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  • ‘Executive Watch’: The breadth and depth of the Trump administration’s threat to the First Amendment — First Amendment News 465

    ‘Executive Watch’: The breadth and depth of the Trump administration’s threat to the First Amendment — First Amendment News 465

    Given the Trump administration’s continued and varied assaults on the First Amendment, it is vital to monitor those attacks and then realize the gravity of the “sweeping and draconian sanctions” imposed by unconstitutional executive fiat. Vigilance is especially important, as New York Times investigative reporter Michael S. Schmidt has noted, because “Mr. Trump has employed tactics including lawsuits, executive orders, regulations, dismissals from government jobs, withdrawal of security details and public intimidation to take on a wide range of individuals and institutions he views as having unfairly pursued him or sought to block his agenda.” 

    Mindful of such matters, this installment of “Executive Watch” by professor Timothy Zick provides the most comprehensive and informed account of the current threats facing us up to now. 

    Of course, yet more posts are forthcoming. Meanwhile, it is worth heeding the sound advice recently offered by Dean Erwin Chemerinsky: “despite the risks of speaking out, silence itself comes at enormous cost.”

    — rklc

    My introductory post, which was published a little more than a month after Donald Trump took office for the second time, identified various areas in which his administration’s actions threatened First Amendment rights. At this point, even before the first 100 days of the second Trump administration have elapsed, we now have a much fuller picture of the nature and scope of the threat — and it’s even worse than we thought. 

    Media stories and commentary have covered a range of Trump administration policies and actions that threaten speech and press rights. Commentators have examined the attacks on media, law firms, government employees, and universities, among others. My last post discussed Trump’s abuse of the civil lawsuit to punish the media and others.

    Considered in isolation, these actions raise troubling First Amendment concerns. But the whole threat to the First Amendment is far greater than the sum of its damaging parts. Combined, the administration’s actions represent a whole-of-government and whole-of-society effort to control whether and how Americans talk about certain ideas. 

    Trump 1.0 and the First Amendment

    As it concerns the First Amendment, the fundamental difference between Trump 1.0 and Trump 2.0 is the extraordinary use of the levers of governmental power to suppress, dictate, and coerce viewpoints the president disfavors.

    During the first administration, the threat to the First Amendment emanated primarily from the president’s own statements and threatened actions. Trump talked about “opening up” the libel laws to make it easier to sue media defendants. He waged a constant war on the press, which he referred to as “the enemy of the people.” He demanded loyalty, attacked those who disagreed with his views on patriotism and dissent, and threatened to punish media outlets by revoking their licenses. He also threatened to shut down social media platforms that fact-checked him.

    Prof. Timothy Zick

    During the 2016 presidential election, Trump called for de-naturalizing and jailing protesters who burned the U.S. flag. As president, he routinely denigrated protesters. During the Black Lives Matter demonstrations, Trump considered invoking the Insurrection Act to call up U.S. military personnel to quell protest-related civil unrest. He sent federal agents to Portland and other cities to police and quell protests. At one point during the demonstrations, Trump reportedly asked his then-secretary of defense why protesters couldn’t be shot. And, of course, after he lost the 2020 election he used his own speech to incite the Capitol insurrection on Jan. 6, 2021.

    It was clear during his first term that Trump had little or no tolerance for dissent, and a strong desire to impose his will on the media and other institutions. However, for the most part, he either didn’t or couldn’t effectuate that agenda. Perhaps this was because members of his administration talked him out of it, or perhaps because he was not yet familiar with the levers of power.

    Trump 2.0 and executive orders

    Trump 2.0 has been a vastly different story. Past presidents, including Trump, have used executive orders to exercise or augment their executive powers. They have set important agendas for the executive branch of government. However, no president has ever used executive orders to attempt to control what Americans can discuss, or how they speak about concepts regarding diversity, patriotism, anti-Semitism, gender, and other matters of public concern. And no president has been as successful at extending such an agenda across not just the federal bureaucracy but nearly every aspect of society.

    Thus far, President Trump has issued eighteent Executive Orders, plus several accompanying “Fact Sheets,” that implicate First Amendment rights. Although some of the Orders are vague and/or thin on specifics, many target expression based on its viewpoint – a quintessential violation of the First Amendment.  

    • Five of the Executive Orders target law firms based on their representation of clients and advocacy for causes the President disfavors.
    • Three Orders prohibit universities, companies, and others receiving federal funds from maintaining “Diversity, Equity, and Inclusion” (DEI) policies and practices – including training, teaching, and supporting those ideas.
    • Trump’s Orders also target “anti-Semitic” speech by federal grantees and encourage universities to monitor “pro-jihadist protests” and campus “radicalism.”
    • An Executive Order requires that K-12 schools adopt “patriotic” curricula and further vows to withhold funding from any schools that teach that the United States is “fundamentally racist, sexist or otherwise discriminatory.”
    • Other Orders provide that resident aliens who express “hatred for America” or “bear hostile attitudes toward [American] citizens, culture, government, institutions, or founding principles” are subject to deportation.
    • Two of Trump’s Executive Orders single out transgender individuals, banning them from military service and imposing restrictions on the genders they can use on U.S. passports. These Orders raise important equal protection concerns, but also bar individuals from communicating about their own gender identity.
    • Finally, the Administration’s cost-cutting and desire to control the flow of information have deeply affected the availability and distribution of information in the United States. Trump has ordered the disbanding of Voice of America and Radio Free Europe, important outlets for furthering American interests abroad. Trump’s spending cuts have also decimated libraries, which are critical distributors of information. Trump recently issued an Executive Order that purports to remove “anti-American ideology” from the Smithsonian Museum.

    TRUMP’S FIRST 80 DAYS
    Executive orders affecting free speech and press: 18
    Federal agencies involved in enforcement: 20
    Lawsuits raising First Amendment challenges: 30

    The whole-of-government campaign

    Standing alone, Trump’s executive orders represent a serious threat to the First Amendment. But the orders are backed by agency enforcement powers that drastically expand the danger.

    Think of the executive orders as a general blueprint for an ideological and retributive campaign aimed at punishing enemies for speech, imposing governmental orthodoxy regarding race, gender, and other matters, and controlling the distribution of information. That blueprint is being enforced by all federal agencies under the president’s command. So far, that includes some twenty separate agencies, including:

    • The Federal Bureau of Investigation
    • The Department of Justice
    • The Department of Health and Human Services
    • The Department of Education
    • The General Services Administration
    • The Department of Homeland Security
    • The State Department
    • U.S. Immigration and Customs Enforcement
    • U.S. Customs and Border Patrol
    • The Federal Communications Commission
    • The Office of Personnel Management
    • The Agency for Healthcare Research and Quality
    • The United States Agency for Global Media
    • The Federal Trade Commission 

    In contrast to Trump 1.0, during Trump 2.0 the entire agency alphabet soup is fully committed to enforcing executive orders that require adoption of official orthodoxies and ideologies, or punish individuals or institutions for their viewpoints. Pursuant to these executive orders, federal agencies have investigated employers and universities based on their support for DEI, targeted law firms based on their clients and causes, arrested international students based on their political advocacy, investigated broadcast stations based on the content of their shows, and removed scientific papers from public databases because they include forbidden words about gender or diversity. 

    Agencies across government are involved in enforcing Trump’s executive orders in areas ranging from private business to immigration. Ironically, the president’s ability to control and punish expression is due, in large part, to the size of the federal government he has targeted for downsizing or eradication.

    The whole-of-society impact of the executive orders

    Trump’s executive orders bind all federal agencies under his command. Agencies across regulatory areas have moved swiftly to scrub websites of offensive DEI language. Their efforts to comply with Trump’s directive have at times been comical. The Defense Department apparently removed material about the Enola Gay, the aircraft that dropped the atomic bomb on Hiroshima, because of its name. Agencies have also removed information about Jackie Robinson and other material that celebrates the accomplishments of black people and women. Taking a “chainsaw” approach to language in public-facing websites, agencies have removed information that does not comport with the president’s preferred terms and viewpoints.

    “In a pre-election poll, respondents ranked ‘free speech’ among the top issues that were ‘very important’ in influencing their vote for president.”

     FIRE/NORC poll of 1,022 Americans conducted Oct. 11-14, 2024

    The federal government is an important source of information for issues relating to public health, the armed forces, employment, and other matters. Governments can determine what messages they want to communicate, including on websites they control, but those efforts can have harmful effects on the distribution of information to the public. 

    Trump’s orders have also limited the availability of information, both at home and abroad. They have silenced the nation’s voice in international spheres, cut off aid to libraries, and even demanded that museums change exhibits that convey “anti-American ideology.” Again, no president has ever used executive orders to so comprehensively control what can be seen, heard, or viewed. 

    Trump’s executive orders have also affected millions of individuals, entities, and institutions beyond federal agencies. Indeed, it is hard to overstate the breadth and depth of the activities covered by the existing executive orders — and they continue to be issued almost daily. The orders have already extended into every boardroom, classroom, breakroom, and laboratory in the United States. Businesses have shut down activities recognizing the value of a diverse workforce. Universities have scrubbed websites and materials of any references to the values of diversity in education. Legal counsel at some hospitals have even warned staff not to use “triggering” words like “vulnerable” or “diverse” to describe patients. 

    How Trump has expanded his power over expression

    Four things account for the extraordinary scope and effect of the Trump administration’s campaign to control what Americans see, hear, and say regarding gender, race, and American history.

    First, in contrast to Trump 1.0, the president has relied more extensively on executive orders as a means of governing. Trump’s more than 100 executive orders cover everything from the types of straws that can be used in federal buildings, the legitimate causes law firms can pursue, and the content of displays at the Smithsonian Museum.

    “There . . . can be no question that the demands the administration is making of Harvard are intended to suppress protected expression, of various kinds. To avoid the loss of federal funds, Harvard will have to refrain from advocating for, or empowering others to advocate for, the viewpoint that diversity, equality, and inclusion are important educational and social values. It will have to change how it oversees faculty research and teaching, and what kinds of scholarly viewpoints it hires and promotes. And it will have to suppress student speech and association, including core political expression, more severely than it has chosen to do so far—or at least it will have to promise to do so.”

    Genevieve Lakier

    Second, the orders use the threat of lost federal funding as an enforcement mechanism. Federal funding touches nearly every aspect of American life. That includes education at all levels, health care, immigration, the practice of law, scientific research, and even farming. 

    Third, because the executive orders lack any meaningful specificity about concepts and ideas it targets, including “DEI” and “anti-Semitism,” no federal grantee can be sure which words, phrases, or ideas will result in a denial of critical funding. This lack of clarity has produced significant uncertainty at universities, hospitals, businesses, and other funding recipients. And that uncertainty has led to anticipatory compliance on a scale that federal anti-discrimination and other laws do not require.

    Fourth, the administration has not provided the process required by federal law to deny or remove federal funding. This enhances the chill of agency enforcement by speeding up the denial of funds, leaving grantees with little recourse to contest allegations or charges prior to loss of funding.

    Fifth, for many of the above reasons, the Orders have engendered a repressive fear in federal fund recipients — a fear, as Ronald Collins points out, that is “born of direct or veiled demands for loyalty” and the specter of punishment for dissent. Thus, words and phrases must be removed, lectures canceled, and “deals” inked that trade away law firms’ First Amendment rights for relief from facially retributive and unconstitutional Executive Orders. 

    To be sure, some will challenge these executive orders on First Amendment grounds. Indeed, nearly 30 lawsuits raising First Amendment claims have already been filed. But many more grantees will decide, as Columbia University and the Paul Weiss law firm recently have, to negotiate a settlement or comply with unlawful orders. Many others will comply in advance, lest they remain targets of the president’s ire and risk their funding and livelihoods. 

    This underscores just how widespread the effects on First Amendment rights and principles will turn out to be. By virtue of their breadth, vagueness, and procedural violations, Trump’s executive orders and threats of agency enforcement will produce far more suppression of speech than normal agency action — which is limited by, among other things, resource considerations and legal process requirements. Although lawsuits are an important check, the chilling and suppressive effects of the Trump administration’s campaign are much broader and deeper than courts alone can address or resolve. 

    The daily chaos of Trump 2.0 can readily distract us from the fuller picture in terms of threats to free speech. As Professor Stephen Vladeck has correctly observed, “it seems that chaos and disruption are themselves central to President Trump’s objective.” However courts ultimately rule after tiresome and delayed litigation, much damage will already be done, some of it even irreversible.  

    Make no mistake: What we have seen in the early days of Trump 2.0 is an unprecedented government-wide and society-wide broadside against fundamental First Amendment commitments. And there is no indication that the Trump administration’s campaign is going to end any time soon. 

    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

    Free speech related

    • Thompson v. United States (decided: 3-21-25/ 9-0 with special concurrences by Alito and Jackson) (interpretation of 18 U. S. C. §1014 re “false statements”)

    Last scheduled FAN

    FAN 464: “Free speech in an age of fear: The new system loyalty oaths”

    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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  • Executive Watch: Trump’s weaponization of civil lawsuits — First Amendment News 462

    Executive Watch: Trump’s weaponization of civil lawsuits — First Amendment News 462

    This is the latest installment of Professor Timothy Zick’s “Executive Watch,” which debuted with First Amendment News 457. This post focuses on civil suits by government figures, mainly by the sitting president. It comes at a time when the legitimacy of the New York Times v. Sullivan case is being challenged, and while efforts to establish a national anti-SLAPP law are being thwarted.

    Several future posts are in the works, as well as a Resources Page, so stay tuned. – rklc

    Professor Timothy Zick

    Presidents and suppressive campaigns: Today’s unprecedented practices 

    Executive Watch is an effort to record and analyze the many First Amendment-related conflicts and concerns arising during the second administration of President Donald Trump. One of the challenges in assessing the administration’s approach to the press and critics is to identify and explain what is distinct or unique about it. After all, the policies and actions of every administration have raised First Amendment issues and concerns. John Adams had reporters jailed under the Sedition Act, Richard Nixon had his “enemies list,” President Obama’s Department of Justice was criticized for prosecuting reporters in national security cases, and President Biden’s administration was accused of pressuring social media platforms to censor disfavored speech.

    However, as I explained in my introductory post for Executive Watch, what is distinct about the current president and administration is the depth and breadth of the campaign they are waging against critics, both inside and outside government.

    Among other actions, the president and various government agencies have attacked the press and called for the firing of individual reporters; excluded media outlets from official events for failing to use preferred geographic language; retaliated against civil servants who investigated or prosecuted crimes Trump allegedly committed; punished private law firms for lawful advocacy; used the FCC and other agencies to investigate and sanction media outlets for negative coverage; scrubbed government websites of truthful information about racial health disparities and gender discrimination; threatened to prosecute critics of Elon Musk’s efforts to downsize the federal government; arrested a green card holder for participating in campus protests; and suppressed disfavored speech about diversity, equity and inclusion in workplaces and on university campuses.

    That is just a partial list.

    Notably, these efforts have been undertaken not just by Trump, but also through actions by a host of federal agencies including the Department of Justice, the Department of Education, the Federal Communications Commission, and the Department of State.

    The current situation represents an unprecedented and coordinated effort to use courts, governmental agencies, and even private individuals to engage in retribution, intimidate media and non-media critics, impose official orthodoxies, and punish dissent.

    Civil lawsuits as engines of leverage and intimidation

    “I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.” — Donald J. Trump

    One aspect of the broader current agenda involves the filing of civil defamation, consumer fraud, and other lawsuits against the press and others who publish disfavored information or opinions critical of Trump or his administration.

    Like any other citizen, a political candidate, president, or ex-president has the right to file lawsuits and seek redress for reputational or other harms. Indeed, prior to Trump, at least one ex-president did so. However, the extent to which Trump has relied, and continues to rely, on defamation and other civil lawsuits against media and non-media defendants is a unique aspect of a broader campaign against political critics. No other political candidate or president has wielded the civil lawsuit as a political sword quite as Trump has.

    When it comes to civil litigation, Trump is in a league of his own. By one account, Trump has been involved in more than 4,000 civil lawsuits over the years, ranging from business disputes to defamation and other actions. Even for someone like Trump, who has been involved in a variety of complex business ventures, that is a remarkable number of civil actions.

    One lesson Trump likely learned from his litigation experience is that lawsuits can be an effective form of leverage in business and other dealings. Indeed, even if a claim has no or little legal merit, it can be useful in terms of exhausting, intimidating, and silencing opponents.

    For a long time, many of Trump’s civil lawsuits were business-related. However, since he became a political candidate, Trump’s filing of defamation actions has significantly spiked. As a political candidate and officeholder, he has pursued several defamation lawsuits against media and non-media defendants.

    Trump has sued CNN, The Washington Post, and The New York Times, as well as local media outlets, for critical coverage of his campaign and first term as president. For example, he brought a $475 million defamation lawsuit against CNN over the network’s use of the term “the Big Lie” to describe his false claims that he won the 2020 election. That claim was dismissed. More recently, Trump brought a $20 billion civil action against “60 Minutes” and CBS for allegedly editing an interview with Kamala Harris in ways that obscured or improved her answers to questions.

    Trump also sued ABC News and George Stephanopoulos for stating that he had been found liable for “rape” in a civil case. Finally, Trump sued The Des Moines Register and its parent company, Gannett, for publishing a flawed poll showing Trump trailing Harris in the 2024 presidential election in Iowa. He also filed suit against the pollster herself, J. Ann Selzer. All of this despite Trump ultimately winning Iowa handily, raising questions about what damages he allegedly suffered.

    Screenshot of the front page of the Trump v. Selzer lawsuit

    Trump has also filed civil lawsuits against non-media defendants. For example, he has sued the Pulitzer Board for recognizing The New York Times for its reporting on the Russia investigation. (That suit has been allowed to proceed, at least for now.) 

    Trump and his lawyers have also been expanding their civil suit repertoire. He sued CBS and the defendants in the Iowa case for consumer fraud and election interference. His lawsuit against CBS also contains a claim under the Lanham Act, which provides civil damages for false advertising. These suspect allegations target core press functions and political speech.

    Additionally, Trump has vowed to file many more civil lawsuits against those who publish unflattering opinions or disfavored information. He has claimed such legal action is necessary to “straighten out the press” and punish those he accuses of fraud and election interference.

    Poor litigation track record

    For all his litigation experience, Trump has a very poor track record in civil lawsuits, particularly those claiming defamation. In fact, he nearly always loses — sometimes very badly. Trump has even been ordered to pay media defendants substantial damages for filing harassing and frivolous defamation lawsuits. Some states have laws that impose liability on plaintiffs for bringing so-called SLAPPs (Strategic Lawsuit Against Public Participation) — essentially, defamation actions intended to silence or intimidate critics. Trump has been found liable for damages under such laws. 

    This is one context in which Trump may not mind being a loser or even paying damages. Weaponizing civil lawsuits and courts is not about restoring Trump’s damaged reputation, recovering damages, protecting consumers, ensuring the integrity of elections, or any other legitimate private or public interest. Rather, they are a means of punishing critics and chilling, through expensive and often frivolous litigation, the publication of unfavorable or unflattering information and opinion.

    Civil lawsuits as political weapons

    “Donald Trump is abusing the legal system to punish speech he dislikes. If you have to pay lawyers and spend time in court to defend your free speech, then you don’t have free speech.” — Adam Steinbaugh

    Like many other aspects of the Trump administration’s agenda, civil lawsuits serve important political purposes. They are part of the campaign to suppress dissent, undermine the press, and entrench executive power. 

    Decades of litigation have likely convinced Trump that the prospect of defending against frivolous and strategically harassing claims will either convince defendants to settle, trim their critical reporting, or both. In that sense, civil lawsuits are an effective means of intimidating, leveraging, and silencing opponents.

    The civil lawsuits communicate political narratives about the press as an institution, hoping to further weaken its public standing. Many of Trump’s civil complaints present hyperbolic and unsupported claims concerning Trump, the press, or both. They also highlight longstanding grievances against the media and other critics. Regardless of their outcome, Trump will be applauded by political supporters for waging war against the press, which Trump continues to describe as “the enemy of the American people.” 

    In a broader sense, civil lawsuits are part of a campaign to entrench executive power by undermining or eliminating institutions — including the press, agencies, lawyers, and universities — that can check the administration’s political and other narratives. Destroying the credibility of media and non-media fact-checkers and harassing them in civil suits, often through exorbitant demands for damages, serves these larger goals. 

    Regardless of their merit, Trump’s lawsuits force defendants to consider whether it is worth publishing truthful information or opinions that reflect poorly on him or his administration. The ordinary demands and pressures of civil litigation are even more pronounced when the plaintiff is the president of the United States. Judges may be reluctant to dismiss frivolous claims as a result of Trump’s status, and juries in some jurisdictions may be inclined to side with the president against his critics.

    Past as prelude: The Sullivan story and its current importance

    Using civil lawsuits as a cudgel against the media and other critics is an abusive practice that threatens to chill communication of opinions and facts. Although unprecedented for a presidential candidate or president, weaponizing defamation and other civil lawsuits to suppress criticism and chill reporting is not a new tactic. 

    During the Civil Rights Era, local southern officials relied on pro-plaintiff standards to censor and intimidate both media outlets and civil rights activists. Through frequent lawsuits, local and state officials sought to control the narrative about racial segregation. 

    Recognizing the chilling effect of this litigation tactic, in its 1964 decision New York Times Co. v. Sullivan the Supreme Court adopted a demanding standard of proof applicable to public officials who sued for allegedly defamatory statements about the conduct of their official duties. Under that precedent, public officials must show the statements were made with “actual malice,” i.e., that the defendant knew they were false when published or published them with reckless disregard for their truth. The Court later extended the actual malice standard to suits brought by public figures, including those like Trump who have gained extensive public notoriety.

    Sullivan was a direct response to early SLAPPs, which were filed to censor local and national reporting about the extent and effects of racial segregation. As the Court recognized, because no double jeopardy limit applied in the civil context, defamation lawsuits could be even more chilling to a free press than the threat of criminal prosecution. 

    New York Times columnist and lawyer Anthony Lewis

    Anthony Lewis

    Indeed, as Anthony Lewis observed in his book about the Sullivan case, by 1964, southern officials had brought $300 million in libel claims against the press for truthfully reporting on civil rights abuses. Sullivan’s protective standard — which the president favors eliminating — has been an effective shield for defendants sued by Trump. Without it, media and non-media defendants may face sizable damage awards for publishing even truthful criticism of Trump or the administration.

    To be sure, the press does not always act responsibly. Media outlets and reporters can be held liable for knowingly or recklessly publishing false statements about public officials or figures. At the same time, as anti-SLAPP legislation shows, expensive lawsuits and the threat of civil damages can undermine the ability of the press and others to share vitally important information with the public. Trump and his lawyers have upped the ante with consumer fraud and other claims, which must still be rebutted even if frivolous. 

    In the hands of political officials, including presidents, abusive civil lawsuits can significantly undermine efforts to check power and educate the public. 

    Troubling successes — and possible responses

    Trump has had some recent success in his civil lawsuits. For example, ABC News settled a defamation lawsuit, agreeing to donate $15 million to Trump’s presidential library and issue an apology for George Stephanopolous’s comments about the civil sexual assault verdict (which the trial judge held was “substantially true” in another Trump defamation lawsuit). CBS and “60 Minutes” are reportedly also considering a settlement, even though legal experts agree the lawsuit is based on a frivolous theory that a news network can be held liable for how it edits interviews. 

    Meanwhile, Trump has already extracted (if that is the right word) hefty settlements from Meta and X, for seemingly defensible decisions they made to de-platform or restrict Trump based on violations of their terms of service. A judge had dismissed Trump’s action against Twitter (now X), which was based on the First Amendment. 

    Of course, as law students in my classes know, the First Amendment constrains state action, not the private actions of social media platforms.


    WATCH VIDEO: Firing the Watchdogs | 60 Minutes Full Episodes

    There are many reasons a defendant might want to settle a civil lawsuit. One reason being to avoid a protracted and costly court proceeding, to avoid discovery, or to avoid the risk of a jury verdict. However, settlement of SLAPPs raise concerns about press obeisance and lack of independence. Rather than defend core First Amendment press prerogatives and functions, large media corporations with regulatory or other business before the Trump administration may be making balance sheet decisions. 

    As some commentators have suggested, social and media legacy companies may be settling meritless cases to grease the regulatory skids for pending mergers and other potential benefits from the Trump administration. Some have even suggested that some of these settlements may constitute a novel form of political corruption. Thus, one commentator referred to settling frivolous civil lawsuits brought by Trump as “a novel pathway to engage in political bribery.” (Of course, even if the practice fits that description, the administration can simply refuse to enforce political corruption laws against settling defendants.)

    There are several means of combatting the weaponization of civil lawsuits. The most direct and obvious is to defend against these lawsuits and offer a robust First Amendment defense. As history shows, weaponizing civil lawsuits has dangerous implications for the freedoms of the press and speech. Trump’s aggressive resort to defamation and other civil lawsuits also highlights the importance of retaining Sullivan’s press-protective standard. Defendants ought to put up substantial and sustained resistance to lawsuit weaponization.

    Anti-SLAPP statutes can also provide a deterrent. A federal anti-SLAPP law would make this important protection more widely available. Thus far, Trump has not been much deterred by anti-SLAPP liability. However, making such protections available regardless of jurisdiction would provide all defendants an opportunity to dismiss harassing defamation claims.

    There are also actions judges can take to punish and deter abusive civil lawsuits. Judges have the power to dismiss baseless or frivolous claims on their own, and to sanction lawyers who file them. Some commentators have urged judges to refuse to approve media settlements of frivolous claims brought by Trump, on the grounds that they are the product of duress or fraud, or are otherwise against public policy.

    Like agency employees, private employers, lawyers, universities, and others who have been subject to executive actions meant to punish or chill expression, media and non-media defendants currently face a critical choice: capitulate or fight. 

    For the sake of the First Amendment, let us hope the targets of strategic civil lawsuits defend them vigorously.

    2024-2025 SCOTUS term: Free expression and related cases

    Cases decided 

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

    Review granted

    Pending petitions 

    Petitions denied

    Last scheduled FAN

    FAN 461: “Intimidating abridgments and political stunts”

    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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  • Watch DOGE layoffs in real-time with Layoffs.fyi

    Watch DOGE layoffs in real-time with Layoffs.fyi

    Layoffs.fyi is keeping track of US federal government layoffs. The website was originally created to track tech layoffs and has been featured in the Wall Street Journal, Bloomberg, and NY Times. 

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  • Timothy Zick’s ‘Executive Watch’: Introduction – First Amendment News 457

    Timothy Zick’s ‘Executive Watch’: Introduction – First Amendment News 457

    By Timothy Zick, William & Mary Law School Robert & Elizabeth Scott Research Professor and John Marshall Professor of Government and Citizenship.

    I want to thank Ron Collins for inviting me to contribute a regular feature on the Trump administration and the First Amendment. To say I am delighted to be here masks a certain uneasiness with the project. 

    As Ron’s kind introduction noted, six years ago I published a book, “The First Amendment in the Trump Era,” that examined challenges to free speech and press during the 2016 campaign and roughly the first half of the first presidential term for Donald Trump. The fact that there was already enough material by then for a manuscript on the subject was deeply alarming. Matters did not improve. The book was published prior to (among other things) Trump’s threat to use military force to blanketly suppress all Black Lives Matter protests, and before Trump was accused of inciting the January 6 insurrection. 

    Skeptics at the time wondered how long the subject would be relevant — after all, how long could the First Amendment challenges of the “Trump Era” last? With the latest examples of disturbing suppressive actions, we now have at least a partial answer to that question. 

    Prof. Timothy Zick (William and Mary Law School)

    In all of this, it is important to keep at least three preliminary points in mind: First, suppression is not confined to a political party, be it Woodrow Wilson or Richard Nixon, and beyond. Second, since the First Amendment is a constitutional guarantee expressly limiting government power when it comes to free expression and faith, the primary focus is on suppression. Third, in this realm, as with any other controversial one, differences of opinion are inevitable. 

    That said, I have tried to confine my analysis to reasonably demonstrable claims of executive branch overreach and government-related forms of suppression. Although I acknowledge the difficulties in suing a president for First Amendment violations, the present concerns extend to the executive branch as a whole. In any event, I am interested not just in protecting individual rights but also the broader effect of executive actions on First Amendment institutions, values, and principles.

    While presidential actions have historically raised significant First Amendment concerns, the frequency and implications of Trump’s actions in this area are unprecedented. The current Trump administration has been described as “a kind of legal hydra, in which the defenders of the Constitution are facing one body with many heads, and those heads are acting in concert.” 

    While my book focused primarily on Trump, “Executive Watch” will take a broader view of the actions not just of the president himself but those working across the executive branch — as well as those, like Elon Musk and his underlings, who work on Trump’s behalf in a quasi-governmental capacity. While President Trump’s own statements, lawsuits, and executive actions will necessarily be part of the discussion, current threats to free speech and the press emanate from actors, institutions, and agencies beyond the Oval Office. Even early on, the Trump administration has initiated a whole-of-government effort that affects the First Amendment rights and interests of private speakers, reporters, legacy and social media, K-12 teachers and students, university students and faculty, government employees, and the public. 

    Starting to keep a record 

    President Trump’s litany of executive orders, including those relating to free speech and the press, have already received significant attention — some even positive. But given the general character and overall pace of things, it is easy to focus on the moment and miss the broader implications of the present time. When it comes to the First Amendment, in some notable ways the first Trump term and the second are related. However, this time the Trump administration’s actions will often be part of a more comprehensive agenda to challenge, and in some cases upend, bedrock First Amendment principles and values. 

    My hope is that “Executive Watch” will be a valuable resource for those interested in how the administration’s policies affect First Amendment concerns. As Ron notes, it is important that we compile and keep a record of this period for current and future reference. Toward that end, to close out this post I will provide a list of general First Amendment topics, with selected sources concerning each. I will update that repository as events unfold.

    Overview: Eight categories of threats to free expression

    With that introduction, this first installment of “Executive Watch” provides an overview and identifies various categories of First Amendment concerns relating to the Trump administration’s latest agenda. Subsequent contributions (which may be shorter) will place these actions in context and explain how specific executive branch actions relate to broader themes. I might also comment on notable executive policies as they are adopted and implemented, and in which ways they advance or curb free speech freedoms.

    ‘The lawsuit is the punishment’: Reflections on Trump v. Selzer — First Amendment News 453

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    First Amendment News is a weekly blog and newsletter about free expression issues by Ronald K. L. Collins and is editorially independent from FIRE.


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    In just a few short weeks, the Trump administration has taken an extraordinary number of actions implicating a range of First Amendment concerns. One of President Trump’s many recent executive orders expresses unwavering support for the First Amendment and promises to end censorship. However, some recent actions by  Trump and his administration are antithetical to those goals.

    1. Threats to the institutional press: “The First Amendment in the Trump Era” identified maintaining a free and independent press as a critically important bulwark against executive abuses of power. That concern has persisted — indeed, it has become more acute. As he did in his first term, Trump has continued to identify many in the institutional press as the “enemy of the American people.” This should not be treated as mere political hyperbole. The Trump administration has promised retribution and is targeting individual journalists. It has threatened to investigate reporters in national security cases, block media mergers, and deny outlets and reporters access to information. There is evidence these threats are already taking a toll on the press’s independence.
    2. Private lawsuits: One of Trump’s preferred strategies for bringing his critics to heel is the private lawsuit. Trump recently sued “60 Minutes” and CBS for allegedly editing an interview with then-Vice President Kamala Harris in ways that obscured or improved her answers to questions, ABC and George Stephanopoulos for statements that Trump had been found liable for rape in a civil case, an Iowa pollster and The Des Moines Register for publishing a flawed poll showing Trump trailing Harris in Iowa, and the Pulitzer Board for recognizing The New York Times for its reporting on the Russia investigation. Fearful of government overreach, some media outlets have already settled defamation lawsuits for millions of dollars, raising serious concerns about press obeisance and lack of independence. High-level executive branch appointees have warned that the press should expect more lawsuits based on allegedly biased or critical press coverage of the administration.
    3. Threats to broadcast media: Broadcast media are also in the Trump administration’s crosshairs. The Federal Communications Commission has instituted investigations of media outlets, ostensibly for violating their obligation to broadcast in the “public interest.” The agency recently compelled CBS to disclose the transcript of the Harris “60 Minutes” interview and is investigating CBS based on that broadcast. Agency officials have also indicated that broadcast licenses may be revoked or suspended based on editorial and advertising activities or simply for alleged “bias.” Trump and his allies have also proposed defunding all public broadcasting, including NPR and PBS, which present educational and other content including shows like “Elmo,” “Big Bird,” and “Fresh Air.”
    4. Threats to digital media: The Trump administration has likewise taken steps to influence and control the digital public sphere. Trump recently extracted a $25 million settlement from Meta (formerly Facebook) for banning him for his false and incendiary posts about the 2020 election. As president, Trump has refused to enforce a law requiring that TikTok divest from Chinese ownership, even though the Supreme Court upheld it. Whatever one makes of that ruling, after Trump’s effort to “save” TikTok, digital media moguls lined up to donate millions of dollars to his inaugural. Social media platforms also changed content moderation policies in ways that facilitate election denial, public health misinformation, and hateful expression. One thing Trump gets right in his executive order on free speech is that governmental efforts to coerce social media companies to remove content is problematic. However, unleashing online disinformation, misinformation, and threatening speech will fundamentally alter the culture of online expression.
    5. Threats to educational institutions: Similarly, the Trump administration has taken steps to control curricular and other expression in the nation’s educational institutions. An executive order calls for withholding federal funding from any K-12 school that teaches that the United States is “fundamentally racist, sexist or otherwise discriminatory.” Another order purports to “end radical indoctrination” in the nation’s K-12 schools by ordering various federal agencies to develop a plan to eliminate federal funding for instruction relating to “gender ideology” or “discriminatory equity ideology.” The same order requires agencies to adopt “patriotic education measures” for use in K-12 schools. The Education Department has also been ordered to scour the nation’s university campuses and classrooms for anti-Semitism and discussions about race, gender identity, and other disfavored topics. President Trump has also ordered the Department of Justice to crack down on student protesters. The federal government has advised universities to monitor the activities of their foreign students studying on visas — so that officials can deport them if they speak out in favor of Palestine or Hamas.
    6. Threats to government employees: Agency actions and executive orders have threatened the speech rights of agency employees and government contractors. There is a widespread effort underway to purge public employees based on their lack of loyalty to Trump, their real or perceived political biases, or their participation in lawful trainings and other activities. FBI employees recently filed privacy and free speech retaliation lawsuits against the Department of Justice, alleging the agency has targeted them for dismissal based on their work investigating January 6 cases. The DOJ has also fired prosecutors for working on January 6 prosecutions. At executive agencies, new rules bar federal employees, contractors, and agency materials from referencing gender identity or fluidity. Executive orders forbid the federal workforce from engaging in events or discussions relating to diversity, equity, and inclusion and even bar employees from using gender identification in email correspondence.
    7. Suppression of vital information: The federal government provides vital information to the public concerning health, the environment, and other matters. Since the election, however, many agency websites have gone dark. The Trump administration has ordered executive agencies to remove information from their websites concerning gender, gender identity, contraception, climate change, and other topics. It has also ordered agency employees not to share the results of their ongoing work and paused federal funding for scientific and other research. Although the executive branch can set agency policies and formulate public messaging, efforts to broadly curtail the public’s access to information affect both the press’s ability to report on such matters and the public’s ability to receive information about public health, the environment, and other topics.
    8. Imposing official orthodoxies and suppressing dissent: Many Trump administration proposals and measures are aimed at imposing an official orthodoxy concerning various topics and issues. Still others target protected political dissent. The administration is seeking to impose official definitions of gender and approved narratives regarding American history, race, and patriotism. Since his first term, President Trump has made no secret of his desire to crack down on protest and dissent. During the 2024 campaign, Trump vowed to “crush” the pro-Palestinian movement. He has long supported making flag burning a crime. Imposing official orthodoxies and suppressing dissent are two of the broad themes that tie many of the Trump administration’s recent actions together. 

    Media on the run: A sign of things to come in Trump times? — First Amendment News 451

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    First Amendment News is a weekly blog and newsletter about free expression issues by Ronald K. L. Collins and is editorially independent from FIRE.


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    Below is a topical sampling of reports and commentary about the risks recent Trump administration actions have posed to free expression. 

    Actions against the press and journalists

    Defamation and related lawsuits

    Broadcast and public media

    Social media

    Education

    Public Employees 

    Data, information, and transparency

    Orthodoxy and dissent

    Last scheduled FAN

    FAN 456: “Coming soon: ‘Executive Watch’ — Tracking the Trump Administration’s free speech record”

    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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  • Retrenchment Watch Newsletter | HESA

    Retrenchment Watch Newsletter | HESA

    This is the first edition of Retrenchment Watch, a new initiative tracking how Canadian post-secondary institutions are reacting to current financial challenges. The Retrenchment Watch monitors the most recent developments, highlighting key trends and institutional responses across the country. Future editions will provide ongoing updates, analysis, and institutional case studies to help sector leaders navigate this challenging period. Updates to the website will be made weekly with summary emails flowing in a biweekly schedule.

    The Impact of Declining International Enrollments

    International students have played a critical role in the financial stability of Canadian post-secondary institutions. Over the past decade, many universities and colleges have relied heavily on international tuition revenue, amidst rising costs, frozen domestic tuition, and stagnant funding from provincial governments. 

    The federal immigration policy changes of 2024—including caps on the number of applications for international study permits that will be processed by IRCC—have caused a steep drop in new international student enrollments across the country.

    Comparison of Study Permit Applications Processed by IRCC, by Month (2023 vs. 2024)

    Source: IRCC Data, “Source Countries – Applications Processed by IRCC for New Study Permit Applications (in Persons) by Month, from January 2022 to December 2024”

    However, the impact of the government’s announcements has reduced the numbers of international students who are actually being enrolled much further than the caps themselves would imply. ApplyBoard is projecting that only 280,000 study permits were approved in 2024, as opposed to 515,880 in 2023, a 45% drop in international student numbers.

    This matches what we are hearing about dramatic falls in international student numbers across the country. However, the drops are much greater at certain institutions. For example, Okanagan College has seen a 50% decline in new international student enrollment, with expectations of a further 70% in the winter term. Thompson Rivers University reported a 50% drop in new undergraduate international enrollments and a 75% drop in post-baccalaureate diploma students. These declines are forcing institutions to make difficult financial decisions to remain operational.

    Budget Deficits

    The enrollment shortfall has translated into substantial budget deficits at many institutions. Universities and colleges across Canada are now facing difficult financial realities, with some implementing drastic cost-cutting measures.

    • York University has the largest projected deficit, at $142 million, and is implementing cost-cutting measures to reduce spending by $130 million over three years.
    • Sheridan College is projecting a $112 million loss in revenue due to falling international student numbers. 
    • University of Waterloo estimates a $75 million deficit.
    • Algonquin College is projecting a $32 million deficit for 2024-25, which is expected to rise to nearly $100 million by 2026-27.
    • Carleton University is projecting a $38 million deficit for 2024-25, expected to reach $70 million by 2025-26.
    • Memorial University reported a $9.5 million revenue loss.

    While these numbers may seem alarming, they don’t tell the full story. Public details on institutional budgets and cuts remain limited and inconsistent. Some institutions report projected deficits, others focus on lost revenue, and many omit details on where cuts will actually fall. Job loss estimates vary widely, and program cuts are often announced without specifying which programs are affected.

    In the coming weeks, we’ll be diving deeper into institutional budgets to provide a clearer picture of what these figures really mean and how they will shape the sector in the years ahead.

    Program Suspensions and Faculty/Staff Layoffs

    To manage financial constraints, many institutions are suspending programs and reducing staff. The impact is particularly severe for smaller colleges and those heavily reliant on international students.

    • Sheridan College is suspending 40 programs and reviewing 27 others, with an estimated 700 layoffs.
    • Fleming College has suspended 29 programs, possibly increasing to 42, due to a $38 million revenue shortfall.
    • Centennial College is suspending 49 programs after experiencing a 43% drop in international student enrollment.
    • St. Lawrence College is cutting 55 programs—approximately 40% of its offerings.
    • Seneca Polytechnic has temporarily closed its Markham campus, which primarily served international students.
    • Fanshawe College is cutting 18 programs this semester.
    • Public-private partnership campuses, set up primarily by Ontario colleges in the Greater Toronto Area, are being wound down.

    Hiring freezes have become common, with institutions like McGill University, Dalhousie University, the University of Waterloo and the University of Alberta pausing recruitment efforts to manage budget shortfalls. A number of institutions, such as Conestoga College and Carleton University, have introduced programs to incentivize voluntary retirement, in the hope that they can reduce salary expenditures without widespread compulsory layoffs.

    However, layoffs are occurring across the sector. Mohawk College has cut 65 full-time administrative staff, amounting to 20% of its administrative workforce. Simon Fraser University has eliminated 85 staff and faculty positions. University of Windsor has already issued layoff notices to 15 employees and is warning of further cuts.

    We know that large, but so far uncounted, numbers of contract instructors are not being rehired as their contracts expire. For example, Okanagan College has canceled 11 part-time term faculty contracts, with up to 80 more positions at risk. Western University is introducing enrollment thresholds to determine whether a course will be offered, with minimum class sizes ranging from 50 for first-year courses to 15 for fourth-year courses. These thresholds imply that contract instructors teaching courses which do not meet the cap are unlikely to have their contracts renewed.

    We will be updating a list of institutional responses on the Retrenchment Watch as they are announced.

    The Recovery Project 

    In response to the widespread retrenchment across Canadian higher education, HESA has launched the Recovery Project. 

    The financial challenges facing Canadian higher education are unprecedented, but they are not insurmountable. Most institutions have survived similar experiences in the past. The HESA Recovery Project helps Canadian colleges, polytechnics, and universities navigate financial challenges by providing insights and facilitating peer learning and collaborative action. Through monthly reports and virtual meetings, leaders gain evidence-based strategies on budget decisions, maintaining morale, and academic redesign. Drawing from interviews with veterans of past periods of retrenchment and case studies of institutions that have successfully come through major cuts, the project delivers actionable guidance. Reports and discussions begin this month, with future topics shaped by member needs to ensure timely, relevant support for institutions adapting to financial pressures. For more information, contact Tiffany MacLennan at tmaclennan@higheredstrategy.com.

    Looking Ahead

    The Retrenchment Watch will continue to monitor and analyze developments across the sector, providing timely updates and insights. The next editions will cover new announcements, policy shifts, and institutional adaptations that arise in response to ongoing financial pressures. 

    For more details, you can visit the Retrenchment Watch webpage. Have something you want to share with us about cuts at your institution? Reach out to us. 

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  • Coming soon: ‘Executive Watch’ — Tracking the Trump Administration’s free speech record — First Amendment News 456

    Coming soon: ‘Executive Watch’ — Tracking the Trump Administration’s free speech record — First Amendment News 456

    To lift a line from the songwriter extraordinaire of our era, “the times they are a- changin’.” Indeed, they are — and this is certainly true in our own corner of the world, the world of free speech. 

    For better and worse, Donald Trump and his agents are rearranging the structure of free expression in America. Only a few weeks into his presidency, things are proceeding at a breakneck speed, with a flurry of executive orders flying out the windows of the White House. Even early on, there is a sense that what will follow may well mark one of those pinpoints in our history when that “experiment” of which Holmes spoke is tested. Whatever else happens, it is important that there is some record of these times and what happened in them. To that end, we will soon launch a new segment within FAN called “Executive Watch” to track it all: the President’s orders, the executive agencies’ actions, the activities of the President’s affiliates, and Mr. Trump’s personal undertakings.

    Enter Professor Timothy Zick, the William and Mary Law School Robert & Elizabeth Scott Research Professor and John Marshall Professor of Government and Citizenship. 

    Prof. Timothy Zick

    Zick is the author of five books on the subject: “Speech out of Doors: Preserving First Amendment Liberties in Public Places,” “The Cosmopolitan First Amendment: Protecting Transborder Expressive and Religious Liberties,” “The Dynamic Free Speech Clause: Free Speech and its Relation to Other Constitutional Rights,” “The First Amendment in the Trump Era,” and “Managed Dissent: The Law of Public Protest.” He is also the co-author of a First Amendment casebook, “The First Amendment: Cases and Theory.”

    For all of the above reasons and others, Professor Zick is well suited to undertake the “Executive Watch” bi-monthly feature of First Amendment News. 

    Even at this early stage, this project comes a time when news stories like the following 21 surface with increasing frequency:



    WATCH VIDEO: Trump Calls For Changes To First Amendment, Demands “Mandatory One-Year In Jail” For U.S. Flag Burning.

    By chronicling such information and then analyzing it, the hope is that our readers will have a more informed sense of the state of free speech at a time when so much is in flux. There is the hope that “Executive Watch” will prompt further discussion of that vital freedom that is at the core of constitutional government in America.

    FBI agents file First Amendment class action

    While FBI agents may be at-will employees who can, generally speaking, be fired for “any reason or no reason,” they can’t be fired for an unconstitutional reason, or as punishment for the exercise of their constitutional rights (e.g. he can’t fire all the African-American agents, or all the agents registered as Democrats).

    The Complaint, filed in DC District Court, is posted here. Plaintiffs are “employees of the FBI who worked on Jan. 6 and/or Mar-a-Lago cases, and who have been informed that they are likely to be terminated in the very near future for such activity.” They “intend to represent a class of at least 6,000 current and former FBI agents and employees who participated in some manner in the investigation and prosecution of crimes and abuses of power by Donald Trump, or by those acting at his behest.”

    Knight Institute on need for fact-checking platform

    [Recently] Meta announced changes . . . to its content moderation policies, including that it’s replacing third-party fact checking with a Community Notes model that allows users to publicly flag content they believe to be incorrect or misleading. 

    The following can be attributed to Katherine Glenn Bass, the Knight Institute’s research director:

    Katy Glenn Bass Research Director Knight Institute

    Katy Glenn Bass

    “Mark Zuckerberg’s announcement today is a stark reminder that many of the biggest platforms we use to communicate about issues of public importance are owned by billionaires who are not accountable to us. Apart from the obvious effort to signal political allegiance, the impact of the announced changes will not be clear for some time. But if we have any hope of measuring or understanding what is happening on these platforms, we need strong protections for the independent researchers and journalists who study them, and better mechanisms for ensuring they can access platform data.”

    In 2019, more than 200 researchers signed an open letter in support of the Knight Institute’s efforts to persuade Facebook to amend its terms of service to establish a “safe harbor” for public-interest journalism and research on the platform. Read more about that effort here.

    Shibley on Harvard’s anti-Semitism settlement

    Robert Shibley

    Robert Shibley

    Just one day after President Trump took office, Harvard agreed to settle two lawsuits brought against it by Jewish students that alleged the university ignored “severe and pervasive anti-Semitism on campus” and created “an unbearable educational environment” in the wake of the October 7, 2023, Hamas attack on Israel and the ongoing war in Gaza.

    While the settlement language itself does not appear to be public, a press release filed on the official docket of The Louis D. Brandeis Center for Human Rights Under Law v. President and Fellows of Harvard College included some details. Most notably, Harvard agreed to adopt the International Holocaust Remembrance Alliance’s (IHRA’s) definition of anti-Semitism. FIRE’s worry, shared by many others — including the definition’s primary author — is that, when added to policies used to punish discriminatory harassment on American campuses, the definition is too likely to be used to punish speech that is critical of Israel or its government but that is not motivated in animus against Jews or Israelis.

    FIRE has repeatedly proposed steps to address anti-Semitic discrimination on campus that would safeguard students from harassment while protecting freedom of speech, most recently in our inauguration-day letter to President Trump. Getting this right is important; any proposal that chills or censors protected speech on campus won’t pass constitutional muster at public universities, won’t square with free speech promises at private universities (like Harvard), and won’t effectively address anti-Semitism.

    Nevertheless, attempts to codify the IHRA definition of anti-Semitism into laws or regulations are nothing new. FIRE posted a roundup of the widespread civil libertarian opposition to its codification last year, when Congress considered adopting it as federal law. Among those opponents is the definition’s primary author, Kenneth Stern, who spoke at length with FIRE’s Nico Perrino on our So to Speak podcast about why it’s not the right tool for the job of regulating speech. As Stern wrote back in 2016 for The New York Times: “The definition was intended for data collectors writing reports about anti-Semitism in Europe. It was never supposed to curtail speech on campus. . . . And Jewish students are protected under the law as it now stands.” (Perhaps “as it is now written” would have been more precise; whether colleges follow the law is a different issue.)

    As Stern predicted in that piece:

    If this bill becomes law it is easy to imagine calls for university administrators to stop pro-Palestinian speech. Even if lawsuits alleging Title VI violations fail, students and faculty members will be scared into silence, and administrators will err on the side of suppressing or censuring speech.

    Stern’s prediction is about to receive ground testing at Harvard, and likely at other universities that may follow its lead.

    Forthcoming book: New edition of Neier’s ‘Defending My Enemy’

    A new edition of the most important free speech book of the past half-century, with a new essay by the author on the ensuing fifty years of First Amendment controversies.

    Cover of the book "Defending My Enemy: Skokie and the Legacy of Free Speech in America" by Aryeh Neier

    When Nazis wanted to express their right to free speech in 1977 by marching through Skokie, Illinois — a town with a large population of Holocaust survivors — Aryeh Neier, then the national director of the ACLU and himself a Holocaust survivor — came to the Nazis’ defense. Explaining what many saw as a despicable bridge too far for the First Amendment, Neier spelled out his thoughts about free speech in his 1977 book Defending My Enemy.

    Now, nearly fifty years later, Neier revisits the topic of free speech in a volume that includes his original essay along with an extended new piece addressing some of the most controversial free speech issues of the past half-century. Touching on hot-button First Amendment topics currently in play, the second half of the book includes First Amendment analysis of the “Unite the Right” march in Charlotteville, campus protest over the Israel/Gaza war, book banning, trigger warnings, right-wing hate speech, the heckler’s veto, and the recent attempts by public figures including Donald Trump to overturn the long-standing Sullivan v. The New York Times precedent shielding the media from libel claims.

    Including an afterword by longtime free speech champion Nadine Strossen, Defending My Enemy offers razor-sharp analysis from the man Muck Rack describes as having “a glittering civil liberties résumé.”

    Praise for Defending My Enemy

    “Aryeh Neier’s Defending My Enemy is as relevant today as it was when it was first published. The book is a powerful reminder of why free speech matters—not just for the voices we agree with, but for the voices we abhor. Neier’s story of defending Nazis’ rights to speak in Skokie underscores a timeless truth: If we want to preserve freedom for ourselves, we must be willing to defend it for others, no matter how deeply we disagree. At a time when censorship is on the rise globally, Defending My Enemy stands as a bold and principled call to action. Every advocate of free expression needs to read this book—and more importantly, live its lessons.” — Greg Lukianoff

    Forthcoming scholarly article: ‘Output of machine learning algorithms isn’t entitled to First Amendment protection’

    Stanford Law Review logo

    Machine learning algorithms increasingly mediate our public discourse – from search engines to social media platforms to artificial intelligence companies. And as their influence on online speech swells, so do questions of whether and how the First Amendment may apply to their output. A growing chorus of scholars has expressed doubt over whether the output of machine learning algorithms is truly speech within the meaning of the First Amendment, but none have suggested a workable way to cleanly draw the line between speech and non-speech.

    This Article proposes a way to successfully draw that line based on a principle that we call “speech certainty” – the basic idea that speech is only speech if the speaker knows what he said when he said it. This idea is rooted in the text, history, and purpose of the First Amendment, and built into modern speech doctrines of editorial discretion and expressive conduct. If this bedrock principle has been overlooked, it is because, until now, all speech has been imbued with speech certainty. Articulating its existence was never necessary. But machine learning has changed that. Unlike traditional code, a close look at how machine learning algorithms work reveals that the programmers who create them can never be certain of their output. Because that output lacks speech certainty, it’s not the programmer’s speech.

    Accordingly, this Article contends that the output of machine learning algorithms isn’t entitled to First Amendment protection. With the Supreme Court signaling its intent to address unresolved questions of online speech, we are poised to enter a new era of First Amendment jurisprudence in the coming years. As we do, scholars, practicing attorneys, and judges can no longer ignore how the algorithms underlying online speech actually work – and how they have changed with the advent of machine learning. 

    Without recognizing this paradigm shift in algorithmic speech, we risk sleepwalking into a radical departure from centuries of First Amendment jurisprudence. By failing to distinguish between traditional and machine learning algorithms, current consensus about algorithmic speech suggests that the Constitution should, for the first time in its history, protect speech that a speaker does not know he has said. Speech certainty provides a novel and principled approach to conceptualizing machine learning algorithms under existing First Amendment jurisprudence. 

    Related

    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

    FAN 455: “Eight free expression cases pending on SCOTUS docket”

    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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  • 3 global early ed trends to watch this year

    3 global early ed trends to watch this year

    LONDON — Participants at one of the world’s largest early childhood conferences late last year were eager to learn from each other, and notably collegial — until one of the final sessions of the event.

    During a presentation about artificial intelligence in early childhood, a presenter suggested using an AI program to create artwork based on child prompts. Audience members were horrified. “Have you looked at what impact this might have on their imaginations?” one asked.

    The role of artificial intelligence and technology in the early years was a popular topic at the conference, which featured more than 500 educators and experts from 43 countries. As I met with global educators and researchers over the course of several days, a few key themes emerged as ones to keep an eye on in the early childhood space this year:

    1. Technology and AI in early childhood

    In addition to the controversy over student artwork, presenters highlighted a host of ways they are using artificial intelligence already in early childhood classrooms, in far less controversial ways. These include writing culturally relevant lesson plans, automating report cards and helping translate communication with parents. AI was mostly presented as a way to relieve teachers of more rote tasks. 

    Apart from the brief flare-up, experts were careful to keep conversations focused on AI as this “smart assistant,” acknowledging that it can’t stand in for a strong, interactive teacher in the early years.

    Presenters also highlighted stark differences between how preschool classrooms in different countries are using technology and the cultural gaps in attitudes about technology post-pandemic. Two researchers from University College London East, for instance, described how children in South Korean preschools regularly use nearly a dozen forms of technology, including smart televisions, robots, coding programs, virtual reality technology and tablets. Preschoolers in England, on the other hand, only have access to smart whiteboards at school for the most part, with British early educators reporting more wariness around technology in early ed classrooms.  

    2. Involving the rights of children — and more play — in early childhood systems

    In Ireland, a new approach to early childhood is all about letting kids be kids. The country’s new early childhood guidelines were inspired by the United Nations Convention on the Rights of the Child and emphasize building loving, trusting relationships between children and caregivers. Several other countries, including Japan, Moldova, South Korea and Tanzania are also prioritizing the rights of young children, mainly by trying to bring more play into early childhood classrooms and systems.

    3. Countries building out early childhood systems and investing more

    Although global investment in early childhood is not at the levels experts would hope for, many are heartened by a few government-led efforts to inject more funding and strengthen standards. In 2018, for example, Saudi Arabia published a new curriculum for its early childhood programs, written in partnership with America’s National Association for the Education of Young Children (NAEYC). The curriculum is part of a larger movement to expand early childhood offerings in the country, including building hundreds of new public early learning programs by 2030 and creating more teacher training programs.

    Meanwhile, in Ireland, leaders designated more than 546 million euros in new government funding for early childhood between 2022 and 2024. And in Austria, the government recently committed to provide more than 4.5 billion euros by 2030 to help parents pay for child care.

    More on early childhood worldwide

    In 2023, I traveled to Canada to see what America can learn from our northern neighbor’s rollout of a new national child care system.

    This story by Rachel Cohen for Vox looks at the pros and cons of Germany’s universal child care system and the societal conditions that support that system.

    Research quick take

    • During the 2021-22 school year, 370 preschool students were expelled and nearly 2,700 preschool students received one or more out-of-school suspensions, according to new data from the Department of Education. Black children, and especially Black boys, were disproportionately suspended and expelled. Black boys account for 9 percent of preschool enrollment but represented 30 percent of the suspensions.
    • A growing number of states are combining early learning programs, like home visiting and child care initiatives, under one agency or department in an attempt to streamline processes and more effectively administer early learning programs, according to a recent report by the Center for American Progress. The report found that consolidating programs into a single agency has helped states move faster when applying for funding, and with sending money out to parents and programs.

    More early childhood news

    In New York, advocates are calling for universal child care for 2-year-olds, reports Chalkbeat.

    Iowa Gov. Kim Reynolds proposed codifying a program that provides free child care to the state’s child care workforce. She also wants to create a fund to raise child care wages through donations from businesses and community members, according to The Gazette.

    New Jersey Gov. Phil Murphy has proposed requiring school districts to offer free pre-K to all 3- and 4-year-olds in the state, according to NorthJersey.com. 

    Hawaii is eyeing charter schools as a way to help expand the state’s free preschool program, reports Honolulu Civil Beat.

    This story about preschool trends 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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  • 2025 Higher Education Trends: What to Watch & How You Can Plan

    2025 Higher Education Trends: What to Watch & How You Can Plan

    Higher education is experiencing transformative shifts as institutions respond to societal, economic, and technological changes. This year is set to bring new opportunities and challenges. We’re always keeping a pulse on the industry and where it’s headed so we can stay proactive and prepared –– ready to support our partners through whatever conditions they’re facing.

    10 most impactful higher ed trends for 2025

    To help institutions stay ahead, we asked our team of experts to share their predictions for this year’s most impactful trends in higher education. From AI and digital transformation to new enrollment strategies, these insights highlight what’s shaping the future of higher ed— and how institutions can adapt.

    1. Increased mergers and consolidations

    The pace of mergers and consolidations among smaller colleges is expected to accelerate in 2025, according to Collegis Education CEO Kim Fahey. With financial pressures and declining enrollment, many institutions will view mergers as a strategic alternative to closure. But these transitions are anything but simple.

    “Mergers involve unique technology requirements and complex data management challenges,” Fahey explains. Successfully integrating applications, systems, and hardware requires expert guidance. Higher ed leaders will look to partner with experienced organizations to help navigate these intricacies.

    2. Heightened focus on data privacy and security

    The information security landscape is becoming increasingly intricate. With 21 comprehensive state privacy laws, alongside European Union (EU) regulations, federal rules, and Title IV requirements, compliance challenges are mounting.

    “Smaller schools often lack the experience and qualifications to manage these threats,” notes Dr. Jason Nairn, CISSP, Collegis VP of Information Technology. Cyberattacks, like phishing and social engineering, are relentless. In 2025, institutions must prioritize more robust cybersecurity measures, leveraging external partnerships and security tools to protect sensitive data.

    3. Acceleration of digital transformation

    Cloud migration will take center stage as institutions transition away from outdated, on-campus systems. While many schools still rely on highly customized platforms, which limits their ability to adopt or migrate to more modern technology, the adaptability and scalability of cloud platforms are simply too compelling to ignore.

    Furthermore, technology infrastructures must be sufficiently modernized in order to capitalize on emerging tech innovations in AI and predictive analysis. This process can’t happen overnight –– it’s an evolution, according to Fahey.

    “Cloud migrations take 18+ months, so schools need to act now,” she emphasizes. An institution-wide commitment to digital transformation will not only modernize operations but also position institutions to stay competitive in an increasingly tech-driven environment.

    4. Adoption of shared services models

    Financial constraints will push smaller schools toward shared services and consortium models to access the technology and expertise they need at a manageable scale. These models allow institutions to pool resources and reduce costs but require significant change management, according to Jeff Certain, VP of Solution Development at Collegis.

    “This will require schools to standardize and make some concessions,” Certain explains. “This could pose a challenge, but they may not have an option.” Institutions must embrace these shifts to remain sustainable while navigating limited budgets.

    5. Growth in career-focused and flexible education

    Programs aligning with workforce needs will gain momentum in 2025. Alternative credentials like microcredentials and certificates will become more prominent, offering shorter, career-oriented pathways for learners.

    “Institutions will increasingly recognize and credit learning outside the classroom, exploring more direct pathways into the workforce,” predicts Dr. Tracy Chapman, Chief Academic Officer for Collegis. This reflects growing demand for flexible, career-focused education that meets student and employer expectations.

    6. Ed tech consolidation and market impact

    It is not just colleges and universities facing consolidation. Ed tech companies and services providers are also reshaping the landscape with their own mergers and acquisitions. While these changes may offer schools more comprehensive solutions, they may not necessarily align with institutional objectives.

    “Some recent acquisitions have led to poorer customer experiences,” Fahey observes. Institutions must carefully evaluate new partnerships to ensure they will deliver meaningful improvements.

    7. Higher Focus on Retention

    With the “enrollment cliff” looming, institutions must double down on maintaining their existing student base as a key to sustainability. Purposeful and cost-effective retention strategies will play a pivotal role in maintaining financial health, as retaining current students is often more cost-effective than recruiting new ones.

    “Retention strategies build stronger, more loyal communities,” says Patrick Green, VP of Enrollment Strategy. Forward-looking schools have perceived the importance of fostering a sense of belonging across the student lifecycle and are providing robust support networks that improve student persistence and satisfaction.

    8. Rise of value-focused marketing

    Students and families are increasingly demanding clear ROI from their education. As a result, institutions will need to demonstrate how their programs lead directly to employment and career advancement.

    “Building relationships with regional industries and showcasing job placement rates will be essential,” advises Tanya Pankratz, AVP of Marketing at Collegis. Marketing efforts will need to start highlighting tangible outcomes (e.g., alumni success stories, job placement rates, and employer partnerships) to win over prospective students.

    9. Expanded role of AI and emerging technologies

    AI and other emerging technologies will revolutionize higher education operations. From enrollment management and personalized marketing to virtual campus tours using augmented reality (AR) and virtual reality (VR), technology has the means to dramatically enhance the student experience –– or wreak technical havoc if data, platforms and tools are misaligned.

    “AI-driven tools make personalization more accessible, but the strategy remains critical,” notes Dan Antonson, AVP of Data and Analytics. Institutions must invest in data infrastructure to fully harness these advancements in order to build and maintain a competitive edge.

    10. Proliferation of strategic partnerships

    Higher ed institutions are increasingly recognizing that they don’t need to own the entire value chain. In 2025, strategic partnerships will play a more prominent role.

    “Institutions will double down on their core mission of education and seek out partners to support other critical functions,” Dr. Chapman explains. These partnerships provide access to technology, expertise, and resources, allowing schools to focus on what they do best — educating students.

    Opportunities on the horizon for higher ed

    As evident in this compilation of higher ed trends, the landscape is set for significant change in 2025 and beyond. Institutions that proactively address these trends will be well-positioned to navigate challenges and seize opportunities. By embracing digital transformation, fostering strategic partnerships, and adopting value-driven approaches, schools can ensure long-term success in an evolving marketplace.

    Excited about the opportunities that lie ahead? Collegis Education has the experience and expertise to guide you through any twists and turns you may face. We’ll help you stay on the leading edge instead of chasing trends. Connect with us and let’s start creating solutions together.

    Innovation Starts Here

    Higher ed is evolving — don’t get left behind. Explore how Collegis can help your institution thrive.

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