed the grounds, Angad Singh, a student from Bellarmine College Preparatory in California competing in Original Oratory, took the national prize for his speech on his Sikh identity and the phrase “thoughts and prayers” commonly repeated by American leaders after a tragedy, titled “Living on a Prayer.”

“I’ve prayed for change,” Singh told the audience. “Then I joined speech and debate to use my voice and fight for it.”

This story about high school speech and debate was produced by The Hechinger Report, a nonprofit, independent news organization focused on inequality and innovation in education. Sign up for the Hechinger newsletter.

The Hechinger Report provides in-depth, fact-based, unbiased reporting on education that is free to all readers. But that doesn’t mean it’s free to produce. Our work keeps educators and the public informed about pressing issues at schools and on campuses throughout the country. We tell the whole story, even when the details are inconvenient. Help us keep doing that.

Join us today.

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July 8, 2025
Jailed for basic journalism, Texas reporter takes free speech fight to Supreme Court

For years, Priscilla Villarreal has fought to hold officials accountable when they violate Americans’ First Amendment rights, including the Laredo officials who threw her in jail just for asking police to verify facts as part of her everyday news reporting.

Priscilla sued, and last fall, the Supreme Court gave her a shot at justice, granting her petition and ordering the U.S. Court of Appeals for the Fifth Circuit to reconsider Priscilla’s case against the officials who tried to turn routine journalism into a felony.

But in April, a divided Fifth Circuit doubled down, holding the Laredo officials had qualified immunity, a doctrine that often shields government officials from lawsuits even when they violate the Constitution. In his dissent, one judge lamented that the court had simply reinstated what it “mistakenly said before, just in different packaging.”

So Priscilla and FIRE are doubling down, too. We’re heading back to the Supreme Court, asking it to make crystal clear that Americans have every ability to hold officials accountable for violating core First Amendment rights — like the right to ask government officials questions, and publish what they share.

That’s exactly what Priscilla has been doing for years, reporting on local crime, traffic, and other news for her 200,000 Facebook followers. She’s made a name for herself too. The New York Times describes her as “arguably the most influential journalist in Laredo.” But despite her experience, her journey from Laredo, a city on the Mexican border, to the Supreme Court has been a long one.

In 2017, she reported on a high-profile suicide and a fatal car accident. For both stories, Priscilla received tips from private citizens and verified those facts by asking a Laredo police officer. The First Amendment squarely protects this routine journalistic practice. After all, at the heart of the First Amendment is the freedom to ask government officials and institutions questions, even tough ones.

Angered by Priscilla’s reporting on these incidents, Laredo officials tried to bully her into silence by arresting her. But with no legitimate basis on which to charge her with a crime, police and prosecutors turned to a decades-old statute that no local official had ever enforced.

That law makes it a felony to ask for or receive non-public information from a government official with the intent to benefit from that information. Laredo police and prosecutors pursued two warrants for Priscilla’s arrest under the statute. In short, Priscilla went to jail for basic journalism.

So in 2019, she sued the officials for violating her First and Fourth Amendment rights. As Judge James Ho later remarked in his dissent at the Fifth Circuit, it “should’ve been an easy case for denying qualified immunity.”

But it hasn’t been. A Texas federal district court dismissed her claims on the basis of qualified immunity. A three-judge panel of the Fifth Circuit reversed that decision, denying qualified immunity. But when the whole Fifth Circuit reheard the case at the government’s request, it reversed the panel ruling in a splintered 9-7 decision.

In 2024, Priscilla and FIRE took her fight to the Supreme Court for the first time. The Court granted Priscilla’s petition to review the Fifth Circuit’s decision and ordered it to reconsider her case in light of the Supreme Court’s 2024 decision, Gonzalez v. Trevino. That decision affirmed the ability to sue government officials when they retaliate against protected speech by selectively enforcing statutes.

But last April, a splintered Fifth Circuit decided against Priscilla again, granting qualified immunity to the officials who defied longstanding Supreme Court precedent and core principles of American liberty by orchestrating her arrest.

The Fifth Circuit’s ruling not only denies Priscilla justice, but gives police and prosecutors a free pass to turn core First Amendment rights into a crime. That result cannot stand. And that’s why Priscilla and FIRE are going back to the Supreme Court.

Priscilla’s fearless reporting has made her a local “folk hero.” Now, she’s channeling the same grit into defending not just her own rights, but the First Amendment rights of all Americans.

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July 7, 2025
Speech is not a crime — even if it complicates ICE’s job

While I was driving down I-95 yesterday, a notification popped up on Google Maps: “Police ahead.” I eased my foot off the gas. Sure enough, a minute later I passed a cruiser parked in the median, radar aimed at oncoming traffic. I paid it forward by tapping “Still there” on Maps.

Did I commit a crime? Did Google?

No. Google simply provided a tool for sharing publicly observable information. I used it, just like millions of drivers do every day. That’s speech, and the First Amendment protects it.

None of that changes if you swap out highway patrol for Immigration and Customs Enforcement (ICE). But the Trump administration sees it differently.

A new iPhone app called ICEBlock lets users report sightings of ICE activity and receive alerts about the agency’s presence within a 5-mile radius. The app’s website says:

ICE has faced criticism for alleged civil rights abuses and failures to adhere to constitutional principles and due process, making it crucial for communities to stay informed about its operations.

The app also warns users not to use it “for the purposes of inciting violence or interfering with law enforcement.”

After CNN reported on ICEBlock Monday, Trump administration officials claimed the app put ICE agents in danger and threatened to prosecute not only the app’s developer, but also … CNN. Border czar Tom Homan called on the Department of Justice to investigate whether the network had “crossed that line of impeding federal law enforcement officers.”

The next day, Secretary of Homeland Security Kristi Noem said her agency was “working with the Department of Justice” to see if they could prosecute CNN for its coverage of the app. President Trump went further, adding CNN “may be prosecuted also for having given false reports on the attack in Iran.” He made similar threats to sue The New York Times over its coverage.

At the risk of stating the obvious, CNN’s routine reporting on ICEBlock is constitutionally protected. Even if the app itself were illegal, which it’s not, the press still has a right to report on it as a matter of public interest.

Consider the extensive reporting on the notorious “open-air drug market” in Philadelphia’s Kensington neighborhood. That journalism isn’t illegal just because it might tip off someone about where to get fentanyl.

By the administration’s logic, not just CNN, but anyone who speaks publicly about ICEBlock has committed a crime. Right-leaning outlets have covered the app, too. Prosecuting them for raising public awareness of the app would be just as unconstitutional. Ironically, the administration’s censorial threats are almost certainly doing more to amplify the app than CNN’s initial report did. The president’s team should look up the Streisand effect.

This episode is just the latest example of the administration trying to stretch the meaning of “obstruction” to cover nearly any speech that might complicate immigration enforcement. Back in February, Homan asked the Department of Justice to investigate Congresswoman Alexandria Ocasio-Cortez for “impeding our law enforcement efforts” by releasing a webinar and flyer that reminded people of their constitutional rights when interacting with ICE.

Informing the public that they don’t have to consent to warrantless searches might make ICE’s job more difficult, but that doesn’t strip the speech of constitutional protection. It’s as absurd as claiming a police officer interferes with the district attorney’s job by telling a suspect he has the right to remain silent.

As FIRE explained at the time, the First Amendment protects a significant amount of expression, including “providing information about the presence of law enforcement officers.”

Of course, there are narrow and carefully defined exceptions to the First Amendment. True threats aren’t protected. Nor is incitement. But speech qualifies as incitement only if the speaker intends to provoke immediate unlawful action and their speech is likely to provoke it. That’s a very high bar. Simply noting the presence of law enforcement in a particular location or talking about an app that facilitates that speech doesn’t come close.

It’s possible to imagine scenarios where speech might cross that line. If a hostile crowd gathered near ICE agents and someone with a megaphone called on them to attack, that would likely qualify as incitement. But that’s not what we’re dealing with here.

There are also circumstances in which helping someone evade law enforcement is a crime. You can’t lawfully harbor a fugitive or physically interfere with officers performing their duties. And the Supreme Court has held the First Amendment does not protect speech “used as an integral part of conduct in violation of a valid criminal statute.” Consider a lookout who warns accomplices during a robbery that police are approaching. That person is intentionally working with specific individuals to carry out a specific unlawful act. The speech isn’t general or political. It’s instrumental to the commission of the crime and is not protected.

What is protected under the First Amendment is sharing publicly observable information about what government agents are doing in public — or providing the means to do so with a tool like ICEBlock — especially when that speech is tied to political activism. A federal appeals court recently upheld that principle in a case involving a man standing on a sidewalk with a sign that read “Cops Ahead.” The court found his sign, an analog version of the police alerts on Google Maps and Waze, was protected by the First Amendment.

It’s absolutely critical to maintain precise, narrow standards that prevent the government from expanding its power to regulate speech and suppress dissent. When officials blur the line between obstructing justice and merely speaking about public law enforcement activity, they put core First Amendment freedoms at risk.

But let’s step back and remember the administration is not only claiming ICEBlock is illegal, but also suggesting that reporting on it is a criminal offense. Just as baseless is the president’s threat to prosecute and/or sue CNN and The New York Times over their coverage of the bombing of Iran. After the U.S. military struck Iran’s nuclear sites, both outlets reported on a preliminary assessment from the Defense Intelligence Agency (DIA) that contradicted Trump’s claim that the sites were “completely and totally obliterated.”

Reporting the government’s own findings about a major military action is not a crime — it’s protected by the First Amendment as well as vital to an informed citizenry. Again, this isn’t a close call.

In New York Times v. United States, the Supreme Court rejected the government’s attempt to block the press from publishing the Pentagon Papers — a classified history of U.S. involvement in Vietnam — despite the government’s claims that it would harm national security.

Trump’s issue with CNN and The New York Times isn’t even about national security. He’s upset that the DIA report undercut his narrative. But if he thinks the report is wrong, his problem is with his own intelligence agency, not the outlets who accurately reported on its assessment. (Notably, both CNN and The New York Times made clear the report was preliminary, the analysis ongoing, and that the administration disputed its conclusions.)

FIRE has gotten flak over the past few months for focusing so much on President Trump. Believe me, we wish we didn’t have to.

But when the most powerful official in the country repeatedly shows contempt for the First Amendment, it’s our job as a free speech organization to call that out. Presidents wield enormous power to stifle dissent. Their rhetoric and actions influence how other government officials interpret the bounds of the First Amendment, and they shape public attitudes about the enduring value of free expression.

This isn’t about partisanship. We unequivocally opposed the Biden administration’s efforts to suppress speech and consistently push back against censorship from the left, too. And much of our work doesn’t relate to partisan flashpoints that dominate the news. Every day, we’re defending ordinary Americans facing censorship from state legislatures, universities, city councils, school boards, and other government actors.

As FIRE’s Executive Vice President Nico Perrino said yesterday, “The biggest threat to free speech is political power,” and at this moment, the right side of the aisle controls both political branches of the federal government.

That balance will shift, as it always does. But FIRE’s mission of holding those in power to the First Amendment will not.

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July 3, 2025
FIRE amicus brief: First Amendment bars using schoolkid standards to silence parents’ speech

Does the First Amendment protect passive, nondisruptive political speech of adults in a public forum? Under longstanding precedent and common sense, the answer is yes, of course it does. Yet a federal district court in New Hampshire ratified a viewpoint-based removal of parents from a high school soccer game. So FIRE filed an amicus brief in the appeal from that decision, explaining how the court went astray.

In September 2024, as a form of silent protest against allowing a transgender athlete to play on the opposing girls’ soccer team against Bow High School, parents Kyle Fellers and Andy Foote donned pink “XX” wristbands during halftime. After about 10 minutes, school officials approached, along with a police officer, and demanded that the two parents remove the wristbands or leave the game.

Worse, when the parents invoked their First Amendment rights, the officials threatened to arrest them for trespassing despite having no evidence that the wristbands, as opposed to the school officials’ conduct, was causing any disruption of the soccer match. Nor is there any evidence the transgender athlete saw the wristbands.

So when a federal district court rejected the parents’ constitutional challenge to their treatment, it made two key mistakes.

First, it held censoring their message was not viewpoint discrimination — even though the record shows Bow High School officials explicitly cited what they perceived as the protest’s “exclusionary” views while allowing “inclusive” messaging. That is, they objected to the wristbands’ gender identity messaging because they found it offensive, while at the same permitting other displays, including those celebrating LGBT causes.

That is textbook viewpoint discrimination, and is simply unconstitutional in any kind of forum, full stop. As the Supreme Court ruled in the 2001 case Good News Club v. Milford Central School, “When a restriction is viewpoint discriminatory, we need not decide whether it is unreasonable in light of the purposes served by the forum.”

Second, the court imported precedent applicable only to K–12 students in school into its forum analysis, and misapplied it to the speech of adults. Although it acknowledged this is not a student speech case, the court looked to Tinker v. Des Moines Independent Community School District, which affords school officials some authority to regulate student speech that substantially causes disruption or invades the rights of others. But Tinker has no role in analyzing adult speech in a public forum.

The district court compounded that error by developing a test based on its reading of the First Circuit decision in L.M. v. Town of Middleborough to justify censorship of the parents’ passive protest as demeaning towards a visiting student. But L.M. involved student speech — not adult speech — and used reasoning that doesn’t apply here.

Even if Tinker did apply (it doesn’t), L.M. relied solely on its “substantial disruption” standard to hold demeaning statements might eventually lower test scores and cause “symptoms of a sick school,” while disclaiming reliance on “rights of others” under Tinker. Despite that, the district court centered its L.M.-based analysis on how the protest here might invade the visiting athlete’s rights, not that it would disrupt school functions.

Had other students or adults actually engaged in what both the school district and district court feared may occur — essentially, discriminatory harassment — school administrators are already empowered under Davis v. Monroe County Board of Education to counteract conduct that is “so severe, pervasive, and objectively offensive … that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”

All told, as FIRE explained to the First Circuit, it is unwise to further dilute First Amendment protections by applying L.M. to adult speech. By sanctioning Bow High’s viewpoint discrimination against passive political protest and bastardizing student speech principles to silence adults, the district court’s decision would give administrators expansive authority over protected adult expression. That unwarranted and dangerous outcome is why the First Circuit should reverse on appeal, to protect First Amendment rights against erosion and abuse.

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July 3, 2025
House Minority Leader Jeffries giving marathon speech criticizing GOP tax cut bill (PBS News Hour)

US House Minority Leader Hakeem Jeffries (D-NY) gives a marathon speech, calling out the destructive path that House Republicans are going down. This is a Bill that undermines the United States of America and its national security. It is also a threat to democracy. Folks should listen to every minute of this historical speech.

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July 3, 2025
The Supreme Court’s decision in Free Speech Coalition v. Paxton

FIRE staff responds to the Court’s decision in Free Speech
Coalition v. Paxton that addresses a Texas law requiring age
verification for accessing certain sexual material online.

Joining us:

Will
Creeley — Legal director

Bob Corn-Revere — Chief counsel

Ronnie London — General counsel

Timestamps:

01:21 How the case wound up at the Supreme Court 06:57 Bob’s
experience with arguing strict scrutiny in the courts 09:32
Ronnie’s perspective on the ruling 10:22 Brick + mortar stores vs.
online sites 12:07 Has the Court established a new category of
partially protected speech? 13:36 What speech is still subject to
strict scrutiny after the ruling? 15:55 What does it mean to
address the “work as a whole” in the internet context? 17:24 What
modifications to the ruling, if any, would have satisfied FIRE?
18:06 What are the alternatives to address the internet’s risks
toward minors? 20:16 For non-lawyer Americans, what is the best
normative argument against the ruling? 22:38 Why is this ruling a
“canary in the coal mine?” 23:36 How is age verification really
about identity verification? 24:42 Why did the Court assume the
need to protect children without citing any scientific findings in
its ruling? 26:17 Does the ruling allow for more identity-based
access barriers to lawful online speech? 28:04 Will Americans have
to show ID to get into a public library? 29:30 Why does stare
decisis seem to mean little to nothing to the Court? 32:08 Will
there be a problem with selective enforcement of content-based
restrictions on speech? 34:12 Could the ruling spark a patchwork of
state laws that create digital borders? 36:26 Is there any other
instance where the Court has used intermediate scrutiny in a First
Amendment case? 37:29 Is the Court going to keep sweeping
content-based statutes in the “incidental effect on speech” bucket?
38:14 Is sexual speech considered obscene? 40:33 How does the
ruling affect adult content on mainstream social media platforms
like Reddit and X? 43:27 Where does the ruling leave us on age
verification laws?

Show notes:

– Supreme Court ruling: https://www.supremecourt.gov/opinions/24pdf/23-1122_3e04.pdf

– FIRE statement on FSC v. Paxton ruling: https://www.thefire.org/news/fire-statement-free-speech-coalition-v-paxton-upholding-age-verification-adult-content

– FIRE’s brief for the Fifth Circuit: https://www.thefire.org/news/supreme-court-agrees-review-fifth-circuit-decision-upholding-texas-adult-content-age

– FIRE’s amicus brief in support of petitioners and reversal:
https://www.thefire.org/research-learn/amicus-brief-support-petitioners-and-reversal-free-speech-coalition-v-paxton

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June 27, 2025
FIRE statement on Free Speech Coalition v. Paxton upholding age verification for adult content

Today, the Supreme Court ruled 6-3 to uphold Texas’s age-verification law for sites featuring adult content. The decision in Free Speech Coalition v. Paxton effectively reverses decades of Supreme Court precedent that protects the free speech rights of adults to access information without jumping over government age-verification hurdles.

FIRE filed an amicus brief in the case, arguing that free expression “requires vigilant protection, and the First Amendment doesn’t permit short cuts.” FIRE believes that the government’s efforts to restrict adults’ access to constitutionally protected information must be carefully tailored, and that Texas’ law failed to do so.

The following statement can be attributed to FIRE Chief Counsel Bob Corn-Revere.

Today’s ruling limits American adults’ access to only that speech which is fit for children — unless they show their papers first.

After today, adults in the State of Texas must upload sensitive information to access speech that the First Amendment fully protects for them. This wrongheaded, invasive result overturns a generation of precedent and sacrifices anonymity and privacy in the process.

Data breaches are inevitable. How many will it take before we understand the threat today’s ruling presents?

Americans will live to regret the day we let the government condition access to protected speech on proof of our identity. FIRE will fight nationwide to ensure that this erosion of our rights goes no further.

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June 27, 2025
DfE sets out the detail on the free speech act

In some ways, there’s little that’s new in the Department for Education’s Command Paper on the future of the Higher Education (Freedom of Speech) Act 2023.

Over 30 pages or so, it basically puts some meat on the bones of the two announcements made by Secretary of State Bridget Phillipson – the one from last Summer where the act’s implementation was paused, and the one from January which discussed the plan in outline to partially repeal.

This isn’t the first Command Paper from DfE on the issue – back in 2021, then Secretary of State Gavin Williamson’s effort was a fairly heavily ideological compendium of Telegraph stories and Policy Exchange talking points – picking up everything from cancel culture to students being encouraged “to report others for legal speech”.

This run at things tends to deftly avoid all of that. It’s about as technical as you can get, with pretty much all of the critique justifying the approach based on workability and burden. Even that “sources close to the Secretary State” quote from last Summer on the Act representing some sort of “hate speech charter” is missing in action here – with the only discussion on harassment surrounding the ban on non-disclosure agreements.

That’s either savvy politics from a government keen to douse down culture war flames, or a hostage to fortune when OfS’ particular approach to the balancing act between free speech and EDI at some stage comes back to bite – with ministers caught in the middle.

And we’re off

We already knew that the government had decided to commence the duties on providers regarding freedom of speech and academic freedom, as set out in Section 1 of the Act. The regulations were made on 28 April 2025, the duties come into force on 1 August 2025, and we got some actual (if controversial) guidance from OfS on 19 June.

These include requirements for providers to take reasonably practicable steps to secure freedom of speech within the law for staff, members, students, and visiting speakers, as well as protecting academic freedom for academic staff. The Command Paper is keen to point out that the expanded definition of academic freedom will be retained, protecting academic staff from suffering adverse employment consequences solely based on their opinions or ideas.

Ditto Section 2 of the Act, which covers constituent institutions of providers. DfE says that its decision ensures that constituent institutions such as colleges, schools, or halls within universities (for example, the individual colleges at Oxford and Cambridge) are subject to the same obligations as their parent HE providers.

It says that the clarification was particularly important to put beyond doubt that these constituent institutions cannot avoid the freedom of speech duties that apply to the main institution – although to the extent to which you see these things as a see-saw, that does mean that Oxbridge Colleges will each be able to maintain their own free speech code of practice, while it’s the central university that will hold a central responsibility for the harassment and sexual misconduct duty as of 1 August.

Given that Oxbridge colleges tend to be fiercely guarded about their autonomy and independence, that harassment duty and features like its “single source of information” were going to be interesting enough – but given that OfS’ free speech guidance repeatedly mentions harassment considerations when making decisions on free speech, you can see how some astonishing complexity and internal conflict could be coming further down the track.

It’s also worth noting in passing that while DfE seems keen to put Oxbridge colleges’ direct duties beyond doubt, there’s nothing in here on transnational education – which as we noted in the commentary on OfS’ guidance, is asserted to be outside of the scope of the Act without anything in the way of meaningful justification.

The other thing in this section is DfE’s pride at extending the non-disclosure agreement ban OfS was already putting in place for harassment and sexual misconduct cases to bullying. It quotes campaigns like “Can’t buy my silence”, but of course doesn’t explain to students why silence can be bought over other types of complaint.

Yes yous

The original version of the Bill proposed regulating students’ unions directly – although notably, the SUs of those constituent colleges were to have been exempted on the basis that the college exercises sufficient control.

Pretty much by accident, that did mean that an FE union whose College was on the register and in receipt of OfS funding was going to be expected to bear all of the complex legal duties and issue a Code of Practice – even if it was unincorporated and run entirely by FE (rather than HE) volunteers.

So entirely sensibly, there’s confirmation that the government has decided to repeal sections 3 and 7 of the act in their entirety, which would have imposed the direct freedom of speech duties and given OfS regulatory powers over them.

The workaround is the one that’s been in place since 1994 – regulating SUs through their provider. The rationale for repeal centres on concerns that SUs can lack the financial resources, regulatory capacity, and legal expertise to handle complex duties, that monetary penalties or damage awards could severely impact their ability to provide services and support to students, and the government recognised that SUs are already regulated as charities by the Charity Commission, which oversees their compliance with legal duties including furthering educational purposes through enabling discussion and debate.

So instead of direct regulation, the government has decided to adopt our proposal from 2021 – the government will expect providers to take reasonably practicable steps to ensure their students’ unions follow codes of practice, which is what already happens over a whole range of issues. Some will see that as an attack on autonomy, others a charter for avoidance – sensible people will see this as the approach that will work.

Or at least it should work, were it not for the fact that OfS seems to be requiring universities (and therefore by proxy their SUs) to adopt an approach to the balance between free speech and harm that is not legally compliant. More on that in our commentary on OfS’ guidance, suffice to say that SUs at the sharp end of some of the tensions may end up resolving that what OfS might have told them to do is not what they actually should do on a given issue.

Complainants will be able to complain about the reasonably practicable steps thing – DfE civil servants may have forgotten that the Education Act 1994 also sets up some statutory complaints requirements on SUs themselves, which involve provider review. The other odd bit is that DfE’s amendments to the Act will require providers to set out in their Code of Practice how their students’ union will ensure that affiliation is not denied to any student society on the grounds of its lawful policy or objectives, or the lawful ideas or opinions of its members.

That goes slightly further than the compliance already expected of SUs as charities over protected beliefs, and extends (very slightly) an existing provision in the Education Act 1994 that the procedure for allocating resources to groups or clubs should be fair and should be set down in writing and freely accessible to all students. It’ll cause conflict at the edges – students do expect to be able to vote on things, and votes can be problematic – but overall this all makes sense.

Tort a lesson

You might remember the controversy over the statutory tort – the thing that would have allowed staff, students, and external speakers to bring civil claims against HE providers, constituent institutions, or students’ unions for breaches of their freedom of speech duties.

The government’s rationale for repealing that bit centres on concerns about its potentially harmful effects on the higher education sector – a chilling effect on freedom of speech that might make institutions more risk-averse about inviting challenging or controversial speakers due to fear of litigation. And so given judicial review, employment tribunals, the OIA complaints scheme for students, and the forthcoming enhanced OfS complaints scheme are all alternatives, plus the financial burden of potential legal costs, it’s gone.

That all pretty much matches Lords speeches opposed to the Tort at the end of 2022 – this we might expect this to re-emerge as a flashpoint when all of this finds its “appropriate legislative vehicle”.

This section also says that the government is also concerned that the threat of legal proceedings might lead institutions to prioritise protecting hateful or degrading speech over the interests of those who feel harassed or intimidated – an interesting idea given that both hateful and degrading speech can still be within the law, or at least OfS’ interpretation of it.

Complaints chaos

As expected, the Office for Students is going to be stripped of the ability to hear complaints from… students over academic freedom and freedom of speech.

To be fair, the sensible rationale there is that the Office of the Independent Adjudicator (OIA) is a well-established route that is recognised and understood by students and providers – and that approach will prevent students being baffled about who to approach, or worse, arbitrary categories that had the potential to take a wide-ranging complaint and insist on it being sliced up.

That won’t remove the potential problem of students on one end of the see-saw and staff on the other each making complaints about the same issue – or OfS and OIA potentially making different judgements. There’s also the prospect that OfS and OIA will handle things at a different pace, and while OfS was proposing to allow a complaint to roll in without exhausting internal procedures, OIA usually needs a Completion of Procedures letter.

It’s all very well asking the OIA to look at OfS’ guidance, but presumably there’s some risk that the OIA will look at the way OfS is defining free speech within the law and have representations made to it that disagree. Wales would feel pretty aggrieved if OfS’ particular interpretation was imposed on it via OIA’s dual country coverage, and presumably it would be wild for the OIA to say one thing about an incident in Wales and another in England.

It all feels like the two bodies are being asked to get in a room and talk – on that, DfE just points at Section 63 of HERA (OfS may co-operate with others where appropriate) and says you two should talk. It might strengthen it if needs be.

DfE also says that it will ask OfS to consider and then set out in requirements or guidance what fit for purpose internal complaints processes for academic freedom look like, although you could just as easily ask the OIA to build something into its Good Practice Framework.

The other aspect here is that the legislation will switch from OfS having a power rather than a duty to consider complaints under its scheme. DfE says that will enable it to prioritise, for example, the most serious complaints or complaints on issues affecting the whole sector.

The expectation is that “OfS and Dr Ahmed” will be transparent, independent and neutral in how they prioritise consideration of those complaints – notwithstanding the position-taking evident in the guidance already, that presumably points to some sort of criteria for folk to fight about.

Lurking in the background of all that is academic freedom – in its consultation on the complaints scheme, OfS pointed at the Higher Education and Research Act and said “the Act will require us to consider every complaint that is capable of being referred under the scheme. It does not preclude us from considering matters of academic judgement.”.

The OIA of course can’t look at such matters – and with “duty” switched to “power”, we’re going to need OfS to take a view on whether it will do things for staff and speakers that the OIA won’t be able to do for students.

Foreign funding

The one policy area where an announcement was pending was section 9 of the legislation, related to OfS’ monitoring of overseas funding to providers with an eye to assessing the extent to which such funding presents risks to freedom of speech and academic freedom. This measure is not currently in force.

When Bridget Phillipson updated Parliament on Labour’s plans in January, it was the one area where a decision was not announced:

I will take more time to consider implementation of the overseas funding measures. I remain fully committed to tackling cases of interference by overseas Governments, and the wider measures in the Act will further strengthen our protections. However, I want to ensure that any new reporting requirements for providers add value without being overly burdensome. We continue to work at pace with the sector on the wider implementation of the Foreign Influence Registration Scheme. My officials are working across Government and with the sector to review our response, and I will confirm my final decision in due course.

Now we get a decision of sorts – and that decision is to continue to keep this under review, and introduce “alternative mitigations to support HE providers to improve international due diligence.”

For a long time under the last government, the response to any and all bugbears that commentators and politicians had with universities’ and students’ relationships with other countries – ranging from overreliance on international students from certain countries, to research collaborations in weapons technology, to transnational repression, to the activities of Confucius Institutes and Chinese student associations – was that this would all be sorted out through the twin approach of the free speech act and the Foreign Influence Registration Scheme (FIRS). Labour has instead taken the approach that the latter needs to be implemented first.

FIRS will come into effect on 1 July – we reviewed its implications for the sector back in April – and the policy paper promises to assess what comes out of it. FIRS, we are told, will provide “greater visibility of foreign state influence in the UK,” and information disclosed will be shared with DfE and OfS where relevant, allowing for pattern recognition as well as the prevention of specific threats.

The alternative – that is, additional – mitigations mentioned above include asking the Office for Students to “consider the value of an explicit regulatory expectation” around due diligence on international partnerships. There’s also work on possible codes of practice and best practice sharing.

The caveat here is that as FIRS is implemented:

…it may demonstrate that further reporting on financial or other international arrangements would be beneficial to improve the identification and mitigation of these risks. As a result, we will keep the overseas funding provisions in the act under review in the event that, during FIRS implementation, evidence indicates further transparency reporting is necessary.

But it feels that the government has come down on the side of listening to the sector about avoiding burden and duplication and, as the paper says, “minimising diversion of resources away from teaching and research.”

There’s an interesting table on pages 24 and 25 of the command paper, perhaps anticipating criticism over the wait-and-see approach. The table lists all the different measures (ATAS, export controls, harassment duties, financial monitoring, national security act powers) that are already in place to mitigate against “foreign interference”, even without implementing OfS’ new powers.

(In this context it’s worth briefly noting that Monday’s industrial strategy announced that the government will consult on updating the definitions of the 17 areas of the economy subject to mandatory notification under the National Security and Investment Act, to ensure that they remain “targeted and proportionate”. This could – potentially – see a slight loosening of the areas of research collaboration where higher education institutions need to notify and get approval from the government.)

Equality impacts

Finally, there’s a very odd section at the end of the command paper that describes and comments on an Equality Impact Assessment that DfE has, for some mysterious reason, not actually published.

One of the sections might give us a clue as to why:

Expanding these duties may lead to more open expression of views which could have a negative impact on those who currently face elevated levels of lawful but offensive comments related to their protected characteristics. They could also potentially lead to increased unlawful harassment against groups with specific protected characteristics.

It’s almost as if DfE doesn’t want to publish a document that makes the legislation Phillipson is progressing sound like a “Tory hate charter” after all.

It all partly depends on how OfS plays its duty – again, see the article on the meaning of free speech within the law – but you’d also have to assume that the detail is pretty bleak, and/or offers up all of the remaining fine lines and rhetorical contradictions being dumped on universities to navigate. The tort might be gone, but all of that complexity very much remains.

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June 27, 2025