Ponder ’s line. Yes, free speech is a way of living, a way of inhaling the oxygen of liberty. Breathe deep, come alive with this experiment we call free speech. Risky? Of course. Yet life without risk is but a hollow existence. Take free speech out of the life equation, and what do you have? Tyranny, born of a life deprived of its vitality. To speak freely nourishes the human spirit. Feed on it, and defend it, even when its taste is bittersweet.

Map out a life course, or just sway to the rhythm of uncharted dreams, and soon enough the worth of free speech will manifest itself. At the bottom of every human heart is a yearning to express oneself, to give outer voice to one’s inner being. By that measure, free speech is less a legal right than a human need. To abridge it is to leave the soul tense, the kind that plagues it with an unbearable anxiety. We live, therefore we speak.

Those are some of the lessons I came to value, going back to my law school days, when Steve Shiffrin, my classmate (then a Whitmanesque free-speech romantic), first pointed me to the stars in the galaxy of free expression. Dissent was his creed; in time, it became mine. It is an essential component of the calculus of free speech. Such ideas opened up my life to a universe exploding with passion, philosophy, and poetry, along with flickers of truth shooting across the endless expanse of a dark sky.

Posting in the FIRE pit

There is a saying: “Tell your boss what you think of him, and truth will set you free.” True as that may be as an all-too-human proposition, it is untrue when it comes to working with FIRE’s folks. Believe me, I know — I’ve tested their free-speech patience several times over the years. Did they always agree? No! Even so, they never once censored me or even interfered with anything I wrote. In other words, they practiced what they preached. That says a lot in these times, when censorship is so often unleashed with wild abandon followed by no overt condemnation, even from so-called First Amendment groups.

In the course of more than half a century, I have never worked with a First Amendment group that has done more (and ably so!) in the service of free speech. Sometimes controversial, sometimes strange, and sometimes hard to accept, but so what? I mean, they are a First Amendment advocacy group. Get real!

In the rough and tumble of it all, FIRE plays no favorites, be you a Biden or Trump supporter, or whoever. And when it comes to lawyering (under the guidance of Bob Corn-Revere, Ronnie London, and ), they are second to none. So, too, when it comes to astute and creative direction, has no equal in the First Amendment world. Let me add ’s skills, which bring new insights to complex issues (see, e.g., his forthcoming book, currently titled “Let the Other Side Speak”).

Together with FIRE’s other teams (including those who do policy reform, public advocacy, research, communications, campus rights advocacy, and legislative work), they all have given new and vital life to our free-speech freedoms.

In the beginning: The ‘Concurring Opinions’ blog

It all started twelve years ago (February 10, 2014) on the Concurring Opinions blog — then edited by George Washington Law School Professor Daniel Solove.

The joys of being ‘on FIRE’

On February 20, 2019, FAN flew under a new flag: that of FIRE (then known as the Foundation for Individual Rights in Education). It began with issue number 201, with Jackie Farmer as my expert editor.

It’s been some 300 FAN posts since then! What a wondrous joy working with some of FIRE’s finest: Will Creeley, Jackie Farmer, (my skilled editor), and Nico Perrino, among others. And all of this under the extraordinary leadership of FIRE President and CEO Greg Lukianoff.

Thank you all for allowing me to serve as an ex officio member of your team. Always helpful, continually thoughtful, and constantly creative, the folks at FIRE exemplify what is best in serving the free-speech public interest, which is a daring feat.

Bob Corn-Revere: Where do I begin?

I think too damn much of Bob to be able to express the full scope of my enormous respect for him. True, at times I’ve tested his tolerance. Even so, my wily ways must never be understood to discount the esteem I have for him as an exceptional free-speech lawyer, and the regard I have for him as a true friend.

Bob: We all owe you a great debt...and my debt is even greater.

Cameo Appearances

• ‘Can We Take a Joke?’ (FIRE, 2016)

With the ‘First Lady of Liberty’

and I first met in person at a conference in Barcelona. I got righteous on Nadine about the ACLU accepting money from the tobacco industry. We spoke, we disagreed, then chilled . . . and the rest has made for a beautiful friendship that has lasted and lasted. She is an amazing woman by any measure: her smarts, energy, passion, and kindness. Nadine, my dear friend, may we share many more tomorrows.

The company we keep: Some of the finest free-speech advocates I’ve known

Life is what we make it. By that measure, certain extraordinary people, when working in tandem with others similarly gifted, can change the cultural and constitutional equation for the better. Those pictured below (including, but not limited to, Floyd Abrams, Geof Stone, Lucy Dalglish, Lee Levine, Steve Vladeck, Paul McMasters, and Sandy Baron) are among the people I have had the privilege of knowing — people who have moved the free-speech needle.

And let me never forget my amazing friend and co-author of so many years and works: David Skover. With Sondheim-like creativity and Socratic-like rigor, he guided me through the thick and thin of thinking outside the box . . . and what a wondrous adventure it’s been!

Bruce Johnson: Who left us far too soon

Exceptional, generous, and a Renaissance man. What a brilliant First Amendment lawyer with an uninhibited passion for his calling. Bruce E.H. Johnson (1950-2024): He was my friend, and that of many others. Bruce’s unexpected passing weighs heavily on the hearts of those who knew this remarkable man; his intellect was amazing, his big-heartedness boundless, and he could also be profoundly witty.

• See this First Amendment Salon tribute to Bruce.

• By way of one sample, see: “Bruce Johnson responds to Judge Laurence Silberman’s attack on NYT v. Sullivan,” FAN 291 (March 24, 2021)

I miss so much about him — his wit and wisdom.

Farewell!

As it is said, “all things must pass.” There comes a time! This 500th post seemed as good a time as any. The past sometimes lives on, but never as before. New times and new issues call for new people and new perspectives. While the future owes a debt to the past, it also owes an obligation to the future. And so it is, and so I move on.

Closing sentiment: In this journey, and in the days to come, may we all, and our Nation, too, fair well. . . Farewell!

Subscribe now

Sometimes the tragic masquerades as comic, if only because what was once seen as surreal is accepted as ordinary. In the process, truth is left to fend for itself and liberty is lost to autocracy. Power becomes an end in itself; untruths pose as truth; meaning collapses into meaninglessness; and anyone who says otherwise is a traitor, a domestic terrorist. There is no measure of restraint, no check on power. There is only the restraint that comes with those subject to detention, brutality, or even death. It is the spectacle of our times.

Standard ICE procedure: Unlawful detentions, systemic abuse, provocative behavior, and short-tempered responses to protesters. Meanwhile, the tongues of many remain silent. In this corridor of complicity, government officials robotically echo the words of their authoritarian master; their media counterparts amplify the falsehoods of the echo chamber.

It is all a part of living in an ICE age — the age of Trump tyranny.

The federal government recruited them for a domestic “wartime recruitment” campaign. Military enthusiasts, gun slingers, and NASCAR fans were all enlisted to do combat with “domestic terrorists.” A rapid hiring spree, characterized by compressed timelines and shortened training periods, is so fast that it sometimes forgoes background checks. Once hired, their garb is military, replete with gaiter-style masks, tear gas, rubber bullets, pepper balls, 9mm Lugers, and Glock 19s. They quell disturbances (including peaceful protests). Their menacing presence and brute-force mindsets instigate the very disturbances they are said to prevent. And when they kill people (e.g., Renee Nicole Good), their actions are justified by claims that they were “violently, willfully, and viciously” attacked by “domestic terrorists.”

And then there is the infamous Homeland Security Secretary, Kristi Noem. Clad in her wide cowboy hat, fatigues, and long earrings, she gave her quick-draw justification of the Minneapolis ICE shooting that left a mother of three dead from point-blank shots to her head. Her remarks were absurd, irresponsible, and rash. But no matter; she must toe her boss’s line — attack the victim: “[T]he facts are that this individual weaponized her car and threatened the life of the law enforcement officer and those around him.”

And then to add more ammunition to the “weaponized” charge, there was an attack on the victim’s character. From Jarvis DeBerry’s Jan. 16 piece, “Trump’s latest smear of Renee Good,” in MS Now:

Federal government officials, including President Donald Trump, immediately labeled Good, a 37-year-old wife and mother, a “violent rioter” and a “domestic terrorist” after Immigration and Customs Enforcement officer Jonathan Ross shot her dead on Wednesday, Jan. 7. Then, on Sunday, Trump called Good and her wife, Becca Good, “professional agitators.” He said his administration would “find out who’s paying for” such protests. On Monday, The New York Times, citing people familiar with the situation, reported that federal officials are looking into the Goods’ ties to activist groups.

Now, the Pentagon is busy preparing 1,500 troops for a potential deployment to Minnesota to combat protests. As if that were not enough, Trump is now threatening to invoke the Insurrection Act which, he claims, would allow him to deploy the military to police the protests.

Related

• Alan FeuerGlenn, Thrush, and Devlin Barrett, “Prosecutors Subpoena Minnesota Democrats as Part of Federal Inquiry,” The New York Times (Jan. 20)

Judicial observations

Against that disturbing backdrop comes a few telling observations from U.S. District Judge William G. Young:

• “The Constitution, our civil laws, regulations, mores, customs, practices, courtesies — all of it; the President simply ignores it all when he takes it into his head to act.”

• “Behold President Trump’s successes in limiting free speech — law firms cower, institutional leaders in higher education meekly appease the President, media outlets from huge conglomerates to small niche magazines mind the bottom line rather than the ethics of journalism.”

• “He meets dissent from his orders in those other two branches by demonizing and disparaging the speakers, sometimes descending to personal vitriol.”

• “Dissent elsewhere among our people is likewise disfavored, often in colorful scurrilous terms.”

A recent 83-page opinion by U.S. District Judge Katherine Menendez features shocking details of ICE agents’ abuses. Here are a few sample passages, which is well worth reading in full:

• [Observing and recording ICE agents]: Plaintiffs assert that they engaged in the following protected activity: assembling in public to protest ICE actions and activity; observing ICE officers who are engaged in their official duties in public, including by following ICE vehicles; and recording and disseminating videos of ICE agents they observe. While Defendants do not dispute that expressing disapproval of ICE operations is protected speech, they challenge whether Plaintiffs’ specific actions of observing, recording, and following ICE officers in the performance of their duties are protected by the First Amendment.

• [T]his Court notes that every other Court of Appeals to have considered the issue has found that the First Amendment protects a right to peacefully observe and/or record law enforcement officers who are engaged in their official duties in public.

• [Probable cause for arresting protesters?]: Defendants argue that Ms. [Susan] Tincher cannot show retaliatory animus because the ICE officers who arrested her had at least a reasonable, if mistaken, belief that there was probable cause to arrest her for a violation of 18 U.S.C. § 111.29 The Court disagrees. . . [A]t this stage, the Court finds Ms. Tincher has a likelihood of success on showing causation on her First Amendment retaliation claim.

[Moreover,] at no time can [Mr. Abdikadir] Noor be seen physically interfering with the agents, nor threatening them. Furthermore, in the moments leading up to his arrest, it is Noor who is pushed by an agent, after which he backs well away from the officers and their squad car, only for them to step forward to detain him. On this record, there is no basis to conclude that officers had even mistaken probable cause to place him under arrest. The Court finds that Mr. Noor is likely to succeed on the merits of his claim that he was arrested in retaliation for engaging in protected First Amendment activity.

• [Use of chemical irritants against peaceful protester]: Video evidence submitted by the parties supports this conclusion. It appears that the officers who deployed the chemical irritant did so though Mr. Crenshaw was not obstructing ICE vehicles that were trying to leave. Taken together, the evidence sufficiently supports that Mr. Crenshaw has a fair chance of prevailing on his First Amendment retaliation claim.

Related

• Minho Kim, “Noem Denies Use of Chemical Agents in Minnesota, Then Backtracks,” The New York Times (Jan. 18)

Judicial admonitions

In Tincher v. Noem (Jan. 16) the District Court ordered the designated federal agents to adhere to the following admonitions:

Covered Federal Agents are hereby enjoined from:

a. Retaliating against persons who are engaging in peaceful and unobstructive protest activity, including observing the activities of Operation Metro Surge.

b. Arresting or detaining persons who are engaging in peaceful and unobstructive protest activity, including observing the activities of Operation Metro Surge, in retaliation for their protected conduct and absent a showing of probable cause or reasonable suspicion that the person has committed a crime or is obstructing or interfering with the activities of Covered Federal Officers.

c. Using pepper-spray or similar nonlethal munitions and crowd dispersal tools against persons who are engaging in peaceful and unobstructive protest activity, including observing the activities of Operation Metro Surge, in retaliation for their protected conduct.

d. Stopping or detaining drivers and passengers in vehicles where there is no reasonable articulable suspicion that they are forcibly obstructing or interfering with Covered Federal Agents, or otherwise violating 18 U.S.C. § 111. The act of safely following Covered Federal Agents at an appropriate distance does not, by itself, create reasonable suspicion to justify a vehicle stop.

‘Talking straight’: Trump’s passion for revenge

Whatever else the First Amendment stands for, it is axiomatic that its toleration principle cannot countenance revenge orchestrated by government officials. The central purpose of the Madisonian guarantee was to put an end to such political revenge and to provide a safe harbor for opposing views.

Donald Trump spoke the above words more than a quarter of a century ago on The Tonight Show with Jay Leno. In time, his personal beliefs became his political creed, executed by his cabinet underlings and others. It explains why he’s used his political might to go after the likes of:

• Former FBI Director James Comey

• Federal Reserve Chair Jerome Powell

• Former CIA Director John Brennan

• New York Attorney General Letitia James

• Several career DOJ employees (e.g., Michael Ben’Ary and Erez Reuven)

• Jack Smith and those who worked with him

• Senator Mark Kelly (Dem.)

• Senator Adam Schiff (Dem.)

• Congressman Eric Swalwell (Dem.)

• Former director of the Cybersecurity and Infrastructure Security Agency, Christopher Krebs, and many others

• The law firm of Perkins Coie (see Executive Order, March 6, 2025)

And then there are Trump’s civil lawsuits (see Chapter 6 of Timothy Zick’s Trump 2.0: Executive Power and the First Amendment).

Mindful of that, consider what Trump proclaimed in his Executive Order of January 20, 2025:

The American people have witnessed the previous administration engage in a systematic campaign against its perceived political opponents, weaponizing the legal force of numerous Federal law enforcement agencies and the Intelligence Community against those perceived political opponents in the form of investigations, prosecutions, civil enforcement actions, and other related actions. These actions appear oriented more toward inflicting political pain than toward pursuing actual justice or legitimate governmental objectives.

In that same executive order, he called for an end to the “weaponization of the federal government.”

Of course, duplicity, and not honesty, has long been his endgame.

Related

• , “The Campaign to Crush Free Speech in Minnesota,” The Free Press (Jan. 22)

• Gregory Svirnovskiy, “Trump warns Minnesota Dems: ‘THE DAY OF RECKONING & RETRIBUTION IS COMING’,” Politico (Jan. 13)

• Peter Wehner, “Trump’s Appetite for Revenge Is Insatiable,” The Atlantic (March 20)

• Scott Nover, “White House told CBS to run Trump interview unedited or get sued,” The Washington Post (Jan. 17)

• “Trump Threatens To Use the Insurrection Act To End Protests in Minneapolis,” First Amendment Watch (Jan. 16)

Subscribe now

Forthcoming book by Justice Alito

• Samuel Alito, “So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country,” Basic Liberty (Oct. 6, 2026)

Justice Samuel A. Alito elaborates on his judicial philosophy and reflects on the roles of the law, the Constitution, and the courts in preserving America’s spirit of liberty.

Samuel A. Alito has quietly become one of the most influential Supreme Court justices in recent history. In this surprisingly personal book, he vigorously defends his “originalist” approach to the Constitution, identifies the threats to our liberties, and reflects on faith, the nature of law, and American culture.

Twenty years on the high court have given Justice Alito a unique perspective on the country’s fiercest legal and constitutional battles. As America’s culture wars unfolded, one side harnessed the power of the judiciary to impose its agenda, abetted by judges scornful of constitutional constraints and untroubled by doubts about their own infallibility. The response was a legal movement devoted to originalism and textualism, which found its most effective champion in Justice Alito.

The battles, of course, are far from over. Free speech and religion, in particular, are frequently under fire. Justice Alito offers a compelling vision of the courts’ role in defending these and other fundamental liberties.

In So Ordered, one of our greatest jurists celebrates the complexity and brilliance of the American Constitution.

Forthcoming book on the importance of protest

• Annie Leonard, Andre Carothers, and Shepard Fairey, “Protest: Respect It, Defend It, Use It,” Patagonia (April 14, 2026)

Protest! Respect It Defend It Use It offers a powerful look at the role peaceful activism has played in advancing the public good — and shines a light on the urgent need to protect this democratic right. This is not a how-to guide. Rather, it is a celebration of what collective action can achieve, an invitation to be inspired, and a reminder that each of us has the capacity to make a difference.

Featuring more than 40 iconic campaigns from around the world, the book combines photos, artifacts, and memorable quotes to create a vivid testament to the power of public dissent. Guest essays from Jane Fonda, Tennessee Representative Justin Pearson, Dolores Huerta, Nemonte Nenquimo, and others reveal how protest shaped their own commitment to driving change. Through storytelling and first-hand reflection, readers are invited to witness, reflect, and engage in peaceful activism—right here, right now.

Rivers that don’t catch fire. The freedom to marry whom we love. Clean air and water. Even weekends off. Peaceful protest — protected in the U.S., as in many countries, as a cornerstone of participatory democracy — helped bring about each of these victories. Free speech, dissent, and public mobilization are essential tools for advancing so many causes, including environmental protection, workers’ rights, human rights, self-determination, and climate, social, and racial justice.

Yet even as protest has delivered lasting progress — and perhaps because of it — the right to speak freely and organize is increasingly under threat. Crackdowns are no longer confined to authoritarian regimes; anti-protest sentiment is spreading across established democracies. Activists are being vilified, targeted, and even criminalized. In the U.S., anti-protest laws have been enacted in 49 states. SLAPP suits — meritless legal actions used to silence dissent — are on the rise. New legal concepts like “negligent protest” are being used to hold organizers liable for damages, while violent actions by anti-democratic forces are reframed or excused.

Published to coincide with the 250th anniversary of one of history’s most consequential acts of protest — the signing of the Declaration of Independence — this book is an invitation. It invites readers to learn about the creativity, courage, and impact of peaceful protest, to be inspired by those who came before, and to recognize that this essential democratic right belongs to everyone — now more than ever.

Related

• Stephanie Saul, “In Minneapolis, a Pattern of Misconduct Toward Protesters,” The New York Times (Jan. 18)

‘’ Podcast on Thomas Paine

• “Thomas Paine’s rise and fall,” podcast (Jan. 15)

Thomas Paine arrived in America in 1774 with little to his name and a long record of personal failure behind him. Within a year, he wrote Common Sense, one of the most influential political pamphlets in history, helping to ignite the American Revolution and catapulting Paine into the American history hall of fame.

But by the end of his life, he was widely reviled, politically isolated, and personally abandoned. Once celebrated as the voice of liberty, he died an outcast, mourned by only six people at his funeral.

How does one man become the voice of the American Revolution and end up forgotten? To explore Paine’s complicated legacy, we are joined by Richard Bell, professor of history at the University of Maryland and author of The American Revolution and the Fate of the World.

Related

More in the news

• “Cops showing up at your door for political Facebook posts is absolutely intolerable in a free society,” FIRE (Jan. 20)

• Eugene Volokh, “‘The Buckley Principles,’ by Lee E. Goodman,” The Volokh Conspiracy (Jan. 20)

• “California Protester Left Blind in One Eye Is Among String of Violent Run-Ins With Federal Agents,” First Amendment Watch (Jan. 20)

• Eugene Volokh, “$300K Settlement Against Michigan State Over Elected Officials Allegedly Orchestrating Public Criticism of (and Racism Allegations Against) Professor,” The Volokh Conspiracy (Jan. 20)

• Carrie Robison, “No, you can’t make students stand for the Pledge of Allegiance,” FIRE (Jan. 20)

• “Tennessee Judge Grants Expanded Media Access To State-Run Executions,” First Amendment Watch (Jan. 20)

• and , “Why are Miami police questioning a woman over Facebook posts?” UnHerd (Jan. 20)

• , “The First Amendment on the Ground,” Thoughts on the First (Jan. 19)

• Dan Diamond, “Trump will order TV networks to ‘protect’ Army-Navy football game,” The New York Times (Jan. 18)

• , “DOJ must not investigate elected officials for criticizing immigration enforcement,” FIRE (Jan. 16)

Subscribe now

2025-2026 SCOTUS term: Free expression and related cases

Review granted

Chiles v. Salazar (argued: Oct. 7)

Olivier v. Brandon (argued: Dec. 3)

First Choice Women’s Resource Centers, Inc. v. Platkin (argued: Dec. 2)

National Republican Senatorial Committee v. Federal Election Commission (argued: Dec. 9)

Pending petitions

Dershowitz v. Cable News Network

Freedom Foundation v. Turner

Villarreal v. Alaniz

Taylor v. Singleton

Pardue v. Hines

Sittenfeld v. United States

360 Virtual Drone Services LLC v Ritter

Emergency docket (‘Shadow docket’)

Margolin v. National Association of Immigration Judges (application for a stay denied)

Chamber of Commerce v. Sanchez (application withdrawn)

Free-speech related

Trump v. Carroll (Federal Rules of Evidence speech-related case)

Olivier v. City of Brandon, Mississippi (Whether this court’s decision in Heck v. Humphrey bars claims under 42 U.S.C. § 1983 seeking purely prospective relief where the plaintiff has been punished before under the law challenged as unconstitutional; and (2) whether Heck v. Humphrey bars Section 1983 claims by plaintiffs even where they never had access to federal habeas relief.)

Petitions denied

Little v. Llano County

Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc.

Hartzell v. Marana Unified School District

Evans Hotels, LLC v. Unite Here! Local 30

Subscribe now

Last Scheduled FAN

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

The First Amendment is not limited to the right to be right; it also enshrines the right to be wrong.

— Alan Dershowitz (Dec. 30, 1987)

Mindful of that spirited quote, consider the following recent statement by Jay Sekulow, attorney for the professor in Dershowitz v. Cable News Network (cert. petition, 2026):

The actual malice standard established in Sullivan, or as extended by its progeny, should be discarded altogether or at least as to private citizens who are public figures.

To be yet more explicit, Dershowitz’s lawyer urged the Justices to be bold:

This Court’s decision in New York Times Co. v. Sullivan constitutionalized, and revolutionized, defamation law in unwarranted, ahistorical, and ultimately harmful ways. Sullivan’s progeny extended that revolution further, exacerbating the cost for victims of defamation, especially public figures. This Court should either overrule Sullivan . . . or, as explained below . . . modify those aspects of Sullivan which aggravate the harms it inflicts on defamation plaintiffs.

As described by the Court of Appeals (11^th Cir., 2025):

While representing President Donald J. Trump in impeachment proceedings before the Senate, law professor Alan Dershowitz gave a statement about the scope of impeachable offenses. That statement proved controversial, with many reporters and commentators characterizing it as out of bounds. Dershowitz now claims that CNN in particular, along with its on-air personalities, defamed him — intentionally misrepresenting his comments to tarnish his reputation.

The three-judge panel (with two Trump appointees) was unanimous in their judgment denying Professor Dershowitz’s defamation claims:

In his zealous and highly scrutinized representation, Dershowitz made a spontaneous series of remarks before Congress that, he says, were misinterpreted by pundits. But even if those commentators did report incorrectly on Dershowitz’s statements, he has offered no evidence that they did so intentionally. If anything, the evidence shows that they believed in the truth of their reporting, and that they formed their opinions independently. Without evidence of actual malice Dershowitz’s defamation claim cannot go forward, so we AFFIRM the district court’s grant of summary judgment to CNN.

That left but one main option: petition the Court to jettison Sullivan, which is what the Professor’s lawyers are doing.

1. Historical argument

Mr. Sekulow offered the following “originalist” argument:

The historical record is unequivocal: Sullivan’s actual malice standard has no basis in the Constitution’s original meaning. As Judge Lagoa observed, “Sullivan and its progeny are policy-driven decisions dressed up as constitutional law, and they find little — if any — support in our history.” From the Founding until Sullivan, defamation law operated under well-established common-law principles that applied equally to all plaintiffs, regardless of their public status. (Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 765 (1985), White, J., concurring in judgment).

In the Founding era, it was well understood that the First Amendment did not abrogate the common law of defamation. Scholars and jurists agreed that even public officials could sue for libel “upon the same footing with a private individual” because “[t]he character of every man should be deemed equally sacred, and of consequence entitled to equal remedy.” (Tunis Wortman, A Treatise, Concerning Political Enquiry, and the Liberty of the Press 259 (New York George Forman, ed., 1800)). State courts were “open to all persons alike” for “redress for any false aspersion on their respective characters, nor is there any thing in our laws or constitution which abridges this right.” (St. George Tucker, View of the Constitution of the United States with Selected Writings 237-38 (Clyde N. Wilson, ed., 1999) (1803)). Authorities universally agreed that the First Amendment was never intended to immunize defamatory falsehoods.

2. Policy argument

The next major argument tendered by Mr. Sekulow is as follows:

Sullivan’s departure from history would be troubling enough on its own terms. But Sullivan’s problems run deeper still. The decision misread the historical sources without meaningfully engaging with them at all. Instead, Sullivan represents “policy-driven decisions masquerading as constitutional law.” (McKee v. Cosby, 586 U.S. 1172, 1173 (2019) (Thomas, J., concurring in denial of certiorari)). Sullivan “overturn[ed] 200 years of libel law.” (Dun & Bradstreet, Inc., 472 U.S. at 766 (White, J., concurring in the judgment)). Indeed, this Court has since acknowledged that “the rule enunciated in the New York Times case . . . is . . . largely a judge-made rule of law,” which “is not revealed simply by its literal text, but rather is given meaning through the evolutionary process of common-law adjudication.” (Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 501-02 (1984)).

3. Limiting Sullivan to public officials

Whatever arguments might exist for special protections for criticism of government officials do not extend to private citizens who happen to achieve prominence. The distinction matters profoundly and was disregarded by this Court when it extended Sullivan to public figures in Time, Inc. v. Hill, 385 U.S. 374 (1967), and Gertz. Sullivan was motivated by a desire to protect public criticism of official conduct and actions of public officials. Sullivan, 376 U.S. at 282. In fact, the Sullivan Court relied on the common law privilege that protected criticism of public officials, id. (citing Coleman v. Maclennan, 78 Kan. 711 (1908)), and explicitly developed a “privilege for the citizen-critic of government,” id. But then, in Hill, the Court disregarded this reasoning, extending the Sullivan rule to any public figure.

4. Changing the evidentiary standard and burden of proof standard

Sullivan imposed not one but two burdens on public-figure plaintiffs: a substantive requirement (actual malice) and a heightened evidentiary standard that requires the plaintiff to show not merely falsity but actual malice, and to do so with “the convincing clarity which the constitutional standard demands.” (Sullivan, 376 U.S. at 285-86). This double hurdle has become virtually insurmountable, with the Sullivan standard thereby “protecting lies — by insulating those who spread them behind an iron barrier,” (App. 24a (Lagoa, J., concurring)). These hurdles should be reconsidered.

5. The stare decisis argument

The Court has repeatedly emphasized that stare decisis carries less weight for constitutional decisions that Congress cannot correct through legislation. (Gamble v. United States, 587 U.S. 678, 691 (2019)). For a century and a half, states regulated defamation according to common law principles. Sullivan revolutionized this field without substantial constitutional foundation. When this Court errs in interpreting the Constitution — particularly when it concocts a constitutional rule with no anchor in the document’s text or history — only this Court can correct the error. If stare decisis did not bind the Sullivan Court when it upended centuries of settled law, it does not prevent correction now.

Related resources

• , “What the First Amendment Is For,” Law & Liberty (Nov. 6, 2024)

• Ronald K.L. Collins, “Review essay: Handman and Feder on Barbas’ ‘Actual Malice’ — A new look at NYT v. Sullivan,” First Amendment News 375,” (April 12, 2023)

• Lee Rawles and Samantha Barbas, “Why NYT v. Sullivan mattered in 1964 and is under attack today,” Modern Law Library Podcast, (March 29, 2023)

• , “Why New York Times v. Sullivan matters more than ever,” FIRE (March 7, 2023)

• “New York Times v. Sullivan: The Case for Preserving an Essential Precedent,” Media Law Resource Center (March 2022) (contributors: Floyd Abrams, Matthew Schafer, Richard Tofel and Jeremy Kutner, Michael Norwick, Ballard Spahr, LLP, and Davis Wright Tremaine, LLP, David Heller and Katharine Larsen, and Lee Levine)

• Ronald K.L. Collins, “Bruce Johnson responds to Judge Laurence Silberman’s attack on NYT v. Sullivan,” First Amendment News (March 24, 2021)

• Ronald K.L. Collins, “Contra-Justice Thomas, the originalist debate continues — a review of Wendell Bird’s ‘Criminal Dissent’,” First Amendment News 277 (Nov. 11, 2020)

• Ronald K.L. Collins, “Justice Thomas urges Court to pare back Section 230’s ‘sweeping immunity’,” First Amendment News 275 (Oct. 21, 2020)

• Ronald K.L. Collins, “More on originalism and the First Amendment, enter Matthew Schafer,” First Amendment News 274 (Oct. 7, 2020)

• Ronald K.L. Collins, “Ian Millhiser on Justice Thomas’s maverick views on modern free speech jurisprudence,” First Amendment News 254 (May 13, 2020)

• Ronald K.L. Collins, “Levine and Wermiel: Dubious Doubts and ‘the Central Meaning of the First Amendment’—A Preliminary Reply to Justice Thomas,” First Amendment News 202.1 (March 1, 2019)

• Steve Vladeck, “Trump’s attacks on the First Amendment and the press gain an ally in Supreme Court Justice Clarence Thomas,” NBC News (Feb. 20, 2019)

Subscribe now

Trump defamation suit against the BBC

• “The BBC Seeks To Dismiss Trump’s $10B Defamation Lawsuit in a Florida Court,” First Amendment Watch (Jan. 13)

The BBC plans to ask a court to throw out U.S. President Donald Trump’s $10 billion lawsuit against the British broadcaster, court papers show.

Trump filed a lawsuit in December over the way the BBC edited a speech he gave on Jan. 6, 2021. The claim, filed in a Florida federal court, seeks $5 billion in damages for defamation and $5 billion for unfair trade practices.

The speech took place before some of Trump’s supporters stormed the U.S. Capitol as Congress was poised to certify President-elect Joe Biden’s victory in the 2020 election that Trump falsely alleged was stolen from him.

The BBC had broadcast the documentary — titled “Trump: A Second Chance?” — days before the 2024 U.S. presidential election. It spliced together three quotes from two sections of the 2021 speech, delivered almost an hour apart, into what appeared to be one quote in which Trump urged supporters to march with him and “fight like hell.” Among the parts cut out was a section where Trump said he wanted supporters to demonstrate peacefully.

The broadcaster has apologized to Trump over the edit of the Jan. 6 speech. But the publicly funded BBC rejects claims it defamed him. The furor triggered the resignations of the BBC’s top executive and its head of news.

Papers filed Monday in U.S. District Court in Miami say the BBC will file a motion to dismiss the case on March 17 on the basis that the court lacks jurisdiction and Trump failed to state a claim.

Teaching Plato can be dangerous to a professor’s career

“Texas A&M to philosophy professor: Nix Plato or be reassigned,” FIRE (Jan. 7)

Just weeks ago, FIRE warned that A&M policy banning professors from teaching issues of “race or gender ideology” and “sexual orientation” in core courses violates faculty academic freedom. The First Amendment prohibits public universities from deciding which viewpoints can be taught in a classroom, and which must be banished.

The following can be attributed to Lindsie Rank, director of Campus Rights Advocacy at FIRE.

“Texas A&M now believes Plato doesn’t belong in an introductory philosophy course. The philosophy department is demanding that professor Martin Peterson remove Platonic readings because they “may” touch on race or gender ideology. He’s been given until the end of the day to comply or be reassigned. This is what happens when the board of regents gives university bureaucrats veto power over academic content. The board didn’t just invite censorship, they unleashed it with immediate and predictable consequences. You don’t protect students by banning 2,400-year-old philosophy.”

Related

• , “If You Can’t Teach Plato in a Philosophy Class, What Can You Teach?” The New York Times (Jan. 12)

First Amendment advocates often warn about a slippery slope. Once censorship starts at the margins, core freedoms are next. In Texas, university administrators and state commissars are skipping the slope and going straight for the trap door.

• Emma Whitford, “Plato Censored as Texas A&M Carries Out Course Review,” Inside Higher Education (Jan. 7)

At least 200 courses in the Texas A&M University College of Arts and Sciences have been flagged or canceled by university leaders for gender- or race-related content as the university undertakes its review of all course syllabi, faculty members told Inside Higher Ed.

This is just the beginning of the system board-mandated course-review process. Faculty were required to submit core-curriculum syllabi for review in December, and some faculty members have yet to receive feedback on their spring courses, scheduled to begin Monday. So far, queer filmmakers, feminist writers and even ancient Western philosophers are on the chopping block.

One faculty member — philosophy professor Martin Peterson, who is supposed to teach Contemporary Moral Problems this spring — was asked by university leadership to remove several passages by Plato from his syllabus. . . .

A fresco taken from the north wall of the Tomb of the Diver(from Paestum, Italy, c. 475 BC): a symposium scene

The Plato texts include passages from his Socratic dialogue Symposium that discuss patriarchy, masculinity, gender identity and the human condition. In one excerpt, the “Myth of the Androgyne,” the Greek playwright Aristophanes says, “First, you should learn the nature of humanity … for in the first place there were three kinds of human being and not two as nowadays, male and female. No, there was also a third kind, a combination of both genders.”

• Tim Zick, “Backsliding on Academic Freedom,” Thoughts on the First (Jan. 9)

Job Opening: Institute for Free Speech seeks its next president

The Institute for Free Speech — the nation’s only organization dedicated solely to defending political speech rights — is seeking a visionary leader to serve as its next president. This is an exceptional opportunity to lead a thriving organization at the forefront of First Amendment advocacy. The position opens as current President David Keating, after 14 distinguished years of leadership, transitions to a policy-focused role. David will continue as president until his successor is named, ensuring seamless continuity for the organization.

Now, we’re looking for the ideal candidate to lead the Institute for the next decade-plus. The new president will inherit a healthy budget and a talented team committed to protecting our rights to freely speak, assemble, publish, and petition the government. This deliberate, careful search reflects our commitment to finding the right person to guide the Institute through its next chapter of growth and impact. To learn more about the position, please click here.

Go here for job description and requirements.

FIRE documentary on deporting students

• Trump admin deports students for speaking out

In 2025, the second Trump administration — led by Secretary of State Marco Rubio — began using a McCarthy-era law to revoke student visas for noncitizens expressing pro-Palestinian views. This raises an urgent question on the state of free speech in the United States: Do noncitizens have First Amendment rights in the U.S.?

FIRE’s new series, “1AX,” exposes the front lines of America’s free speech battles, where dissent is challenged, rights are tested, and the Constitution itself is put on trial. In this episode on free speech and immigration, FIRE asks: How far will the government go to silence dissent?

Forthcoming book on antisemitism and free speech

• James Loeffler, “Exceptional Hatred: Antisemitism and the Fight over Free Speech in Modern America,” Metropolitan Books (Aug. 2026)

A leading historian’s revelatory exploration of antisemitism in the United States ― from 1940s anti-Jewish riots until today ― showing that it has long served as a frontline in our wars over freedom of speech and the nature of American liberalism

Few issues are as vexed today as antisemitism and free speech. There is scarcely an arena ― college campuses, congressional hearings, immigration courtrooms, social media platforms―where we are not polarized over what counts as antisemitism, which speech is protected by the First Amendment, and what the law should do about hatred. At a time of political crisis, antisemitism has become a point of ideological obsession.

None of this is new. In a sweeping history of ideas and law, James Loeffler recovers the forgotten roots of our contemporary turmoil. From two antisemitic riots in postwar Chicago to a neo-Nazi march in 1970s Skokie, Illinois, and the Charlottesville Unite the Right rally in our own time, Loeffler explores the ways in which America’s courts have grappled with hatred, freedom, and the tensions at the heart of liberal democracy: Are some hatreds more dangerous than others? Is tolerating hate speech the price we must pay for free speech? And can liberalism ever make good on its promise to end hatred through law?

Confronting these questions, Exceptional Hatred restores a missing history of hate speech, antisemitism, and the law, one that points to how we might protect difference without surrendering our principles of equality and freedom.

New book on ‘annoying speech’ and criminal prosecution

• Raphael Golb, “When Speech Becomes a Crime,” (2025)

“You’re under arrest,” said the policeman pointing a gun at Raphael Golb’s face. “It’s about the Dead Sea Scrolls.”

On March 5, 2009, Golb, a lawyer practicing in New York, had his computer seized — and his future.

This book tells the inside story of how prosecutors sought — in a case that lasted nine years — to have Golb imprisoned for engaging in “annoying” speech. Reflecting on the various court decisions elicited by the case, Golb poses the crucial question of where the United States today stands regarding a pillar of American democracy: the First Amendment.

Will forms of expression that stir up controversy again be suppressed, as they were in centuries past? Or will the courts decisively recognize that provocative ways of challenging power must be protected, even when they take us out of our comfort zone?

In sum, will the First Amendment remain the guiding star of our democracy, or has it become a political football, tossed between left and right, at times enforced, at other times ignored or evaded?

Speech has been criminalized through the centuries. But the latest efforts to suppress it, Golb says, must be seen in the context of issues increasingly relevant to our time: the growth of spectacle at the expense of debate; hidden patterns of censorship; the ease with which authority can be abused in a democratic society — and many more.

More in the news

• Eugene Volokh, “Free Speech Unmuted: 2025: The Year in Free Speech,” The Volokh Conspiracy (Jan. 12)

• Alan S. Lewis and Madelyn K. White, “New York’s Anti-SLAPP Act: An Unnecessary Chill on the First Amendment Right to Petition,” New York Law Journal (Jan. 12)

• Colin Kalmbacher, “‘At issue is the public right of access’: First Amendment group savages Mar-a-Lago judge for ‘incorrect’ ruling over Jack Smith report, urges appeals court to quickly reverse,” Law & Crime (Jan. 10)

• Jacob Gaba, “Can the Pentagon strip Mark Kelly’s rank over speech?” FIRE (Jan. 9)

• “Tennessee University Reinstates Professor Fired for Charlie Kirk Post and Settles for $500K,” First Amendment Watch (Jan. 9)

• Josh Gerstein, “Court throws out Sept.11-era convictions on First Amendment grounds,” Politico (Jan. 9)

• “Jack Smith would have blown a hole in the First Amendment,” The Washington Post (Jan. 9)

• “Texas Cracked Down on Teachers for Posts About Charlie Kirk, Union Lawsuit Says,” First Amendment Watch (Jan. 7)

Subscribe now

2025-2026 SCOTUS term: Free expression and related cases

Review granted

Chiles v. Salazar (argued: Oct. 7)

Olivier v. Brandon (argued: Dec. 3)

First Choice Women’s Resource Centers, Inc. v. Platkin (argued: Dec. 2)

National Republican Senatorial Committee v. Federal Election Commission (argued: Dec. 9)

Pending petitions

Dershowitz v. Cable News Network

Freedom Foundation v. Turner

Villarreal v. Alaniz

Taylor v. Singleton

Pardue v. Hines

Sittenfeld v. United States

360 Virtual Drone Services LLC v Ritter

Emergency docket (‘Shadow docket’)

Margolin v. National Association of Immigration Judges (application for a stay denied)

Chamber of Commerce v. Sanchez (application withdrawn)

Free-speech related

Trump v. Carroll (Federal Rules of Evidence speech-related case)

Olivier v. City of Brandon, Mississippi (Whether this court’s decision in Heck v. Humphrey bars claims under 42 U.S.C. § 1983 seeking purely prospective relief where the plaintiff has been punished before under the law challenged as unconstitutional; and (2) whether Heck v. Humphrey bars Section 1983 claims by plaintiffs even where they never had access to federal habeas relief.)

Petitions denied

Little v. Llano County

Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc.

Hartzell v. Marana Unified School District

Evans Hotels, LLC v. Unite Here! Local 30

Subscribe now

Last Scheduled FAN

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

In what follows, Stephen Rohde offers a review essay of Professor Timothy Zick’s recently released book, Trump 2.0: Executive Power and the First Amendment (Carolina Academic Press, 2026). It is the first review of the book, and I’m grateful to Mr. Rohde for his prompt and thoughtful reflections.

By way of full disclosure: Though Professor Zick has written for FAN, and while I have commented on his work several times, he had no prior knowledge of the Rohde review or any involvement with it. Likewise, the views expressed are entirely those of Mr. Rohde sans any content control on my end. With that, his review is proffered for your consideration.

— rklc

Subscribe now

Among his worst character flaws wreaking havoc on our democracy, President Donald Trump’s hypocrisy has no bounds. During his second inaugural address on Jan. 20, 2025, he promised:

After years and years of illegal and unconstitutional federal efforts to restrict free expression, I will also sign an executive order to immediately stop all government censorship and bring back free speech to America.

As promised, later that very day, he issued an executive order declaring “Government censorship of speech is intolerable in a free society.”

If only.

Instead, Trump has issued more than forty executive orders, fact sheets, and presidential memoranda, along with scores of enforcement actions dutifully issued by the obedient federal officials he has appointed, that abridge the First Amendment rights of millions of Americans and foreign visitors.

In August, he issued yet another executive order titled “Prosecuting Burning of the American Flag.”

In a garbled, revealing, and inaccurate comment, Trump boasted, “We took the freedom of speech away because that’s been through the courts and the courts said, you have freedom of speech.”

Seventeen ways Trump violated the First Amendment

In the timely and engaging new book Trump 2.0: Executive Power and the First Amendment, writes, “Trump 2.0 policies and actions have had broad censorious and chilling effects” that represent “the greatest governmental threat to the First Amendment since the McCarthy Era of the 1950s.”

The book makes a valuable contribution by bringing together a compendium of Trump’s most egregious First Amendment violations to date. A review of Zick’s complete list of these violations is a shocking reminder of just how extensive, breathtaking, and dangerous they are to our constitutional democracy.

Trump and his cohorts have violated the First Amendment by:

1. retaliating against law firms for their advocacy and representation of specific clients;

2. investigating and indicting current and former government officials based on their criticism of the President or expression of disfavored ideas;

3. firing federal prosecutors and Federal Bureau of Investigation employees for working on cases relating to President Trump and the Jan. 6, 2021 Capitol riot;

4. terminating billions of dollars in federal funding to universities in an effort to alter their ideological cultures and control their core academic operations;

5. conditioning federal research and other funding on the agreement not to practice or promote “diversity, equity, and inclusion” or “gender ideology” and to teach only “patriotic” curricula in K-12 schools;

6. arresting, detaining, and subjecting to deportation international students and foreign scholars based on their viewpoints and political activism, and revoking the visas of foreign nationals based on political expression;

7. retaliating against the press by excluding specific media outlets from White House events based on their viewpoints and reporting;

8. threatening to revoke broadcast licenses based on networks’ editorial decisions; restricting reporters’ access to unclassified defense-related information held by the Pentagon;

9. suing newspapers and publishers for defamation, consumer fraud, and “election interference”;

10. defunding libraries and public broadcasters;

11. scrubbing historical, scientific, and other data from federal agency websites;

12. ordering the removal of “anti-American” displays in national museums;

13. terminating grants for scientific research and removing scientific papers from government databases because the research referred to forbidden terms relating to race, gender, or environmental justice;

14. threatening to sanction advocates who assist officials with prosecutions in the International Criminal Court; directing the Attorney General to prosecute individuals who burn the U.S. flag because the expressive act is “uniquely offensive and provocative” and communicates “contempt, hostility, and violence against our Nation;”

15. declaring “Antifa” a “domestic terrorist organization” and directing federal agencies to investigate and prosecute political violence linked to the expression of “anti-Americanism,” “anti-capitalism,” “anti-Christianity,” “extremism on migration, race, and gender,” and “hostility towards those who hold traditional American views on family, religion, and morality;”

16. suggesting that individuals protesting immigration raids are members of “organized crime” syndicates; and

17. federalizing and deploying the National Guard and active-duty United States Marines to several American cities in response to public protests.

Executive abuses of power with the stroke of a pen

Timothy Zick, the John Marshall Professor of Government and Citizenship at the William & Mary Law School, teaches courses on the First Amendment, constitutional law, and academic freedom. He has written six books and scores of articles on freedom of expression.

The premise of his latest book is that as “Trump has demonstrated, with the stroke of a pen the President can issue new interpretations of federal laws and institute policies that affect not just government institutions but vast swaths of the private sector as well.” The Trump Administration’s second act “is a stark reminder that executive power can significantly threaten or violate First Amendment rights” and “may pose even greater threats to free expression than ordinary legislative acts.” Trump “has shown the Nation’s Chief Executive can use his powers to direct, influence, suppress, and coerce private expression.” As Trump has demonstrated, “the laws of Congress may be of little consequence if a President chooses to ignore them and Congress does not respond.”

By the time he finished writing his book, Zick counted more than fifty lawsuits raising First Amendment claims against the Trump administration by law firms, universities, media, scientists, international students, professional associations, and others impacted by executive actions. To examine these controversies, Zick curates excerpts from important court decisions, along with the texts of key executive orders, pleadings, agency compliance letters and responses, public comments in agency proceedings, and other firsthand materials. Since few readers have read any of these original documents, they are extremely helpful in understanding what is happening in real time.

To complement his book, Zick has compiled a comprehensive online repository — updated weekly — of First Amendment-related Trump 2.0 executive orders, lawsuits challenging them, and informative commentary, available at Trump 2.0: Executive Power and the First Amendment, First Amendment Watch. Overall, one appreciates how American institutions, lawyers, and judges are playing an indispensable role in defending our constitutional democracy.

Zick’s goal

In his analysis, Zick addresses several fundamental First Amendment questions posed by Trump’s assault on free speech: What is the relationship between executive power and free expression? Are executive orders a form of government speech or a means of suppressing private expression? What kinds of governmental actions constitute governmental suppression or censorship of speech forbidden by the First Amendment? To what extent can the president use threats to terminate federal funding or other actions to influence or coerce expression? How well-equipped are First Amendment doctrines and principles to respond to new threats by presidents and executive agencies under their direction?

Zick’s goal — which he admirably achieves — is to fill an important gap in the study of the First Amendment by documenting “the variety of ways in which executive power can independently threaten freedom of expression, and how executive actions differ from legislation in that respect.” He also addresses “how instructors, scholars, and students can use Trump 2.0 events to deepen their understanding of freedom of expression and perhaps suggests revisions to First Amendment doctrines.”

While his book is structured primarily as a casebook for use in law schools and other academic settings, by writing in a conversational style free of arcane legalisms Zick succeeds in making it “important to anyone who supports, defends, relies upon, or indeed exercises First Amendment rights.” As he writes, “We ought all to be aware of current executive challenges to free expression and how various actors — including courts, the press, lawyers, universities, and other regulated parties — have responded to them.” To highlight the complexities of these situations, each chapter contains a “problem exercise” that encourages readers to explore the practical challenges of responding to Trump’s dangerous executive actions.

Zick has done us all an enormous favor by organizing Trump’s First Amendment violations into a well-documented, systematic survey. He imagines how helpful it would have been to have had a contemporaneous record of McCarthy Era violations of First Amendment rights. As he puts it, a “repository of the various executive actions affecting Americans’ First Amendment rights during the Trump Era is an invaluable resource for current — and future — students of this period.” By “students” I take him to mean everyone who cares about preserving meaningful protections for the freedom of speech, press, and assembly, and the right to petition the government for redress of grievances.

Zick also puts Trump’s conduct in a historical context. “As historians and scholars have observed,” he writes, “presidents have threatened or violated First Amendment rights throughout American history.” He cites the examples:

• John Adams prosecuted his wartime political opponents, including members of the press, under federal “sedition” laws;

• Woodrow Wilson used the Sedition Act and Espionage Act to convict and imprison one thousand wartime activists and prosecute twice that many;

• Richard Nixon threatened to subject his “enemies list” to IRS investigations and other sanctions;

• Barack Obama prosecuting reporters and whistleblowers in connection with national security investigations; and

• Joe Biden pressured social media platforms to remove controversial posts about the 2020 presidential election, Covid-19 misinformation, and other content.

Executive orders and executive violations

Make no mistake: “[I]n terms of threats to free expression,” Zick is convinced that “Trump 2.0 has been historically exceptional. No past president’s actions affecting expression likely would have merited a chapter, much less an entire book, after only the first 100 days of a term.”

Zick explains how Trump and the agencies over which he exercises dictatorial control have used a variety of tactics to suppress disfavored speech, bring the media to heel, alter the ideological culture on university campuses, influence scientific inquiry, and affect expression “across the Nation and beyond including in boardrooms, classrooms, laboratories, libraries, scientific journals, museums, and international courts.”

First, many executive orders rely on threatened or actual termination of federal funding as an enforcement mechanism. Federal funding affects nearly every aspect of American life, including education (at all levels), commerce, agriculture, health care, immigration, the practice of law, broadcasting, and scientific research. “The Trump administration has used a chainsaw rather than a scalpel when terminating funds for alleged violations of federal law.”

Second, in many instances, “the Trump administration has failed to provide the process required under federal law to deny or terminate federal funding,” thereby enhancing the coercive and chilling effects of agency enforcement actions. “By accelerating the denial of millions of dollars in federal funding, grantees have little time or recourse to contest often vague allegations or charges of wrongdoing prior to the denial or termination.”

Third, because many of Trump’s executive orders lack meaningful specificity about concepts and terms, including “DEI,” “radical gender ideology,” “patriotic” curricula, and “divisive ideology,” federal grantees cannot be certain which words, phrases, or ideas will trigger a denial of often-critical funding. “Vagueness of the standards in executive orders has produced significant uncertainty for universities, hospitals, businesses, and other funding recipients” which “in turn, has led to significant instances of anticipatory compliance — including changes in expression on a scale far beyond what federal antidiscrimination or other laws require.”

Fourth, for many of these reasons, the executive orders “have engendered repressive fear in federal fund recipients and those who have been or might be targeted,” 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 First Amendment rights and academic freedom for relief from facially retributive, disproportionate, and likely unconstitutional Executive Orders.” By relying on “anticipatory compliance,” fear, vagueness, and coercion, “President Trump’s executive orders and agency enforcement actions have produced far more regulation and suppression of speech than ordinary executive action — which is constrained by (among other things) resource considerations and the obligation to comply with federal laws.”

Into the breach

The good news is that there is an extensive arsenal of robust, well-established Supreme Court precedents that challengers are effectively using to nullify Trump-era violations of the First Amendment. Zick expertly explains them in the following seven ways:

Viewpoint discrimination

Although the government can communicate its own views, it is generally prohibited from suppressing the viewpoints of private speakers. First Amendment doctrine treats laws that suppress specific subjects and target particular viewpoints as presumptively unconstitutional. These “content-based” speech regulations must meet a “strict scrutiny” standard that requires them to further a compelling governmental interest and be the least speech-restrictive means of doing so. The Court has described viewpoint discrimination as “an egregious form of content discrimination.” The government “must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” As the Court famously observed more than eighty years ago:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

Retaliation based on protected expression

The First Amendment prohibits government officials from subjecting individuals to retaliatory actions for engaging in protected speech. To succeed on a First Amendment retaliation claim, a plaintiff must typically prove that they engaged in a constitutionally protected activity, that the government’s actions would “chill a person of ordinary firmness” from continuing to engage in the protected activity, and that the protected activity was a substantial motivating factor in the retaliation.

Vagueness

The Supreme Court has observed that it is “a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” As the Court has observed, “[v]ague laws may trap the innocent by not providing fair warning.” The failure to provide clear standards raises the specter of arbitrary and discriminatory enforcement. Vague regulations may also “chill” expression by causing speakers to “steer far wider of the unlawful zone . . . than if the boundaries of the forbidden area were clearly marked.” In particular, the Court has emphasized the chilling effects of broad governmental directives and investigations aimed at suppressing disfavored viewpoints or ideas.

‘Jawboning’ and informal speech suppression.

Suppression and censorship of expression can take many forms. Aside from regulations that directly prohibit or restrict expression, governments sometimes rely on more indirect forms of speech suppression, known as “jawboning.”

In the 2024 unanimous decision, National Rifle Ass’n v. Vullo, the Supreme Court held that New York officials violated the First Amendment when they used informal communications and indirect pressure against regulated businesses to prevent them from associating with the National Rifle Association. The Court held that “[a] government official cannot coerce a private party to punish or suppress disfavored speech.” Indeed, owing to how the Trump Administration is abusing executive power, Zick believes Vullo “could turn out to be the most important First Amendment precedent of the Trump era.”

Unconstitutional conditions

One way the government can apply pressure to control expression is to condition federal funding on a grantee’s agreement not to engage in certain speech or associational activities. While the government is not required to fund a particular activity, if it decides to do so, it cannot deny or withdraw funding on a basis that infringes on an applicant’s First Amendment or other constitutional rights. And although government can restrict the use of federal funds to activities it chooses to support, it cannot “leverage funding to regulate speech outside the contours of the funding program itself.”

First Amendment rights of noncitizens

The Trump administration has arrested, detained, and initiated deportation proceedings against several international students and scholars who have engaged in pro-Palestine political advocacy. Previously, the Supreme Court has indicated that “[f]reedom of speech and of the press is accorded aliens residing in this country.” However, it has not clarified the precise relationship between enforcing the nation’s immigration laws and the First Amendment. In particular, the Court has not decided whether noncitizens in the U.S. enjoy the very same First Amendment rights as citizens. Lower courts have issued conflicting decisions on this issue. The Trump administration has been exploiting this uncertainty.

Free flow of information

The First Amendment protects the right to gather, distribute, and receive information. The Supreme Court has sometimes collectively referred to these activities as the “free flow of information.” The Trump administration has removed scientific and other data from government websites, restricted scientific research, defunded public broadcasters and libraries, and removed books from school libraries. A leading First Amendment commentator, Alexander Meiklejohn, wrote, “the point of ultimate interest is not the words of the speakers, but the minds of the hearers.”

The Supreme Court has emphasized that discourse on matters of public concern must be “uninhibited, robust, and wide-open.” The “First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” The Court has warned against governmental efforts “to control the flow of ideas to the public” and observed that “the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge.” In sum, the “right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.”

‘A serious contemporary analysis’

As Professor Zick persuasively demonstrates, if the Supreme Court remains true to its ample long-standing precedents upholding these fundamental First Amendment principles, Trump is in a lot of trouble.

In writing Trump 2.0: Executive Power and the First Amendment, Zick has performed a profound public service. It is said that “journalism is the first rough draft of history,” offering a raw, tentative account of fleeting events sealed in a time capsule for historians to excavate and study in the future. But Zick’s commendable book is hardly a rough-draft, and its audience is not a future generation. It is a serious contemporary analysis by a leading expert on the First Amendment sounding an insistent alarm that we ignore at our peril.

Brandeis’ admonition

In 1927, in his concurring opinion in Whitney v. California (joined by Justice Holmes), Justice Louis Brandeis reminded us:

Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary.” He described how the Founders “valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth. . . .

The Founders believed:

that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government.” He warned that “order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones.

Today, Brandeis would surely be among the justices condemning Trump’s wholesale violations of the First Amendment. Frankly, shouldn’t all the justices be doing that?

Stephen Rohde is a writer and political activist. He practiced civil rights and civil liberties law for almost 50 years. He previously served as Chair of the ACLU Foundation of Southern California, and currently is Special Advisor on Free Speech and the First Amendment for the Muslim Public Affairs Council. He is also the author of “American Words of Freedom,” “Freedom of Assembly,” and co-author of “Foundations of Freedom.” He recently released Speaking Freely, a First Amendment Podcast.

Subscribe now

2025-2026 SCOTUS term: Free expression and related cases

Review granted

Chiles v. Salazar (argued: Oct. 7)

Olivier v. Brandon (argued: Dec. 3)

First Choice Women’s Resource Centers, Inc. v. Platkin (argued: Dec. 2)

National Republican Senatorial Committee v. Federal Election Commission (argued: Dec. 9)

Pending petitions

Freedom Foundation v. Turner

Villarreal v. Alaniz

Taylor v. Singleton

Pardue v. Hines

Sittenfeld v. United States

360 Virtual Drone Services LLC v Ritter

Dershowitz v. Cable News Network

Emergency docket (‘Shadow docket’)

Margolin v. National Association of Immigration Judges (application for a stay)

Chamber of Commerce v. Sanchez (application withdrawn)

Free-speech related

Trump v. Carroll (Federal Rules of Evidence speech-related case)

Petitions denied

Little v. Llano County

Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc.

Hartzell v. Marana Unified School District

Evans Hotels, LLC v. Unite Here! Local 30

Subscribe now

Last Scheduled FAN

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

Read those words, and then again. Ponder them; it will serve you well. After all, it seems that nearly every day there is some new and high-handed executive use of “almost unlimited power” — the Constitution and Bill of Rights be damned. Too many (from cabinet officials to members of Congress) remain cowardly silent to the “dangers” of such abhorrent abridgments of free expression, due process, and the rule of law.

Sometimes a sobering smack of old words, cast in modern times, can help to move the mind, if only a bit. On that score, Justice Holmes is called to the stand as an expert witness for the defense of our constitutional democracy.

Oliver Wendell Holmes, Jr. was 77 when he penned the words quoted above. He had been an Associate Justice for 16 years. The “Yankee from Olympus,” as Catherine Drinker Bowen once tagged him, had yet to compose his landmark free speech opinions in 1919’s Schenck v. United States and what followed. Still, there was a window into them in his unpublished dissent in Baltzer v. United States. As Sheldon Novick put it: “This was Holmes at his best.”

Holmes was gravely aware of the “cost of so much blood.” Fifty-six years earlier, he had been shot through the neck and wounded at the battle of Antietam Creek. Those costs were to be paid once again; the Nation had entered the war the year before. In that storm of conflict, President Woodrow Wilson aggressively hurled his political might behind the Espionage Act of 1917 and the Sedition Act of 1918.

It is in that context that Holmes urged those who exercise “unquestioned and almost unlimited power” to do so with caution, so that they might “err on the side of freedom.”

Yesterday’s admonition is well-suited to be today’s cautionary counsel.

To the best of my knowledge, this is the first time Holmes’ unpublished dissent has been made available online, sans any firewall. A print version of the opinion, replete with commentary, can be found in pages 215-219 of The Fundamental Holmes: A Free Speech Chronicle and Reader (Cambridge University Press, 2010), which I edited.

Baltzer v. United States

248 U.S. 593 (1918)

Case No.: 320

Vote: 7–2 (per curiam)

Argued: Late November 1918

Holmes’ dissent distributed: December 3, 1918

Government concedes error: December 16, 1918

For petitioner: Mr. Joe Kirby

For respondent: Mr. William C. Rempfer

Emanuel Baltzer and William J. Head were farmers in Hutchinson County, South Dakota. After the United States entered World War I, it, along with twenty-six others, formed an organization known as a “German Socialist local,” and sent a petition “of an intimidating nature” to Governor Peter Norbeck of South Dakota. In the petition, they objected to the draft law quotas, criticized the war, and asked the governor to renounce the war. Though the petition was not circulated publicly, they were nonetheless convicted under the Espionage Act of 1917.

The plaintiffs in error appealed the ruling against them in the District Court for the United States for the District of South Dakota. Baltzer was the first such case involving a First Amendment right-of-petition claim to be heard by the Supreme Court. Although a majority was initially prepared to rule against the petitioners, no such opinion was ever rendered. Instead, the Justices granted the motion of the Solicitor General, who had confessed error. The Court then reversed and remanded the case. Before doing so, however, Holmes had prepared a dissent, which Brandeis planned to join.

In this regard, Sheldon Novick made some telling observations:

Holmes’s dissent was so disturbing in its attack on the majority, at a time when they feared growing civil unrest, that Chief Justice Edward Douglass White asked the Court to delay issuing any decision; and the Justice Department, apparently having learned of the dissent-perhaps from the Chief Justice or Brandeis, who was close to President Wilson, confessed error and withdrew. The following month, White assigned the opinion in Schenck to Holmes, in the hope of securing a unanimous Court, albeit a more moderate one.

Holmes’s dissent was never officially published and became publicly available only in 1991, though it was seldom noticed. (See Sheldon M. Novick, “The Unrevised Holmes and Freedom of Expression,” 1991 Supreme Court Review 301, 388-90).

Holmes’s dissent follows:

The only evidence against the plaintiffs in error is that the petition set forth in the indictment was signed and sent by them to the Governor of the State, and to two other officials probably supposed to have power. It was not circulated publicly. The signing and sending of it is taken to amount to willfully obstructing the recruitment and enlistment service of the United States. Uniting to sign and send it is supposed to amount to a conspiracy to do the same thing and also to a conspiracy to prevent the Governor by intimidation from discharging his duties as an officer of the United States in determining the quota of men to be furnished for the draft by the local board. I can see none of these things in the document. It assumes that the draft is to take place and complains that volunteers have been counted with the result that counties have been exempted. It demands that the Governor should stand for a referendum on the draft and advocates the notion that no more expense should be incurred for the war than could be paid in cash and that war debts should be repudiated. It demands an answer and action or resignation on penalty of defeat at the polls of himself and “your little nation J. P. Morgan.” The latter phrase was explained by the writer to mean J. P. Morgan’s class, as I think it obviously does without explanation. The class is supposed to stand behind the Governor and to be destined to defeat with him if he does not do as he is asked.

It seems to me that this petition to an official by ignorant persons who suppose him to possess power of revision and change that he does not, and demand of him as the price of votes, of course assumed to be sufficient to turn the next election, that he make these changes, was nothing in the world but the foolish exercise of a right. I cannot see how asking a change in the mode of administering the draft so as to make it accord with what is supposed to be required by law can be said to obstruct it. I cannot see how combining to do it is conspiracy to do anything that citizens have not a perfect right to do. It is apparent on the face of the paper that it assumes the power to be in the person addressed. I should have supposed that an article in a newspaper advocating these same things would have left untouched the sensibilities even of those most afraid of free speech. As to the repudiation of the war debt that obviously was a statement of policy not something contemplated as happening forthwith by the fiat of the Governor. From beginning to end the changes advocated are changes by law, not in resistance to it, the only threat being that which every citizen may utter, that if his wishes are not followed his vote will be lost.

The petition purported to come from members of the Socialist party all bearing German names. But those facts were not of themselves evidence of an attempt to obstruct. On the other hand they gave notice of probable bias on the part of the writers that would be likely to be appreciated by the world at large. I do not see that the case can be strengthened by argument if the statement of the fact does not convince by itself.

Real obstructions of the law, giving real aid and comfort to the enemy, I should have been glad to see punished more summarily and severely than they sometimes were. But I think that our intention to put out all our powers in aid of success in war should not hurry us into intolerance of opinions and speech that could not be imagined to do harm, although opposed to our own. It is better for those who have unquestioned and almost unlimited power in their hands to err on the side of freedom. We have enjoyed so much freedom for so long that perhaps we are in danger of forgetting that the bill of rights which cost so much blood to establish still is worth fighting for, and that no title of it should be abridged. I agree that freedom of speech is not abridged unconstitutionally in those cases of subsequent punishment with which this court has had to deal from time to time. But the emergency would have to be very great before I could be persuaded that an appeal for political action through legal channels, addressed to those supposed to have power to take such action was an act that the Constitution did not protect as well after as before.

Subscribe now

New book on Herndon v. Lowry (1937)

• Brad Snyder, “You Can’t Kill a Man Because of the Books He Reads: Angelo Herndon’s Fight for Free Speech,” (W.W. Norton, 2025)

The story of a young, Black Communist Party organizer wrongly convicted of attempting to incite insurrection and the landmark case that made him a civil rights hero.

Decades before the impeachment of an American president for a similar offense, Angelo Herndon was charged under Georgia law with “attempting to incite insurrection” ― a crime punishable by death. In 1932, the eighteen-year-old Black Communist Party organizer was arrested and had his room illegally searched and his radical literature seized. Charged under an old slave insurrection statute, Herndon was convicted by an all-white jury and sentenced to eighteen to twenty years on a chain gang. You Can’t Kill a Man Because of the Books He Reads chronicles Herndon’s five-year quest for freedom during a time when Blacks, white liberals, and the radical left joined forces to define the nation’s commitment to civil rights and civil liberties.

Herndon’s champions included the young, Black Harvard Law School-educated attorney Benjamin J. Davis Jr.; the future historian C. Vann Woodward, who joined the interracial Herndon defense committee; the white-shoe New York lawyer Whitney North Seymour, who argued Herndon’s appeals; and literary friends Ralph Ellison, Langston Hughes, and Richard Wright. With their support, Herndon won his freedom and reinvented himself as a Harlem literary star until a dramatic fall from grace.

A legal odyssey of Herndon’s narrow escape from certain death because of his unpopular political beliefs, You Can’t Kill a Man Because of the Books He Reads explores Herndon’s journey from Alabama coal miner to Communist Party organizer to Harlem hero and beyond. Brad Snyder tells the stories of the diverse coalition of people who rallied to his cause and who twice appealed his case to the U.S. Supreme Court. They forced the Court to recognize free speech and peaceable assembly as essential rights in a democracy ― a landmark decision in 1930s America as well as today.

Forthcoming book on Island Trees v. Pico

• Anthony Aycock, “Just Plain Filthy: The Story Behind Book Banning’s Trial of the Century,” Bloomsbury Libraries (June 11, 2026)

With the threat to intellectual freedom increasing around the country, this book takes a look at the first ever school book ban case to be decided by the high courts, and offers insights into how we can use history to help the future.

In 1975, the school board members of a small Long Island town did what they thought was a no-brainer: they ordered the removal of nine books from a high school library. The books included some classics — Richard Wright’s Black Boy; Desmond Morris’s The Naked Ape; Kurt Vonnegut’s Slaughterhouse-Five — but that didn’t matter to board chair Richard Ahrens, who called the collection “anti-American, anti-Christian, anti-Semitic, and just plain filthy.” Maybe he thought the town was with him. Maybe he thought nobody would care. He certainly didn’t think he would be sued by seventeen-year-old Steven Pico or that the case would end up before the United States Supreme Court, the first and only book ban dispute ever to do so.

The only one so far. Recent years have seen a surge in book challenges, and it is only a matter of time before another reaches the high court. Island Trees v. Pico ended in a loss for the school board, but not a resounding one. It left enough daylight for the current justices to reach a different conclusion. What was the court’s ruling? How did it come about? What was the book ban climate in the 1970s and 80s, and how did it differ from today’s? Just Plain Filthy is the first book to tell the complete story of Island Trees v. Pico, the flawed, fascinating case that is the cornerstone of intellectual freedom in America. For now.

New scholarly article on First Amendment exceptions to valid laws

• Richard H. Fallon, Jr., “First Amendment Exceptions to Otherwise Valid Laws: A Doctrinal and Meta-Doctrinal Perspective,” Northwestern University Law Review (2025)

When do the First Amendment’s Free Speech and Free Exercise Clauses require exceptions to generally valid laws? Recently, the Supreme Court has upheld a number of such exceptions, which excuse some speakers and religiously motivated actors from legal duties that apply to others, including in prominent cases under antidiscrimination statutes and emergency pandemic regulations. By contrast, other landmark cases–such as United States v. O’Brien and Employment Division v. Smith — insist that First Amendment exceptions should be rare.

In analyzing the fraught and confusing issues that surround First Amendment exceptions, this Article makes four main contributions. First, it conceptualizes claims to First Amendment exceptions as as-applied challenges, which the Supreme Court purports to welcome in other contexts, and elucidates the role of “severability” principles in making as-applied challenges possible. Insofar as as-applied challenges are unavailable, the Article argues, applicable doctrine necessarily relies on facial challenges to protect First Amendment rights. Second, the Article conducts a doctrinal survey of judicially mandated exceptions under both the Free Speech and Free Exercise Clauses and highlights the diverse variety of tests that determine when claims to exceptions can succeed.

The survey confirms that First Amendment exceptions are indeed exceptional, though not anomalous. It additionally establishes, however, that facial challenges are the more common mechanism for protecting First Amendment rights–a conclusion contrary to the Supreme Court’s frequent admonition that facial challenges should be rare and disfavored. Third, the Article probes beneath the surface of current doctrines authorizing First Amendment exceptions and generates insights about the nature of First Amendment rights and the diverse interests that those rights protect.

Based on variance in the Supreme Court’s receptivity to claims to First Amendment exceptions, the Article draws provocative conclusions about which underlying interests the Justices view as more and less deserving of judicial protection. Fourth, the Article exposes flaws in the Supreme Court’s reasoning in designing and applying frameworks authorizing First Amendment exceptions in two recent leading cases, 303 Creative LLC v. Elenis under the Free Speech Clause and Tandon v. Newsom under the Free Exercise Clause. Overall, the Article enriches previous understandings of how exceptions do and should fit into a complex ecosystem of First Amendment rights and interests

Forthcoming scholarly article on facial recognition technology and the First Amendment

• Joseph A. Tomain, “Facial Recognition Technology and the First Amendment,” Michigan Technology Law Review (2026)

The growing ubiquity of facial recognition technology (FRT) is a problem. While much has been written on harmful government use of FRT, little has been written regarding harmful private actor use. This Article helps fill a gap in the literature by providing a detailed analysis of the First Amendment interests at stake when private actors use FRT. Specifically, this Article analyzes whether laws that limit the use of publicly available photographs to create faceprints for inclusion in FRT databases violate the First Amendment rights of private actors.

In May 2025, a multidistrict litigation against Clearview AI, an FRT company, offered an opportunity to answer that question, but it settled. The court stated that the “settlement agreement leaves unresolved the question that motivated this multidistrict litigation: whether the collection of publicly available biometric information for use by private or government entities . . . is reconcilable with constitutional privacy rights.” This Article helps answer that unresolved question. But privacy is too narrow a framework. Constitutional rights of free speech, association and assembly are also affected.

This Article makes two claims, one descriptive and one normative. The descriptive claim is two-fold: (1) existing First Amendment law does not resolve the novel question of whether laws that limit how private actors use publicly available images violate their First Amendment rights, and (2) free speech advocates are divided on the proper response. The normative claim answers the unresolved question by concluding that some regulation of private actor use of publicly available images to create faceprints and FRT databases should be found constitutionally permissible.

Not only does this Article analyze the First Amendment arguments of FRT companies like Clearview AI, but it also introduces the other half of the story: the First Amendment interests of the faceprinted. After identifying problematic uses of FRT and showing the inadequacy of existing law, this Article makes the normative argument by engaging with three methods of constitutional interpretation, identifying First Amendment values that support regulating the use of FRT, and drawing lessons from Fourth Amendment doctrine and theory.

Related: AI lawsuits

• Dave Collins, Matt O’Brien, and Barbara Ortutay, “Open AI, Microsoft face lawsuit over ChatGPT’s alleged role in Connecticut murder-suicide,” ABC News (Dec. 11)

• Will Steakin, “Lawsuit alleges ChatGPT convinced user he could ‘bend time,’ leading to psychosis,” ABC News (Nov. 7)

Floyd Abrams on ‘How Unique is the First Amendment?’

• “2025 Christiane Amanpour Lecture: How Unique is the First Amendment?” URI Harrington School of Communication and Media (Nov. 3, 2025)

Institute For Free Speech exchange on ‘gender ideology’ and free speech

• “Speech Under Fire: How Gender Ideology Threatens Free Speech,” Institute for Free Speech (Nov. 24, 2025)

Sex-based rights activists Glenna Goldis and Kara Dansky join IFS Senior Attorney Del Kolde to discuss how gender ideology threatens free speech. IFS Senior Attorney Brett Nolan moderates the discussion.

More in the news

• “Somali Flag Flown Outside Vermont School Building Over Trump ‘Garbage’ Slur Brings Threats,” First Amendment Watch (Dec. 15)

• Byron Tau, “How a Calif. AM radio station struggles under Trump administration’s assault on news media,” Free Speech Center (Dec. 15)

• Graham Piro, “Texas runs afoul of the First Amendment with new limits on faculty course materials,” FIRE (Dec. 12)

• “California Colleges Settle Antisemitism Complaints With Jewish Groups and Individuals,” First Amendment Watch (Dec. 12)

• D.D. Degg, “Cartoon Facebook Page Wins First Amendment Lawsuit,” The Daily Cartoonist (Dec. 12)

• “FIRE statement on Trump demand for social media history of foreign tourist,” FIRE (Dec. 10)

• Marc Tamasco, “Jane Fonda says Warner Bros. Discovery sale ‘threatens’ the First Amendment, warns Trump will take advantage,” Fox News (Dec. 6)

• Liam Scott, “The SLAPP Problem Is Worse Than We Thought,” Columbia Journalism Review (Dec. 4)

• “From The Joke Files: A Comedy and Censorship Roundtable,” ACLU (Nov. 17)

Subscribe now

2025-2026 SCOTUS term: Free expression and related cases

Review granted

Chiles v. Salazar (argued: Oct. 7)

Olivier v. Brandon (argued: Dec. 3)

First Choice Women’s Resource Centers, Inc. v. Platkin (argued: Dec. 2)

National Republican Senatorial Committee v. Federal Election Commission (argued: Dec. 9)

Pending petitions

Pardue v. Hines

Sittenfeld v. United States

360 Virtual Drone Services LLC v Ritter

Emergency docket (‘Shadow docket’)

Margolin v. National Association of Immigration Judges (application for a stay)

Chamber of Commerce v. Sanchez (application withdrawn)

Petitions denied

Little v. Llano County

Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc.

Hartzell v. Marana Unified School District

Evans Hotels, LLC v. Unite Here! Local 30

Subscribe now

Last Scheduled FAN

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

The safe life is not worth living.

That provocative claim finds novel expression in my next two books, both works of fiction. Those works pay tribute to the value of risk. As I cast it in one of those forthcoming works:

Risk defines who we are or want to be. It is the oxygen that fills the lungs of the hero and heretic . . . To remove risk from life is to leave the human condition empty. . . Perhaps the greatest tragedy the ancient Greek gods could have inflicted on mortals was a life free of risk.

So much for teasers. I reference the idea of risk because I think it is germane to this post on the psychology of free speech and to the risks involved in defending it — risks I think worth taking, at least as a presumptive matter.

The paradoxical process

Free speech is a paradox. On the one hand, the very idea encourages us to seek the unattainable: full toleration of the views of others. While it makes for a worthy fantasy, it cuts against the grain of the human psyche. On the other hand, take it out of the psychological equation and what you have is tyranny over the minds of men and women.

Free speech is more a struggle than a realizable goal, more a work in constant motion than a destination arrived at, and more a formula for creating enemies than winning friends — at least, if faithfully practiced.

Mind you, this does not mean we should forsake it, but rather that we should be attentive to its real-world costs and thereby risk our comfort today in the name of a better tomorrow. Or at least that is the hope. In all of this, the focus is on the psychology of free speech and how it functions with competing human instincts. That said, our commitment to the free speech principle should remain an aspirational ideal for any variety of reasons.

“Congress shall make NO law…”

Despite what James Madison penned when he wrote the First Amendment, the “no law” prohibition has never been construed to be an absolute bar. Exceptions were crafted onto the 1791 guarantee (see e.g., United States v. Stevens). That fact was understood when the drafters of the early state constitutions added a “being responsible for the abuse” exception to their free expression clauses (see e.g., Pennsylvania Declaration of Rights, sect. 7) In certain respects, they (like every textualist since) appreciated the psychological dissonance of staunchly committing to the Madisonian ideal.

Why do I say this? Well, it’s natural to prefer one’s own over others. Both heart and mind tick that way. So when a Nat Hentoff type comes along and proclaims “Free Speech for Me — but not for Thee,” he is depicting a psychological default position, albeit one he contested. That partisan mindset informs much of the hypocrisy of the very crowds that yesterday preached the free speech gospel but today abridge it with wild abandon.

Take yesterday’s liberal free speech champions. They hailed that ideal when it came to Leftist causes, but remained terribly silent on everything from government jawboning to cancel culture. Or consider yesterday’s conservative free speech champions, who reveled in condemning Leftists’ abridgments of the First Amendment but today are disgustingly silent when it comes to the Trump Administration’s unparalleled violations of the First Amendment.

What explains this? Again, my answer: it’s natural to prefer one’s own over others. That’s just how the mind works, though in more sober moments, the free speech principle also urges the mind to consider its virtues as a “safety valve” to help curb social conflict. But moving the mind to that place takes work — typically more than the average psyche is willing to tolerate.

Justices Holmes and Black

Despite all his heroic free speech dissents, Justice Oliver Wendell Holmes was more a Darwinian realist than a First Amendment absolutist. There is a passage of realist candor in his dissent in Gitlow v. New York (1925) that is rare to find in those who champion First Amendment primacy. Here is that passage:

Every idea is an incitement. It offers itself for belief, and, if believed, it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration. If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way…

Note here that the Darwinian-minded Holmes understood that the free speech principle might lead to a “dictatorship.” He did not sugarcoat that idea. Think of such realism as free speech unbound — that is, the principle is untethered from any competing psychological safe-harbor mooring.

By contrast, consider Justice Hugo Black, the champion of free speech absolutism — until such absolutism hit too close to home, as in the protests cases of the 1960s, such as Cox v. Louisiana (1965) and Tinker v. Des Moines (1969). He feared what such protests were doing to his beloved nation.

While Holmes’ dissents are habitually defended by free speech advocates, it is largely because they fail to see the dark side of his Gitlow dissent. As for those who habitually criticize Black’s breach of the free speech principle, they often do so because they fail to appreciate the psychological factor at work there.

Two minds at work: One bold and risk-averse, the other fickle but self-protective. So ask yourself, whose view do you prefer? Then ask yourself, which one do you actually practice?

Freeing speech

So much of First Amendment talk is fixated on rationality, on Enlightenment-like ideas. Oh yes, there are those self-realization and self-expression tenets that blend into the conceptual mix. Close, but not close enough, to the outrageously poetic side of the psychological ledger. That is: What about speech that screams out to be freed from the norms of convention? Or what about speech that wants to do no more than howl at the moon in the face of a world overwhelmed by madness?

We live in such times — times that test men and women’s souls. The need to scream, to vomit out the agony of struggling to survive in a nation drowning in insanity, is part of the psychology of speech. Nothing rational, nothing communal, nothing doctrinal — just an unrelenting need to free speech from normalcy, from the prescribed ways to speak.

Romantic and insanely reckless? Perhaps, but so what? Being normal is insufficient to nourish the needs of the inner self; the fact is, too often it leaves it starving. For some, there is no other option but to enter the marketplace of ideas (a wildly exaggerated ideal) and yell “FUCK IT!” until one’s lungs are emptied.

I am, therefore I speak, therefore I scream. It’s just that damn simple.

Psychological babble?

If you want to piss off your friends, just champion free speech sans any partisan gloss. Don’t believe me? Just consider the heroic and heretical life and times of one Greg Lukianoff (see e.g., Natalie Kitroeff, “The Lonely Work of a Free-Speech Defender” in The New York Times’ “The Daily” podcast). In some important respects, Greg is the kind of person championed in my forthcoming precarious works of fiction — someone whose character plights fluctuate between commendation and condemnation.

So, where am I going with all of this psychological “babble”? Well, what I am not urging is any rejection of the Madisonian ideal. What I am stressing is that it is natural for people to be hypocritical when it comes to tolerating free speech. That is the psychological default position. Then again, that psychological condition need not be absolute; it can be better informed by appreciating the value of stepping outside of one’s comfort zone. And that is because to be fully human we must also embrace risk — up to a point.

Bottom line: When Madison argued for “no law,” he was asking a hell of a lot of us, both as a political principle and as a psychological one. More must be said, but you’ll have to wait until my Forbidden Freedom novel comes out — followed by my collection of short stories titled I Take My Chances.

Subscribe now

Court denies review in book removal case

This past Monday, the Court denied review in Little v. Llano County. The issue raised in that case was whether certain book-removal decisions are subject to scrutiny under the Free Speech Clause of the First Amendment.

The case arose against the backdrop of the urging of a handful of private citizens to remove seventeen books from the county library’s shelves. A district court found that those book-removal decisions were motivated by a desire to censor particular viewpoints.

In her petition for review, Elizabeth Prelogar set out the general facts as follows:

This case presents a critically important First Amendment question that has divided the circuits. In recent years, state and local governments have increasingly removed books from public libraries because they disagree with the ideas those books promote. Here, for instance, the public library in Llano County, Texas, removed books — including publicly acclaimed nonfiction works and memoirs — because they espoused ideas about racial justice and gender identity that government officials deemed “inappropriate.” Such a viewpoint-based book ban violates the “bedrock principle underlying the First Amendment”: “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989).

The removed books include: a work examining the history of racism in the United States, which the New York Times Book Review lauded as “an instant American classic and almost certainly the keynote nonfiction book of the American century thus far,” Dwight Garner, Isabel Wilkerson’s ‘Caste’ Is an ‘Instant American Classic’ About Our Abiding Sin, N.Y. TIMES (Jan. 21, 2021); a work chronicling the Ku Klux Klan, its origins, and its growth in the United States, which has been called “an exemplar of history writing and a must for libraries,” They Called Themselves the K.K.K: The Birth of an American Terrorist Group, KIRKUS (May 31, 2010); several award-winning, coming-of-age novels or memoirs; and a classic, Caldecott-Medal-winning children’s picture book, (In the Night Kitchen, by Maurice Sendak).

Amicus briefs in support of the Petitioner were filed by:

• Foundation for Individual Rights and Expression

• The National Coalition Against Censorship

• Penguin Random House

• PEN America Center

• American Library Association

• First Amendment Law Professors

Related

• Eugene Volokh, “S. Ct. Declines to Rehear Fifth Circuit’s Holding That Public Libraries May Select/Remove Books Based on Viewpoint,” The Volokh Conspiracy (Dec. 8)

Forthcoming book on banning books

• Samuel Cohen, “Banning Books in America: Not a How-to,” Bloomsbury Academic Press (Feb. 19, 2026)

This is a book about banned books in the U.S. — about reading them, teaching them, and lending them under the shadow of political pressure not to.

Banning Books in America features novelists on banning and being banned, arguments about the histories and politics of book banning, readings of banned books in national and international contexts, and responses to new legislation by anti-censorship advocates, teachers, and librarians. Together, these writers and educators provide a view from the trenches of the wars on reading. They offer, if not a single blueprint, models for how to think about what it means to ban books and how to fight back against the forces that would ban them.

This book shows that at the heart of this issue is the question of what books mean to people. Some Americans are determined to decide which books other Americans shouldn’t get to read. Why these books? Why now? Anyone who seeks to answer these questions must examine the context, historical and current, in which Americans allow this to happen.

This is a book about book banning in America, and so it is a book about America.

Samuel Cohen is Associate Professor of English at the University of Missouri, Columbia, USA, where he teaches a course on banned books. He is the author of After the End of History: American Fiction in the 1990s (Choice Outstanding Academic Title, 2010) and co-editor of The Legacy of David Foster Wallace (2012) and The Clash Takes on the World (Bloomsbury, 2017). He is the series editor of The New American Canon: The Iowa Series in Contemporary Literature and Culture.

Comstock’s crusade: More on ‘certainty is the censor’s servant’

After last week’s post, I “recalled” that someone else had made the same point in connection with Anthony Comstock’s moral crusade. Fact is, FIRE Chief Counsel Robert Corn-Revere’s point is spot on, and well made:

• Robert Corn-Revere, “The Mind of the Censor and the Eye of the Beholder,” Cambridge University Press (2021)

Ten Rules for the Morals Entrepreneur

Rule #1: Exhibit Moral Certainty.

Comstock didn’t have to work at this attribute, as belligerent sanctimoniousness came to him quite naturally. The thing about being on a holy mission is that the crusader never doubts the righteousness of the cause, and that was certainly true of Anthony Comstock. The man was, in the words of his biographers, “a four-square granite monument to the Puritan tradition.” Comstock firmly believed “in himself and in his work to the end.”

His writings exhibited an unshakable certitude. Comstock described the statutes adopted in his name as “the most righteous laws ever enacted,” calling them a “barrier between youth and moral death.” When he acted to suppress Margaret Sanger’s pamphlet “Family Limitation,” he called the publication “contrary not only to the law of the State, but to the law of God.”

In his prolific writings documenting his campaign for moral purity, Comstock said his purpose in writing was “in the hope that the blind be made to see and the erring to correct their ways.” He said his goal was to “appeal for greater watchfulness on the part of those whose duty is to think, act, and speak for that very large portion of the community who have neither the intellect nor judgment to decide what is wisest and best for themselves.”

Comstock was so wrapped up in the belief he was on god’s holy mission as to blur the distinction between deity and man. His grandiosity was revealed most when in the throes of one of his perennial bouts of self-pity brought on by what he saw as unjust and uninformed attacks on his character. When warned that his reputation would be maligned by those seeking to repeal the postal law, Comstock replied, “I cannot expect to have better treatment than our blessed Master.”

Perhaps Oliver Wendell Holmes had Anthony Comstock in mind when he wrote in 1919 that persecution of disfavored ideas and expression is perfectly logical if “you have no doubt of your premises or your power and want a certain result with all your heart.” But where Holmes encouraged self-doubt and caution as a hedge against tyranny, Comstock pushed in the opposite direction. Like Samson’s flowing locks, the source of Comstock’s strength was his cocksureness. The way to tell a censor, according to Supreme Court Justice Anthony Kennedy, is by their level of self-assurance. So it was with Comstock. And so it is with all who believe his or her conception of truth, morality, or sensitivity to offensiveness can override the right of another individual to write or speak. Comstock’s creed was the mirror opposite of words often attributed to Thomas Jefferson, that “eternal vigilance is the price of liberty.” For the vice hunter, Comstock wrote, “eternal vigilance is the price of moral purity.” No doubt about it.

Related

• Marie Fiala, Alex Kozinski, John P. Coale, and Andrei Popovici’s amicus brief in Trump v. Twitter (9^th Cir., 2022)

Since taking office, the Biden administration has acted aggressively to bully, encourage, and collude with social media companies to censor speech that departs from the “party line” regarding COVID vaccines and treatments, one of the categories of disfavored speech.

Apple said to have yielded to government pressure to remove ICE tracking app

• Tripp Mickle, “App That Tracks ICE Raids Sues U.S., Saying Officials Pressured Apple to Remove It,” The New York Times (Dec. 8)

The developer of ICEBlock, which notifies users of ICE agent sightings, said Attorney General Pam Bondi censored his free speech.

For six months, Apple distributed an app called ICEBlock that allowed users to alert people when they saw Immigration and Customs Enforcement agents. But after the Trump administration complained that the app endangered officers, Apple removed it.

On Monday, the app developer, Joshua Aaron, sued top Trump administration officials, accusing them of pressuring Apple to stifle his free speech and his right to create, distribute, and promote ICEBlock.

The suit, which was filed in the U.S. District Court for the District of Columbia, claimed that Attorney General Pam Bondi abused the government’s power when the Justice Department contacted Apple and demanded it remove the app, which she said she had done in a statement to Fox News in October. She said Apple had removed the app after her request.

More in the news

• Lisa Kashinsky, “Rahm Emanuel says US should follow Australia’s youth social media ban,” Politico (Dec. 9)

• “Florida Governor Declares Muslim Civil Rights Group a Terrorist Organization,” First Amendment Watch (Dec. 9)

“[The executive] order instructs Florida agencies to prevent the two groups and those who have provided them material support from receiving contracts, employment, and funds from a state executive or cabinet agency.”

• BrieAnna J. Frank, “Ex-FBI agents just sued Kash Patel. Why their case could prove complex,” USA Today (Dec. 9)

• Garrett Gravley, “Trinity College bans political activism over chalkboard messages,” FIRE (Dec. 8)

• Eugene Volokh, “Speech to the Public Laying Out Legal Theories Isn’t Unauthorized Practice of Law,” The Volokh Conspiracy (Dec. 8)

• Peter Brown, “Mental Health Warnings Confront the First Amendment,” Law.com (Dec. 7)

• “Ballot Committee Fights Speech Mandate at the Colorado Supreme Court,” Institute for Free Speech (Dec. 5)

• Samuel J. Abrams, “If free speech only matters when convenient, it isn’t free at all,” FIRE (Dec. 1)

Subscribe now

2025-2026 SCOTUS term: Free expression and related cases

Review granted

Chiles v. Salazar (argued: Oct. 7)

Olivier v. Brandon (argued: Dec. 3)

First Choice Women’s Resource Centers, Inc. v. Platkin (argued: Dec. 2)

National Republican Senatorial Committee v. Federal Election Commission (argued: Dec. 9)

Pending petitions

Pardue v. Hines

Sittenfeld v. United States

360 Virtual Drone Services LLC v Ritter

Emergency docket (‘Shadow docket’)

Chamber of Commerce v. Sanchez (application withdrawn)

Petitions denied

Little v. Llano County

Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc.

Hartzell v. Marana Unified School District

Evans Hotels, LLC v. Unite Here! Local 30

Subscribe now

Last Scheduled FAN

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

When certainty is the absolute command, censorship is the predictable consequence. Oh, how many women have been burned and men guillotined in certainty’s punitive name. It’s an old story with new twists.

Think of it: Surprisingly few, if any, works on the First Amendment have studiously explored the relation between free speech and certainty. The same holds true for decisional law. While this relationship is inherent in much free speech theory and doctrine, its treatment has, nonetheless, been rather opaque. If one were to tease out — philosophically, textually, and operationally — the significance of that relationship, what would it mean for our First Amendment jurisprudence?

‘And yet it moves’

In some vital ways, the First Amendment works to counter self-righteous claims of certainty. It is likewise employed to demand a degree of certainty from those who wish to cabin free speech rights. What follows draws on the words quoted immediately above — words purportedly spoken by Galileo Galilei when he was persecuted by ecclesiastical inquisitors for defending the heliocentric theory of Copernicus. The sketch of ideas below argues that many free speech theories (from Milton to Meiklejohn and beyond) have the net effect of constricting our First Amendment freedoms based on threadbare claims to normative benefits and equally untrustworthy claims of societal harm (so prevalent in the Trump era).

In this general sense, many free speech theorists might be viewed as the descendants of Galileo’s ecclesiastical detractors insofar as they invoke their own certainty of morals (or normative theories) or alleged harms to trump facts in order to censor speech. This problem is compounded when First Amendment lawyers must disingenuously pigeonhole their clients’ speech into the doctrinal boxes compatible with suspect normative theories. Strange as it is, in such circumstances, falsity is necessarily called into the service of placing a false normative face on expression, which both diminishes the nature of the message while disingenuously advancing some alleged normative good.

By way of a bold counter to all such theories, and duly mindful of the role of real harm in the working scheme of things, might we think of the First Amendment premised less on certainty (and its conceptual cousin, normativity) than on risk — real and substantial risks, properly comprehended. Thus understood, the very idea of risk deserves to be an accepted and preferred part of the calculus of decision-making, be it judicial, legislative, or executive. Hence, at the philosophical level, a risk-free First Amendment is a contradiction, while at the operational level, a risk-minimizing theory is a formula for suppression.

Risk is the lifeblood of the First Amendment.

Let us thus pause and reconsider the kind of First Amendment risk-taking once roundly championed by Justice Louis Brandeis in his concurrence in Whitney v. California — a brand of freedom uncertain of its success is nevertheless hopeful of its attainment.

The Holy Apostolic Truth

Certainty is the censor’s servant.

That proposition, of course, cannot be canonical without being ironic. Still, it is close enough to whatever the mark is by which we evaluate ideas. Think of it: On April 12, 1633, when Galileo Galilei was brought before his ecclesiastical inquisitors for defending the heliocentric theory of Copernicus, the grand defenders of the Holy Apostolic Truth were certain of his religious heresy and his scientific error. The secular science he proffered in his Dialogue on the Great World Systems (1632) did not square with Ecclesiastical Truth. Hence, he was tried.

Later, after he was convicted and facing the specter of prison, the Italian astronomer and philosopher reluctantly recanted and mouthed the words of a humiliating abjuration to the General Inquisitors against Heretical Depravity. Legend has it that somewhere along the way Galileo muttered a dissident phrase, “Eppur si muove!” — “And yet it moves!”

Meanwhile, the decree of the Congregation of the Index prevailed, whereupon purist certainty returned to the bloody land.

Galileo did not follow the example of Socrates, who was forced to swallow the noxious certainty of his Athenian detractors. Facts aside, they, too, were convinced of the true identity of their gods and the Secret and Sacred Truths they espoused.

So it has been for centuries, no matter the nation, creed, or ideology. What well-functioning tyrannies and malfunctioning democracies have in common is some abiding commitment to certainty of one form or another. At some pinpoint in conceptual time, the former implodes into the latter, though it may take years to detect and even longer to concede. But by then it is too late, for certainty has taken its tragic toll. Oh, the evils that have been and continue to be committed — lives taken, torture inflicted, liberty deprived, and reputations smeared — in certainty’s name.

Beyond doubt

To say that one is certain is to say that something is beyond doubt. It is to say, for example, that the question under consideration is settled — it does not move anymore. “Moral certainty” adds an ethical or spiritual dollop of finality to the matter; it stills the need for discussion even more. In their unadulterated forms, monism, purism, absolutism, originalism, textualism, communism, liberalism, conservatism, atheism, and almost all other kinds of ism are akin to moral certainty — they are its secular cousins.

Where such “isms” rule over the minds of men and the wills of women, there is little room, if any, for movement in the opposite direction. They are Pavlovian words empty of content and meaning. When such words are triggered, any evil is possible — a fact exploited by authoritarian types. The inevitable result is censorship by the government’s formal decree or a group’s informal directive. Of course, the censor — even in the most tyrannical of regimes — always invokes some justification, some “higher good,” or some norm to rationalize or legitimize enforced silence. But whatever the justification, the followers of the Congregation of the Index demand their way.

Staying the censorial hand

The secular “gospel” of the First Amendment, by contrast, stays the censorial hand in ending discourse. As understood here, the Madisonian principle operates to move the vagaries of dialogue further along. In this sense, it is no faithful respecter of Truth with a capital T. Likewise, it is a foe to the dogmas of certitude preached by the Paters of Ism. Rather, the free speech frame of mind to which I refer invites Socratic gadfly types back into the city of dialogue from whence they were driven out. In other words, it allows the gods of the city to be challenged and the circularity of the heliocentricity of the sun to be defended. It leaves omniscience to the gods and everything short of that to mortals with enough will and determination to push Sisyphean stones.

Viewed in this light, the First Amendment both humbles and irritates us. It begs the nagging question, and then again, almost ad infinitum. In various ways — political and apolitical, civil and uncivil, scientific and unscientific, religious and secular — this way of acting disparages Darwin (and his critics), derides Derrida (and his opponents), and dismisses even the teachings of the great Dalai Lama (and his detractors). Why? There are many answers, but let me tender one, if only for preliminary consideration and examination.

Truth as a verb?

Start here: Truth might well be viewed more as a verb than a noun, more as a process than an end, and more incomplete than complete. Granted, gravity makes its demands, and cancer conquers many a cell. Admittedly, some degree of certainty is needed to live and survive. But in the long run, how we as humans come to understand such things is more an evolving cerebral matter than a static truth. We pay a price for certainty. Moreover, certainty has a way of becoming uncertain over time — the texture of truth never feels quite the same as one generation after another touches it.

Process (I do not say progress) is not a one-way ratchet. It does not always wrench towards truth, or improve life for the better, or explain things satisfactorily, or make the world more just, or more democratic, or more egalitarian, or coincide with our norms. Process, qua process, is indifferent to such values. It is no more normative than a hammer. To extend the metaphor, if in the name of the First Amendment we allow people to use such tools, we do so more in the blind hope that the resulting product will be more constructive than destructive. But who can be sure of how such matters will play out? By that calculus, this belief in the First Amendment asks us to trade certainty for contingency, and this with the uncertain expectation that something good may come of all of this. Those who oppose this contingent mindset often demand that the rest of us yield to their truths, that we abandon our doubts in the name of their convictions, and that we carve out ever more and more exceptions to the First Amendment, if only to make way for the norms which they are certain are central to any just society (or, should I say, to their view of such a society).

Mind you, I am not calling for a society free of values. My point is that such values exist in context and not in any caldron of categorical certainty. When the shine of glory fades over some heroes of the past, it is because the living are less certain of their greatness than their ancestors. Time allows us to see what their contemporaries either could not or would not see.

Humility born of doubt and the benefits of failure

Too often truth tumbles with hubris, with that smug audacity so confident of itself that it stands alone in the corner of the courtyard, deliberately distanced from the place where real ideas are exchanged. Its nemesis is a humility born of doubt about one’s own grasp of things, both epistemological and moral. We have made enough mistakes along the way to be able to benefit from the lessons that failure always has to teach. The benefits of failure, it should be noticed, come after the fact, after the proverbial damage has been done. Take, for example, the Pentagon Papers case, in which the government maintained that national security would be compromised and jeopardized if the leaks Daniel Ellsberg orchestrated and The Washington Post and The New York Times sought to publish were made public. As it turned out, the government’s claim was exaggerated and unfounded. Thus, had the Court ruled other than it did, it would have sided with the “Government’s Truth” leaving the country to learn “from the lessons that failure has to teach.”

By contrast, the First Amendment as portrayed herein moves in the opposite direction. It prefers humility to hubris, dialogue to censorship, correction to certainty, some uncomfortable chaos to lockstep conformity, and the free flow of information to brash claims of secrecy, at least when there is no real, substantial, and imminent harm to be suffered. By that measure, such a First Amendment mindset is a modest one, a mind open to the actual possibility that it might be wrong in its claims of truth, in its assessment of the societal worth of a given form of expression, in its democratic calculation, in its moral evaluation, in its aesthetic judgment, or simply wrong in its starting premises. Such a view of things, of course, is not a cure-all. It is rather a process that, in the democratic scheme of things, errs on the side of more expression, not less, if only because it aspires to teach us all a few lessons this side of failure.

Bottom lines: Beware

• of those who trade in absolutes,

• of those certain of their certainty,

• of those who have no tolerance for anyone with different views,

• of those who demand the final word when it comes to anything from crime to cryptocurrencies,

• of those who self-righteously preach patriotism or communism,

• of those whose GOD is supreme over all other gods and gospels,

• of those who champion “mob censorship” when it comes to views they dislike, and

• of those who advocate the tactical worth of murder, either at home or abroad.

Related

• , “Let’s Get Real About Free Speech,” TED Talk (April 9, 2025)

• Mackenzie Austin and Max Levy, “Speech Certainty: Algorithmic Speech and the Limits of the First Amendment,” Stanford Law Review (2025)

• Ronald K.L. Collins, “‘And Yet It Moves’—The First Amendment and Certainty,” Hastings Constitutional Law Quarterly (2018)

Subscribe now

Absolute harassment: TX governor tramples free speech by targeting ‘terrorism’

• Jacob Gaba, “Abbott’s blacklist: America’s tradition of branding dissent as treason,” FIRE (Nov. 25)

The governor of Texas just targeted a nonprofit over speech he doesn’t like.

[Recently,] Texas Gov. Greg Abbott labeled the Council on American-Islamic Relations a foreign terrorist organization, and prohibited them from purchasing land in the state. That move doesn’t just have practical ramifications for CAIR’s ability to operate in Texas — it follows an all-too-familiar pattern in American history. In moments of perceived crisis, public officials cast unpopular ideological minorities as internal enemies, exploiting “security” concerns to trample on speech and belief.

CAIR is a D.C.-based, national organization whose mission is to “enhance understanding of Islam, protect civil rights, promote justice, and empower American Muslims.” CAIR has been fiercely critical of Israel and American efforts to support Israel’s military campaign in Gaza. Recently, CAIR successfully sued Abbott’s administration over executive orders that targeted pro-Palestinian campus protesters. CAIR also defended EPIC City, a Muslim-oriented development in Texas that Abbott investigated in September.

Against that backdrop, Abbott’s order designating CAIR cites to the organization’s protected speech and viewpoints, alleges that CAIR supports terrorism, and says they are “radical extremists” who “are not welcome in our state.” He then offers the vague assertion that CAIR wants “to forcibly impose Sharia law and establish Islam’s ‘mastership of the world.’” CAIR has since sued Abbott’s administration for the terror designation.

Using the language of “terrorism” and “foreign enemy” is not a new tactic to quash disfavored speech. In 1918, on the heels of World War I and the ensuing anti-German and anti-Bolshevik fervor, Montana passed its Sedition Act. The Act made it a crime to “utter, print, write or publish any disloyal, profane, violent, scurrilous, contemptuous, slurring or abusive language” about the U.S. government, Constitution, flag, military, or any language “calculated to incite or inflame resistance” to federal or state authority during the war. In other words, it made criticizing the U.S. illegal.

First Amendment Watch launches ‘SLAPP Back Initiative’

• “Introducing The SLAPP Back Initiative,” First Amendment Watch (Nov. 18)

Findings from a new initiative at NYU, which tracks and analyzes strategic lawsuits against public participation

Courts dismissed dozens of strategic lawsuits against public participation targeting media in 2024, finds a new analysis from New York University’s First Amendment Watch. SLAPPs, often filed by corporations or deep-pocketed plaintiffs, are civil claims brought against individuals or organizations engaged in public expression and are seen by many as threats to free speech.

“Our initial findings make clear what observers have long suspected: the media are a significant target of potentially frivolous or malicious litigation designed to chill speech and stifle scrutiny,” says First Amendment Watch’s founding editor Stephen D. Solomon, whose team led the analysis. The analysis stems from a newly launched project housed at NYU’s Arthur L. Carter Journalism Institute: The SLAPP Back Initiative, the country’s first national database of SLAPP claims — potentially meritless legal actions that experts say can nonetheless force defendants to spend significant resources defending themselves, ultimately chilling criticism and threatening First Amendment freedoms.

The initiative’s analysis identified 500 cases that were decided on the merits of an anti-SLAPP motion last year, including 69 involving the media, most of which were either fully or partially dismissed by judges.

“These lawsuits affected every type of media entity across every medium at every level of the industry—from individual journalists and commentators to their publishers and sources,” says Solomon.

Related

• “Report: Record Number of States Now Protect Free Speech from Frivolous Lawsuits,” Institute for Free Speech (Aug. 25)

Forthcoming book on viewpoint diversity

• John Tomasi and Bernard Schweizer, eds., “Viewpoint Diversity: What It Is, Why We Need It, and How to Get It,” Heresy Press (March 10, 2026) (Preface by John Haidt)

Viewpoint diversity is suddenly on everyone’s lips — yet few agree on what it really means. Is it about political balance? Free speech? Academic inclusion? Or something far more vital — the courage to engage across difference?

In Viewpoint Diversity: What It Is, Why We Need It, and How to Get It, leading heterodox thinkers tackle one of the most urgent questions of our time: how to keep open inquiry and constructive disagreement alive amid rising conformity on both left and right. Spanning essays on higher education, politics, culture, and the arts, this bold collection offers both sharp diagnosis and practical solutions for cultivating genuine pluralism.

Timely, provocative, and refreshingly constructive, Viewpoint Diversity makes the case for a richer, freer, and more resilient public culture — one that thrives not in spite of disagreement, but because of it.

podcast on donor disclosure and political party contributions

• “Donor disclosure and campaign finance at SCOTUS,” FIRE (Nov. 25)

The Institute for Free Speech’s Bradley Smith and Brett Nolan join the show to discuss two upcoming Supreme Court arguments involving donor disclosure (First Choice Women’s Resource Centers, Inc. v. Platkin) and political party contributions to candidates (National Republican Senatorial Committee v. FEC).

The conversation also explores the broader landscape for political speech and campaign regulation, what legal battles may be next for the Supreme Court, and how both guests found their way into First Amendment advocacy.

More in the news

• “Experts Doubt the Pentagon Can Punish Kelly Over the ‘Illegal Orders’ Video,” First Amendment Watch (Dec. 1)

• “Northwestern To Pay $75 Million in Deal With Trump Administration To Restore Federal Funding,” First Amendment Watch (Dec. 1)

• Eugene Volokh, “$115K Defamation Verdict Over Workplace Accusations of Domestic Abuse,” The Volokh Conspiracy (Nov. 28)

• , “A Retired Police Officer Posted a Meme: It Earned Him 37 Days in Jail,” The New York Times (Nov. 26)

• Josh Ferstein and Kyle Cheney, “Appeals court upholds $1M penalty against Trump in lawsuit against Hillary Clinton,” Politico (Nov. 26)

• “New! Free First Amendment e-book for educators,” The Free Speech Center (Nov. 26)

• “FIRE statement on Pentagon investigation of video calling on troops to refuse illegal orders,” FIRE (Nov. 24)

• Samantha Waldenberg, Arlette Saenz, and Kit Maher, “Trump accuses Democratic lawmakers who urged military to disobey illegal orders of ‘seditious behavior, punishable by death’,” CNN (Nov. 20)

Subscribe now

2025-2026 SCOTUS term: Free expression and related cases

Review granted

Chiles v. Salazar (argued: Oct. 7)

Olivier v. Brandon (to be argued Dec. 3)

First Choice Women’s Resource Centers, Inc. v. Platkin (to be argued Dec. 2)

National Republican Senatorial Committee v. Federal Election Commission (to be argued Dec. 9)

Pending petitions

Little v. Llano County

Pardue v. Hines

Sittenfeld v. United States

360 Virtual Drone Services LLC v. Ritter

Emergency docket (‘Shadow docket’)

Chamber of Commerce v. Sanchez

Petitions denied

Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc.

Hartzell v. Marana Unified School District

Evans Hotels, LLC v. Unite Here! Local 30

Subscribe now

Last Scheduled FAN

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

The first sight visitors may get on their way into Bloomington is a billboard accusing Indiana University of a cover-up.

— Ethan Sandweiss (Indiana Public Media, Nov. 10)

I cannot say it enough: The First Amendment is more than what lawyers and judges do; it is also about how We the People exercise that right. By that measure, something is to be said about creative expression, which sometimes can be more effective than litigation.

Case (or should I say, “picture”) in point:

Don’t you just love it? I mean, poking a thumb in the eye of a free speech abridger? Such signs can sometimes be more effective than ten stacks of court filings. And the folks at FIRE know that as they continue their creative free speech campaign against Indiana University over its campus speech codes and practices. This campaign comes against the following backdrop of events:

Indiana University has a free speech crisis — and it’s only getting worse.

Last year, administrators deployed police snipers to oversee peaceful protesters. This year, they fired the director of student media for refusing to censor the campus newspaper.

In between, IU has silenced student groups, suspended faculty critics, canceled art exhibits, and shuttered campus events from every side of the political spectrum. Whether you’re conservative or liberal, pro-Palestinian or pro-Israel, or simply a journalist doing your job, IU’s message is the same: Shut up, or pay the price.

No wonder IU now ranks near the very bottom of FIRE’s College Free Speech Rankings — 255 out of the 257 schools surveyed — earning abysmal scores in openness, administrative support, and comfort expressing ideas. In fact, it’s the worst-ranked public school in America. Faculty don’t trust the administration to protect academic freedom. Students fear speaking their minds. The university is being sued for firing its student newspaper advisor after he stood up for free speech. And the eyes of the nation are watching.

Some administrators and government officials are not troubled by First Amendment lawsuits; they’re more than happy to waste public money to defend their unconstitutional behavior. Plus, it puts the free speech burden on those opposing their suppressive actions.

“Bring it on” is their mantra — until some group lights a fire under them by “billboarding” their reprehensible conduct and policies.

For all of her cagey ways, IU President Pamela Whitten (a communication studies scholar!) seems to have gotten the message — FIRE’s billboard message. Writing for the Indianapolis Star, Cate Charron reported:

As Indiana University navigates a host of First Amendment controversies and criticisms, President Pamela Whitten is asking the faculty council to consider installing a set of guiding principles regarding how the university upholds its free speech environment.

So, take heed: Be creative in speech and dissent. Think outside the law box; think in ways that enhance free speech values by exercising your First Amendment rights creatively.

Signs like FIRE’s billboards are a good sign for free speech.

Related

• Ethan Sandweiss, “IU lecturer removed from class during intellectual diversity investigation,” Indiana Public Media (Nov. 7)

• “Paths to protests: Gloria Browne-Marshall’s revealing new book,” FAN 478 (Jul. 17)

• “Court Halts Indiana University’s ‘Expressive Activity’ Policy Over First Amendment Complaint,” ACLU (May 29)

Subscribe now

A few words on certainty, risk, and free speech

• Ronald K.L. Collins, “‘And Yet It Moves’—The First Amendment and Certainty,” University of Washington School of Law

Contrariness makes for a better First Amendment fit than certainty. The ability to be torn, to hold opposing ideas at the same time, is a necessary condition for forthright thinking. To reconsider, reformulate, reinvent, and rearticulate one’s thought allows it to evolve beyond the rigid constraints of certainty.

[. . .]

To be a free people is to take risks. We cannot have genuine liberty if we cling to safety like children terrified of the dark. Free speech scholars may frighten us with the sky-is-falling scenarios, while contextualist balancers echo that theme in opposition to reaffirmations of free speech freedom. In that world, censors tempt us with promises of security. But in the end, it is too often a false promise. For little worth safeguarding is truly gained if liberty is the altar on which such sacrifices are made. Brandeis had it right: The First Amendment was made for a courageous people. And to be courageous means taking risks, which in turn sometimes means forsaking the security of collective certainty.

Trump Administration cannot fine or terminate U.C.’s federal funding

• “Judge Indefinitely Bars Trump From Fining University of California Over Alleged Discrimination,” First Amendment Watch (Nov. 17)

The Trump administration cannot fine the University of California or summarily cut the school system’s federal funding over claims it allows antisemitism or other forms of discrimination, a federal judge ruled late Friday in a sharply worded decision.

U.S. District Judge Rita Lin in San Francisco issued a preliminary injunction barring the administration from cancelling funding to UC based on alleged discrimination without giving notice to affected faculty and conducting a hearing, among other requirements.

The administration over the summer demanded that the University of California, Los Angeles, pay $1.2 billion to restore frozen research funding and ensure eligibility for future funding after accusing the school of allowing antisemitism on campus. UCLA was the first public university to be targeted by the administration over allegations of civil rights violations.

It has also frozen or paused federal funding over similar claims against private colleges, including Columbia University.

In her ruling, Lin said labor unions and other groups representing UC faculty, students and employees had provided “overwhelming evidence” that the Trump administration was “engaged in a concerted campaign to purge ‘woke,’ ‘left,’ and ‘socialist’ viewpoints from our country’s leading universities.”

Knight Institute and AAUP contest ‘ideological deportation’ policies

• Dora Gao, “Knight Institute and AAUP file motion to block Trump administration from deporting pro-Palestinian protesters,” Columbia Spectator (Nov. 16)

The Knight First Amendment Institute at Columbia, the American Association of University Professors, and the Middle East Studies Association filed a motion on Monday asking a federal judge to block what they describe as President Donald Trump’s administration’s “ideological deportation” policy targeting pro-Palestinian advocates.

In the filing, the plaintiffs argue that the Trump administration’s policy allows immigration officials to deny entry or deport non-U.S. citizens based on their political beliefs. The deportations and entry denials, the plaintiffs argue, have created what they describe as a “chilling effect” on academic freedom and international exchange.

The case, first filed in March 2025, went to trial in July. The Monday filing comes five weeks after U.S. District Judge William G. Young’s landmark ruling on Sept. 30, which argued that the Trump administration’s “conduct violated the First Amendment.”

The ruling marked one of the most direct legal challenges to the Trump administration’s treatment of student protesters. The Sept. 30 decision held that non-U.S. citizens “lawfully present here in the United States have the same free speech rights as the rest of us,” striking down the federal government’s efforts to deport students and faculty for participating in pro-Palestinian protests.

Paulson criticizes TN book-banning policy

• Ken Paulson, “Tenn. official’s order undermines our public libraries,” Free Speech Center (Nov. 17)

[I]t’s so disheartening to see the undermining of public libraries by Tennessee Secretary of State Tre Hargett, who sent a letter ordering Rutherford County libraries to identify any materials in their children’s collections that may be inconsistent with “Tennessee’s age-appropriateness laws” or President Donald Trump’s January executive order regarding “gender ideology,” according to The Tennessean.

The result: The Smyrna Public Library posted an “emergency closure notice,” closing the branch from Nov. 10-15 to “meet new reporting requirements from the TN State Secretary’s Office … for the purpose of reviewing inventory.” The Murfreesboro library will be closed Nov. 17-21 for the same purpose.

Think about that. The government is shutting down taxpayer-supported facilities because it regards some ideas as too dangerous for operations to continue before the shelves are scoured.

Coming next month: Zick on executive power and the First Amendment

• Tim Zick, “The First Amendment Lessons of Trump 2.0,” Thoughts on the First (Nov. 18)

  I am putting the finishing touches on my forthcoming book, Trump 2.0: Executive Power and the First Amendment, which will be published by Carolina Academic Press next month. If you had told me in January that I’d have enough material for a book after only about 10 months of Trump’s second term, well I’d have believed you: I published my first Trump/First Amendment book halfway through Trump’s first term.

  The second Trump term has already been the most impactful era for First Amendment freedoms since the McCarthy “Red Scare” of the 1950s. My forthcoming book records and organizes the torrent of executive orders and administrative actions that have already significantly affected First Amendment rights during the second Trump term. More importantly, it offers a vehicle for learning how law firms, universities, scientists, libraries, broadcasters, and others have responded to threats to those rights in real time. It asks, broadly speaking, how the First Amendment has performed as a check on aggressive and in many cases unprecedented exercises of executive power.

  The book uses judicial decisions, agency letters, pleadings, and other materials to analyze how the current administration’s exercise of executive power has affected First Amendment rights. This is not an “academic” monograph, but rather a resource that focuses on the real world application of First Amendment principles and doctrines to uses and abuses of executive power. The book facilitates learning through doctrinal synopses, discussion notes, and problem exercises. For example, one chapter problem exercise asks how you would represent Bruce Springsteen (“The Boss”) in a threatened investigation by the administration for alleged violations of campaign finance laws. Although primarily intended for classroom use, anyone who values First Amendment freedoms will find the materials useful in terms of processing the torrent of First Amendment conflicts and concerns of our present era.

New book, edited by Bollinger and Stone, on campaign finance decisions and reforms

• Lee Bollinger and Geoffrey Stone, eds., “Money, Politics, and the First Amendment: Fifty Years of Supreme Court Decisions and Campaign Finance Reforms,” Oxford University Press (March 20, 2026)

Money in political campaigns is a subject of endless current interest and enormous consequence for American democracy.

Beginning in 1976, in Buckley v. Valeo, the Supreme Court established a framework for public campaign regulation that declared that money constitutes “speech” and that the only constitutional basis upon which the government can regulate money was to prohibit corruption or the appearance of corruption. The Court then defined corruption narrowly and held that direct “contributions” to candidates could be limited on that basis, but that “expenditures,” by political candidates and others, could not.

Over time as the role of money became more and more serious in politics the Court in a number of decisions seemed to be turning more willing to accept regulation. But in Citizens United v. Federal Election Commission, the new conservative Supreme Court sharply turned against permitting regulation, including of corporations.

Today that regime of nearly full protection for anyone spending virtually any amount of money for or against candidates and issues remains securely in place. The question, after half a century of this system, is whether this interpretation of the First Amendment is sound or not. If yes, then what are the justifications and what will be the consequences? If not, then what are alternative interpretations and what would the world be like under each one?

The contributors, all scholars and experts in this area, give their interpretations and proposals.

Forthcoming scholarly article on First Amendment independent appellate review

• Courtney Douglas, “Independent Appellate Review and the First Amendment,” Boston College Law Review (Forthcoming, 2026)

First Amendment independent appellate review, now known as the Constitutional Fact Doctrine, calls on federal appellate courts to review de novo facts that strike at the heart of speech freedom claims. Yet the doctrine’s scope is underdefined, and the Court has never explained why, exactly, speech deserves this special protection.

In search of the Constitutional Fact Doctrine’s missing normative underpinnings, this Article recovers its overlooked origin story. This Article traces the doctrine’s roots not to early speech cases, but rather to capital criminal appeals brought to the Supreme Court predominantly by Black men sentenced to death for rape and murder in Southern states. The Supreme Court recognized the egregious equal protection and due process violations these petitioners suffered only by refusing to defer to lower courts’ factual findings in those cases. The doctrine migrated to the First Amendment realm in the 1960s through racial civil rights cases.

This evolution suggests that the Constitutional Fact Doctrine was never motivated by an abstract reverence for speech. Instead, it sought to address entrenched inequities and to safeguard democratic principles.

To that end, this Article proposes a new, more focused framework for applying independent appellate review in the First Amendment context. Courts should apply the doctrine (1) when it advances democratic interests weakened by structural forces or (2) when it resolves factual questions entangled with complex doctrinal standards. The Article applies this approach to the growing circuit split over the standard of review for true threats determinations and ultimately argues that independent appellate review is not warranted in that context.

This Article aims to align independent appellate review with its foundational purpose: ensuring that fundamental constitutional rights-including speech freedom-are vindicated with fairness and a pragmatic attention to power.

: FIRE’s London and Fitzpatrick on conversion therapy case and more

• “Conversion therapy at the Supreme Court,” (Nov. 13)

FIRE’s Ronnie London and Conor Fitzpatrick join the show to discuss the Supreme Court’s oral argument in the conversion therapy case, the Pentagon’s new press rules, Indiana University’s censorship rampage, and where the situation stands with visa and green card holders who say things the feds don’t like.

More in the news

• Eugene Volokh, “Friend-of-the-Court Brief in Massachusetts’ Social Media Addiction Lawsuit Against Instagram,” The Volokh Conspiracy (Nov. 17)

• “Judge denies Florida Fish and Wildlife biologist’s reinstatement after firing over Charlie Kirk post: ‘First Amendment is not absolute’,” CBS News (Nov. 14)

• Eugene Volokh, “Again with the Heckler’s Veto in a Government Employee Speech Case,” The Volokh Conspiracy (Nov. 14)

• “NEW HIGH: 3/4 of Americans say free speech is headed in the wrong direction,” FIRE (Nov. 13)

• “George Mason demands pro-Palestinian student group remove video from social media, but public universities can’t do that,” FIRE (Nov. 13)

• Alex Nguyen, “Texas ban on sexually explicit drag shows can be enforced, federal appeals court rules,” The Texas Tribune (Nov. 6)
  

  Subscribe now

2025-2026 SCOTUS term: Free expression and related cases

Review granted: four cases

• Chiles v. Salazar (argued Oct. 7)

• Olivier v. Brandon (to be argued Dec. 3)

• First Choice Women’s Resource Centers, Inc. v. Platkin (to be argued Dec. 2)

• National Republican Senatorial Committee v. Federal Election Commission (to be argued Dec. 9)

Pending petitions

• Little v. Llano County

• Pardue v. Hines

• Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc.

• Sittenfeld v. United States

• 360 Virtual Drone Services LLC v Ritter

Emergency docket (“Shadow docket”)

• Chamber of Commerce v. Sanchez

Petitions denied

• Hartzell v. Marana Unified School District

• Evans Hotels, LLC v. Unite Here! Local 30

Subscribe now

Last Scheduled FAN

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

The [Johns Committee] persecuted civil rights leaders, university professors, college students, public school teachers and state employees for imagined offenses against redneck sensibilities.... Niceties like due process or the right to counsel, or civil liberties were ignored. . . . [Among other things], they employed entrapment and blackmail.

— Fred Grimm, Sun-Sentinel (02/24/2019)

It’s an old story: The wrongs of the past take refuge in darkness, in stories lost to time, and in truths erased and in books banned. Tyranny (whether waged against political opponents or marginalized groups) fights to conceal its wrongs to ensure eternal ignorance of its actions. In that way, the wrongdoers of the past rely on the wrongdoers of the present to forever hide their misdeeds. By that measure, the truths of the past cannot survive if the powerful are hellbent on burying them and bullying anyone who exposes their lies.

That was certainly true of ruthless Florida officials, then and now. And it reveals how First Amendment rights of freedom of speech and association were abridged with wild abandon. But no matter, the witch hunt was on . . . and with great publicity.

Enter Robert Fieseler, historian and author of a new book titled American Scare: Florida’s Hidden Cold War on Black and Queer Lives. With narrative flair and scholarly credibility (supported by 110 pages of endnotes), Mr. Fieseler shines a revealing light on the inner workings of the Johns Committee (formally known as The Florida Legislative Investigation Committee).

The Johns Committee was a stepchild of the infamous anti-Communist investigative committees of the McCarthy era. In the late 1950s and the 1960s, the Johns Committee (named after Charley Eugene Johns, then a member of the Florida senate) revived the Second Red Scare and the Lavender Scare — both the handiwork of Senator Joseph McCarthy.

The Johns Committee thus undertook a sweeping campaign against allegedly subversive activities by academics, civil rights groups (especially the NAACP), suspected Communist organizations, and homosexuals. Though unfounded, all of these people were portrayed as “enemies of the state.”

Choice quotes from Robert Fieseler

Florida was a place where power played beyond ordinary rules and where some folks got away with anything.

The history they tried to kill has survived.

Perhaps the greatest liberty in any country is the freedom to know one’s country.

Boxes of truth

The revelations in Fieseler’s American Scare are breathtaking, both in amazing detail and horrific abuses of power. While Florida officials (then and now) did their best to cover up the secret files of the Johns Committee, thanks to Bonnie Stark (one of the first Johns Committee scholars), some 20 boxes survived, replete with secret, damning particulars and all.

“Because of the controversial nature of the Johns Committee’s investigations, its official records [were] sealed by the Florida Legislature” and remained so decades later, wrote Stark in her 1985 master’s thesis. As fate would have it, Stark crossed paths with Fieseler many years later and befriended him. She then entrusted her veritable war-room of files to him for use in American Scare, at which point the past reared its head vividly, and the individual stories of the thousands persecuted by the Johns Committee came to light.

Targeting the NAACP: It took a Supreme Court victory

With Columbo-like acumen, Fieseler revived scores of examples of cruel injustices committed against African Americans, such as Florida NAACP member Reverend Theodore Gibson (as in Gibson v. Florida Legislative Investigation Committee).

The irony is that the NAACP has a long history of intense opposition to communism and the Communist Party. Not surprisingly, it took a Supreme Court ruling to vindicate Gibson and the NAACP, who were successfully represented by NAACP Legal Defense lawyer Robert L. Carter.

Writing for the majority, Justice Arthur declared:

To permit legislative inquiry to proceed on less than an adequate foundation would be to sanction unjustified and unwarranted intrusions into the very heart of the constitutional privilege to be secure in associations in legitimate organizations engaged in the exercise of First and Fourteenth Amendment rights.

The ‘Queer Scare’ and ‘The Purple Pamphlet’: Tracking and tormenting gays

Fieseler also brought to light the malice waged against suspected homosexuals such as Art Copleston (a college student) and William James Neal (a black gay music teacher — see Neal v. Bryant). And then there was Sigismond Diettrich (a renowned authority on Florida geography and department chair at the University of Florida), who found himself on the wrong end of the Committee’s anti-gay purge.

The idea was to humiliate them, to harass them, and to portray them as depraved enemies of the state. The result: terrified citizens, suicide-driven victims, and ruined reputations.

To that end, in 1964 the Committee released a 52-page booklet entitled “Homosexuality and Citizenship in Florida” (replete with purple covers and artwork, hence nicknamed “the Purple Pamphlet”). Little was turned up as to any serious and meaningful threat gays posed to the citizenry of Florida, though the report did garner the desired effect of shaming and terrifying queer people.

The symbolic campaign continues

A symbolic restitution campaign continues to seek official apologies. It marks the sixth consecutive effort since 2019 on the part of Equality Florida and legislative sponsors to get the Florida Legislature to formally acknowledge and apologize for the extralegal actions of the 1950s/1960s Johns Committee.

“In an era of political murk throughout the Sunshine State,” said Robert Fieseler, “it seems that the ideals of truth, peace and justice come dropping slowly, and this apology campaign has become a genuine battle of attrition wherein conservative opponents fail to see the consequences of ignoring the past.”

“We introduce it not with the expectation that it will immediately pass, but with the knowledge that, by introducing it, we will get to talk about it more in the open,” said Equality Florida director Nadine Smith. “Eventually, we will chip away and get to the place where recognition, apology and the commitment to never return to those days will be made public,” she added.

As part of this community action, Fieseler has committed to testifying before the legislature on Florida Legislative Investigation Committee history. “I am determined to get the story of the Johns Committee on the record for as many times, and as many years, as it requires until the state says these simple words: ‘We are sorry.’”

Related

• Robert Fieseler, “The Beloved Professor and War Hero Persecuted in a Government Crusade Against Blacks and Gays,” Narratively (Nov. 7)

• David K. Johnson, “The Lavender Scare: The Cold War Persecution of Gays and Lesbians in the Federal Government” University of Chicago Press (2023)

• Lloyd Dunkelberger, “Lawmaker advances a state apology for the Johns Committee that targeted civil rights leaders and LGBTQ Floridians,” Florida Phoenix (Aug. 2, 2019)

• Judith G. Poucher, “The John’s Committee: A Historiographic Essay,” Florida Historical Quarterly (2014)

• James A. Schnur, “Closet Crusaders The Johns Committee and Homophobia, 1956-1965,” University of South Florida (2012)

• John Howard, “Carryin’ On in the Lesbian and Gay South” NYU Press (1997)

On YouTube

Subscribe now

SCOTUS denies review in 1-A case Obergefell damages case

• Breanne Deppisch and Anders Hagstrom, “Supreme Court rejects appeal from county clerk who sought to overturn same-sex marriage decision,” Fox News (Nov. 10)

The Supreme Court on Monday said it will not revisit its landmark decision that legalized same-sex marriage nationwide, leaving intact the 2015 protections granted to couples in Obergefell v. Hodges.

The Justices rejected an appeal brought by Kim Davis, a former Kentucky county clerk who was held in contempt after she refused to issue marriage licenses to same-sex couples due to her religious beliefs.

The Court declined to take up her appeal without explanation and without any noted dissents.

Though Davis’s appeal centered largely on First Amendment issues and questions of religious protection, her lawyers also requested that the Supreme Court consider overturning the 5-4 ruling in Obergefell . . . .

Related

• Ilya Somin, “Supreme Court Refuses to Hear Case Seeking to Overturn Obergefell,” The Volokh Conspiracy (Nov. 10)

Trump petitions High Court in Jean Carroll defamation case

Abbie VanSickle, “Trump Asks Supreme Court to Overturn Verdict in E. Jean Carroll Case,” The New York Times (Nov. 10)

President Trump asked the Supreme Court on Monday to overturn a $5 million civil judgment that he had sexually abused and defamed the writer E. Jean Carroll.

In the petition, lawyers for Mr. Trump claimed that the assertions against him were “implausible” and “unsubstantiated” and argued that the trial court had erred in a “series of indefensible evidentiary rulings.”

A copy of the petition, which had not yet appeared on the court’s public-facing docket, was reviewed by The New York Times. A spokesman for Mr. Trump’s legal team said the president would continue to fight the case and referred to it as “liberal lawfare.” Lawyers for Ms. Carroll declined to comment.

Mr. Trump’s lawyers had alerted the Supreme Court in late August that the president intended to ask the justices to review the case. He had been granted a filing extension with a deadline of Monday.

FIRE prevails in Pollster class-action case

• “VICTORY! Federal district court dismisses class-action suit against pollster J. Ann Selzer,” FIRE (Nov. 6)

This decision shows where petty politics ends and the rule of law begins. The court’s strongly worded opinion confirms that a legal claim cannot be concocted with political slogans and partisan hyperbole, and that there is no hiding from the First Amendment. This is a good day for freedom of speech.

– Robert Corn-Revere (counsel for defendant)

A federal district court today dismissed with prejudice a lawsuit against renowned Iowa pollster J. Ann Selzer, holding that the First Amendment bars the claims against her related to her October 2024 general election poll. As the court explained, “there is no free pass around the First Amendment.”

The lawsuit, brought by a subscriber to The Des Moines Register and styled as a class action, stemmed from a poll Selzer published before the 2024 presidential election that predicted Vice President Kamala Harris leading by three points in Iowa. The suit asserted claims, including under Iowa’s Consumer Fraud Act, alleging that Selzer’s poll, which missed the final result by a wide margin, constituted “fake news” and “fraud.”

Selzer, represented pro bono by FIRE, pushed back. FIRE explained that commentary about a political election is core protected speech. “Fake news” is a political buzzword, not a legal cause of action. And “fraud” is a defined legal concept: intentionally lying to convince someone to part with something of value.

New book on free speech and incitement

• Eric T. Kasper and JoAnne Sweeny, eds., “Free Speech and Incitement in the Twenty-First Century,” (SUNY Press, 2025)

Free Speech and Incitement in the Twenty-First Century explores the line between free speech and incitement, which is a form of expression not protected by the First Amendment. Incitement occurs when a person intentionally provokes their audience to engage in illegal or violent action that is likely to, or will, occur imminently. This doctrine evolved from World War I through the Cold War and the civil rights movement era, culminating in a test announced by the US Supreme Court in Brandenburg v. Ohio (1969).

Since the 1970s, this doctrine has remained largely unchanged by the Supreme Court and, as such, has received relatively little academic or media attention. Since the late 2010s, however, violence at political rallies, armed protests around Confederate statues, social unrest associated with demonstrations against police, and an attack on the US Capitol have led to new incitement cases in the lower courts and an opportunity to examine how incitement is defined and applied. Authors from different perspectives in Free Speech and Incitement in the Twenty-First Century help the reader understand the difference between free speech and incitement.

Eric T. Kasper is Professor of Political Science and Director of the Menard Center for Constitutional Studies at the University of Wisconsin-Eau Claire. He is the coauthor of The Supreme Court and the Philosopher: How John Stuart Mill Shaped US Free Speech Protections.

JoAnne Sweeny is a Professor of Law at the Louis D. Brandeis School of Law, University of Louisville. Her primary area of scholarship is the freedom of expression and feminist jurisprudence.

podcast: Lukianoff and Strossen on free speech

• “Ten arguments against free speech,” FIRE (Oct. 30)

We tackle ten common arguments against free speech. FIRE President and CEO Greg Lukianoff and FIRE Senior Fellow and former ACLU President Nadine Strossen are the co-authors of the new book, “War on Words: 10 Arguments Against Free Speech — And Why They Fail.”

Subscribe now

More in the news

• “Cornell University Announces Deal With Trump Administration To Restore Withheld Federal Funding,” First Amendment Watch (Nov. 10)

• Quinta Jurecic, “The Third Red Scare,” The Atlantic (Nov. 10)

• BrieAnna J. Frank, “He got cuffed after playing the ‘Imperial March’ at National Guard. Now, he’s suing,” USA Today (Nov. 10)

• Eugene Volokh, “Crime in Illinois to Send E-Mails (with Intent to Offend) That Are ‘Disgusting to the Senses’ or ‘Abhorrent to Morality or Virtue’,” The Volokh Conspiracy (Nov. 10)

• CalMatters, “California Supreme Court Upholds Law That Protects Rights of LGBT Long-Term Care Residents,” First Amendment Watch (Nov. 10)

• Robert Shibley, “Texas A&M board to vote on sweeping classroom censorship proposal,” FIRE (Nov. 10)

• William Harris, “Snipers, censorship, and unaccountability: Indiana University’s free speech crisis,” FIRE (Nov. 10)

• Cory Turner, “Judge says Education Dept. partisan out-of-office emails violated First Amendment,” NPR (Nov. 8)

• Stephanie Jablonsky, “Anti-SLAPP laws protect Davids from being silenced by Goliaths,” FIRE (Nov. 7)

• David Bauder, “Conservative activist Laura Loomer, a Trump ally, says she has new Pentagon press pass,” Free Speech Center (Nov. 6)

  Subscribe now

2025-2026 SCOTUS term: Free expression and related cases

Review granted: four cases

• Chiles v. Salazar (argued Oct. 7)

• Olivier v. Brandon (to be argued Dec. 3)

• First Choice Women’s Resource Centers, Inc. v. Platkin (to be argued Dec. 2)

• National Republican Senatorial Committee v. Federal Election Commission (to be argued Dec. 9)

Pending petitions

• Little v. Llano County

• Pardue v. Hines

• Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc.

• Sittenfeld v. United States

• 360 Virtual Drone Services LLC v Ritter

Petitions denied

• Hartzell v. Marana Unified School District

• Evans Hotels, LLC v. Unite Here! Local 30

Subscribe now

Last scheduled FAN

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

Aww. Look at them, there at the close of their Brooklyn Law School exchange: such politeness, such camaraderie, such displays of talent, and all coated with genteel smiles.

Months later, the cerebral “odd couple” — FIRE Chief Counsel Robert Corn-Revere and George Washington University Eugene L. and Barbara A. Bernard Professor in Intellectual Property, Technology, and Civil Rights Law Mary Anne Franks — ventured off to the Cato Institute for a “debate.”

Once again, their courteous manners and informed remarks drew smiles and ended in another dialogically tame exchange. If there were any meaningful philosophical disputes between them, they were largely left at the door, where their respective books were for sale.

There is, however, a chasm of free speech differences beneath the soothing smiles and genial handshakes of the FIRE lawyer and the George Washington University professor. I mean, who would have guessed that their differences were as unyielding as they actually are? Or that they were as robust as they are?

How so?

To get a taste of things, consider a recent October 2025 statement by Franks; it was posted shortly after her Cato exchange with Corn-Revere:

[FIRE is a] libertarian, far-right group . . . that is actually positioning itself to put out the fires that it started two decades ago.

That uninhibited statement (and others like it) can be found in a podcast interview that Lauren Lassabe Shepherd conducted with Franks titled “Beware of FIRE (and institutional neutrality).”

Three years ago, in an article in the Journal of Free Speech Law, Franks took targeted aim at some of the leading defenders of free speech:

[P]owerful liberal and libertarian organizations such as the American Civil Liberties Union (ACLU) and the Foundation for Individual Rights in Education (FIRE), along with mainstream and liberal-leaning publications such as The New York Times and The Atlantic, have played a significant role in deflecting attention away from conservative attacks on democracy and free expression by focusing their opprobrium on the supposed liberal excesses of political correctness, campus “safe spaces,” and now cancel culture.

Corn-Revere is in the other philosophical corner with his spare-no-punches review essay of Franks’ 2024 book Fearless Speech: Breaking Free from the First Amendment. That review, titled “Fearless Speech Ignores History to Make a Point,” is forthcoming in the Brooklyn Law Review. Among other things, in that 18,000-word, 298-footnote essay, Corn-Revere writes:

Franks’ ideas are not new, and ‘Fearless Speech’ merely recycles long-discredited critiques of free speech. Far from taking history seriously, the book simply ignores events and legal developments that contradict her thesis, and its policy prescriptions are neither new nor innovative. Worse, they make no sense. The book is careless with the facts, and its errors always tilt toward Franks’ conclusions. . .

‘Fearless Speech’ is long on attitude but short on scholarship, and it is written with a tone of superior smugness. . . Professor Franks poses as a defender of fearless speech but only manages to offer a vision of the culture and of the law that would make fearless speakers’ lives harder.

Mind you, in all of this I am not urging some kind of rude, loud, name-calling confrontation between the esteemed lawyer and the venerated professor. That said, it is something of a fraud on the public mind to watch them politely trade verbal niceties that mask the deep-seated free speech differences between them. I mean, what would the 1858 Lincoln-Douglas debates have looked like if the hearty exchange between the two gentlemen tracked the Corn-Revere/Franks diluted style?

So what say you, Corn-Revere and Franks? Are you willing to be “uninhibited, robust, and wide-open” in a point-counterpoint dialogue designed to reveal the full depth of your opposing views? Do not the free speech principles you both champion demand as much?

Pick a date, a venue, a format, and let the rich debate begin! And don’t be shy.

Related

• “Sanctioned Scholars: The Price of Speaking Freely in Today’s Academy,” FIRE (October 2025)

• “Mary Anne Franks targets ‘antidemocratic, racist, misogynistic, and corporate self-interest speech’ in forthcoming book,” First Amendment News 412 (Feb. 21, 2024)

• Mary Anne Franks, “The Lost Cause of Free Speech,” Journal of Free Speech Law (2022)

• “Mary Anne Franks: ‘[T]he narrative of widespread liberal intolerance and suppression of conservative views on college campuses is simply false,’” First Amendment News 253 (May 6, 2020)

Subscribe now

Button up! The dangers of wearing anti-Trump buttons

• Aaron Terr, “They displayed anti-Trump buttons — then the sheriff alerted Secret Service,” FIRE (Oct. 24)

When members of the Ashland County Democratic Party set up a booth at their local fair last month, they might have expected a few political disagreements. What they surely didn’t expect was to be expelled from the fairgrounds and reported to the Secret Service over buttons expressing opposition to President Donald Trump. Now, they’re suing the officials who trampled their First Amendment rights.

The booth displayed various buttons depicting red MAGA-style hats, but instead of “Make America Great Again,” they said things such as “Fascist,” “Resist,” “Felon,” and “8647” (meaning to eighty-six, or remove, the 47th president, Trump).

According to the lawsuit, the trouble started when fair officials told booth staffers they’d received complaints about two particular buttons. One read “Felon” and, beneath that, “Is he dead yet?” The other said “Fascism” and, beneath that, “One day, we will wake up to his obituary.” Officials said the buttons weren’t “family friendly” and had to go. Booth staff had already put them away, but that didn’t get them off the hook.

Related

• Christopher Weber, Matthew Lee, and Rebecca Santana, “British political commentator detained by ICE at Calif. airport,” Free Speech Center (Oct. 28)

• Taylor Hatmaker, “May the First Amendment be with you: Protester sues after ‘Imperial March’ performance sparks arrest,” Fast Company (Oct. 25)

Coming soon: Chemerinsky and Gillman on campus speech and academic freedom

• Erwin Chemerinsky and Howard Gillman, “Campus Speech and Academic Freedom: A Guide for Difficult Times,” Yale University Press (Jan. 27, 2026)

Expert guidance for navigating the difficult new issues around free speech rights in higher education

In their earlier book, Free Speech on Campus, Erwin Chemerinsky and Howard Gillman argued that colleges and universities should permit the expression of the widest possible range of views. Nearly ten tumultuous years later, many issues have arisen that this simple principle does not adequately address.

To what extent must an institution provide expensive security for extremely controversial speakers? Should colleges and universities defend faculty, students, or administrators who find themselves the victims of social media firestorms? How should they handle the expression of controversial views or the use of offensive language in classrooms? May academic departments or other administrative units—or an entire school—take positions on controversial political issues? What rules should exist around campus protests or disruptive activities? How should we assess government efforts to control faculty speech or curricular choices?

In Campus Speech and Academic Freedom, two law professors and university administrators who have confronted these questions for years draw on their extensive real-world experience to help campus leaders, campus communities, government officials, and the public better understand and address the contentious issues surrounding campus speech.

New scholarly article on campus protests

• Sunita Patel, “Policing Campus Protest,” Columbia Law Review (2025)

College campuses across the country celebrate their legacies of creating free speech guarantees following student protests from the mid-1960s to early 1970s, even though colleges had minimal tolerance of such protests at the time. As part of the New Left’s vision for a different society, students, sometimes joined by faculty, demanded an end to the Vietnam War and war industry research, fought for Black and ethnic studies departments, and protested urban renewal plans that displaced Black working-class communities.

We are experiencing another transformative moment. Lawmakers and other stakeholders pressure university administrators to act against students or face funding cuts. Police repression follows, escalating into violence. Universities create or enlarge their own police or security forces in response, while also expanding codes of conduct to quash disruptive protest activity. This Symposium Piece traces the throughlines between university responses in the past and today.

This Piece also provides three features of policing campus protests. First, campus police and administrators engage in political surveillance, monitoring the political activity of the campus community, which enables universities to sanction students and faculty through campus codes of conduct and refer them for criminal prosecution. Second, police and administrators network with local and federal law enforcement agencies to share information. Third, police act formally and informally as part of the disciplinary process within universities to sanction and control protests. This Piece ends with contemporary and historic examples of university leaders who have avoided police repression as a response to student dissent and instead chosen negotiation.

Subscribe now

More in the news

• Eugene Volokh, “Virginia Court Reverses $1M Libel Judgment for School Board Chair Called ‘Sexual Predator/Harasser’ by Activist,” The Volokh Conspiracy (Oct. 28)

• “ExxonMobil Sues California Over Climate Disclosure Laws,” First Amendment Watch (Oct. 27)

• BrieAnna J. Frank, “Inside the ‘harsh terrain’ of Columbia University’s First Amendment predicament,” USA Today (Oct. 27)

• Zoe Williams, “How the free speech debate stops us from stating the bleeding obvious,” The Guardian (Oct. 27)

• Swasthi Maharaji, “Former UF law student’s expulsion for antisemitic posts ignites First Amendment battle,” Alligator (Oct. 27)

• “Anti-Abortion Pregnancy Centers Are Looking To Offer Much More Than Ultrasounds and Diapers,” First Amendment Watch (Oct. 27)

• “Paulson wins Voice of Freedom Award,” Free Speech Center (Oct. 24)

• Greg Lukianoff, “Everyone’s a free-speech hypocrite,” FIRE (Oct. 23)

• David Bauder, “After others departed, Pentagon announces ‘new’ press corps filled with conservative news outlets,” Free Speech Center (Oct. 23)

• Tim Zick, “District Court Enjoins Books ‘Quarantine’ at Department of Defense Schools,” Thoughts on First (Oct. 22)

  Subscribe now

2025-2026 SCOTUS term: Free expression and related cases

Review granted: four cases

• Chiles v. Salazar (argued: Oct. 7)

• Olivier v. Brandon (to be argued Dec. 3)

• First Choice Women’s Resource Centers, Inc. v. Platkin (to be argued Dec. 2)

• National Republican Senatorial Committee v. Federal Election Commission (to be argued Dec. 9)

Pending petitions

• Little v. Llano County

• Pardue v. Hines

• Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc.

• Sittenfeld v. United States

• 360 Virtual Drone Services LLC v. Ritter

Petitions denied

• Hartzell v. Marana Unified School District

• Evans Hotels, LLC v. Unite Here! Local 30

Subscribe now

Last scheduled FAN

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

In light of the recent “No Kings” nationwide demonstrations, I was drawn, yet again, to thinking about political protests. As I pondered such thoughts, the range of my reflections expanded after I read A Protest History of the United States by Professor Gloria J. Browne-Marshall. And when she spoke at our local library, even more thoughts rushed through my head.

And all of this as I thought of America’s quintessential dissenter, Thomas Paine.

In Common Sense, Paine’s dissident words were calls to revolutionary action. His message echoed in the ears of those eager to rid themselves of the tyranny of monarchical rule. No reconciliation with the King was possible; independence was essential; a republican form of government with wide public participation was vital; and common sense must defeat the lies of loyalists.

Those inspiring words were penned by Paine in The American Crisis. He despised the very notion of kings and everything they stood for — he tagged kings “crowned ruffians.”

Before Jefferson penned the Declaration and long before Madison authored the First Amendment, Paine was busy crafting Common Sense, a work of revolutionary dissent. He refused to be silent; he refused to acquiesce; and he refused to stand idly by while monarchical tyranny played its hand time and again.

This man who derided the king and all loyalists, at home and abroad, was portrayed by some colonists as dangerously radical. They regarded his proposals for a new form of government as seditious. For John Adams, circa 1805, Paine was a “satyr” begotten by a “wild Boar on a Bitch Wolf,” a man who led “a Career of Mischief.” Others were less kind.

The moral: To dissent is to cut against the established grain, and that can be painful — as America’s revolutionary hero later, after he published The Age of Reason, became an antihero.

Even so, Common Sense ignited a discourse of dissent in the colonies, which ultimately led to the American Revolution. The rest, as they say, was history . . . or was it?

Subscribe now

Enter Gloria Browne-Marshall

Like Paine, Gloria Browne-Marshall is a firebrand, and one armed with facts and fortitude. Her latest book, A Protest History of the United States, opens a wide lens into the world of protest in America, turning the pages back some 500 years. “I wrote this book,” she notes, “to give the present generation of protestors a historical tool kit from which to build a movement.” And indeed she does, by way of numerous mind-opening examples ranging from protests by abolitionists to feminists to anti-war activists to environmentalists, among others.

This book is indispensable for those interested in the history of protest and what it portends for the future of freedom in America.

Here are a few passages, among numerous others, that jumped into my mind in search of further reflection:

• “Protest is an investment”: Yes it is — a down payment on a better day, a more just world. It is a hope – sometimes against all odds – that the evils of the past and present will end, that justice will find its way back into the fold of life.

• “Protest is primal”: We start there after “a long train of abuses and usurpations,” to draw on Mr. Jefferson’s words. It is that overpowering urge to do something, to take action, to step forward when others step back. It is an urge that takes its might from courage.

• “The United States is made better when people demand better”: Silence begets despotism, it invites submission, and then feeds on cowardice. The hope of humankind depends on people of conscience speaking out, protesting injustice, and paving the way for the rebirth of freedom.

• “Two steps forward and one back is the dance of protest. Patience and persistence are the cornerstones of all social justice victories”: Liberty is not easily won, it is never handed over without struggle, and it demands vigilant devotion. So heed the words of the Bard and take pride if you dare speak out against tyranny:

Related

• “The White Rose Opposition Movement,” Holocaust Encyclopedia

In 1942 Hans Scholl founded the “White Rose” movement with some of his fellow medical students. Among the White Rose members were Sophie Scholl, Christoph Probst, Willi Graf, and Alexander Schmorell. The “White Rose” movement was one of the few German groups that spoke out against Nazi genocidal policies.

• Ronald Collins, “Creative Combat: 10 steps for resistance in an age of crisis and chaos,” Southern Poverty Law Center (May 15, 2025)

Subscribe now

Cato event: Franks vs Corn-Revere exchange

• “Cato Free Speech Debate: Are Contemporary Understandings of the First Amendment the Best Way to Protect Free Expression in the 21st Century?” Cato Institute (Oct. 21)

Related

• “‘Fearless Speech’ and First Amendment Spark Engaging Discussion at Trager Colloquium,” Brooklyn Law School (April 18, 2025)

Enforcement of vendor disclosure requirements blocked by federal court

• “Federal Court Blocks Minnesota’s Vendor-Disclosure Law in Victory for Free Speech,” Free Speech Institute (Oct. 20)

In a decisive win for free speech, a federal judge has blocked Minnesota from enforcing its vendor disclosure requirements against grassroots advocacy organizations Minnesota Right to Life and Minnesota Gun Rights. The ruling in the case litigated by the Institute for Free Speech protects the organizations’ ability to engage in political speech without exposing their business partners to harassment and intimidation.

U.S. District Judge Nancy E. Brasel granted the preliminary injunction today, finding that Minnesota’s requirement to publicly disclose vendor names and addresses likely violates the First Amendment. The decision prevents the state from enforcing penalties against the organizations for refusing to identify vendors who help distribute their advocacy messages.

‘We’re extremely pleased with this crucial first victory in our fight to defend the First Amendment rights of grassroots organizations in Minnesota,’ said Institute for Free Speech Senior Attorney Brett Nolan. ‘The court correctly recognized that forcing organizations to paint targets on their vendors’ backs serves no legitimate purpose and only chills protected speech.’

The lawsuit arose after both organizations experienced severe harassment campaigns targeting their vendors. In 2020, activists discovered Minnesota Right to Life’s mailbox vendor and launched a pressure campaign that resulted in the vendor canceling service without warning, causing the organization to lose thousands of dollars and valuable supporter information. Both groups have been ‘deplatformed’ by multiple vendors after their relationships became public.

Related

• Bryan Sears, “Judge strikes down provision of digital ad tax as First Amendment violation,” Maryland Matters (Oct. 17)

Review essay: Mchangama on Dabhoiwala

• , “Who Has Free Speech? The Global Fight Over a Powerful Idea,” Foreign Affairs (Oct. 21)

When he reentered the White House in January, President Donald Trump insisted that protecting free speech was one of his key missions. On his first day back in office, he signed an executive order called “Restoring Freedom of Speech and Ending Federal Censorship,” which condemned the Biden administration for “trampling free speech rights” and instructed federal agencies to uphold the U.S. Constitution’s First Amendment. But in truth, Trump has likely done more to undermine free speech than any U.S. president since the McCarthy era. In his second term, he has launched spurious personal lawsuits against media outlets, sought to pull funding from universities whose curricula do not meet his preferences, and tried to deport foreign students and academics for political speech.

This campaign took an even sharper turn in mid-September, after the assassination of the commentator Charlie Kirk. The Trump administration used the killing to target a wide variety of actors — military personnel, private individuals and companies, nongovernmental organizations, magazines — for their responses. Trump’s vice president, JD Vance, blamed Kirk’s death on left-wing speech and pledged “to go after the NGO network that foments, facilitates, and engages in violence.” Brendan Carr, the chair of the Federal Communications Commission, boasted on Fox News that the FCC would keep ramping up its efforts to punish outlets the administration disfavors. This campaign took an even sharper turn in mid-September, after the assassination of the commentator Charlie Kirk. The Trump administration used the killing to target a wide variety of actors — military personnel, private individuals and companies, nongovernmental organizations, magazines — for their responses. Trump’s vice president, JD Vance, blamed Kirk’s death on left-wing speech and pledged “to go after the NGO network that foments, facilitates, and engages in violence.” Brendan Carr, the chair of the Federal Communications Commission, boasted on Fox News that the FCC would keep ramping up its efforts to punish outlets the administration disfavors.

The Trump administration has moved with startling speed from trumpeting free speech to seeking to criminalize it. At first glance, that might seem to vindicate the arguments in the historian Fara Dabhoiwala’s new book, What Is Free Speech? The History of a Dangerous Idea. Dabhoiwala believes that the modern obsession with free speech — particularly the American belief that almost any restriction on it threatens democracy — has blinded its defenders to how often that right is invoked cynically in pursuit of antidemocratic ends. In his view, the right to free speech has most often been wielded as “a weaponized mantra” by people motivated by “greed, technological change and political expediency” rather than as a principle invoked sincerely to restrain tyranny…

Related

• Daniel Bessner and Derek Davidson, “The Myth of Free Speech,” The Nation (Oct. 21)

Volokh on Viewpoint diversity requirements

• Eugene Volokh, “‘Viewpoint Diversity’ Requirements as a New Fairness Doctrine,” George Mason Law Review (Oct. 10)

The Trump Administration has been trying to attach “viewpoint diversity” mandates to federal funding, especially for universities. This Essay analyzes the parallels between these new proposals and a much older one: the Fairness Doctrine.

The arguments for both are similar, though of course not identical: The claim is that, when the government is (1) distributing benefits—whether access to scarce spectrum, or scarce grants and other federal funds— (2) it may attach viewpoint-neutral conditions that aim to (3) make the benefits promote a wide range of opinion, rather than leaving it entirely to the beneficiary to choose which opinions it promotes.

“It is the purpose of the First Amendment,” the theory goes, “to preserve an uninhibited market-place of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government it- self or a private licensee.” Lawyers who want to argue in favor of the constitutionality of viewpoint diversity mandates may thus get some help from Red Lion Broadcasting v. FCC, which upheld the Fairness Doctrine against constitutional challenge. But the arguments against the Fairness Doctrine—ultimately accepted by the Reagan Administration’s FCC in 1987, when it rejected the Doctrine —are also powerful arguments against viewpoint diversity mandates. Both the Fairness Doctrine and viewpoint diversity mandates tend to deter the targeted institutions (whether broadcasters or universities) from allowing controversial speech, or hiring or admitting controversial speakers. And both, unlike nondiscrimination mandates, are inevitably viewpoint-discriminatory in application.

Angel Eduardo on Rubio deporting noncitizens for exercising free speech

• , “EXPLAINER: Why Marco Rubio’s arguments for deporting noncitizens for speech are wrong,” FIRE (Oct. 21)

Since March, Rubio and the Trump administration had been detaining and attempting to deport legally present noncitizens for protected speech — including writing op-eds and attending protests — because they disliked that speech.

To do it, they invoked two provisions of the Immigration and Nationality Act: one that allows the secretary of state to initiate deportation proceedings against any noncitizen for protected speech if the secretary “personally determines” the speech “compromises a compelling foreign policy interest,” and another that enables the secretary of state to revoke the visa of any noncitizen “at any time” for any reason.

This, as FIRE has argued, is unconstitutional. Noncitizens in the United States have First Amendment rights, and Rubio’s use of these provisions not only violates those rights, but also showcases why the two provisions are unconstitutional and must be struck down to the extent they allow adverse immigration action based on protected speech.

Related

• , “Why We Should Protect the Lawful Speech of Noncitizens,” Thoughts on the First (Oct. 16)

Forthcoming book on ‘financial censorship’

• Rainey Reitman, “Transaction Denied: Big Finance’s Power to Punish Speech,” Beacon Press (April, 2026)

Exposes how companies like Visa, Chase, PayPal, Bank of America, and Mastercard use their power to silence dissenting voices and hurt democracy through the practice of financial censorship.

Civil liberties activist Rainey Reitman introduces readers to the concept of “financial censorship” — a form of privatized censorship where banks and payment intermediaries act as censors in ways the government couldn’t do directly without violating the First Amendment. Reitman examines financial companies and the role they have played in policing speech, as well as the laws and corporate policies that have enabled this form of censorship.

Weaving together over a decade of research with interviews and narratives from those personally impacted by financial censorship, Reitman reveals how financial exclusion has become a tool to pressure marginalized voices into silence.

From the executive director of a voting rights nonprofit to a teacher of Iranian poetry, to adult content creators and the cannabis community, Reitman uplifts the voices of those who have been targeted by these powerful institutions. She uses their stories as a launching point to explore larger issues about who should have the power to censor in a democratic society.

Insightful and fresh, Transaction Denied exposes this new and alarming form of censorship and offers a path forward by advocating for communities affected by financial exclusion and calling for more transparency of our financial systems.

podcast on foreign authoritarian influence on American higher education institutions

• “Authoritarians in the Academy,” (Oct. 15)

FIRE Senior Scholar Sarah McLaughlin discusses her new book, Authoritarians in the Academy: How the Internationalization of Higher Education and Borderless Censorship Threaten Free Speech.

More in the news

• Cate Charron, “As Tucker Carlson visits IU, where’s the line between freedom to speak and freedom to hear?” Indy Star (Oct.21)

• “Appeals court backs Mich. school in banning ‘Let’s Go Brandon’ shirts,” Free Speech Center (Oct. 21)

• Jacob Gaba, “Heckler’s veto at the turnstiles,” FIRE (Oct. 21)

• Ben Schwartz, “History’s Lessons for the Second Committee for the First Amendment,” The Nation (Oct. 20)

• “Indiana University Fires Student Newspaper Adviser Who Refused To Block News Stories,” First Amendment Watch (Oct. 20)

• Susanna Granieri, “The Knight Institute’s Ramya Krishnan on the Trump Administration’s Unconstitutional Targeting of Noncitizen Speech,” First Amendment Watch (Oct. 17)

• Ed Pilkington, “‘Free speech for me, not for thee’: how Trump’s censorship blitz is splitting the right,” The Guardian (Sept. 27)

Subscribe now

2025-2026 SCOTUS term: Free expression and related cases

Review granted: six cases

• Chiles v. Salazar (argued: Oct. 7)

• Olivier v. Brandon (to be argued Dec. 3)

• First Choice Women’s Resource Centers, Inc. v. Platkin (to be argued Dec. 2)

• National Republican Senatorial Committee v. Federal Election Commission (to be argued Dec. 9)

• Pardue v. Hines

• Little v. Llano County

Pending petitions

• Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc.

• Sittenfeld v. United States

• 360 Virtual Drone Services LLC v. Ritter

Petitions denied

• Hartzell v. Marana Unified School District

• Evans Hotels, LLC v. Unite Here! Local 30

Subscribe now

Last scheduled FAN

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

The danger

On Aug. 24, 1814, during the War of 1812, the British torched the national library and its 3,000 books. “The following year, Congress purchased the 6,487-volume library of former U.S. President Thomas Jefferson to replace the lost collection.”

The British attack on books was an act of war. When Anthony Comstock came along, the war continued but on a different, ruthless plane — the war of Victorian morality as codified in the Comstock Act of 1873 (see Robert Corn-Revere, The Mind of the Censor and the Eye of the Beholder (2021)).

In ways that foreshadowed the present state of affairs under a recent Trump Executive Order (see also FAN 483), Southern Jim Crow-era campaigns were also launched by the

United Daughters of the Confederacy (UDC) and others to ensure that school textbooks contained sympathetic portrayals of the South’s role in the Civil War. Of course, by that censorial measure, books like Harriet Beecher Stowe’s abolitionist novel Uncle Tom’s Cabin (1852) became prime candidates for book banning.

Related

• Ishena Robinson, “The History They Don’t Want You to Know” (Legal Defense Fund, Feb. 25, 2023):

[The UDC] launched a campaign beginning in the early 1900s as part of the backlash to Reconstruction to promote a revisionist telling of the Civil War that downplayed the horrors and evils of slavery, while falsely glorifying the Confederacy as a last redoubt of a supposedly better, pre-industrial age.

The UDC flooded public schools in the South with history textbooks written from the deliberately warped and white supremacist perspective that the war was rooted in northern states’ aggression against the economic rights of southern slave owners. Instead of depicting these slaveholders as the eager proponents of racist terror that they were, this narrative suggested they were benevolent to the Black people they dehumanized, brutalized, exploited, assaulted, and killed. The role of Black people’s labor in the South’s flourishing economy was minimized or outright erased in these school texts. The UDC successfully shaped school curricula in the service of this narrative, and untold numbers of students were taught well into the 20^th century that institutionalized racism was justified.

The lesson

Burning books or banning them constitutes a war against the minds of men and women. It is a way of cutting off informational oxygen until one suffocates under the pressure of ignorance. By James Madison’s libertarian measure, libraries were essential to promote “the advancement and diffusion of Knowledge, which is the only Guardian of true liberty.” (June 30, 1825 letter to George Thompson). Public libraries were not created to appease parochial biases, be they conservative or liberal, religious or nonreligious, or whatever the prevailing orthodoxy.

In her book Foundations of Intellectual Freedom (American Library Association, 2022), Emily Knox identified four kinds of book censorship:

• Removal: abolishing certain books from the library, classroom, or bookstore shelves;

• Relocation: moving the specific books to harder-to-access locations within the library, such as creating an “adults only” section;

• Restriction: limiting access to books or keeping a book in an inaccessible place unless someone gets special permission to view it; and

• Redaction: striking through or covering sections of materials so they cannot be seen by readers.

Those “Four Rs” of censorship explain both the method and the problem with abridging knowledge.

Related

• Mead Gruver, “Wyoming library director fired amid book dispute wins $700,000 settlement,” Free Speech Center (Oct. 13)

Subscribe now

New documentary: ‘The Librarians’

• “The Librarians” directed by Kim A. Snyder

In Texas, the Krause List targets 850 books focused on race and LGBTQIA+ stories — triggering sweeping book bans across the U.S. at an unprecedented rate. As tensions escalate, librarians connect the dots from heated school and library board meetings nationwide to lay bare the underpinnings of extremism fueling the censorship efforts. Despite facing harassment, threats, and laws aimed at criminalizing their work — the librarians’ rallying cry for freedom to read is a chilling cautionary tale.

Related

• John Yang and Laine Immell, “The fight against book bans by public school librarians shown in new documentary,” PBS News (Oct. 5, 2025)

• “Project 2025 and Its Consequences for Libraries, Every Library Institute,” July 2024

• “Delaware ACLU releases ‘Guide to the First Amendment for LGBTQ+ Youth’,” FAN 355 (Nov. 11, 2022)

Most Banned Books of the 2024-2025 School Year (PEN America)

1. Anthony Burgess, A Clockwork Orange

2. Jennifer Niven, Breathless and Patricia McCormick, Sold

3. Malinda Lo, Last Night at the Telegraph Club

4. Sarah J. Maas, A Court of Mist and Fury

5. Ellen Hopkins, Crank and Judy Blume, Forever and Stephen Chbosky, The Perks of Being a Wallflower, and Gregory Maguire, Wicked: The Life and Times of the Wicked Witch of the West

6. George M. Johnson, All Boys Aren’t Blue, and Sarah J. Maas, A Court of Thorns and Roses, and Elana K. Arnold, Damsel, and Kody Keplinger, The DUFF: Designated Ugly Fat Friend, and Jodi Picoult, Nineteen Minutes, and Jennifer L. Armentrout, Storm and Fury.

Related

• “The Normalization of Book Banning,” PEN America (Oct. 1)

Books on book bans

• Christina Ellis, Renee Ellis, Edha Gupta, Ben Hodge, Patricia Jackson, and Olivia Pituch, Ban This!: How One School Fought Two Book Bans and Won (and How You Can Too), Zest Books (2025)

• Kirsten Miller, Lula Dean’s Little Library of Banned Books: When Banned Books Shake Up a Small Georgia Town―A Funny and Poignant Novel about Censorship, Friendship, and Unexpected Connections, William Morrow (2025)

• Sally McGraw, Book Bans: Reading Under Siege, Lerner Publishing Group (2025)

• Herbert N. Foerstel, Banned in the U.S.A. A Reference Guide to Book Censorship in Schools and Public Libraries, Greenwood (2^nd ed., 2002)

• Nicholas J. Karolides, Margaret Bald, and Dawn B. Sova, 100 Banned Books: Censorship Histories of World Literature, Checkmark Books (1999)

Cert. petition, re: Texas county library book ban

• Little v. Llano County

The issue: At the urging of a handful of private citizens, government officials in Llano County, Texas, removed seventeen books from the county library’s shelves. A district court found that those book-removal decision were motivated by a desire to censor particular viewpoints. The question presented is: Whether those book-removal decisions are subject to scrutiny under the Free Speech Clause of the First Amendment.

Summary of arguments

This case presents a critically important First Amendment question that has divided the circuits. In recent years, state and local governments have increasingly removed books from public libraries because they disagree with the ideas those books promote. Here, for instance, the public library in Llano County, Texas, removed books — including publicly acclaimed nonfiction works and memoirs — because they espoused ideas about racial justice and gender identity that government officials deemed “inappropriate.” Such a viewpoint-based book ban violates the “bedrock principle underlying the First Amendment”: “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989).

The issue in this case is whether the First Amendment has any application to such censorship. For more than forty years, dating back to this Court’s decision in Board of Education v. Pico, 457 U.S. 853 (1982), the answer was yes. In Pico, no opinion garnered a majority of the Court, but eight Justices agreed that First Amendment scrutiny applies to a school library’s removal of books for the purpose of suppressing particular viewpoints.

[. . .]

Following Pico, lower courts coalesced around the position that school and public libraries had substantial discretion to remove books but were barred from doing so to pursue viewpoint-discriminatory aims. In this case, the en banc Fifth Circuit broke from that precedent. A majority of the court held that patrons of the Llano County Public Library had no First Amendment right to challenge the library’s removal of books—even for openly viewpoint-discriminatory reasons. And a plurality deemed the library’s book-removal decisions to be government speech. Under both rationales, the consequence is the same: public libraries’ book-removal decisions are entirely immune from Free Speech Clause scrutiny. Indeed, respondents’ counsel conceded that respondents’ position has no “limiting principle” and would allow a public library to, for instance, remove all books touting “the benefits of firearms ownership” or “the dangers of communism.” Pet. App. 102a-103a & n.16 (Higginson, J., dissenting).

• Little v. Llano County (5^th Cir., 2025) (The ACLU filed an amicus brief as did FIRE // FIRE most recently filed an amicus brief in the Supreme Court).

Related book-ban cases in lower courts

• Fayetteville Public Library, et al. v. Todd Murray, et al. (8th Cir. 2025) (challenging Arkansas’s broad attempt to regulate libraries and bookstores under Act 372. The U.S. Court of Appeals for the Eighth Circuit was asked to uphold a district court ruling striking down Act 372 as unconstitutional. Arkansas’ sweeping law grants anyone the authority to demand that books be removed or locked away in “adults-only” sections, and threatens librarians and booksellers with up to a year in jail simply for providing minors access to constitutionally protected works.) (see FIRE’s amicus brief here)

Related 2025 Supreme Court case

• Mahmoud v. Taylor (6-3 per Alito, J., holding that parents challenging the Montgomery County Board of Education’s introduction of certain “LGBTQ+-inclusive” storybooks, along with the board’s decision to withhold parental opt-outs from that instruction, are entitled to a preliminary injunction)

Delaware passes ‘Freedom to Read Act’

• “Governor Matt Meyer Signs Pro-Free Speech Legislation,” Delaware.gov. (Sept. 15)

Governor Matt Meyer signed two bills, Senate Bill 80 and House Bill 119, strengthening free speech protections in Delaware and ensuring free access to books and other library materials in public and school libraries.

“Freedom of expression and access to diverse ideas are the bedrock of a strong democracy,” said Governor Matt Meyer. “These bills protect Delawareans’ voices — whether it’s standing up to powerful interests or ensuring our libraries remain places where every child can explore, learn, and see themselves reflected in the stories they read. These laws will help us raise a generation of critical thinkers and empathetic leaders, because our communities are stronger when we engage with ideas, not erase them.”

House Bill 119, sponsored by Rep. Krista Griffith and Sen. Elizabeth “Tizzy” Lockman, ensures that books and resources cannot be removed or banned from public and school libraries based on the author’s background or because of partisan, ideological, or religious objections. The bill also sets up a clear, fair process for reviewing complaints about library materials, keeping items under review available until that review is complete. Similarly, school libraries must follow a uniform objection process with clear timelines, keeping materials accessible during review. Appeals to review decisions can be made to a new statewide School Library Review Committee created by this bill.

“Libraries have always been a place where everyone, regardless of age, background, or belief, can freely explore ideas and access information. Unfortunately, over the past several years, we’ve seen a rise in attempts to remove books and censor content nationally simply because they present perspectives that some may disagree with,” said Rep. Krista Griffith. “The Freedom to Read Act is a balanced approach that allows community members to raise concerns through a clear and respectful process, while making sure books aren’t pulled from shelves just because someone disagrees with the views they contain.”

“For centuries, books have been a powerful tool of expression,” said Sen. Tizzy Lockman. “Libraries are important to our communities because they serve as a vessel and powerful outlet for this expression. The censorship we are seeing in federal initiatives aims to erase history and silence the diversity of opinion, and we must protect the rights of future generations. With the passage of HB 119, we are ensuring these essential tools and freedom to engage with the material of their choice are available for them.”

Justices skeptical of Colorado’s ‘conversion therapy’ ban

• Amy Howe, “Majority of court appears skeptical of Colorado’s ‘conversion therapy’ ban,” SCOTUSblog (Oct. 7)

The Supreme Court on Tuesday morning appeared largely sympathetic to a Colorado licensed counselor who is challenging the state’s ban on conversion therapy – that is, treatment intended to change a client’s sexual orientation or gender identity – for young people. In Chiles v. Salazar, a majority of the justices seemed to agree with the counselor, Kaley Chiles, that the ban discriminates against her based on the views that she expresses in her therapy. But several justices suggested that, rather than striking the law down outright, the court should send the case back to the lower courts for them to take a closer look at whether the law passes constitutional muster.

[. . .]

One issue was whether Chiles could even bring her case, when Colorado has not sought to enforce the ban against her and says that it won’t do so. Justice Sonia Sotomayor contended that there was no “credible threat of prosecution,” as the Supreme Court’s cases require for a party to have standing. During the six years since the law had been enacted, she observed, there had not been any enforcement, “and we have the entity charged with administering the law saying we’re not going to apply it to your kind of … therapy.”

A second question arose from the state’s assertion that the ban regulates medical treatment, rather than speech. Justice Ketanji Brown Jackson noted that there is a long historical tradition of regulating medical treatments, and she suggested that it would be “very odd” to think that two different medical professionals can provide different kinds of treatment for the same condition – one with talk therapy and one with medication – but the two kinds of treatment would receive different protection under the Constitution.

One question that may have remained open at the end of the argument was whether, even if a majority of the justices conclude that the law does discriminate against Chiles and strict scrutiny should therefore apply, the Supreme Court should apply strict scrutiny itself or instead send the case back to the lower courts for them to do so. Sotomayor and Jackson both suggested that the lower courts should consider the question for the first time rather than the justices.

Related

• Ann E. Van Sickle, “Highlights of the Conversion Therapy Argument at the Supreme Court,” The New York Times (Oct. 7)

• Nina Totenberg, “Supreme Court seems highly doubtful of limits on conversion therapy for minors,” NPR (Oct. 7)

Campus free speech event at NYU almost cancelled

• Jonathan Adler, “A Discussion of ‘Campus Free Speech After October 7’ at NYU,” The Volokh Conspiracy (Oct. 10)

[Recently,] the Federalist Society sponsored a panel on “Campus Free Speech After October 7,” at New York University. The panel featured Judges Lisa Branch (Eleventh Circuit) and Roy Altman (S.D. Florida), former ACLU President Nadine Strossen, and the Manhattan Institute’s Ilya Shapiro.

As detailed in the Washington Free Beacon, this event (or, rather, a smaller event just featuring Ilya Shapiro) almost did not happen. NYU initially blocked the event, citing scheduling and security concerns, but ultimately relented once its actions were subject to public scrutiny.

The event did happen at NYU on October 7, and was live-streamed.

Zoom event this Friday on Trump, the media, and the First Amendment

• Stuart Benjamin, “Trump, the Media, and the First Amendment,” The Volokh Conspiracy (Oct. 13)

This Friday at 12:30 pm ET I will be hosting an online discussion about whether actions by President Trump and his administration should affect how courts and scholars analyze the First Amendment’s application to the media.

The launching point is the Trump Administration threats to revoke broadcasters’ licenses, and President Trump’s lawsuits against media companies, which implicate important, and contested, First Amendment doctrines—particularly those developed in Red Lion v. FCC and FCC v. Pacifica Foundation (upholding FCC regulations of broadcasters’ speech), NRA v. Vullo and Murthy v. Missouri (addressing government pressure and threats of legal sanctions), and New York Times v. Sullivan (holding that in defamation suits public officials must prove that the speaker knew a statement was false or was reckless about its falsity).

Register at this link or scan the QR code above.

More in the news

• “MIT President Says She ‘Cannot Support’ Proposal To Adopt Trump Priorities for Funding Benefits,” First Amendment Watch (Oct. 13)

• Ari Cohn, “California wants to make platforms pay for offensive user posts. The First Amendment and Section 230 say otherwise,” Expression (Oct. 11)

• “Judge Tosses Out Drake’s Defamation Lawsuit Against Label Over Kendrick Lamar’s ‘Not Like Us’,” First Amendment Watch (Oct. 10)

Subscribe now

2025-2026 SCOTUS term: Free expression and related cases

Review granted

• First Choice Women’s Resource Centers, Inc. v. Platkin

• National Republican Senatorial Committee v. Federal Election Commission

• Chiles v. Salazar (Argued Oct. 7)

• Olivier v. Brandon

• Pardue v. Hines

Pending petitions

• Little v. Llano County

• Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc.

• Evans Hotels, LLC v. Unite Here! Local 30

• Hartzell v. Marana Unified School District

• Sittenfeld v. United States

• 360 Virtual Drone Services LLC v Ritter

• Gilliam v. Gerregano

Petitions denied

• Jones v. Lafferty (application for stay denied)

Subscribe now

Last scheduled FAN

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

The ideal notwithstanding, truth does not always stand a chance in the political marketplace.

Holmes knew that, even as he preached his First Amendment gospel. Difficult as that Miltonian aspirational hope is to realize, it becomes even more difficult when the president calls the shots, when he or his subordinates dictate the contents and contours of truth.

To impose one’s will on time, on people, or on history is a sign of tyranny, of an imperious order to make reality conform to one’s ideology or personal whim. By that measure, greatness is defined by a false sense of reality, one beholden to a grandiose sense of the State and/or the self.

That mindset is willfully oblivious to the workings of the true world and the real sufferings of those either dead or alive. It is rooted in the claim to greatness, that “exceptional” state of affairs by which the default position is superiority, free of any wrongdoings other than those rare few that are rationalized away.

Even the scars of racism are to be erased from the pages of history in Trump times.

In the deceptive process, facts fade, truth vanishes, and the past is reconfigured to suit the will of the leader and his followers. After all, that is the popular mandate, or so we are told, which calls to mind something Hermann Göring (then president of the Reichstag) said during his Nuremberg trial: “The victor will always be the judge.”

That is another way of saying that history is written by the victors. By that measure, what we are left with is, in Robert Chenavier’s words, a “history of sovereignty.”

Think of that: the link between sovereignty and how history is recorded. To be sovereign is to be supreme, and that supremacy governs how the events of the past are to be portrayed.

In TRUMP truth that translates to the “exceptional” qualities of the supreme leader and the “exceptional” character of his nation as he demands that it be redefined. Take heed! Trump is great; America is great; both are exceptionally so — no contrary truths will be tolerated.

The formula

It is simple: Advocate one thing (e.g., “restoring freedom of speech”), practice another (e.g., networks critical of Trump should have their licenses “taken away”). It’s an Orwellian formula with a Trump twist, reminiscent of those who champion “the flat Earth theory.” That 21st-century pseudoscientific belief portends that the Earth is a flat disc, rather than a sphere. Of course, truth is subjective such that sometimes even authentic science must be bum-rushed out the door in the name of ideological conformity. By such truth-denying standards, even neo-Nazis count as “very fine people.” That, at least, is the Trump gospel. In the process, everything is relative, both as a moral principle and a scientific fact.

What is not relative or subject to fact-based reproach is anything that casts the Supreme Leader or the Exceptional State in a negative light. That is where we are when it comes to education, libraries, and museums, among others. After all, we live in Trump times.

‘American exceptionalism’

Let us start here to better grasp the problem: “George Washington is the only slave-owing President of the United States who freed his slaves at his death.” So wrote the late American historian David McCullough. Of the 12 presidents who owned or inherited slaves, those who never freed their enslaved people included Thomas Jefferson, James Madison, and John Tyler. Question: Ought such facts be included in public school curricula? For Mr. Trump the answer appears to be “no,” since he views such matters as “corrosive ideology” that leads to the impression that “America is purportedly racist.” This focus on, in Trump’s words, “how bad Slavery was” is the problem.

The answer: We must “celebrate American exceptionalism” and shun “divisive narratives” that expose America’s failings. Such narratives, however true, are portrayed as “improper partisan ideology.” Americans cannot be “exceptional” and Americans cannot revere their heritage when such historical facts are recalled in critical ways.

K-12 ‘1776 Curriculum’

To help remedy this so-called problem, Hillsdale College President Larry Arnn was tapped to lead a Trump administration commission and to create a K-12 history and civics curriculum that stressed the “unprecedented” nature of American freedom and prosperity, stressing the nation’s strengths rather than its failings. This curriculum was a response to the 1619 Project. (See also Hillsdale College’s commemorative videos to celebrate the 250^th anniversary of the Declaration of Independence and its mission to create a “patriotic education”).

Which brings us back to the question of how to understand the Framers and their involvement with or endorsement of slavery, or their silence about it. Here is how that question is answered in the President’s Advisory 1776 Commission Report:

George Washington owned slaves, but came to detest the practice, and wished for “a plan adopted for the abolition of it.” By the end of his life, he freed all the slaves in his family estate. . .

Thomas Jefferson also held slaves, and yet included in his original draft of the Declaration a strong condemnation of slavery, which was removed at the insistence of certain slaveholding delegates. . .

James Madison saw to it at the Constitutional Convention that, even when the Constitution compromised with slavery, it never used the word “slave” to do so.

Notice what is omitted from the factual record: Jefferson and Madison never freed their slaves in their lifetimes. And for all the attention focused on the Declaration of Independence and its exculpatory status, such revealing historical facts are erased.

While there is, of course, some historical truth in what is contained in the Hillsdale College materials, they are sometimes coated in exonerating omissions or overstatements. In that regard, and however one values the majesty of the Declaration or the genius of the Constitution, the fact is that slaves were not freed under the 1788 Constitution and were categorized as: “three fifths” of a person (Art. I, sect. 2, cl. 3). Moreover, there were 77 to 78 years between the ratification of the Constitution and the ratification of the 13th Amendment outlawing slavery.

Whatever the proper and accurate historical balance between what is set out in the 1619 Project and Hillsdale College’s curricular partnership with the Trump administration, it is important to note that the latter is government-approved. Operationally, it is the government deciding how its history is taught to students. And that is the problem, especially when (as with Hillsdale College) the ideological tie between those governing and those rewriting the history is inseparable.

Going forward, one wonders what government pressure might be imposed on public schools to use the Hillsdale College materials.

To return to Weil’s epigraph quote: Patriotism and love of Nation do not depend on a dogmatic and exonerating rendering of our history absolved (or largely so) of its failings. History, honestly told, does not ratchet one way, be it liberal or conservative. Much as political correctness is not the answer, political compulsion or collusion is hardly a salutary alternative.

In the end, what makes America truly “exceptional,” and what will continue to make it more exceptional, are both its accomplishments and its willingness to first recognize its failings and then vow to remedy them.

Related

• Clint Smith, “Actually, Slavery Was Very Bad,” The Atlantic (Aug. 22)

• “News outlets push back on Pentagon’s new reporting restrictions,” CNN (Sept. 28)

• Jeff Mason, Ahmed Aboulenein, and Julie Steenhuysen, “Trump links autism to Tylenol and vaccines, claims not backed by science,” Reuters (Sept. 23)

• Barry Schwabsky, “Trump Wants to Make Art Into a Tool of the State,” The Nation (Aug. 22)

Subscribe now

Judge rules Mike Lindell’s (the ‘pillow guy’) Smartmatic statements were false

• “Judge Rules ‘My Pillow Guy’ Mike Lindell Defamed Smartmatic with False Claims on Voting Machines,” First Amendment Watch (Sept. 29

MyPillow founder Mike Lindell defamed the election technology company Smartmatic with false statements that its voting machines helped rig the 2020 presidential election, a federal judge in Minnesota ruled Friday.

But U.S. District Judge Jeffrey Bryan deferred until future proceedings the question of whether Lindell — one of the country’s most prominent propagators of false claims that the 2020 election was a fraud — acted with the “actual malice” that Smartmatic still needs to prove to collect any damages.

The judge said there are “genuine fact disputes” as to whether Lindell’s statements were made “with knowledge that they were false or made with reckless disregard to their falsity.” He noted that the defense says Lindell has an “unwavering belief” that his statements were truthful.

[. . .]

The judge ruled there were 51 specific times when Lindell falsely claimed — in documentaries he produced and through various media and personal appearances — that Smartmatic interfered with the results.

“The Court concludes that, based on the record presented, no reasonable trier of fact could find that any of the statements at issue are true,” Bryan wrote.

Related

• “Rudy Giuliani and Dominion Voting Systems Settle Defamation Suit Over His 2020 Election Claims,” First Amendment Watch (Sept. 29)

Former ABC employees urge network not to be silenced by political pressure

• Ted Johnson, “More Than 100 Former ABC News Employees Call On Disney CEO Bob Iger To Make Clear Network ‘Will Not Be Silenced Or Intimidated By Political Pressure’,” Deadline (Sept. 24)

More than 100 former ABC News employees including Sam Donaldson, Tom Bettag and Judy Muller have signed on to a letter urging Disney CEO Bob Iger to step it up when it comes to publicly defending journalists under political attacks and the company itself against government pressure.

“We want to acknowledge and commend your decision to reinstate Jimmy Kimmel’s show,” the ABC News employees wrote in the letter, first reported by CNN. “It was the right call and an important statement that political intimidation should not dictate ABC’s programming. This action reflects the values that have long defined The Walt Disney Company.”

Related:

• “ABC News veterans urge network and Disney to fight for free speech,” The Lead

Corn-Revere testifies before Senate committee on First Amendment and FCC

• “Senators Blumenthal and Warren on First Amendment and the FCC,” C-SPAN (Sept. 29)

Statement of Robert Corn-Revere

Chief Counsel, Foundation for Individual Rights and Expression

SPOTLIGHT FORUM ON TRUMP ADMINISTRATION’S ASSAULT ON FREE SPEECH & FREE PRESS

Over the past ten months we have witnessed an extraordinary number of formal and informal assertions of power over the broadcast media and the national broadcast networks. Of course, the most recent example involved Chairman Brendan Carr’s crude threat directed at Disney and its ABC Network to “take action on Kimmel or there is going to be additional work for the FCC ahead.” The ultimatum stemmed from a monologue on Jimmy Kimmel Live! in which the late-night host joked about the possible motives of Charlie Kirk’s assassin.

Chairman Carr’s call to “take action” was followed immediately by ABC’s announcement that it was suspending Kimmel’s show “indefinitely.” Two major station group owners, Nexstar Media Group and Sinclair Broadcast Group, also announced that their ABC-affiliated stations would not carry Jimmy Kimmel Live! because of what they saw as offensive remarks. Kimmel’s show has since been restored to the air, first by the network, and then by both station group owners.

This incident did not occur in a vacuum. Since being elevated to the FCC chairmanship, Carr has revived previously dismissed complaints against the ABC, CBS, and NBC networks for alleged programming violations; slow-rolled approval of a merger between Paramount Global (owner of CBS) and Skydance Media (which has since been granted after the promise of an internal ombudsman to police “news bias” complaints); publicly cheered the demise of The Late Show with Stephen Colbert on CBS (the cancellation of which coincided with the merger approval); and has publicly solicited “news distortion” complaints against network news programs he evidently perceives to be critical of the President or his policies.

Carr has described his actions as business as usual for the FCC. He has said that broadcasters are licensed under the Communications Act to serve the “public interest,” and that he is merely holding them to that commitment. He has pointed to FCC policies against “news distortion” and “broadcast hoaxes” and claimed the agency is obligated to act if it receives complaints. And he has asserted that he is merely enforcing policies crafted by his Democratic predecessors, essentially arguing that if authority has been abused in the past, why shouldn’t he do the same?

None of this behavior is normal, authorized by the Communications Act, or permitted by the First Amendment. Just last term, the Supreme Court unanimously reaffirmed that the “‘threat of invoking legal sanctions and other means of coercion ... to achieve the suppression’ of disfavored speech violates the First Amendment.”⁴ This constitutional rule applies regardless of any authority Chairman Carr may believe the FCC has over broadcast programming. . .

Trump watch

• , “Breaking: Judge Rules Trump Administration Violated the First Amendment Rights of Lawfully Resident International Students and Scholars,” Thoughts on the First (Sept. 30)

Today Judge Young issued his post-trial Findings of Fact and Rulings of Law. The document weighs in at a hefty 161 pages…

• , “The Trump Administration’s ‘Grand Strategy’ Regarding Universities,” Thoughts on the First (Sept. 29)

• , “Antifa, Domestic Terrorism, and Public Protest,” Thoughts on the First (Sept. 25)

The Jimmy Kimmel saga

Sinclair and Nexstar, the two major station groups that preempted “Jimmy Kimmel Live!” earlier this month, have backed down, ending their boycott and allowing the show to return to their ABC-affiliated stations. The reversal is a victory for Kimmel and ABC and a reflection of the power that national networks have over local affiliates.

• Ariel Zilber, “Over 1.7M users cancelled Disney+, Hulu and ESPN subscriptions following Jimmy Kimmel suspension,” New York Post (Sept. 30)

• Jeremy Barr, “FCC chair claims he never threatened TV networks over Jimmy Kimmel,” The Guardian (Sept. 30)

• Brendan Morrow, “Jimmy Kimmel fires back at JD Vance over ‘fairytale’ comments about his suspension,” USA Today (Sept. 30)

• Dominic Patten, “Kimmel Corporate Fallout Continues: Irate Shareholders Have Nothing Yet From Disney About Suspension; Legal Threat Looms With Tuesday Expiration Date For Documents,” Deadline (Sept. 29)

• Brendan Morrow, “David Letterman says Kimmel suspension will lead to ‘something from which we won’t recover’,” USA Today (Sept. 19)

Louis Menand reviews two new books on free speech

• Louis Menand, “Where the Battle Over Free Speech is Leading Us,” The New Yorker (Sept. 26)

The United States is in a speech war. Normally, human beings fight over money or land or love, but that is not what is happening today. Today, people are fighting over words. People’s lives are being damaged and sometimes destroyed not for something they did but for something they said. We live in a society of doxing, trolling, cancelling, sanctioning, slandering, deplatforming, defunding, persecuting, prosecuting, firing, and sometimes killing over the expression of an opinion. A big part of the craziness is that some of the people going to war over words are casting themselves as champions of free speech. It’s the people they are trying to silence, they claim, who are the enemies.

[. . .]

Christopher L. Eisgruber’s new book, “Terms of Respect: How Colleges Get Free Speech Right” (Basic), is not ideally timed. Eisgruber is the president of Princeton University. It is a truth universally acknowledged that university presidents should not write books about their own schools, to which they have a fiduciary duty. The terms of their tenure require that they not do or say anything that might damage the school’s reputation or fundraising capacity. It is therefore impossible for them to comment disinterestedly or openly on topics bearing on their own institutions.

Within the self-censoring limits of the genre, Eisgruber has sensible things to say, maybe too sensible. His main practical point is that, as he puts it, “speech must be both uncensored and regulated.” This seems to mean that we should be in favor of what are called “time, place, and manner” restrictions on campus speech—no chanting in the library, no bullhorns in the quad, and so on. Fair enough. There are all kinds of things you cannot lawfully do in public spaces. The problems arise when you try to draw the line of permissibility, and Eisgruber doesn’t help us much here. His own reactions to speech controversies at Princeton, as he relates them, seem to have been largely seat-of-the-pants. And, so far, reasonably successful.

[. . .]

Fara Dabhoiwala teaches in the history department at Princeton, but he was not a signatory to the petition. Which is surprising, since his new book, “What Is Free Speech? The History of a Dangerous Idea” (Belknap), is entirely in its spirit. (Although it is a good rule never to sign a letter you did not write. You will be responsible for every word.) When we see “a dangerous idea” in the subtitle, we naturally assume that Dabhoiwala means dangerously good, in the sense of dangerous to bullies and tyrants. But this is not what he means. He means that free speech is a bad idea. Eisgruber thinks that the maximalist character of American free-speech law is the best thing about it, but Dabhoiwala thinks it’s the worst.

When we think of the history of free-speech rights, we tend to think of the Anglo-American legal tradition. A virtue of Dabhoiwala’s book is that it is transnational, and there are discussions of free-speech traditions less familiar to American readers. The first free-speech law, for example, was enacted in Sweden, in 1766.

The point Dabhoiwala wants to make is that the Anglo-American concept is not universal. On the contrary, he says, “America is now the only country in the world where even local ordinances against ‘hate speech’ are treated as presumptively unconstitutional.” First Amendment jurisprudence is absolutist and libertarian. Other nations have speech rights, but they are qualified. Hate speech can be prosecuted in the United Kingdom.

For a historian, Dabhoiwala is rather judgy. He calls free speech “a kind of secular religion, with its own shifting dogmas and hagiography,” an “inherently unstable fiction,” and “a contrived, invented concept.” Of course, all our concepts are invented. They are tools for dealing with the world, which happens to include a lot of other human beings, many of whom, sadly, don’t agree with us. [. . . .]

podcast on the FCC

• “What is going on with the FCC?” (Sept. 30)

What is the Federal Communications Commission, and why does its chairman think the agency can regulate Jimmy Kimmel’s jokes?

Note: Shortly after recording this episode, Nexstar and Sinclair announced they would return “Jimmy Kimmel Live!” to their stations.

Joining us:

Anna Gomez, FCC Commissioner

Ronnie London, FIRE General Counsel

Bob Corn-Revere, FIRE Chief Counsel

More in the news

• “In Landmark Ruling, Federal Court Says Trump Administration Violated First Amendment By Arresting, Attempting to Deport Foreign Citizens for Pro-Palestinian Advocacy,” Knight First Amendment Institute (Sept. 30)

• Colleen Slevin, “Elections worker who lost job after telling Jon Stewart about safety fears settles lawsuit,” Free Speech Center (Sept. 30)

• Sean Murphy, “Online threats of violence lead to arrests after Charlie Kirk’s killing,” Free Speech Center (Sept. 29)

• Graylan Scott Hagler, “The First Amendment as a Racist Weapon,” CounterPunch (Sept. 29)

• Dan Plante, “Federal court rules San Diego yoga classes are free speech,” Fox 5 (Sept. 29)

• “Delaware Strengthens Free Speech Protections with Passage of Uniform Public Expression Protection Act,” Institute for Free Speech (Sept. 15)

Subscribe now

2024-2025 SCOTUS term: Free expression and related cases

Cases decided

• Free Speech Coalition v. Paxton

• Firebaugh v. Garland

• 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 (9-0: The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)

Cases for next term

• First Choice Women’s Resource Centers, Inc. v. Platkin

• National Republican Senatorial Committee v. Federal Election Commission

• Chiles v. Salazar

• Olivier v. Brandon

Pending petitions

• Sittenfeld v. United States

• Pardue v. Hines

• 360 Virtual Drone Services LLC v Ritter

Petitions denied

• Crowe v. State Bar of Oregon

• Georgia Association of Club Executives v. Georgia

• MacRae v. Mattos (Thomas, J., special opinion)

• Sullivan v. Texas Ethics Commission

• L.M. v. Town of Middleborough (Thomas, J. dissenting, Alito, J., dissenting)

• Wilson v. Idaho

• Cocroft v. Graham

• Wynn v. Associated Press

• Speech First, Inc. v. Whitten

• Coalition Life v. City of Carbondale

• Turco v. City of Englewood, New Jersey

• R.J. Reynolds Tobacco Co. v. FDA

• Smith v. Stillie

• No on E, San Franciscans Opposing the Affordable Care Housing Production Act, et al. v. Chiu

• Henderson v. Texas

• Nassif v. United States

Emergency applications

• David Yost, Attorney General of Ohio, Applicant v. Cynthia Brown, et al. (Ohio, case No. 2:24-cv-1401, is hereby stayed pending further order of the undersigned order of the Court. It is further ordered that a response to the application be filed on or before Wednesday, April 16, 2025, by 5 p.m. (EDT).)

Free speech-related

• Mahmoud v. Taylor (argued April 22 / free exercise case: issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.)

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

Subscribe now

Last scheduled FAN

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

Can the president’s and the judge’s statements be reconciled? They appear, after all, to contradict one another, making it seemingly impossible for both to be true at the same time. Then again, countless rounds of scattered buckshot can hit more than one target at the same time. By that logic, even a “miss” of a designated target can still hit other similarly situated targets in the fallout area.

Hence, even if Trump loses a particular defamation case, he nonetheless can succeed in chilling the speech of others afraid to cross him. In that sense, then, Trump can win even when he loses — a triumph of subjugation over logic.

Subscribe now

Trump’s legal hitman

When Alejandro Brito filed his 85-page complaint in Trump v. New York Times and& Penguin Random House on Sept. 15^th, he probably did not expect a prompt and scathing judicial reply. Yet just such a response came. Consider the following statements from Judge Steven Merryday’s order:

• “This complaint stands unmistakably and inexcusably athwart the requirements of Rule 8” of the Federal Rules of Civil Procedure.

• “As every lawyer knows (or is presumed to know), a complaint is not a public forum for vituperation and invective — not a protected platform to rage against an adversary.”

• “The reader of the complaint must labor through allegations, such as ‘a new journalistic low for the hopelessly compromised and tarnished ‘Gray Lady.’’”

• “Although lawyers receive a modicum of expressive latitude in pleading the claim of a client, the complaint in this action extends far beyond the outer bounds of that latitude.”

• “The reader must endure an allegation of ‘the desperate need to defame with a partisan spear rather than report with an authentic looking glass.’”

Judge Merryday rejected the “tedious and burdensome” complaint but gave the Plaintiff 28 days to file an amended one, which must not exceed 40 pages. (See also: Tim Zick, “Judge dismisses Trump defamation complaint against The New York Times and Penguin”)

Mr. Brito is also representing the president in two other defamation actions: Trump v. Dow Jones and Co. (pending) and Trump v. Cable News Network, Inc. (motion to dismiss granted). Mr. Brito, however, secured a settlement in the Trump v. ABC News & George Stephanopoulos defamation case.

The buckshot effect on other parties

Whether intended or not, one real-world consequence of actions such as the $15 billion lawsuit against The New York Times is to chill others (e.g., media outlets and publishers) from saying or printing anything critical of Donald Trump. Even if Trump’s lawsuits against The Wall Street Journal, The New York Times, and Penguin Random House fail (as they probably will), they do send a threatening blast over the bow: Beware any who dare criticize Donald Trump.

Think of it. How many media outlets are likely to cross Trump when he has FCC Chairman Brendan Carr at his regulatory beck and call? How many publishers will think twice before they agree to release a book openly critical of Trump? How many will speak truth to power if they fear runaway litigation costs and other consequences for crossing Trump and his Justice Department? How many will condemn Trump’s actions if doing so has negative commercial consequences?

Bottom line: However the The Wall Street Journal and The New York Times cases, among others, the cautionary takeaway is well stated by Timothy Snyder:

[D]oing what Trump wants in advance only makes it more likely that Trump will have power, and only teaches him that you are easy to intimidate. You are giving the authoritarian power he would not otherwise have.

Thinking about...

Obeying in advance

Greetings from Oklahoma. Here are a few thoughts from here on video about the decisions of the owners of the Washington Post and the LA Times to suppress their editorial boards’ decisions to endorse Kamala Harris…

Listen now

a year ago · 5489 likes · 134 comments · Timothy Snyder

Related

• Alanna Durkin Richer, Larry Neumeister, and Jill Colvin, “Trump sues Wall Street Journal and media mogul Rupert Murdoch over reporting on Epstein ties,” Associated Press (July 18)

• Laurel Rosenhall, “Newsom Sues Fox News for Saying He Lied About Call With Trump,” The New York Times (June 27)

• “Executive Watch: Trump’s weaponization of civil lawsuits,” First Amendment News 462 (March 18)

• “‘The lawsuit is the punishment’: Reflections on Trump v. Selzer” First Amendment News 453 (Jan. 16)

Subscribe now

Kimmel returns!

• John Koblin and Michael M. Grynbaum, “Jimmy Kimmel, Somber but Defiant, Defends Free Speech in Return to ABC,” The New York Times (Sept. 23)

Jimmy Kimmel broke his silence on Tuesday night in an emotional return to ABC’s airwaves, by turns defiant, joking and somber as he addressed the controversy that temporarily sidelined his late-night show and set off a national debate over free speech.

His voice breaking at times, Mr. Kimmel said he understood why his comments last week about the suspected shooter of right-wing activist Charlie Kirk seemed “ill-timed, or unclear, or maybe both.” He added, “It was never my intention to make light of the murder of a young man.”

But Mr. Kimmel also had harsh words for President Trump and the government regulator who suggested that the Trump administration would punish ABC because of his remarks, saying that “a government threat to silence a comedian the president doesn’t like is anti-American.”

Two major TV operators remain undecided on Kimmel return

• John Koblin, Brooks Barnes, Michael M. Grynbaum, and Benjamin Mullin, “Jimmy Kimmel’s Show to Return to ABC on Tuesday Night,” The New York Times (Sept. 22)

Jimmy Kimmel is coming back.

ABC said on Monday that “Jimmy Kimmel Live!” would return to its airwaves on Tuesday, ending an impasse that began last week.

“Last Wednesday, we made the decision to suspend production on the show to avoid further inflaming a tense situation at an emotional moment for our country,” the Walt Disney Company, which owns ABC, said in a statement.

“It is a decision we made because we felt some of the comments were ill-timed and thus insensitive,” the statement said. “We have spent the last days having thoughtful conversations with Jimmy, and after those conversations, we reached the decision to return the show on Tuesday.”

[ . . . ]

Disney did not say whether all ABC affiliates, some of which balked at carrying “Jimmy Kimmel Live!” last week, would carry Tuesday’s show.

It is still unclear whether Nexstar and Sinclair — two major television operators that own many ABC affiliates and have vowed to pre-empt “Jimmy Kimmel Live!” in the aftermath of his comments — will air future episodes of the show. Representatives for Nexstar and Sinclair did not immediately respond to a request for comment.

ACLU and 400 artists protest Kimmel’s suspension

• “Join the ACLU and Over 400 Artists to Defend Free Speech,” ACLU (Sept 22)

Jimmy Kimmel was taken off the air after our government threatened a private company with retaliation for Kimmel’s remarks. This is a dark moment for freedom of speech in our nation.

This is unconstitutional and un-American. The government is threatening private companies and individuals that the President disagrees with. We can’t let this threat to our freedom of speech go unanswered.

The ACLU has partnered with hundreds of creatives, artists, and journalists to send a message that government officials can never silence us. And now, we’re calling on our whole community to join us.

Read the full letter and add your name to join us in the fight to defend our constitutional right to free speech.

Pentagon demands pledge from credentialed journalists

• “Pentagon Steps up Media Restrictions, Now Requiring Approval Before Reporting Even Unclassified Info,” First Amendment Watch (Sept. 22)

The Pentagon says it will require credentialed journalists at the military headquarters to sign a pledge to refrain from reporting information that has not been authorized for release — including unclassified information.

Journalists who don’t abide by the policy risk losing credentials that provide access to the Pentagon, under a 17-page memo distributed Friday that steps up media restrictions imposed by the administration of President Donald Trump.

“Information must be approved for public release by an appropriate authorizing official before it is released, even if it is unclassified,” the directive states. The signature form includes an array of security requirements for credentialed media at the Pentagon.

Advocates for press freedoms denounced the non-disclosure requirement as an assault on independent journalism. The new Pentagon restrictions arrive as Trump expands threats, lawsuits and government pressure as he remakes the American media landscape.

Crackdown on West Point’s academic freedom

• Larry Neumeister, “West Point violating First Amendment with professor crackdown: Lawsuit,” Army Times (Sept. 22)

The U.S. Military Academy at West Point is banning opinions by professors in the classroom and some books and courses in a crackdown that violates the First Amendment, a law professor at the military school said in a lawsuit Monday seeking class action status.

Tim Bakken filed the lawsuit in Manhattan federal court and named the school and its leaders as defendants. He said he wants to protect free speech and the right to academic freedom at an institution where he has flourished despite his public criticisms of the academy and the U.S. military.

Bakken also noted in the lawsuit that he has a contract with a publisher for a book that is critical of some aspects of West Point and doesn’t want to seek approval from the school’s leadership prior to its publication because “it is very likely such approval will be withheld.”

[ . . . ]

The lawsuit seeks class action status for West Point’s civilian faculty members, believed to be more than 100 individuals, and a court order to stop restrictions on free speech, along with unspecified damages and legal fees.

Granieri and Korzenik on South Park, parody, and the First Amendment

• Susanna Granieri, “Media Attorney David Korzenik on South Park and First Amendment Protections for Parody,” First Amendment Watch (Sept. 19)

The hit animation series “South Park,” streamed by Paramount, started its 27th season in July, controversially mocking President Donald Trump by depicting him as being in a relationship with the devil. The episode, titled “Sermon on the ‘Mount,” references various real-life scenarios, including the defunding of National Public Radio; bringing Christianity into public schools; an overuse of Chat.

First Amendment Watch spoke with David Korzenik, media law attorney and former adjunct professor at The Benjamin N. Cardozo School of Law at Yeshiva University in New York City. Korzenik discussed the First Amendment protections that are applied to satirical content; explained why a lawsuit against “South Park” by President Trump would likely be unsuccessful; and argued why those who criticize the president should be immune from defamation lawsuits he might file against them.

Trump watch

• , “Trump 2.0: Executive Power and the First Amendment,” First Amendment Watch (Updated Sept. 18)

So far, President Trump has issued 43 Executive Orders, Fact Sheets, and Presidential Memoranda that implicate or affect First Amendment rights (speech, press, and association). Those directives and policies, and related agency enforcement actions, have given rise to 55 lawsuits (or nearly 7 lawsuits for each month Trump has been in office) in which plaintiffs have pursued First Amendment claims. . .

As a general matter, the Trump Administration has been losing very badly in early lawsuits challenging the President’s directives and agency actions on First Amendment grounds. District courts have granted preliminary and, in some cases, permanent relief to many plaintiffs.

• , “Policing Arts Funding For ‘Gender Ideology’,” Thoughts on First (Sept. 21)

The Trump Administration has lost yet another case on First Amendment grounds. This one involves the National Endowment for the Arts (NEA), which provides federal funding for a wide variety of arts projects.

New book by coming this December

• , “Trump 2.0: Executive Power and the First Amendment,” Carolina Academic Press (Dec. 20)

Forthcoming book on campaign finance spending and marketplace of ideas

• Nathan Katz, “Bankrupting Democracy: Campaign Spending in a Marketplace of Ideas,” University Press of Kansas (May 2026)

A deeply researched investigation that shows how the long-held ideas protecting unlimited campaign spending as free speech that once served the needs of political candidates and voters are now shaped to serve the desires of interest groups, threatening the future of American democracy.

In the 2010 Citizens United decision, Supreme Court Justice Anthony Kennedy stated that the precedent they were overturning “interferes with the ‘open marketplace’ of ideas protected by the First Amendment.” For the majority who ruled in this case, money was in some sense the equivalent of speech, meaning that spending should be allowed under the guise of a marketplace of ideas. But what does this actually mean? And what are the consequences?

Both critics and advocates of this marketplace of ideas often treat it as an abstract principle, one that focuses on competition among different voices that allows for the most popular, and therefore best, ideas to gain prominence. But the marketplace of ideas is not a single tool. There are multiple mechanisms at play, all of which influence the rules and regulations behind this competition. Therefore, the marketplace of ideas should be understood not as a single idea but as a collection of smaller norms that build a regulatory, market-like system.

Bankrupting Democracy traces the development of this system, which Nathan Katz calls the “money-speech paradigm.” Through a historical analysis of campaign finance reform discourses that have occurred within the legislative record and the Supreme Court, Katz demonstrates how these ideologies have caused radical changes to political speech. He pairs these data with an analysis of the changing patterns of political advertisers—the PACs, Super PACs, interest groups, candidates, and parties that all spend a large portion, often the majority, of their money on television advertisements. By combining these components, Katz shows how changes to the money-speech paradigm have shifted from a focus on political candidates and their right to public exposure to a system that focuses on supporting interest groups’ pursuit of social and economic dominance.

At each stage in the development of the current system, proponents of the reforms assumed the security of democratic institutions, leaving them unprotected against the consolidation of corporate power. Bankrupting Democracy illuminates this market system that threatens to unravel the very fabric of American society.

Video: Federalist Society panel on ‘Federal effort to combat antisemitism’

• “Video of Education Law and Policy Panel on ‘Federal Efforts to Combat Antisemitism: Restoring Campus Civil Rights or Infringing Academic Freedom?’” The Volokh Conspiracy (Sept. 19)

Cato to host exchange between Mary Anne Franks and Robert Corn-Revere

• “Cato Free Speech Debate Are Contemporary Understandings of the First Amendment the Best Way to Protect Free Expression in the 21st Century?”

Online platforms have created unprecedented opportunities for individuals to share ideas and reach wider audiences. Supporters of these platforms point to how they have reduced barriers to participation, providing new and creative opportunities for discourse and connection. Critics, however, raise concerns that these platforms can allow the spread of misinformation, the amplification of offensive speech, or the power of private companies to shape which voices are heard and which are silenced. The internet has become a central arena in debates about the scope and limits of free expression.

The United States has long valued the First Amendment’s broad protections, but public support is waning. A 2024 Freedom Forum poll found that only 58 percent of Americans would ratify it today — down five points in four years. Critics argue that certain types of speech, while legal, can cause harm or suppress the voices of vulnerable groups. Free speech advocates warn that narrowing protections will risk government censorship and shrink the space for open debate.

This tension raises an important question: Are current interpretations of the First Amendment sufficient to safeguard free expression in the digital age? To mark Free Speech Week, we are hosting two prominent scholars to debate this issue.”

Participants: Mary Anne Franks, Robert Corn-Revere, and Jennifer Huddleston

Date & Time: Oct. 21, 5:30-6:30 p.m. ET

Location: Cato Institute, 1000 Massachusetts Ave, NW, Washington, D.C.

Register

‘Shine a Light’ series focuses on state and local officials and transparency

• In an effort to make state and local government more participatory and informed, the Lewes Public Library [Delaware] will host the launch of the ‘Shine a Light’ series on Sept. 18. This community event, hosted by Ronald Collins, invites the press and residents to engage directly with government officials, fostering transparency and open dialogue.”

More in the news

• Eric He, “Judge orders Trump administration to restore more than $500 million in research funds to UCLA,” Politico (Sept. 22)

• , “Carr’s threats to ABC are jawboning any way you slice it,” FIRE (Sept. 22)

• Eugene Volokh, “Indiana Court Sets Aside $250K Default Judgment in Lawyer’s Libel Case Related to ‘Scathing Google Review’,” The Volokh Conspiracy (Sept. 22)

• , “Why our critics’ whataboutery over Jimmy Kimmel is wrong,” FIRE (Sept. 22)

• David Spector, “Rand Paul Slams FCC Commissioner’s ‘absolutely inappropriate’ Jimmy Kimmell comments,” Fox News (Sept. 21)

• , “Charlie Kirk was a free speech advocate. His death shouldn’t lead to suppression,” USA Today (Sept. 21)

• Kevin Breuninger, “Ted Cruz, Ted Cruz compares FCC Chair Carr to Mafia boss in Jimmy Kimmel warnings,” CNBC (Sept. 19)

• Brent Skorup, “Jimmy Kimmel, the FCC, and Why Broadcasters Still Have ‘Junior Varsity’ First Amendment Rights,” Cato Institute (Sept. 19)

• Adam Liptak, “In Pressuring ABC Over Kimmel, Trump May Have Crossed a Constitutional Line,” The New York Times (Sept. 19)

• “Democrats introduce bill to protect free speech following Kimmel suspension,” Free Speech Center (Sept. 19)

• Stuart Benjamin, “The FCC Chair’s Unprecedented, and Constitutionally Problematic, Response to Jimmy Kimmel,” The Volokh Conspiracy (Sept. 19)

• Robert Corn-Revere, “The irony of Jimmy Kimmel’s ouster,” The Washington Post (Sept. 18)

Subscribe now

2024-2025 SCOTUS term: Free expression and related cases

Cases decided

• Free Speech Coalition v. Paxton

• Firebaugh v. Garland

• 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 (9-0: The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)

Cases for next term

• First Choice Women’s Resource Centers, Inc. v. Platkin

• National Republican Senatorial Committee v. Federal Election Commission

• Chiles v. Salazar

• Olivier v. Brandon

Pending petitions

• Sittenfeld v. United States

• Pardue v. Hines

• 360 Virtual Drone Services LLC v Ritter

Petitions denied

• Crowe v. State Bar of Oregon

• Georgia Association of Club Executives v. Georgia

• MacRae v. Mattos (Thomas, J., special opinion)

• Sullivan v. Texas Ethics Commission

• L.M. v. Town of Middleborough (Thomas, J. dissenting, Alito, J., dissenting)

• Wilson v. Idaho

• Cocroft v. Graham

• Wynn v. Associated Press

• Speech First, Inc. v. Whitten

• Coalition Life v. City of Carbondale

• Turco v. City of Englewood, New Jersey

• R.J. Reynolds Tobacco Co. v. FDA

• Smith v. Stillie

• No on E, San Franciscans Opposing the Affordable Care Housing Production Act, et al. v. Chiu

• Henderson v. Texas

• Nassif v. United States

Emergency applications

• Ohio, case No. 2:24-cv-1401, is hereby stayed pending further order of the undersigned order of the Court. It is further ordered that a response to the application be filed on or before Wednesday, April 16, 2025, by 5 p.m. (EDT).”)

Free speech-related

• Mahmoud v. Taylor (argued April 22 / free exercise case: issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.)

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

Subscribe now

Last scheduled FAN

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

In an earlier post, I wrote about a cert petition (a “PR ploy”) in which First Amendment claims are being raised to urge the Court to overrule its landmark gay marriage ruling in 2015’s Obergefell v. Hodges. It is against that backdrop that I thought I’d say a few words about some LGBTQ First Amendment cases that have come before the Court — some of the more striking ones seldom, if ever, make their way into casebooks or even treatises on free speech.

What follows is excerpted and abridged from a First Amendment casebook I hoped to coauthor with a few others until one of the contributors bailed on us in the final hours, thus killing the project.

That said, some of my work can still be put to good use, or that is my hope.

Subscribe now

Free speech and the equality principle

“The principle of equality, when understood to mean equal liberty, is not just a peripheral support for the freedom of expression, but rather part of the ‘central meaning of the First Amendment.’”

Those are the words of the late professor Kenneth Karst — words contained in a famous law review article he wrote titled “Equality as a Central Principle in the First Amendment.”

The idea of an equality (or anti-discrimination) principle being key to much free speech law can be seen in any variety of doctrines, ranging from that of content neutrality to public forum analysis. That said, there is at the same time a tension between the liberty principle of the First Amendment and the equality principle of the Fourteenth Amendment — as evidenced by, among other things, the Court’s handling of hate speech.

Unlike Equal Protection law, where there are categories of law specifically dealing with racial discrimination and LGBTQ+ discrimination, there is no real doctrinal counterpart in First Amendment law, though such discrimination has sometimes shaped a body of First Amendment law. This is especially true in the free speech context.

Related resources

• Harry Kalven, The Negro and the First Amendment (1965).

• David Greene and Shahid Buttar, “The Inextricable Link Between Modern Free Speech Law and the Civil Rights Movement,” Electronic Frontier Foundation (March 8, 2019).

• Carlos A. Ball, The First Amendment and LGBT Equality A Contentious History (2017).

• Paul Siegel, “Lesbian and Gay Rights as a Free Speech Issue: A Review of Relevant Caselaw,” 21 J. Homosexuality 203 (1991).

• Dale Carpenter, “Born in Dissent: Free Speech and Gay Rights,” 72 SMU L. Rev. 375 (2019).

The case of the magazine that brought gay life out of the closet

Imagine being gay in 1956. You live in a secret world. If discovered, your intimate life could get you arrested and thrown in jail — or worse. If outed, you could lose your job. Sharing time with others like you most likely means going to a dark and dingy bar on the outskirts of town. And if your parents and trusted friends know about you, it is all kept very secret. In other words, you live in the closet.

That America was commonplace to gay people. Even publishing and mailing a “pro-homosexual” non-obscene magazine could trigger an FBI investigation and U.S. Postal censorship. Again, we’re talking about non-obscene material, even by 1957–58 legal standards (see Roth v. United States (1957)). Even so, the government took aim and refused to allow such magazines to be sent in the mail, which could mean the death of any such magazine. (The Masses, an avant-garde leftist magazine, died in 1917 after the post office refused to send it).

All of this brings us to ONE, a gay and lesbian magazine. As author, journalist, and activist recounted: “ONE was the country’s first openly gay magazine of ideas. It debuted in 1953 with serious articles on subjects like ‘homosexual marriage.’ (In 1953!) It did not publish explicitly sexual content or anything that approached the boundaries of pornography.”

ONE took its name from a poem by Thomas Carlyle, a Scottish philosopher and writer. The line: “A mystic bond of brotherhood makes all men one.” To be “one,” then, meant to be “one of us” — a proud gay, lesbian, or transgender person.

Back then, to print such a publication, and to house an office where it was produced, was to risk trouble. And trouble came in 1954 when the postmaster in Los Angeles tagged ONE’s October issue as “obscene, lewd, lascivious and filthy.” In other words, it could not be sent in the U.S. mail — and in an era without alternative methods of correspondence, like FedEx or e-mail, that essentially meant it couldn’t be sent at all.

And why? To start, it contained a poem about gay cruising (“Lord Samuel and Lord Montagu”), a lesbian-love short story (“Sappho Remembered”), and an ad for The Circle magazine, which printed gay romance stories. Additionally, Rauch has aptly noted, there was more:

…the banned issue’s cover article was a critique of, you guessed it, the government’s censorship. The cover announced “You Can’t Print It!” and the article walked through the many restrictions imposed on the magazine. The government censored the article objecting to government censorship.

1957: ACLU absent

When censorship came in 1957, the ACLU did not come to the rescue of ONE. In a statement released by its board of directors on Jan. 7, 1957, the ACLU stated:

The American Civil Liberties Union is occasionally called upon to defend the civil liberties of homosexuals. It is not within the province of the Union to evaluate the social validity of laws aimed at the suppression or elimination of homosexuals.

It fell to ONE’s in-house counsel and the unnamed author of “You Can’t Print It!,” Eric Julber, to take the government to federal court in ONE v. Olesen.

Again, from :

Federal district and appellate courts delivered defeats in stinging terms, leaving no doubt that the government’s censorship was message-specific. The district court’s decision held, “The suggestion advanced that homosexuals should be recognized as a segment of our people and be accorded special privilege as a class is rejected.”

When the court of appeals for the Ninth Circuit weighed in, it focused on the “Sappho Remembered” short story: “the young girl gives up her chance for a normal married life to live with the lesbian. This article is nothing more than cheap pornography calculated to promote lesbianism.” That ended the matter.

When the case went to the Supreme Court, something very unexpected happened. On Jan. 13, 1958, the justices summarily reversed by way of a per curiam opinion, which in its entirety read:

The petition for writ of certiorari is granted and the judgment of the United States Court of Appeals for the Ninth Circuit is reversed. Roth v. United States, 354 U.S. 476.

Think about it: Julber’s First Amendment victory on behalf of free speech rights for the LGBTQ+ community was:

• 11 years before the Stonewall riots;

• 15 years before Lambda Legal was founded;

• 15 years before the American Psychiatric Association removed homosexuality from its list of mental disorders in the DSM-II Diagnostic and Statistical Manual of Mental Disorders;

• 20 years before San Francisco elected Harvey Milk to office (the first openly gay man to be elected to a political office in California . . . and then murdered);

• 21 years before the first National March on Washington for Lesbian and Gay Rights occurred;

• 45 years before Paul M. Smith (a noted Supreme Court litigator) convinced the Supreme Court to strike down a “homosexual conduct” sodomy law in Lawrence v. Texas, 539 U.S. 558 (2003); and

• 57 years before Mary L. Bonauto persuaded the Supreme Court to strike down anti-same-sex marriage laws in Obergefell v. Hodges, 576 U.S. 644 (2015).

This early victory was a First Amendment victory — and at a time when everyone, save ONE and Julber, thought it impossible.

Subscribe now

Subsequent Supreme case

In Manual Enterprises v. Day, 370 U.S. 478 (1962), the Court ruled (6-1) that three homoerotic physique magazines (MANual, Trim, and Grecian Guild Pictorial) were not obscene and could not be banned from the U.S. mails.

In the course of his arguments on behalf of the petitioners, Stanley Martin Dietz (“the first lawyer to make an argument in favor of gay rights” before the Supreme Court) argued that “[t]here is no community that has no homosexuals.” (See James Kirchick citation below).

Writing for the majority, Justice Harlan revisited the Court’s view of what constituted obscenity. Though the lower courts had argued that the intended audience of the magazines (homosexuals) rendered the material obscene, Harlan concentrated on whether the materials were “so offensive on their face as to affront current community standards of decency — a quality that we shall hereafter refer to as ‘patent offensiveness’ or ‘indecency.’” If the materials lacked that quality, the Court need not consider the question of “audience.”

Referencing the Hicklin test, Harlan argued that for materials to be obscene required two things: they were patently offensive, and an appeal to prurient interest. Therefore, he reasoned, “The Court of Appeals was mistaken in considering that Roth made ‘prurient interest’ appeal the sole test of obscenity. . .” Harlan then referenced the Roth standard that required a determination of the relevant “community.” On that score, he concluded that since the law in question dealt with the national mail, the relevant community was a national audience. As to Roth’s “prurient appeal, Harlan declared. “[We] need go no further in the present case than to hold that the magazines in question, taken as a whole, cannot, under any permissible constitutional standard, be deemed to be beyond the pale of contemporary notions of rudimentary decency.” He also noted that “these portrayals of the male nude cannot fairly be regarded as more objectionable than many portrayals of the female nude that society tolerates. Of course, not every portrayal of male or female nudity is obscene.”

Resources

• , Secret City: The Hidden History of Gay Washington (2022), pp. 269-273

• Judith Valente, “Making A Living Defending the Pornographers,” The Washington Post (Jan. 11, 1978):

During the 1950s, Dietz represented several homosexual men who charged that they had been brutalized by D.C. police. Herman Womack, a local philosophy professor and a homosexual, hired Dietz as his attorney when he began encountering difficulties with the Post Office for selling homosexual magazines through the mail. When Womack’s company MAN-ual Enterprises, sued the postmaster general, Dietz took the case to the U.S. Supreme Court. In a landmark decision, the high court ruled that neither the Postmaster General, nor any U.S. agency except a federal court, had the authority to determine what is obscene.

Subscribe now

The next case, Rowland v. Mad River Local School District

In order to get some perspective on this long-overlooked First Amendment case, it is helpful to have some sense of the history surrounding LGBTQ+ rights at the time when Marjorie Rowland found herself at the crosswinds of a controversy over her sexual identity. Note that her case, which began in 1974, occurred some 29 years before the Supreme Court ever extended any constitutional rights to LGBTQ+ persons as it first did in Lawrence v. Texas, 539 US 558 (2003).

What follows is excerpted (with permission) from Margaret A. Nash and Karen L. Graves, Mad River, Marjorie Rowland, and the Quest for LGBTQ Teachers’ Rights:

The controversy

Marjorie Rowland began work as a counselor at Stebbins High School in Dayton, Ohio, in August 1974. In November, she told her secretary that two particular students did not need to have special permission to see her and that if Rowland was available, the secretary should allow either of those students to come in. The reason, Rowland disclosed in confidence, was that each of these students had come out to their parents as gay, the parents had not responded well, and the students needed support. The secretary peppered Rowland with questions, leading to Rowland saying that she was bisexual and was currently in love with a woman.

She was suspended from her nontenured position as a high school guidance counselor. In April 1975, the respondent school district acting through its school board decided not to renew her contract.

The history

At the end of World War II, Cold War politics framed the most repressive period in U.S. history for gay and lesbian citizens, and educators became a particularly vulnerable target. One reason for the increased repression was the increased visibility of homosexuality. Alfred Kinsey published his famous study The Sexual Behavior of the Human Male in 1948, documenting that more than a third of the men in his study had had at least one homosexual experience. Many civic leaders and citizens were horrified and pushed for more punitive laws that often included a psychiatric diagnosis. In some states, by law, if you had homosexual tendencies, whether or not you had engaged in homosexual behavior, you were labeled a sexual psychopath.

As a result, this period was marked by a widespread purge of gay and lesbian teachers, professors, and students. The most relentless attack occurred in Florida during the Johns Committee investigations. Between 1957 and 1963 the state investigative committee actively pursued lesbian and gay schoolteachers, subjected them to interrogation, fired them from teaching positions, and revoked their professional credentials. By 1963 the committee reported that it had revoked seventy-one teachers’ certificates with sixty-three cases pending and had files on another hundred ‘suspects.’ A combination of factors led to the committee’s demise in 1965, but, as Stacy Braukman shows, the ideology that powered its crusade simply went underground. A 1977 reprisal in Miami pushed Florida to the center of the national spotlight on the gay rights movement.

Some communities in the United States began to inch toward civil rights protections for gay and lesbian citizens in the 1970s, overturning sodomy laws and prohibiting job discrimination. This political action triggered antigay organizing by conservative political groups. Among all public employees protected by newly minted antidiscrimination laws, lesbian and gay schoolteachers drew the most contentious reaction.

In 1977 and 1978 national attention was riveted on the gay rights battles taking place in Miami and California. In Florida, activists challenged a law that protected gay men and lesbians from discrimination in employment, housing, and public accommodations, strategically narrowing the scope of the referendum to focus on gay and lesbian teachers. In California, the referendum was based entirely on the question of who could teach in public schools.

The Florida referendum was a resounding defeat for the gay rights movement. Reporters characterized the vote as a ‘stunning setback’ for gay rights activists that would reverberate across the nation. It was followed by similar retrenchment in Minnesota, Kansas, and Oregon. Clearly, the political tide had turned, making the 1978 statewide vote in California increasingly important. There, gay rights groups organized effectively while antigay forces overextended their political reach, targeting all teachers who supported gay rights. This time voters rejected the referendum, handing the gay rights movement a critical victory.

At the same time, however, state senator Mary Helm introduced a bill in Oklahoma that was a virtual twin of the California law. It passed in the lower house by a vote of 88–2 without debate and was approved in the state senate unanimously. The new law allowed school districts in Oklahoma to fire gay men, lesbians, and any other educator who engaged in ‘public homosexual conduct,’ defined broadly as ‘advocating, soliciting, imposing, encouraging or promoting public or private homosexual activity in a manner that creates a substantial risk that such conduct will come to the attention of schoolchildren or school employees.’ In other words, the law prohibited teachers from supporting gay rights.

The National Gay Task Force (NGTF) challenged the law on multiple grounds: that it violated freedom of speech, freedom of association, freedom of religion, the right to privacy, the equal protection clause of the Fourteenth Amendment, and the fact that the law was too vague and too broad. A federal district judge upheld the law, and the case went to the Tenth Circuit Court on appeal. In a 2–1 decision, the appellate court struck down the part of the law that restricted free speech. The dissenting judge James Barrett was furious, writing that a teacher who advocated on behalf of gay rights was less deserving of constitutional protection than one who advocated ‘violence, sabotage and terrorism.’

When the case reached the Supreme Court, six justices voted to hear the case. The court had a history of turning away cases brought by gay citizens who wanted to claim civil rights. In this case, the appellate court’s decision in favor of gay rights advocates would stand unless the Supreme Court ruled otherwise. Board of Education v. National Gay Task Force, 470 US 903 (1985) [argued by Laurence Tribe for Appellees] thus became the first Supreme Court case to address gay and lesbian teachers. Due to Justice Lewis Powell’s absence, the decision was tied 4–4, meaning that the NGTF victory at the appellate court was affirmed. The part of the law that infringed teachers’ freedom of speech was ruled unconstitutional.

Prior to the political organizing in Florida, California, and Oklahoma, individual teachers had begun challenging dismissals based on their sexual orientation in court. Backed first by the American Civil Liberties Union (ACLU) and then the National Education Association (NEA), plaintiffs fighting for their jobs tested legal arguments designed to keep LGBT educators out of schools. These early decisions turned on morality and privacy assumptions that had long circumscribed all teachers’ autonomy and employment rights. In some cases, teachers gained ground in the effort to secure nondiscriminatory employment protections, but, as Jackie Blount has observed, in all cases the individual teachers whose jobs were on the line were displaced.

Three of these cases reached the Supreme Court. In 1972 Joseph Acanfora was completing his student teaching assignment at Penn State when, as part of a news story on the university’s gay student group, he noted that he was gay. College officials subjected him to intense scrutiny regarding his character before forwarding his application for a teaching certificate to the state department of education. Acanfora accepted a job teaching eighth-grade science in Montgomery County, Maryland.

About a month into the school year, the Pennsylvania Department of Education held a news conference, announcing it was approving Acanfora’s request for a teaching certificate; Acanfora’s principal promptly removed him from his teaching duties. Although there was strong community support for Acanfora, the district court handed down a mixed opinion. It protected homosexuals’ right to teach but noted that Acanfora had violated the ‘duty of privacy’ he was to maintain as a public schoolteacher. The Fourth Circuit Court of Appeals rejected that reasoning and upheld Acanfora’s right to freedom of speech. But it held that his dismissal could stand, given that he had failed to list his membership in the student group Homophiles of Penn State on his job application. The Supreme Court denied a petition for writ of certiorari (cert.) in October 1974, and Acanfora left teaching.

1977 petitions to the Supreme Court

In October 1977 the Supreme Court denied cert. in two more cases: Gish v. Board of Education of the Borough of Paramus and Gaylord v. Tacoma School District No. 10. James Gaylord, a Phi Beta Kappa graduate of the University of Washington, was a high school history teacher who had established a strong record of teaching over a twelve-year period. He had not disclosed information about his sexual orientation and was not charged with any sort of immoral conduct, but when his vice principal asked if he was gay, he said yes. Gaylord was fired in December 1972 on charges of ‘immorality.’ The Supreme Court of Washington upheld the dismissal on the basis of Gaylord’s status as a gay man, a ruling the U.S. Supreme Court did not review.

That same day, the court denied cert. in Gish. In 1972 veteran high school English teacher John Gish organized the Gay Teachers Caucus of the NEA. Later that year, the Paramus, New Jersey, school board ordered Gish to take a psychiatric examination. Gish refused. Supported by the ACLU, he began a five-year legal journey that ended when the Supreme Court refused to hear the case, leaving the New Jersey Superior Court’s decision intact. Relying on the 1952 Adler v. Board of Education of the City of New York ruling that had since been superseded, the New Jersey court found that school boards maintained wide latitude in determining the fitness of teachers. They considered Gish’s “actions in support of ‘gay’ rights’ a deviation from ‘normal mental health which might affect his ability to teach, discipline, and associate with students.’

Each of these cases had been set in motion in 1972, just as the gay rights movement was gaining traction. Over the course of the decade, two lines of argument emerged, anchored in the First Amendment freedom of speech and the Fourteenth Amendment equal protection clauses. By the time the Supreme Court had its next opportunity to weigh in on the matter of employment rights for gay and lesbian teachers, Justice Brennan was fed up with the court’s persistent refusal to consider the important constitutional questions at stake. In 1985 he issued a dissent in Rowland v. Mad River Local School Dist. that would provide an important foundation for legal breakthroughs in the future.” (footnotes omitted).

Subscribe now

The Supreme Court’s 1985 denial of certiorari and Justice William Brennan’s dissent appear below.

On petition for writ of certiorari to the United States Court of Appeals for the Sixth Circuit.

The petition for a writ of certiorari is denied.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

This case raises important constitutional questions regarding the rights of public employees to maintain and express their private sexual preferences. Petitioner, a public high school employee, “was fired because she was a homosexual who revealed her sexual preference-and, as the jury found, for no other reason.” 730 F.2d 444, 454 (CA6 1984) (Edwards, J., dissenting). Because the determination of the appropriate constitutional analysis to apply in such a case continues to puzzle lower courts and because this Court has never addressed the issues presented, I would grant certiorari and set this case for oral argument.

I

In December 1974, the petitioner was suspended from her nontenured position as a high school guidance counselor. In April 1975, the respondent School District acting through its School Board decided not to renew the petitioner's contract. A jury later made unchallenged findings that petitioner was suspended and not rehired solely because she was bisexual and had told her secretary and some fellow teachers that she was bisexual, and not for “any other reason.” The jury also found that the petitioner's mention of her bisexuality did not “in any way interfere with the proper performance of [her or other school staff members’] duties or with the regular operation of the school generally.” The jury concluded that the petitioner had suffered damages as a result of the decisions to suspend and not rehire her in the form of personal humiliation, mental anguish, and lost earnings.

The trial judge ruled that these findings supported petitioner's claims for violation of her constitutional right to free speech under Pickering v. Board of Education, 391 U.S. 563 (1968), and to equal protection of the laws under the Fourteenth Amendment. [note omitted] He therefore entered a judgment for damages for the petitioner.

The Court of Appeals for the Sixth Circuit reversed. The court first ruled that in light of our intervening decision in Connick v. Myers (1983), the decision to discharge petitioner based on her workplace statements was unobjectionable under the First Amendment because petitioner's speech was not about “a matter of public concern.” While accepting the jury's finding that petitioner's mention of her bisexuality had not interfered "in any way" with the "regular operation of the school," the court concluded that it was constitutionally permissible to dismiss petitioner "for talking about it.” Second, the court held that no equal protection claim could possibly have been made out, because there was presented "no evidence of how other employees with different sexual preferences were treated.” Without citation to any precedent, the court characterized the judgment for petitioner in the absence of such comparative evidence as “plain error.”

II

This case starkly presents issues of individual constitutional rights that have, as the dissent below noted, "swirled nationwide for many years.” (Edwards, J., dissenting). Petitioner did not lose her job because she disrupted the school environment or failed to perform her job. She was discharged merely because she is bisexual and revealed this fact to acquaintances at her workplace. These facts are rendered completely unambiguous by the jury's findings. Yet after a jury and the trial court which heard and evaluated the evidence rendered verdicts for the petitioner, the court below reversed based on a crabbed reading of our precedents and unexplained disregard of the jury and judge's factual findings. Because they are so patently erroneous, these maneuvers suggest only a desire to evade the central question: may a State dismiss a public employee based on her bisexual status alone? I respectfully dissent from the Court's decision not to give its plenary attention to this issue.

A.

That petitioner was discharged for her nondisruptive mention of her sexual preferences raises a substantial claim under the First Amendment. For at least 15 years, it has been settled that a State cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression.” Nevertheless, Connick held that if “employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community," disciplinary measures taken in response to such expression cannot be challenged under the First Amendment "absent the most unusual circumstances.” The court below ruled that Connick requires the conclusion that a bisexual public employee constitutionally may be dismissed for "talking about it." This conclusion does not result inevitably from Connick, and may be questioned on at least two grounds: first, because petitioner's speech did indeed "touch upon" a matter of public concern, and second, because speech even if characterized as private is entitled to constitutional protection when it does not in any way interfere with the employer's business.

Connick recognized that some issues are "inherently of public concern,” citing “racial discrimination” as one example. I think it is impossible not to note that a similar public debate is currently ongoing regarding the rights of homosexuals. The fact of petitioner's bisexuality, once spoken, necessarily and ineluctably involved her in that debate. Speech that “touches upon” this explosive issue is no less deserving of constitutional attention than speech relating to more widely condemned forms of discrimination.

Connick's reference to “matters of public concern” does not suggest a strict rule that an employee's first statement related to a volatile issue of public concern must go unprotected, simply because it is the first statement in the public debate. Such a rule would reduce public employees to second-class speakers, for they would be prohibited from speaking until and unless others first bring an issue to public attention. Cf. Egger v. Phillips, 710 F.2d 292, 317 (CA7 1983) (en banc) (“[T]he unpopularity of the issue surely does not mean that a voice crying out in the wilderness is entitled to less protection than a voice with a large, receptive audience”). It is the topic of the speech at issue, and not whether a debate on that topic is yet ongoing, that Connick directed federal courts to examine.

Moreover, even if petitioner’s speech did not so obviously touch upon a matter of public concern, there remains a substantial constitutional question, reserved in Connick, whether it lies “totally beyond the protection of the First Amendment” given its nondisruptive character. The recognized goal of the Pickering-Connick rationale is to seek a “balance” between the interest of public employees in speaking freely and that of public employers in operating their workplaces without disruption. As the jury below found, however, the latter interest simply is not implicated in this case. In such circumstances, Connick does not require that the former interest still receive no constitutional protection. Connick, and, indeed, all our precedents in this area, addressed discipline taken against employees for statements that arguably had some disruptive effect in the workplace. See, e.g., 461 U.S., at 151 (“mini-insurrection”); Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 285, 575 (1977) (" dramatic and perhaps abrasive incident"); Pickering, supra, 391 U.S., at 569 (“critical statements”). This case, however, involves no critical statements, but rather an entirely harmless mention of a fact about petitioner that apparently triggered certain prejudices held by her supervisors. Cf. Terminiello v. Chicago, 337 U.S. 1, 4-5 (1949). The Court carefully noted in Connick that it did "not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged.” This case poses the open question of whether nondisruptive speech ever can constitutionally serve as the basis for termination under the First Amendment.

B

Apart from the First Amendment, we have held that “[a] State cannot exclude a person from . . . any . . . occupation . . . for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment.” Schware v. Board of Bar Examiners, 353 U.S. 232, 238-239 (1957). And in applying the Equal Protection Clause, “we have treated as presumptively invidious those classifications that disadvantage a ‘suspect class,’ or that impinge upon the exercise of a 'fundamental right.’” Plyler v. Doe, 457 U.S. 202, 216- 217 (1982); see also id., at 245 (BURGER, C.J., dissenting) (“The Equal Protection Clause protects against arbitrary and irrational classifications, and against invidious discrimination stemming from prejudice and hostility”). Under this rubric, discrimination against homosexuals or bisexuals based solely on their sexual preference raises significant constitutional questions under both prongs of our settled equal protection analysis.

First, homosexuals constitute a significant and insular minority of this country's population. Because of the immediate and severe opprobrium often manifested against homosexuals once so identified publicly, members of this group are particularly powerless to pursue their rights openly in the political arena. Moreover, homosexuals have historically been the object of pernicious and sustained hostility, and it is fair to say that discrimination against homosexuals is “likely . . . to reflect deep-seated prejudice rather than . . . rationality.” State action taken against members of such groups based simply on their status as members of the group traditionally has been subjected to strict, or at least heightened, scrutiny by this Court.

Second, discrimination based on sexual preference has been found by many courts to infringe various fundamental constitutional rights, such as the rights to privacy or freedom of expression. Infringement of such rights found to be “explicitly or implicitly guaranteed by the Constitution,” San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 33-34 (1973), likewise requires the State to demonstrate some compelling interest to survive strict judicial scrutiny. Plyler, supra, 457 U.S., at 217. I have previously noted that a multitude of our precedents support the view that public employees maintain, no less than all other citizens, a fundamental constitutional right to make “private choices involving family life and personal autonomy.” Whisenhunt v. Spradlin, 464 U.S. 965, 971, 408 (1983) (dissenting from denial of certiorari). Whether constitutional rights are infringed in sexual preference cases, and whether some compelling state interest can be advanced to permit their infringement, are important questions that this Court has never addressed, and which have left the lower courts in some disarray.

[. . .]

Finally, even if adverse state action based on homosexual conduct were held valid under the application of traditional equal protection principles, such approval would not answer the question, posed here, whether the mere nondisruptive expression of homosexual preference can pass muster even under a minimal rationality standard as the basis for discharge from public employment. This record plainly demonstrates that petitioner did not proselytize regarding her bisexuality, but rather that it became known simply in the course of her normal workday conversations.

The School District agreed to submit the issue of disruption to the jury, and the jury found that knowledge of the petitioner's non-heterosexual status did not interfere with the school’s operation “in any way.” I have serious doubts in light of that finding whether the result below can be upheld under any standard of equal protection review.

[note omitted]

III

The issues in this case are clearly presented. By reversing the jury's verdict, the Court of Appeals necessarily held that adverse state action taken against a public employee based solely on his or her expressed sexual preference is constitutional. Nothing in our precedents requires that result; indeed, we have never addressed the topic. Because petitioner’s case raises serious and unsettled constitutional questions relating to this issue of national importance, an issue that cannot any longer be ignored, I respectfully dissent from the decision to deny this petition for a writ of certiorari. [footnotes omitted]

Justice POWELL took no part in the consideration or decision of this petition.

Subscribe now

Aftermath

Here again, what follows was excerpted, with permission, from Margaret A. Nash and Karen L. Graves, Mad River, Marjorie Rowland, and the Quest for LGBTQ Teachers’ Rights:

One group of teachers inspired by the new push came out on the fourth National Coming Out Day, in 1991. Twenty-one teachers in the Los Angeles Unified School District met at the headquarters building and announced in front of television cameras that they were gay. In California, 1991 was an important year to take such a stand as Governor Wilson had just vetoed a bill that would have banned job discrimination on the basis of sexual orientation. The same day that these teachers came out at the school district headquarters, a protest of the governor’s veto was held in Sacramento.

In some districts and in some regions of the country, teachers did not face harassment and in fact, found supportive communities. John Pikala, for instance, a public high school teacher in St. Paul, Minnesota, participated in a weekend retreat in Minneapolis for gay and lesbian educators in 1989. After the retreat, he came out to his principal and had no problem; he then came out to colleagues in his district. He became part of an activist group that built coalitions with other civil rights groups and put up a poster with pictures of famous gays and lesbians in his classroom that read, “Unfortunately, history has set the record a little too straight.” In 1990 he walked with a large contingent of teachers in the Minneapolis Gay Pride march, noting that the teachers “received the loudest cheers from onlookers.” Even so, he also received harassing phone calls, including one from a person who shouted, “You dirty homosexual! You’re going to hell! DIE!” But for Pikala, the “few negative or indifferent reactions do not count for much compared with the overwhelming acceptance and support I have experienced.”

In 1994 a high school history teacher in Missouri came out to his students during a lesson on the Holocaust, a pedagogical decision that thrust him into the glare of the national media. Rodney Wilson had established a reputation as an excellent teacher who worked to make the study of history relevant to his St. Louis students.

Rodney Wilson

Wilson recalls getting the message as a young man growing up in the 1970s: gay people could not become teachers. But scholarly integrity won out in his efforts to teach students to respect the historical record. Wilson’s simple statement that, had he been living in Nazi Germany, he would have been branded with the pink triangle, led to community uproar. Although Wilson was reprimanded for “inappropriate classroom behavior,” many colleagues stood by his side, and support from the local chapter of the NEA was strong. He kept his job. That same year, Wilson founded the first Gay, Lesbian, and Straight Education Network (GLSEN) chapter outside of Massachusetts and established LGBT History Month, endorsed by GLADD, the Human Rights Campaign, the National Gay and Lesbian Taskforce, and the NEA.

[. . .]

By the 1990s, some states had passed laws protecting employees from workplace discrimination based on sexual orientation. [. . . . Nonetheless, in subsequent years, the trend in the states was to avoid enacting laws that openly discriminated] against LGBTs. [Instead] states enacted laws for protecting people who have religious or moral objections to homosexuality. Between 1993 and 2015, twenty-one states passed statewide Religious Freedom Restoration Acts.

Related cases

• 303 Creative LLC v. Elenis (2023) (6-3, holding that the First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.)

• Bostock v. Clayton County (2020) (6-3, holding that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because they are gay or transgender.)

• Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights (2018) (7-2, holding that the Colorado Civil Rights Commission’s actions in assessing a cakeshop owner’s reasons for declining to make a cake for a same-sex couple’s wedding celebration violated the free exercise clause.)

• Boy Scouts of America v. Dale (2000) (In a 5-4 opinion, the Court held that “applying New Jersey's public accommodations law to require the Boy Scouts to admit Dale violates the Boy Scouts' First Amendment right of expressive association.”)

• Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995) (Court held that state court order requiring private citizens who organize a parade to include a gay group expressing a message that the organizers do not wish to convey violates the First Amendment.)

• Gay Lib v. University of Missouri, 558 F.2d 848 (8th Cir., 1977) (university refusal to recognize gay student groups held violative of First Amendment.)

• Acanfora, in Aumiller v. University of Delaware, 434 F. Supp. 1273 (D. Del. 1977) (firing a professor for publicly disclosing his homosexuality held violative of the First Amendment.)

Additional resources

• Karen Graves, “A Matter of Public Concern: The First Amendment and Equal Employment for LGBT Educators,” 58 History of Education Quarterly 453 (2018).

• Stephen Elkind and Peter Kauffman, “Gay talk: Protecting free speech for public school teachers,” 43 Journal of Law and Education, 147 (2014).

• Darren Lenard Hutchinson, “Accommodating Outness: Hurley, Free Speech, and Gay and Lesbian Equality,” Journal of Constitutional Law, 85 (1998).

Subscribe now

2024-2025 SCOTUS term: Free expression and related cases

Cases decided

• Free Speech Coalition v. Paxton

• Firebaugh v. Garland

• 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 (9-0: The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)

Cases for next term

• First Choice Women’s Resource Centers, Inc. v. Platkin

• National Republican Senatorial Committee v. Federal Election Commission

• Chiles v. Salazar

• Olivier v. Brandon

Pending petitions

• Sittenfeld v. United States

• Pardue v. Hines

• 360 Virtual Drone Services LLC v Ritter

Petitions denied

• Crowe v. State Bar of Oregon

• Georgia Association of Club Executives v. Georgia

• MacRae v. Mattos (Thomas, J., special opinion)

• Sullivan v. Texas Ethics Commission

• L.M. v. Town of Middleborough (Thomas, J. dissenting, Alito, J., dissenting)

• Wilson v. Idaho

• Cocroft v. Graham

• Wynn v. Associated Press

• Speech First, Inc. v. Whitten

• Coalition Life v. City of Carbondale

• Turco v. City of Englewood, New Jersey

• R.J. Reynolds Tobacco Co. v. FDA

• Smith v. Stillie

• No on E, San Franciscans Opposing the Affordable Care Housing Production Act, et al. v. Chiu

• Henderson v. Texas

• Nassif v. United States

Emergency applications

• Netchoice v. Fitch (emergency relief denied with Kavanaugh, J., concurring with separate opinion: “I concur in the Court’s denial of NetChoice’s application for interim relief because NetChoice has not sufficiently demonstrated that the balance of harms and equities favors it at this time. . . To be clear, NetChoice has, in my view, demonstrated that it is likely to succeed on the merits — namely, that enforcement of the Mississippi law would likely violate its members’ First Amendment rights under this Court’s precedents.”)

• Yost v. Ohio Attorney General (Kavanaugh, J., “IT IS ORDERED that the March 14, 2025, order of the United States District Court for the Southern District of Ohio, case No. 2:24-cv-1401, is hereby stayed pending further order of the undersigned order of the Court. It is further ordered that a response to the application be filed on or before Wednesday, April 16, 2025, by 5 p.m. (EDT).”)

Free speech-related

• Mahmoud v. Taylor (argued April 22 / free exercise case: issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.)

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

Subscribe now

Last scheduled FAN

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

• Fara Dabhoiwala, “What Is Free Speech?: The History of a Dangerous Idea,” Belknap Press (Aug. 5)

• Jacob Mchangama, “Free Speech: A History from Socrates to Social Media,” Basic Books (March 18)

• John Wihbey, “Governing Babel: The Debate over Social Media Platforms and Free Speech—and What Comes Next,” MIT Press (Oct. 7)

• Sarah McLaughlin, “Authoritarians in the Academy: How the Internationalization of Higher Education and Borderless Censorship Threaten Free Speech,” Johns Hopkins University Press (Aug. 19)

• Mary Anne Franks, “Fearless Speech: Breaking Free from the First Amendment,” Bold Type Books (Oct. 15, 2024)

• Aryeh Neier, “Defending My Enemy: Skokie and the Legacy of Free Speech in America,” The New Press (Sept. 23)

• Timothy Zick, “Trump 2.0: Executive Power and the First Amendment,” Carolina Academic Press (March 31, 2026)

• Greg Lukianoff and Nadine Strossen, “War On Words: 10 Arguments Against Free Speech—And Why They Fail,” Heresy Press (July 22)

• Ian Rosenberg, “Free Speech Handbook: A Practical Framework for Understanding Free Speech Protections,” 23rd St. (Aug. 19)

• David Enrich, “Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful,” Mariner Books (March 11)

• Jacob Mchangama and Jeff Kosseff, “The Future of Free Speech: Reversing the Global Decline of Democracy’s Most Essential,” Johns Hopkins University Press (April 7, 2026)

• Jonna Perrillo, “Uncensored: Educators Speak Out on Teaching in a Time of Book Bans,” Harvard Education Press (April 7)

• Andrew Lowenthal, “The Censorship-Industrial Complex,” Skyhorse (Feb. 10, 2026)

• Charlotte Lydia Riley and Suzanne Nossel, “Is Free Speech Under Threat? (Think Again),” Vintage (May 20)

• Erwin Chemerinsky and Howard Gillman, “Campus Speech and Academic Freedom: A Guide For Difficulties,” Yale University Press (Jan. 27, 2026)

• Rebecca L. Brown, Lee Epstein, Adam Liptak, and Andrew D. Martin, “Free Speech: A Campus Toolkit,” CQ Press (Nov. 18)

• Christopher L. Eisgruber, “Terms of Respect: How Colleges Get Free Speech Right,” Basic Books (Sept. 30)

• Henry Reichman, “Understanding Academic Freedom,” Johns Hopkins University Press (March 25)

• Lee Bollinger and Geoffrey Stone, eds., “Money, Politics, and the First Amendment: Fifty Years of Supreme Court Decisions and Campaign Finance Reforms,” Oxford University Press (March 6, 2026)

• Upton Sinclair, foreword by Gavin Becker, “The Brass Check: Media Censorship & Propaganda,” Skyhorse (Sept. 1, 2026)

• Jacob Siegel, “The Information State: Politics in the Age of Total Control,” Henry Holt & Co. (March 24, 2026)

• Elizabeth-Jane Peatfield, “Free Speech in Contention: An Interdisciplinary Approach,” Palgrave Macmillan (Oct. 13)

• John Steel and Julian Petley, eds., “The Routledge Companion to Freedom of Expression and Censorship,” Routledge (Sept. 29)

• Daniel Farber, “The First Amendment,” Foundation Press (Sept. 17, 2025)

Reviews of some of the books listed above

• , “Defending My Enemy,” LA Progressive (Aug. 23)

• , “War on Words: The ‘Free Speech Recession’ Is Not Over,” American Institute for Economic Research (Aug. 6)

• Edward Fawcett, “What Is Free Speech? Fara Dabhoiwala’s rich history of a dangerous debate,” The Financial Times (April 2)

• Peter Hoskin, “Is this free speech?,” Engelsberg Ideas (March 28)

• , “The Endless Struggle Between Censorship and Free Speech,” LA Review of Books (March 16, 2022)

• “Free Speech: A History from Socrates to Social Media,” Publishers Weekly (February 2022)

• David Aaronovitch, “What Is Free Speech? The History of a Dangerous Idea by Fara Dabhoiwala review – a flawed polemic,” The Guardian (March 23)

• “Book Review (by Prof. Jacob Mchangama): ‘Fearless Speech’ Doesn't Take First Amendment History Seriously,” The Volokh Conspiracy (Oct. 30, 2024)

Subscribe now

Scholarly review essay of new book on Mill’s impact on free speech jurisprudence

• Noah Chauvin, “Understanding Free Speech Values at the Supreme Court,” Rutgers U. L. Rev. Commentaries (Forthcoming, 2025)

This essay is a book review of The Supreme Court and the Philosopher: How John Stuart Mill Shaped US Free Speech Protections, by Professors Eric Kasper and Troy Kozma. The book argues that John Stuart Mill had an indelible impact on the Supreme Court's free speech jurisprudence, and that through the power of precedent, we have come to have a ‘Millian’ First Amendment.

As I explain in the review, Kasper and Kozma have made a compelling case. However, because Mill offered an expansive defense of freedom of expression, it is not enough to say that the Court's free speech jurisprudence is "Millian," because that could mean many different things. Understanding with greater precision what motivates the justices in free speech cases is crucial for attorneys, advocates, and scholars.

Trump to appeal E. Jean Carroll’s abuse and defamation verdict

• “Trump Plans To Ask Supreme Court To Toss E. Jean Carroll’s $5 Million Abuse and Defamation Verdict,” First Amendment Watch (Sept. 4)

President Donald Trump will soon ask the Supreme Court to throw out a jury’s finding in a civil lawsuit that he sexually abused writer E. Jean Carroll at a Manhattan department store in the mid-1990s and later defamed her, his lawyers said in a recent court filing.

Trump’s lawyers previewed the move as they asked the high court to extend its deadline for challenging the $5 million verdict from Sept. 10 to Nov. 11. The president “intends to seek review” of “significant issues” arising from the trial and the 2nd U.S. Circuit Court of Appeals’ subsequent decisions upholding the verdict, his lawyers said.

Carroll’s lawyer, Roberta Kaplan, said Wednesday: ‘We do not believe that President Trump will be able to present any legal issues in the Carroll cases that merit review by the United States Supreme Court.’”

podcast on executive power

• “Free speech and ‘the executive power’ with Advisory Opinions,” (Sept. 4)

What are the limits of presidential power? How many days has it been since President Trump's TikTok ban moratorium went into place? What is the state of the conservative legal movement? And where did former FIRE president David French go on his first date?

French and Sarah Isgur of the popular legal podcast “Advisory Opinions” join the show to answer these questions and discuss the few free speech issues where they disagree with FIRE.

More in the news

• Lauren Del Valle, “Man told to take down Trump flag says it's a First Amendment issue. Mayor says it has to be on a flag pole,” News 12 Westchester (Sept. 6)

• BrieAnna J. Frank, “‘South Park’ keeps tying Trump to Satan. What to know about satire and the First Amendment,” USA Today (Sept. 5)

• , “Three takeaways from Harvard’s victory over the Trump administration’s funding freeze,” FIRE (Sept. 4)

• “Judge Reverses Trump Administration’s Cuts of Billions of Dollars to Harvard University,” First Amendment Watch (Sept. 4)

• Eugene Volokh, “California County's Restriction on Being a Spectator at a Car ‘Sideshow’ Violates First Amendment as Applied to Reporter,” The Volokh Conspiracy (Sept. 4)

• Tayeba Hussein and Stacey Henson, “Federal judge winnows lawsuit scope against Alligator Alcatraz,” Fort Myers News-Press (Sept. 4)

• Peter Goettler, “Why AI Overregulation Could Kill the World’s Next Tech Revolution,” Cato Institute (Sept. 3)

• Ross Marchand, “Decorative background graphic New campus censorship hack turns trademark law into muzzle,” FIRE (Sept. 3)

• Stephanie A. Martin, “The case that saved the press – and why Trump wants it gone,” Free Speech Center (Sept. 1)

Subscribe now

2024-2025 SCOTUS term: Free expression and related cases

Cases decided

• Free Speech Coalition v. Paxton

• Firebaugh v. Garland

• 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 (9-0: The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)

Cases for next term

• First Choice Women’s Resource Centers, Inc. v. Platkin

• National Republican Senatorial Committee v. Federal Election Commission

• Chiles v. Salazar

• Olivier v. Brandon

Pending petitions

• Sittenfeld v. United States

• Pardue v. Hines

• 360 Virtual Drone Services LLC v Ritter

Petitions denied

• Crowe v. State Bar of Oregon

• Georgia Association of Club Executives v. Georgia

• MacRae v. Mattos (Thomas, J., special opinion)

• Sullivan v. Texas Ethics Commission

• L.M. v. Town of Middleborough (Thomas, J. dissenting, Alito, J., dissenting)

• Wilson v. Idaho

• Cocroft v. Graham

• Wynn v. Associated Press

• Speech First, Inc. v. Whitten

• Coalition Life v. City of Carbondale

• Turco v. City of Englewood, New Jersey

• R.J. Reynolds Tobacco Co. v. FDA

• Smith v. Stillie

• No on E, San Franciscans Opposing the Affordable Care Housing Production Act, et al. v. Chiu

• Henderson v. Texas

• Nassif v. United States

Emergency applications

• Netchoice v. Fitch (emergency relief denied with Kavanaugh, J., concurring with separate opinion: “I concur in the Court’s denial of NetChoice’s application for interim relief because NetChoice has not sufficiently demonstrated that the balance of harms and equities favors it at this time. . . . To be clear, NetChoice has, in my view, demonstrated that it is likely to succeed on the merits — namely, that enforcement of the Mississippi law would likely violate its members’ First Amendment rights under this Court’s precedents.”)

• Yost v. Ohio Attorney General (Kavanaugh, J., “IT IS ORDERED that the March 14, 2025, order of the United States District Court for the Southern District of Ohio, case No. 2:24-cv-1401, is hereby stayed pending further order of the undersigned order of the Court. It is further ordered that a response to the application be filed on or before Wednesday, April 16, 2025, by 5 p.m. (EDT).”)

Free speech-related

• Mahmoud v. Taylor (argued April 22 / free exercise case: issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.)

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

Subscribe now

Last scheduled FAN

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

American colonists’ grievance: The King had “affected to render the Military independent of and superior to the Civil power.”

First, the National Guard and the Marines were deployed in Los Angeles, then the Guard occupied Washington, D.C., and next the Texas Guard will be headed for Chicago — albeit over the advance objection of the mayor.

All of this military presence is being ordered as an “anti-crime” initiative launched by our national police chief, President Donald Trump. Never mind whether this campaign is one of pretense, or is illegal, or is contravention of basic notions of federalism, or is being orchestrated as a vindictive crusade against Trump’s political adversaries — this though last January he issued an executive order calling for an end to all “systematic campaigns against…perceived political opponents, [and] weaponizing the legal force of numerous Federal law enforcement agencies.”

Beyond this political weaponization of military force and the disingenuous campaign to fight crime, the Trump campaign might also be preparing for a strong-arm military response to political protests. More about that in a moment.

A real ‘crime emergency’ or a sham one?

At the outset, consider Trump’s executive order of Aug. 25, 2025 (sect. 1 (d) (ii):

The Secretary of Defense shall immediately begin ensuring that each State’s Army National Guard and Air National Guard are resourced, trained, organized, and available to assist Federal, State, and local law enforcement in quelling civil disturbances and ensuring the public safety and order whenever the circumstances necessitate, as appropriate under law. In coordination with the respective adjutants general, the Secretary of Defense shall designate an appropriate number of each State’s trained National Guard members to be reasonably available for rapid mobilization for such purposes. In addition, the Secretary of Defense shall ensure the availability of a standing National Guard quick reaction force that shall be resourced, trained, and available for rapid nationwide deployment. (emphasis added).

Read those words carefully, and then consider how the Trump Administration might use such unchecked power to respond to so-called “civil disturbances.”

Might an uninhibited but peaceful protest rally be deemed a “civil disturbance” prompting a “rapid nationwide” military response? Might large crowds marching in unison be a “circumstance” that “necessitate[s]” military intervention? Though the Aug. 25 order is justified as a “Crime Emergency” measure related to the District of Columbia, what follows is neither limited to any alleged “crime” rage nor to the District of Columbia. Hardly, it applies to “each State” and “civil disturbances” as defined by the Justice Department.

Authorized by law?

Before saying more, note the targeted use of the military and Trump’s purported justification for fighting crime. The question here — and one relevant to protecting free expression — is whether the President is authorized to act as he asserts.

The federal statute the government relies upon to send troops into Illinois (or any other state) does not authorize the kind of federal military involvement claimed by the administration. As Professor Stephen Vladeck has observed: “the [statutory] provision authorizes the President or Secretary of Defense to request (not require) governors to volunteer members of their National Guards, again, without those troops being federalized, to support federal missions.”

Next, and by analogy, the administration violated the Posse Comitatus Act through some of its military deployments in and around Los Angeles as Judge Breyer recently ruled in Newsom v. Trump.

Moreover, and again as Judge Breyer observed in the Newsom case, there was no showing of “rebellion, nor was civilian law enforcement unable to respond to the protests and enforce the law.”

Finally, any true concern about fighting crime is called into question by the fact that Trump is “only deploying troops to blue cities when most of the dangerous cities are in red states.”

Use of military power to suppress protests

To unlawfully turn cities into military zones also raises serious First Amendment issues when it comes to civil protest.

As Professor has pointed out:

It is important to remember that all this started with public protests concerning aggressive immigration raids by the Department of Homeland Security and ICE.” Furthermore, the “Trump Administration would like nothing more than to be able to police public protests with federalized or active-duty military personnel. During his first term, President Trump expressly communicated that desire and, in addition, suggested to his Defense Secretary that protesters in D.C. should be shot in the leg by military personnel.

Such unauthorized military presence only serves to escalate tensions when protests occur, especially when they are as selective and punitive as previously employed by the first Trump administration.

Subscribe now

New scholarly article on public protests and civil unrest

• Timothy Zick, “Public Protest and Civil Unrest,” Arizona Law Review (2025)

Governments and officials must respond to protest-related civil unrest. How they do so is both an index of official respect for dissent and a measure of how committed governments are to democratic accountability. This Article examines official responses to civil unrest in connection with several recent high-profile demonstrations. In general, it concludes that governments and officials have relied on aggressive and increasingly draconian measures to quell protest-related civil unrest. Among other things, they have invoked emergency powers and used aggressive protest policing methods; dispatched federal agency personnel and threatened to deploy military forces to police demonstrations; enacted successive waves of laws that broaden riot offenses, increase penalties for minor offenses and acts of civil disobedience, and restrict campus protest; and charged protesters with domestic terrorism and racketeering. Officials have an obligation to maintain public order and safety. However, the recent pattern constitutes troubling evidence of democratic backsliding.

Both contemporaneous and subsequent responses to protest-related civil unrest jeopardize even lawful public protest, disproportionately punish acts of civil disobedience, and imperil a long tradition of campus activism.

In response, the Article offers a broad reform agenda that includes demystifying the government's emergency powers, de-escalating protest policing, de-federalizing responses to local unrest, considering the proportionality of charges and sanctions for protest-related offenses, preserving campus protest, and ensuring neutral and consistent responses to protest-related civil unrest.

Related

• , “Militarizing Protests and Free Expression,” Thoughts on the First (Sept. 2)

“Deploying National Guard and other military troops to respond to protest-related civil unrest will undermine First Amendment rights.”

FIRE on flag-burning executive order

• “FIRE statement on President Trump’s executive order to outlaw flag burning,” FIRE (Aug. 25)

On Aug. 25, President Donald Trump issued an executive order cracking down on flag burning, which is protected expressive activity under the First Amendment. During the signing, Trump remarked, “If you burn a flag, you get one year in jail.” The following statement can be attributed to FIRE Chief Counsel Bob Corn-Revere.

President Trump may believe he has the power to revise the First Amendment with the stroke of a pen, but he doesn’t.

Flag burning as a form of political protest is protected by the First Amendment. That’s nothing new. While people can be prosecuted for burning anything in a place where they aren’t allowed to set fires, the government can’t prosecute protected expressive activity — even if many Americans, including the president, find it “uniquely offensive and provocative.”

You don’t have to like flag burning. You can condemn it, debate it, or hoist your own flag even higher. The beauty of free speech is that you get to express your opinions, even if others don’t like what you have to say.

Related

• Adam Liptak, “He Burned a Flag and Won an American Right. He Worries It’s at Risk,” The New York Times (Sept. 1)

• “Your burning questions on flag burning,” FIRE

Big Tech Censorship Forum

• “The Antitrust Division Hosts a Big-Tech Censorship Forum,” Dept. of Justice, Office of Public Affairs (April 3, 2025)

The Antitrust Division hosted a discussion on the implications of Big-Tech censorship focusing on the impact of deplatforming on public discourse and how monopolization contributes to the ability of big tech companies to censor Americans.

New judicial attack on NYT v. Sullivan

• Eugene Volokh, “Judge Barbara Lagoa (11th Cir.) Criticizes New York Times v. Sullivan,” The Volokh Conspiracy (Sept. 2)

From Judge [Barbara] Lagoa’s concurrence in Friday’s Dershowitz v. CNN, Inc. (and see also Judge Charles Wilson's concurrence taking the opposite view):

In New York Times, Inc. v. Sullivan, the Court usurped control over [the] field of speech-related torts and invented “a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Three years later, this same rule was extended to “public figures” in addition to public officials… [In 1974,] the Court held for the first time that falsity and harm were not enough, and even private plaintiffs must show some sort of ‘fault,’ negligence at the least, to recover for defamation. And, even with that proof of culpable fault, damages were not presumed but had to be proven… [and] no plaintiff could recover punitive damages for defamation without showing Sullivan-style malice. With this series of cases… one generation of the Supreme Court succeeded in imposing federal constitutional limitations (seemingly untethered to the Constitution’s original meaning) on all defamation claims brought by all manner of plaintiffs. . .

Related

• Eugene Volokh, “Judge Charles Wilson (11th Cir.) Defends New York Times v. Sullivan,” The Volokh Conspiracy (Sept. 2)

• Eugene Volokh, “Alan Dershowitz's Libel Case Over CNN's Coverage of His Defense in Trump Impeachment Thrown Out,” The Volokh Conspiracy (Sept. 2)

New book: Rosenberg’s Free Speech Handbook

• Ian Rosenberg, “Free Speech Handbook: A Practical Framework for Understanding Our Free Speech Protections” (23rd St., 2025)

In the face of a rising tide of censorship and suppression, this paperback edition of Free Speech Handbook equips readers with a practical framework for appreciating the history ― and future ― of our free speech protections.

Freedom of speech is perhaps the most American of virtues. In a nation where everyone wants to speak and be heard, this First Amendment right is vital to our identity and our democracy. These rights have been advanced by people who spoke out and fought in our nation’s highest court, with each decision refining and reshaping what exactly “free speech” means.

In Free Speech Handbook, Ian Rosenberg and Mike Cavallaro brilliantly trace this turbulent history across ten seminal Supreme Court cases while drawing parallels with more recent controversies. Rosenberg’s straightforward language combines with Cavallaro’s bold and bright art to create an accessible and engaging crash course on the meaning, reach, and limits of our free speech protections.

podcast: Barbas on hate speech

• “Civil rights, hate speech, and the First Amendment,” (Aug. 28)

We know the First Amendment protects hate speech. But has it always done so? And how have civil rights groups responded when their members are the target of hate speech?

Sample recent articles from The Volokh Conspiracy blog

• Eugene Volokh, “Injunction Enforcing Anti-Disparagement Contract Provision Doesn’t Violate First Amendment,” The Volokh Conspiracy (Sept. 2)

• Josh Blackman, “Grand Jury Nullification in the District of Columbia?” The Volokh Conspiracy (Aug. 30)

• Eugene Volokh, “Death Doulas Have First Amendment Right to Advise Clients Without Having to Get Funeral Services License,” The Volokh Conspiracy (Aug. 29)

• Eugene Volokh, “California Law Restricting ‘Materially Deceptive’ Election-Related Deepfakes Violates First Amendment,” The Volokh Conspiracy (Aug. 29)

More in the news

• Dave Ross, “The Volatile History of Flag Burning in the US,” History (Sept. 2)

• Stephany Matat, “Florida orders cities to erase street art, sparking free speech debate,” Tallahassee Democrat (Sept. 2)

• “Judge Throws Out Campaign Finance Lawsuit Between Republican Rivals in Georgia Governor’s Race,” First Amendment Watch (Aug. 29)

• “FIRE statement on UT-Dallas student newspaper distribution,” FIRE (Aug. 29)

• David Bauder, “Defamation case against Fox News highlights role of its hosts in promoting 2020 election falsehoods,” Free Speech Center (Aug. 28)

• “VICTORY! University of North Texas system lifts drag ‘pause’ after FIRE/ACLU of TX letter,” FIRE (Aug. 28)

• “Trump’s Order on Flag Burning Could Return the Question to the Supreme Court,” First Amendment Watch (Aug. 27)

• Emma Colton, “Trump flag burning executive order could flip First Amendment on its head with new court,” Fox News (Aug. 25)

• “Report: Record Number of States Now Protect Free Speech from Frivolous Lawsuits,” Institute for Free Speech (Aug. 25)

Subscribe now

2024-2025 SCOTUS term: Free expression and related cases

Cases decided

• Free Speech Coalition v. Paxton

• Firebaugh v. Garland

• 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 (9-0: The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)

Cases for Next Term

• First Choice Women’s Resource Centers, Inc. v. Platkin

• National Republican Senatorial Committee v. Federal Election Commission

• Chiles v. Salazar

• Olivier v. Brandon

Pending petitions

• Sittenfeld v. United States

• Pardue v. Hines

• 360 Virtual Drone Services LLC v Ritter

Petitions denied

• Crowe v. State Bar of Oregon

• Georgia Association of Club Executives v. Georgia

• MacRae v. Mattos (Thomas, J., special opinion)

• Sullivan v. Texas Ethics Commission

• L.M. v. Town of Middleborough (Thomas, J. dissenting, Alito, J., dissenting)

• Wilson v. Idaho

• Cocroft v. Graham

• Wynn v. Associated Press

• Speech First, Inc. v. Whitten

• Coalition Life v. City of Carbondale

• Turco v. City of Englewood, New Jersey

• R.J. Reynolds Tobacco Co. v. FDA

• Smith v. Stillie

• No on E, San Franciscans Opposing the Affordable Care Housing Production Act, et al. v. Chiu

• Henderson v. Texas

• Nassif v. United States

Emergency Applications

• Netchoice v. Fitch (emergency relief denied with Kavanaugh, J., concurring with separate opinion: “I concur in the Court’s denial of NetChoice’s application for interim relief because NetChoice has not sufficiently demonstrated that the balance of harms and equities favors it at this time… To be clear, NetChoice has, in my view, demonstrated that it is likely to succeed on the merits — namely, that enforcement of the Mississippi law would likely violate its members’ First Amendment rights under this Court’s precedents.”)

• Yost v. Ohio Attorney General (Kavanaugh, J., “IT IS ORDERED that the March 14, 2025, order of the United States District Court for the Southern District of Ohio, case No. 2:24-cv-1401, is hereby stayed pending further order of the undersigned order of the Court. It is further ordered that a response to the application be filed on or before Wednesday, April 16, 2025, by 5 p.m. (EDT).”)

Free speech-related

• Mahmoud v. Taylor (argued April 22 / free exercise case: issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.)

• 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”)

Subscribe now

Last scheduled FAN

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

Like a mafia boss, his threats continue. Never mind whether his actions are illegal since he doesn’t really care — tag it his “So what!” stratagem. Valid laws and judicial decrees are for chumps; that’s his governing strategy. His aims: retaliate against his critics and chill the speech of anyone whose views are contrary to his. In all of this, he can count on the obedience of his first lieutenant, Attorney General Pam Bondi, among other submissive officials in his cabinet.

When all the law dust settles, it doesn’t matter if the administration loses a case or twenty so long as it manages to intimidate hundreds of others similarly situated. That’s happened with law firms, universities, libraries, and media outlets. Now add museums to the list of THE MUZZLED.

If nothing else, Trump is a master of irony, of saying things that are wildly contradictory to his actions. Take, for example, his executive order of March 27th titled, “Restoring Truth and Sanity to American History.” The objective: Suppress truth, contest sanity, and in the process abridge and rewrite history until it suits his whims. His purported concern:

Over the past decade, Americans have witnessed a concerted and widespread effort to rewrite our Nation’s history, replacing objective facts with a distorted narrative driven by ideology rather than truth.

The irony, of course, is his actions rewrite the truth of our history, portions of which have been suppressed and/or ignored. To that end, the mandate is “prohibit expenditure on exhibits or programs that degrade shared American values, divide Americans based on race, or promote programs or ideologies inconsistent with Federal law and policy.”

Never mind that “the purpose of these museums is not to celebrate or denigrate the United States. It is to accurately and comprehensively reflect the country’s history and citizenry.” In stark contrast, by Trump’s imperialist measure, the purpose of museums and all other governmental and private institutions is simply to praise those aspects of the past and present that comport with Trump’s whims.

And never mind that the “president does not technically have the right to unilaterally dictate the content of Smithsonian exhibitions or to direct its decision-making. That includes hirings and firings such as when Trump posted on social media that he was firing the director of the National Portrait Gallery (she eventually resigned).” Whether he has any legitimate power to exercise in this area is of no import to him. Again, such concerns are for chumps.

Chilling other museums into ideological compliance

Trump’s strategy: Go after their funding, demonize those whose views are different, exaggerate and lie, and don’t fret over what courts might say. The aim, after all, is to terrify all those similarly situated bystanders into Pavlovian compliance. Simply consider what Trump posted on Truth Social recently:

The Museums throughout Washington, but all over the Country are, essentially, the last remaining segment of “WOKE.” The Smithsonian is OUT OF CONTROL, where everything discussed is how horrible our Country is, how bad Slavery was, and how unaccomplished the downtrodden have been — Nothing about Success, nothing about Brightness, nothing about the Future. We are not going to allow this to happen, and I have instructed my attorneys to go through the Museums, and start the exact same process that has been done with Colleges and Universities where tremendous progress has been made. This Country cannot be WOKE, because WOKE IS BROKE. We have the “HOTTEST” Country in the World, and we want people to talk about it, including in our Museums.

In other words, this suppression campaign will not stop with the Smithsonian. As with law firms, universities, media outlets, and others, the larger objective is to frighten many others into subservience. Case in point, one ably made by New York Times reporters Jess Bidgood and Robin Pogrebin:

The administration’s efforts have already had a chilling effect, at least on the Smithsonian Institutions. The National Portrait Gallery, for example, considered removing from its upcoming Amy Sherald exhibition a painting that depicted a transgender Statue of Liberty. Sherald saw this as artistically compromising, and ended up canceling the entire show. That was arguably an example of self-censorship on the part of the Smithsonian, because the Trump administration hadn’t yet complained about the exhibition (though it ultimately applauded the cancellation).

Related

• Zachary Small, “As Trump Targets the Smithsonian, Museums Across the U.S. Feel a Chill,” The New York Times (Aug. 23)

• “AAM Statement on the Growing Threats of Censorship Against U.S. Museums,” American Alliance of Museums (Aug. 15)

• Jonathon W. Penne, Danielle Keats Citron, and Alexis Shore Ingber, “The Chilling Effects of Dobbs,” Florida Law Review (2025)

Subscribe now

Trump threatens to investigate yet another critic: Chris Christie

• Mike Ives, “Trump Threatens to investigate Chris Christie over ‘Bridgegate’,” The New York Times (Aug. 25)

President Trump floated the idea after the former governor of New Jersey, a onetime ally, criticized his use of the Justice Department.

President Trump on Sunday threatened to investigate former Gov. Chris Christie of New Jersey over a 2013 political scandal, days after the F.B.I. raided the home and office of another former Trump official turned critic.

Mr. Trump made the threat on social media after Mr. Christie said during an appearance on ABC News that the president ‘doesn’t care’ about maintaining a separation between his office and criminal investigations.

Mr. Christie, a Republican who was a federal prosecutor before he was elected governor, had been discussing Mr. Trump’s connection to recent F.B.I. searches of the Maryland home and Washington office of John R. Bolton, a national security adviser in the president’s first term.

[. . .]

Mr. Trump wrote on his Truth Social platform late Sunday that Mr. Christie had lied about 2013 lane closures on the George Washington Bridge “in order to stay out of prison, at the same time sacrificing people who worked for him.” The president was referring to a decision by Mr. Christie’s associates to close access lanes to the bridge, which links New Jersey and Manhattan, in order to punish the Democratic mayor of a New Jersey town.

“Chris refused to take responsibility for these criminal acts,” Mr. Trump wrote. “For the sake of JUSTICE, perhaps we should start looking at that very serious situation again? NO ONE IS ABOVE THE LAW!”

Executive order targets flag burners

• Executive Order, “Prosecuting Burning of the American Flag” (Aug. 25)

Notwithstanding the Supreme Court’s rulings on First Amendment protections, the Court has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to “fighting words” is constitutionally protected. See Texas v. Johnson, 491 U.S. 397, 408-10 (1989).

My Administration will act to restore respect and sanctity to the American Flag and prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country, to the fullest extent permissible under any available authority.

Sec. 2. Measures to Combat Desecration of the American Flag.

(a) The Attorney General shall prioritize the enforcement to the fullest extent possible of our Nation’s criminal and civil laws against acts of American Flag desecration that violate applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment. This may include, but is not limited to, violent crimes; hate crimes, illegal discrimination against American citizens, or other violations of Americans’ civil rights; and crimes against property and the peace, as well as conspiracies and attempts to violate, and aiding and abetting others to violate, such laws.

(b) In cases where the Department of Justice or another executive department or agency (agency) determines that an instance of American Flag desecration may violate an applicable State or local law, such as open burning restrictions, disorderly conduct laws, or destruction of property laws, the agency shall refer the matter to the appropriate State or local authority for potential action.

(c) To the maximum extent permitted by the Constitution, the Attorney General shall vigorously prosecute those who violate our laws in ways that involve desecrating the American Flag, and may pursue litigation to clarify the scope of the First Amendment exceptions in this area.

(d) The Secretary of State, the Attorney General, and the Secretary of Homeland Security, acting within their respective authorities, shall deny, prohibit, terminate, or revoke visas, residence permits, naturalization proceedings, and other immigration benefits, or seek removal from the United States, pursuant to Federal law, including 8 U.S.C. 1182(a), 8 U.S.C. 1424, 8 U.S.C. 1427, 8 U.S.C. 1451(c), and 8 U.S.C. 1227(a), whenever there has been an appropriate determination that foreign nationals have engaged in American Flag-desecration activity under circumstances that permit the exercise of such remedies pursuant to Federal law.

Second Circuit to hear filming in public First Amendment case

• “MFIA Clinic Presses Court to Affirm First Amendment Protection for Filming in Public,” Yale Law School (Aug. 19)

This week, the Media Freedom and Information Access (MFIA) clinic at Yale Law School entered a debate currently before the 2nd U.S. Circuit Court of Appeals over whether the First Amendment protects the act of video recording in public spaces.

The 2nd Circuit is set to consider the question in the pending case Massimino v. Benoit, in which the plaintiff was stopped, questioned, and ultimately arrested for filming the exterior of a police department building in Waterbury, Connecticut, from a public sidewalk. Although nine other courts of appeals have recognized some level of constitutional protection for the act of recording in public, the 2nd Circuit has not, leaving would-be recorders at risk, according to the clinic.

On behalf of a group of First Amendment scholars and advocates, the clinic filed an amicus brief arguing that the right to record in public spaces is constitutionally protected under the First Amendment.

“Recording serves important First Amendment interests,” the brief states, by promoting public dialogue, supporting the free flow of information, and allowing citizens to challenge government misconduct. The brief highlights how modern recording devices — such as smartphones — have become indispensable tools for documenting public events and ensuring that government activities are subject to public scrutiny.

Read the amicus brief.

Fourth Circuit rules Maryland’s digital tax law unconstitutional

• Bryan Sears, “Appeals court rules provision of digital ad tax violates First Amendment protections,” Maryland Matters (Aug. 15)

A provision in Maryland’s digital ad tax is an unconstitutional restriction on free speech, a federal appeals court ruled Friday.

The 2021 law — the first of its kind in the nation — imposes taxes on large tech companies for the digital ads they sell within the state. But it also prohibits those companies from passing the tax on to consumers as a surcharge, fee or line item on their bills — what a three-judge panel of the 4th U.S. Circuit Court of Appeals saw as a ban on telling customers about the newly added tax.

In a ruling that invoked American protests against the Colonial-era Stamp Act, Circuit Judge Julius Richardson wrote that, as then, “complaining about taxes remains a grand American political tradition.” And the court said Maryland lawmakers went too far by adding language to the tax bill that was intended to shield them from public criticism.

“Perhaps fearing such complaints, Maryland paired its tax with another rule,” Richardson wrote for the court. “Companies that make money advertising on the internet must not only pay the tax, but avoid telling their customers how it affects pricing: No line items, no surcharges, no fees.”

“If companies pass on the cost of the tax, they must do so in silence — keeping customers in the dark about why prices have gone up and thereby insulating Maryland from political responsibility,” he wrote.

Rohde reviews Neier’s Defending My Enemy

• Stephen Rohde, “Defending My Enemy,” LA Progressive (Aug. 23)

The backbone of the Trump administration’s blizzard of chaotic, cruel, and corrupt attacks on our democracy is one of the most turbulent, disruptive, and consequential assaults on freedom of speech in American history.

On the very first day of his second term, Donald Trump had the audacity to sign a deceptive Executive Order entitled Restoring Freedom of Speech and Ending Federal Censorship, declaring that it was the policy of the United States to “secure the right of the American people to engage in constitutionally protected speech” and “ensure that no Federal Government officer, employee, or agent engages in or facilitates any conduct that would unconstitutionally abridge the free speech of any American citizen.”

Aside from being outrageously hypocritical, Trump’s EO was constitutionally flawed on its face. Every resident in the United States — citizen and non-citizen — enjoys the First Amendment’s protection of freedom of speech, freedom of the press, freedom of assembly, and the right to petition the government for redress of grievances.

But then Trump immediately violated his own EO. He and his obedient underlings have enlisted the full force of the federal government’s overwhelming criminal, civil, administrative, immigration, and national security authority to illegally crush protest, dissent, and free speech. On an unprecedented scale, directly and indirectly, Trump is violating the First Amendment rights of every person in the United States to express and receive information and ideas free of government censorship. He is going after the Voice of America, the Smithsonian Museum, the Associated Press, NPR, PBS, ABC, CBS, the Library of Congress, local public libraries, foreign and domestic students, immigrants, colleges and universities, elected officials, law firms, and judges. “Worse than McCarthyism” is what the preeminent historian Ellen Schrecker calls Trump’s attacks on universities.

And by silencing all of these voices, he is denying the constitutional right of every American to hear what those voices have to say.

The United States is in a constitutional crisis. It is imperative that we vigorously defend our rights. The reissuance of the seminal book Defending My Enemy: Skokie and the Legacy of Free Speech in America could not have come at a better time to remind us of the importance of defending the freedom upon which all others depend – freedom of speech.

Scholarly article on ‘the right to protest in Indian Country’

• Grant Christensen, “The Right to Protest in Indian Country,” Columbia Law Review (2025

From April 2016 until February 2017, thousands of people gathered along the Cannonball River on the border of the Standing Rock Sioux Reservation to protest the construction of the Dakota Access Pipeline. In response, state officials tried to close down roads leading to the Reservation, considered legislation that would immunize drivers who struck protesters with vehicles, and arrested hundreds of peaceful demonstrators. The #NoDAPL protests built upon a legacy of resistance by Indigenous communities against the actions of the United States. While the history of Indigenous resistance predates the nation’s founding, the power to police protest activities on tribal lands has changed markedly.

This Symposium Piece considers the right to protest in Indian Country. It confronts the framework that apportions regulatory and adjudicatory power over protest activity occurring on tribal land and suggests that such regulation ought to be left entirely to the tribal sovereign. Alternatively, it argues that state regulation of protest activity in Indian country is an infringement on tribal governments’ right to make their own laws or is otherwise preempted by overwhelming tribal and federal interests. This Piece further recognizes that while the United States could impose regulations on protest activity, there are strong prudential factors that suggest it should defer regulation to the tribal sovereign. By subjecting the right to protest in Indian country solely to regulations imposed by tribal government, the United States would be respecting tribal sovereignty.

New Columbia Law Review symposium on right to protest

• Shaunak M. Puri, “Law Of Protest,” Columbia Law Review (2025)

• Justin Hansford, “The Sankofa Principle of Protest Law,” Columbia Law Review (2025)

• Etienne C. Toussaint, “Afrofuturism in Protest: Dissent and Revolution,” Columbia Law Review (2025)

• Sunita Pate, “Policing Campus Protest,” Columbia Law Review (2025)

• Rachel Moran, “Overbroad Protest Laws,” Columbia Law Review (2025)

• Tabatha Abu El-Haj, “The Right to Peaceable Assembly,” Columbia Law Review (2025)

More in the news

• “Defamation Case Against Fox News Highlights Role of Its Hosts in Promoting 2020 Election Falsehoods,” First Amendment Watch (Aug. 25)

• Kenneth J. Markowitz, Stacey H. Mitchell, Samantha Z. Purdy, Brecken Aubrey Petty, and Charles Edward Smith, “California Climate Disclosure Laws Survive Preliminary Injunction on First Amendment Challenge: Reporting Obligations Swiftly Approaching,” Akin (Aug. 21)

• “Judge’s injunction stops FTC from investigating watchdog Media Matters,” Free Speech Center (Aug. 20)

• Ian Millhiser, “A federal court took 2 years to figure out that gay people have First Amendment rights,” Vox (Aug. 19)

• Chris Finan, “9/11 and the First Amendment: Five years on,” Free Speech Center (Aug. 18)

Subscribe now

2024-2025 SCOTUS term: Free expression and related cases

Cases decided

• Free Speech Coalition v. Paxton

• Firebaugh v. Garland

• 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 (9-0: The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)