Tag: watch

  • 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 [email protected].

    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.

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