When student journalism came under fire last year, those sparks caught the public’s attention. With the ousting of The Indiana Daily Student’s advisor and temporary ban on its print issues, the University of Alabama’s decision to close two student-run magazines, and sadly more, 2025 was a busy year for student press censors.

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But not all efforts to suppress student journalists are as eye-catching. To help understand how censorship can sneak into newsrooms, here are six signs to look out for:

1. Media policies that stonewall journalists

Efforts to protect an institution’s brand shouldn’t come at the cost of student journalists’ access to sources, but some do. These insidious efforts take the form of media relations policies that stop stories from getting off the ground. This happens when a college places a blanket ban on direct interview requests to faculty or employees, even when those sources are speaking as citizens on issues people care about. It can also look like requiring reporters to fill out a form before they can contact campus employees, or a requirement that reporters email the institution’s communications office with a list of questions they want to ask.

Student journalists at public institutions have the right to speak with sources. Public colleges and universities can’t single out student reporters and treat them worse than their non-journalist counterparts. That violates the First Amendment. If a non-journalist student can reach out to university employees by email or phone to request a meeting and ask questions, then student journalists must be free to do so.

2. Investigations into student journalists

Those tasked with investigating stories on campus may find themselves under administrators’ microscope. But initiating these investigations in the first place creates a chilling effect on protected expression, and implies to other reporters that they should think twice before following in the footsteps of a student journalist who has come under institutional scrutiny.

Even just asking questions has prompted administrators to investigate a student. That was the case in April at Brown University, where Alex Shieh’s DOGE-inspired questions asking administrators about their roles and job performance led to a month-long investigation. Shieh wasn’t punished, luckily, but it’s not only disciplinary action that can stifle reporting — the threat of punishment is a chilling burden on student press freedom.

Before investigations are complete, interim disciplinary measures may hinder student reporting. At the University of Colorado-Boulder in October, a student journalist was suspended from campus for two weeks for taking photos and video footage of a pro-Palestinian protest. It should go without saying, but student journalists who aren’t allowed onto their own campuses will have a difficult time reporting about what’s happening in their communities.

3. Forcing the transition to digital-only

Printing comes with financial burdens, and supplementing a student newspaper’s print editions with a digital platform provides a necessary training ground for modern journalism. For some student outlets, the financial reality is that sometimes student-led investments in digital news come at the cost of print editions. But other student newsrooms are given no choice about how they will publish their work because administrators have taken matters into their own hands.

At what point does the switch to digital-only journalism become a free press problem? The tell-tale sign is administrative pressure based on the outlet’s content. Press freedom advocates have raised the alarm that content-based pressure may have led the University of Central Oklahoma to shut down print for the student-run paper The Vista last summer. As Reporters Committee for Freedom of the Press attorney Leslie Briggs pointed out in her letter to UCO President Tom Lamb, “UCO’s actions took place after administrators repeatedly expressed dissatisfaction with editorial decisions made by The Vista,” demonstrating “the decision to cut off print publication did not occur in the face of some kind of budget shortfall.”

4. Stealing newspapers and newsstands

Newspaper theft isn’t just censorship — it’s often a crime, and when committed by a public official based on the paper’s content, a First Amendment violation. That’s the case even if the newspapers are distributed for free. Government officials who remove copies of free newspapers because of their content violate the First Amendment, as a federal court in California held after Police Chief Richard Hongisto and two officers seized 2,000 copies of The Bay Times in response to the paper criticizing the chief.

Although newspaper theft can be both a crime and constitutional violation, instances of newspaper and newsstand theft haven’t ceased. Penn State briefly removed all news racks and papers back in 2024, citing advertising rules — although the university also removed newsstands without any advertising posters. In 2025, the University of Texas at Dallas removed and banned newsstands. Though UTD later loosened restrictions, it shrunk the number of distribution points from 43 to only four for the independent student paper The Retrograde.

5. Misusing institutional neutrality

Institutional neutrality means that a university will not take sides on the leading, contentious issues of the day. A university that commits itself to institutional neutrality imposes limitations on what the university itself can say about controversies in an effort to encourage the speech of students, faculty, and independent student organizations.

Purdue University promised to follow the principles of institutional neutrality in June 2024. Less than a year later, however, the university egregiously misapplied that principle to justify its demands that the independent newspaper, The Purdue Exponent, drop “Purdue” from its name and URL. Purdue took other shots at The Exponent — refusing to circulate the paper and vowing to end preferential parking for its staff — but its muddled application of trademark law has popped up at other universities that have sought to muzzle student and faculty speech. Instead of promoting an environment for more student speech, Purdue quieted The Exponent’s voice. The guiding principles of institutional neutrality are lost when they’re cited to censor student journalism.

6. Pressuring advisors to be censors

College media advisors play a pivotal role in student journalism. They give advice when student journalists grapple with ethical questions for the first time and advocate for student media as liaisons between administrators and students. But one role an advisor should never play is that of a censor.

No advisor should be forced to act as a censor or risk their job. Student journalists without full editorial freedom aren’t just denied their rights to free expression. They’re denied the full experience and training ground that student media should be. Student journalists are journalists who cover controversial issues that some administrators would rather they avoid. If they follow a censor’s lead, students won’t report on these stories — at the cost of their journalism education and their audiences’ ability to stay informed.

FIRE is suing Attorney General Pamela Bondi and Secretary of Homeland Security Kristi Noem for strong-arming Facebook and Apple to censor groups and apps that use public information to report ICE activity. Whether on Facebook, in an app, on a website — or even through flyers, pamphlets, or word-of-mouth — Americans enjoy a fundamental First Amendment right to document and criticize law enforcement.

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But some people have raised objections centered on the relationship between free speech and law enforcement. So let’s answer some common criticisms we’ve faced.

There’s no First Amendment exception for “doxxing.” First, “doxxing” is not a legal term with a stable, accepted definition. While people generally use it to mean publicly identifying someone, usually online, different people will have different understandings about what does or doesn’t count as “doxxing.” And right now, federal government officials are using “doxxing” in an aggressive and expansive way as an all-purpose verb that blurs the line between protected speech and unprotected conduct. They’re suggesting the former can somehow constitutionally be punished.

Second, the core content shared on our clients’ “Eyes Up” app and “Chicagoland” Facebook group involved observations, photos, and videos of government agents carrying out enforcement activity in public. Posting information about what law enforcement officers — public servants working in public — are doing and where they’re doing it isn’t “doxxing.” It’s speech protected by the First Amendment, especially if that person is a law enforcement officer operating on public streets and sidewalks. What these platforms did was remind law enforcement that what’s done in public is public knowledge.

Shutting down speech under any vague rationale, much less “doxxing,” chills lawful speech and makes it harder to hold government officials and agents accountable when they violate the law.

Here are some scary-sounding words: conspiracy, harassment, targeting, intimidation, misinformation. These days, it’s trendy on both sides to cast speech you don’t like in these terms. If you were skeptical when the Biden administration labeled COVID-related posts as “misinformation” and pressured Meta and X to ban them, you should be equally skeptical now. The government can’t handwave away constitutional protection with ominous buzzwords.

To lose constitutional protection, speech must fit within one of the First Amendment’s narrow unprotected categories. And the government can prosecute people for physically interfering with ICE operations or assaulting an officer. For example, physically blocking an officer from entering a government building, or standing in front of an officer’s vehicle to prevent it from moving. Speech or expressive conduct could be grounds for charges only if they rise to the level of, say, constitutionally unprotected incitement or the obstructive conduct described here.

In 1969, the Supreme Court held in Brandenburg v. Ohio that prosecutions for incitement based on speech are constitutional only where “advocacy is directed to inciting or producing imminent lawless action that is likely to occur.” That’s a high bar, and for good reason. Eyes Up and Chicagoland don’t come close to it.

In fact, Chicagoland moderators actively removed content that even suggested violence. Eyes Up didn’t provide real-time location data, and its moderators individually approved each video before posting. That’s not calling for violence at all, let alone imminent violence.

You’re right, Archduke Food Baby: The First Amendment doesn’t literally say “you can record law enforcement.” But as with other constitutional rights, the First Amendment’s meaning doesn’t just come from bare words on the page. It comes from the underlying intent to protect speech — and speakers from government overreach — as articulated by court decisions giving those words constitutional force. Those decisions are clear: Every federal appeals court to address the issue has recognized a First Amendment right to record government officials like police engaged in their duties in public.

It bears repeating: The government can prosecute people for physically interfering with ICE operations or assaulting an officer. But the government can’t ban lawful tools just because someone else could (or did) use that tool to commit a crime. If a person uses Google maps to find an ICE facility and vandalize it, the government couldn’t just shut down Google maps. When we’re talking about speech, the First Amendment doesn’t bend the knee — even if that makes law enforcement more difficult because officers have to take constitutional interests into account.

This case isn’t about blowing whistles or blocking roads. It’s about the government pressuring private companies into censoring protected speech on private platforms.

That said, the First Amendment protects sounds. While DarkTechObserver might think that blowing a whistle isn’t “criticism,” the First Amendment doesn’t let the government censor expression based on the content of that expression — or the method used to convey it, whether it’s a pen or a whistle. Of course, depending on the context, the government can place reasonable content- and viewpoint-neutral limits on how loud you can be in public. It just can’t base those decisions on the content of what you’re saying.

Besides, there’s a difference between physically preventing law enforcement from operating and simply being loud at a protest. Whistles themselves are not obstruction, and as we explain above, the government can’t ban a tool just because that tool can be used in potentially illegal ways.

These are fact-specific questions that are difficult to answer in the abstract. But one thing is certain: We don’t just take the government’s word for it that a line has been crossed. The First Amendment requires the government to prove that a whistle, a bullhorn, or even people standing in the road, mean to prevent carrying out lawful law enforcement activity.

Yes. FIRE was very critical of the Biden administration’s jawboning efforts. Jawboning is just censorship by proxy: If it’s illegal for the government to censor certain speech directly, then using a middleman doesn’t change a thing. As nonpartisan free speech defenders, we have, and always will, call out censorship by both sides.

In 2021, officials under President Biden pressured social media companies to take down COVID-related posts in the name of public health — a classic case of jawboning. FIRE filed an amicus brief in the ensuing case, Murthy v. Missouri, arguing that the Biden administration violated the First Amendment by attempting to interfere with private content moderation. The Court ultimately held that the plaintiffs didn’t have the ability to sue because they couldn’t prove the government’s actions were the direct cause of the harm to the plaintiffs’ speech. But Justice Amy Coney Barrett, writing for the majority, suggested that the government’s actions would have been unconstitutional had the plaintiffs been able to show the government directly caused the speech restrictions.

FIRE also filed an amicus brief on the National Rifle Association’s behalf in the Supreme Court’s 2024 case NRA v. Vullo. The Vullo Court held that a New York state official violated the NRA’s constitutional rights by threatening regulatory enforcement against banks and insurance companies that did business with the gun rights group. Jawboning was wrong then, and it’s wrong now.

Core among the rights protected by the First Amendment is the right to demonstrate. No matter what our message is, whether other people are delighted or outraged by it, we get to march down the street and say our piece.

This right is currently under attack in Albany. A pair of proposals, one by members of the legislature and one by Gov. Kathy Hochul, would criminalize demonstrating at many locations across the state.

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Here’s a deep dive into the details of these bills: what they cover, how they muzzle protesters, and why they’re unconstitutional.

Lasher/Sutton Bill: S.8599 / A.9335

The first proposal is Senate Bill 8599 / Assembly Bill 9335 from Sen. Sam Sutton and Rep. Micah Lasher. It bans demonstrations near religious sites and most health clinics. A first offense can get you up to 364 days in jail; a second offense, up to four years.

What speech is covered?

The bill bans all demonstrations of just two or more people at all covered sites, at all hours of the day. It does not matter if the demonstration has anything to do with the religious site or health clinic, or if the facility is even open at the time of the protest. The demonstrators don’t need to be making threats or inciting violence. And the content or viewpoint of the demonstration is irrelevant: a pro-choice demonstration outside a Planned Parenthood is banned, and a pro-life demonstration outside a church is banned. (More on that later.)

What sites are covered?

• Places of religious worship — like churches, mosques, synagogues, and temples — defined as any building, structure, or space, public or private, “used primarily for religious services, observance, prayer, assembly, or devotional practice.”

• Health clinics — more specifically, “reproductive health care facilities,” a term already defined in the law. The definition covers any site which provides “medical, surgical, counseling or referral services relating to the human reproductive system.” In addition to abortion clinics and fertility clinics, this appears to cover any specialist that provides care “relating to” reproductive organs — not just urologists and OB-GYNs, but oncologists, dermatologists, radiologists, surgeons, and so forth, plus all primary care doctors and pediatricians (who, at a minimum, provide referrals for reproductive care).

How big is the buffer zone?

The buffer zone extends 25 feet from the sidewalks and streets touching the covered site, not just 25 feet from the property itself. And the definition of “reproductive health care facilities” includes the entire building in which the clinic is located.

In practice, this means the buffer zones are substantially larger than 25 feet from the protected building — they’re 25 feet plus width of the adjoining streets and sidewalks, no matter how wide they are.

Imagine an office building in Manhattan with a covered health clinic on the 20th floor. Because the bill says the entire building is included, the buffer zone includes all of the sidewalks and streets touching any side of the building, plus the extra 25 feet from the edge of those streets and sidewalks.

How does this affect speech?

It’s hard to overstate the effect of this proposal. There are thousands of locations across New York that are covered by the bill. Fully banning demonstrations around every single one will create a series of First Amendment dead zones where police can throw protesters in jail merely for shouting a slogan, holding a sign, or marching down the street. In densely populated areas, these zones will be close together or even overlap.

Some examples of what this looks like in practice:

• The New York City Pride Parade route goes directly past a hospital and multiple churches and health clinics. The area cordoned off for forming the parade covers several other churches, a mosque, two fertility clinics and a women’s health clinic. Even in Albany, which has a fraction of the density of New York City, the route for a No Kings march went directly past a church, an urgent care clinic, and primary care practice.

• Unionized nurses and other healthcare workers often organize rallies outside of hospitals that employ them, like this one in Buffalo.

• Monthly pro-life processions in New York City go from a church — a site of religious worship — to an abortion clinic — a reproductive health care facility.

• The governor’s regional office in Manhattan — naturally a site of frequent demonstrations — is in an office building that also has a women’s health clinic and an office of a Baptist church at which, according to their website, they host a weekly prayer gathering. Directly across the street from the building is a urology practice, so protesters would be barred by overlapping buffer zones.

• The governor and other elected officials regularly give speeches at churches, synagogues, and other houses of worship.

• St. Patrick’s Cathedral in Manhattan takes up an entire city block. It touches the street on all four sides, and none of the sidewalks are more than 25 feet wide (according to the city’s sidewalk data). That would ban demonstrating anywhere in sight of the cathedral. This would cover things like this pro-choice picket outside the cathedral, or this protest of child sexual abuse by a clergymember. It would also cover the St. Patrick’s Day parade, which marches down Fifth Avenue past the cathedral.

Under this bill, all of these demonstrators could be jailed for almost a year.

The response to this may be: Well, obviously the city isn’t going to arrest people at labor rallies or in the St. Patrick’s Day parade. But under the First Amendment, the government doesn’t get to enforce speech restrictions selectively. The state can’t allow the demonstrations it likes and then enforce the ban on others. The law has to be enforced equally regardless of what a demonstrator is saying and to whom.

Is it constitutional?

Even if the state promises to enforce this proposal equally, it’s unconstitutional. Public streets and sidewalks are traditional public forums for speech. That means that even content neutral “time, place, and manner” restrictions are unconstitutional if they’re “substantially broader than necessary to achieve the government’s interest.”

In 2014, the Supreme Court in McCullen v. Coakley applied this rule to a Massachusetts buffer zone law that banned standing on the sidewalk within 35 feet of the entrance to an abortion clinic. The law was challenged by pro-life activists who wanted to stand on the sidewalk to talk and hand literature to women entering the clinics. The buffer zone was smaller than the one proposed here (including in the Hochul bill, below) — it extended 35 feet, but only from a clinic entrance, not the sidewalks and streets that touched any part of a clinic — and it applied only to clinics that provided abortions.

The Court found the restriction was a content neutral, time, place, and manner restriction on speech — but that was not enough to save it. The Court held that the state’s interest in “ensuring public safety outside abortion clinics, preventing harassment and intimidation of patients and clinic staff, and combating deliberate obstruction of clinic entrances” was insufficient to justify such a significant burden on the plaintiffs’ speech. The court noted that the state had plenty of other options that would be less burdensome, including enforcing existing laws against assault, trespass, and obstructing access to abortion clinics.

The state’s interest here has been described by the bill’s sponsors in different ways. The bill was prompted by a protest outside of a synagogue while it was hosting an event on Jewish emigration to Israel. Rep. Lasher explicitly cited that protest as the reason for the bill, and described its justification as “ensur[ing] that New Yorkers are able to enter houses of worship without having to run a gauntlet of hate speech.”

But “hate speech” is not excluded from First Amendment protection. And McCullen is crystal clear that if the state’s goal is protecting people from offensive speech, the statute is no longer content neutral (and, therefore, is extremely constitutionally suspect):

To be clear, the Act would not be content neutral if it were concerned with undesirable effects that arise from “the direct impact of speech on its audience” or “[l]isteners’ reactions to speech.” If, for example, the speech outside Massachusetts abortion clinics caused offense or made listeners uncomfortable, such offense or discomfort would not give the Commonwealth a content-neutral justification to restrict the speech.

The more constitutionally defensible formulation of the state’s interest here might be preventing people from facing true threats of violence or incitement as they enter houses of worship. But even they are inadequate bases upon which to ban so much protected speech in so many areas across the entire state. The state can already address illegal threats of violence by enforcing its existing ban on using threats (or actual violence) to “intimidate or interfere with” a person engaging in religious activities at a “place of religious worship” (or obtaining “reproductive health services.”)

Even if we look past the aggregate effect of the bill and zoom in to a single location, the burden on speech is severe. The proposal would force demonstrators back 25 feet away from the streets and sidewalks touching the covered site. In many places, that will put them so far away from the people they’re trying to reach that they’ll be unable to get their message across to them. That alone could prove fatal in court.

Hochul Bill

This proposal from Gov. Hochul is similar to the Lasher/Sutton bill, and it carries the same criminal penalties: 364 days in jail for the first offense and up to four years for the second.

What speech is covered?

Hochul’s bill bans demonstrating inside the buffer zone “with intent to alarm and annoy anyone who seeks to enter, exit, work inside of, or use the services of” the religious site or covered health clinic.

Because the law defines “reproductive health care facilities” to include the entire building in which a covered health clinic is located, the bill appears to apply to people with “intent to alarm and annoy” anyone going into the entire building, not just those visiting the actual clinic.

What sites are covered?

• Reproductive health care facilities — defined in the same way as the Lasher/Sutton bill.

• Places of religious worship — defined as “any building or structure that a reasonable person would know that religious adherents collectively recognize as a place to regularly gather for or to hold religious worship activities or provide religious education or instruction.”

This would largely overlap with the sites covered by the Lasher/Sutton bill, with a few exceptions: (1) it only covers buildings and structures, but not mere “spaces”; (2) it excludes buildings that a reasonable person would not know are used for religious worship or education, which would carve out places that don’t look like religious sites from the outside; and (3) it more clearly covers all religious schools. According to enrollment data from the state, New York has about 1250 religious schools in K-12 alone.

How big is the buffer zone?

Same as the Lasher/Sutton bill: 25 feet from the streets and sidewalks touching the covered site.

How does this affect freedom of expression?

The overwhelming chilling effect of this proposal is similar to the Lasher/Sutton bill. It covers almost all of the same locations, and although it’s not a total ban on all demonstrations within the buffer zones, it still criminalizes a broad swath of expressive activity.

The bill bans demonstrating within a buffer zone if you intend “to alarm and annoy” people coming and going from the site. This intent requirement excludes demonstrations whose message has nothing to do with the covered site, and it limits the ban to hours when people would in fact be coming and going. But during those hours, the bill empowers police to arrest demonstrators if they decide a protest within the buffer zone has gotten too “alarming and annoying” for the people coming to the site.

This vague standard could arguably apply to any protest whose aim is to get a message to the people at the protest location. The point of protesting someone’s actions is not to comfort or console them.

Looking at some of the examples above: Is it not alarming and annoying when your employees picket you, or your constituents protest you? Is it alarming and annoying if a pro-life demonstrator outside a clinic tells you abortion is murder? Or if pro-choice protestors stand outside your cathedral and chant: “Pro-life? That’s a lie — You don’t care if people die”? Or if abuse victims say your clergy have committed heinous crimes?

The upshot is demonstrators will have to stay outside the buffer zones or risk jail time – even when their speech is protected by the First Amendment.

Is it constitutional?

As with the Lasher/Sutton bill, the sheer amount of speech chilled and outright criminalized by this proposal makes it very unlikely to survive in court. But Hochul’s bill faces an additional problem: It is not content neutral. That means it has to clear an even higher constitutional bar.

Under the First Amendment, laws that are neutral on their face will still be considered content-based regulations of speech if they “cannot be ‘justified without reference to the content of the regulated speech.’”

Let’s apply this to the demonstration which prompted the bill. In addition to the people protesting the event, there were also pro-Israel counterprotestors. Video footage shows them at the same location, the same distance from the building. How would the police tell which protesters might intend to “alarm and annoy” people entering the synagogue and which weren’t, without looking at the content of their message? They couldn’t.

Extrapolate this to the other demonstrations discussed above. Labor rallies may “alarm and annoy” hospital administrators because the content of the protest is about those administrators’ decisions over salaries and working conditions. But if they held the same rally — in the same location, at the same volume — in support of those administrators, it could not be construed as intending to alarm and annoy.

Protests of elected officials leaving a house of worship after a speech may “alarm and annoy” them if the content of the protest includes harsh criticism of their policies and threats of electoral consequences. But the same demonstration done in support of the elected official would not.

You get the idea. The bill cannot be enforced without looking at the content of the constitutionally protected speech at issue. Arguably, it cannot even be applied without looking to the viewpoint of the speech, which would make it categorically unconstitutional. But even if it’s merely content-based, not viewpoint-based, that means the law will be subject to strict scrutiny, the most exacting form of constitutional review. To survive strict scrutiny, the government must prove there’s no other possible way to serve the state’s goal that would put less of a burden on protected speech than to chill speech around every house of worship and covered health clinic across the state. That seems extremely unlikely.

One final note: Proponents of the Hochul bill may argue that intent to “alarm” and “annoy” is already found in existing New York laws against harassment and stalking. But those laws proscribe conduct or threats (with the requisite intent), not protected speech. When New York had a statute that banned protected speech (specifically, “communicat[ing]”) with intent to “harass, annoy, threaten or alarm” another person, it was struck down by New York’s highest court for being unconstitutionally vague and overbroad. That decision relied on an earlier case in which the court struck down a ban on using “abusive” language with intent to “harass” or “annoy” someone, on the grounds that it proscribed too much protected expression.

On Jan. 7, the House Oversight Committee approved a subpoena for Seth Harp, an investigative journalist and contributing editor at Rolling Stone, for posting information about a Delta Force commander. Congress has broad authority to issue subpoenas. But it must show far more restraint when aiming them at journalists without any evidence of wrongdoing.

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In early January, Harp reposted a screenshot identifying a commander involved in the U.S. capture of Nicolás Maduro, Venezuela’s former dictator. X reportedly locked Harp’s account until he deleted the post. The House Oversight Committee then voted to approve a subpoena “for leaking classified information.” Republican Rep. Anna Paulina Luna of Florida’s 13th congressional district, who introduced the motion to subpoena Harp, said, “Putting a service member and their family in danger is dishonorable and feckless. Leaking classified information demands explanation and a criminal investigation.”

But publishing the news, even when the news contains classified information, is exactly the role of a journalist. And Rep. Luna did not cite any evidence that Harp broke the law to obtain the information.

Can Congress subpoena Harp over his reporting?

Congress has a broad subpoena power, subject to some constitutional limits.

Congress does have broad investigative authority tied to its legislative power, and subpoenas are a standard tool of that authority. It cannot investigate without the ability to compel people to share information.

But that authority still has limits. In Watkins v. United States (1957), a McCarthy-era congressional subpoena case, the Supreme Court held that while it is “unquestionably the duty” of citizens to cooperate with such subpoenas, the power to issue subpoenas at all “assumes that the constitutional rights of witnesses will be respected by the Congress as they are in a court of justice. The Bill of Rights is applicable to investigations as to all forms of governmental action.” The First Amendment prohibits government retaliation for engaging in protected speech. So under Watkins’ rationale, Congress should not subpoena a journalist merely because it dislikes their reporting.

If Congress abuses its subpoena power, will courts stop it?

In practice, the Speech or Debate Clause weakens Watkins’ constitutional limit on congressional subpoenas.

Even after Watkins, abusive congressional subpoenas are difficult to preemptively fight in court. One reason is the Speech or Debate Clause, which gives members of Congress immunity for legislative acts or statements, including subpoenas.

In Eastland v. U.S. Servicemen’s Fund (1975), the Senate investigated the defendant organization (including a subpoena for bank records) after it distributed anti-Vietnam war publications to the military. When the Servicemen’s Fund challenged the subpoena all the way to the Supreme Court, the Court held that the subpoena fell within Congress’s “legitimate legislative sphere” of investigating the “effect of subversive activities.” Because the committee acted within its investigatory powers, the Court concluded, the Speech or Debate Clause immunized the committee and its staff from suit. The subpoena remained on the books.

Eastland thus stands for the proposition that courts may not “look behind” a subpoena for constitutionally improper motives. It would be unconstitutional for Congress to investigate a nonprofit’s bank accounts, or a reporter’s sources, based on First Amendment-protected expression. But so long as Congress can prove it acted within the bounds of its power, any remedy for the constitutional violation must be found outside the courts.

Even if Congress can use its subpoena power to end-run around the First Amendment, should it?

Standardless subpoenas against reporters risk chilling journalism.

Even when Congress has facially legitimate (if arguably pretextual) grounds for its investigation, forced investigative questioning is a direct threat to the conditions that make journalistic inquiry possible. Freedom of the press — and of speech — requires the ability to pursue knowledge and ideas without fear of retribution. Otherwise, our knowledge grows stale, and our ability to assess the truth trends toward the state’s mandated line. As the Supreme Court noted in Sweezy v. New Hampshire (1957), “scholarship cannot flourish in an atmosphere of suspicion and distrust.” Replace “scholarship” with “protesting” or “reporting,” and the principle remains the same.

Floyd Abrams, who has spent his career litigating press cases, puts it plainly — such legal battles “cost an enormous amount of money, have enormous disruptive effects” and represent “an institutional threat to the behavior of a newspaper.” Subpoenas signal to sources that talking to the press could put them under a governmental spotlight. They force reporters and editors to ask: This story is accurate, but can we afford the cost of printing it?

FIRE’s recent work shows that when Congress goes overboard with investigations, it can scare people into silence — even when their speech is perfectly legal. Tyler Coward, lead government counsel at FIRE, condemned congressional investigations into student groups and nonprofits associated with pro-Palestine protests as “fishing expedition[s]” based on groups’ viewpoint.

Likewise, John Coleman, legislative counsel at FIRE, criticized the House’s investigation of Stanford researchers studying “misinformation.” Targeting protected academic inquiry might serve some legitimate congressional objective, Coleman argued, but such investigations deter future inquiry. For reporters, the same lesson is obvious: even if a subpoena is ultimately narrowed or withdrawn, if you want to avoid the risk, avoid the subject.

The issuance of speech-chilling subpoenas knows no partisan bounds, either. Republicans led the investigations into pro-Palestine groups and Stanford researchers. But in 2021, the House Select Committee on January 6th — chaired by Democratic Rep. Bennie Thompson — subpoenaed a photojournalist’s phone records from Verizon. At the time, the Reporters Committee for Freedom of the Press called on Thompson to withdraw the subpoena, calling it a “direct threat to newsgathering.” In Seth Harp’s case, the House Oversight Committee’s top Democrat, Rep. Robert Garcia, supported Rep. Luna’s motion to subpoena, and it was approved unanimously.

If courts are unlikely to stop Congress, who will protect journalists?

Even if constitutional, Congress should refrain from issuing standardless subpoenas against journalists.

Despite the fact that the Speech or Debate Clause largely immunizes Congress when it issues subpoenas, Congress has an independent obligation to follow the Constitution. Recall that Eastland held that courts may not “look behind” a subpoena to test whether the real aim was retaliation or harassment. Facially legitimate subpoenas will stand, even if they’re arguably illegal. That means Congress itself is the main check on subpoenas meant to retaliate against or harass reporters. And Congress must better police its subpoena process — otherwise it imperils not only our free press, but also free speech and our collective pursuit of truth and knowledge.

Congress should keep Watkins in mind when crafting subpoenas. At a base level, that means Congress should not issue subpoenas to journalists for merely reporting the news. Beyond that, Congress should ensure that there are no other means to obtain the requested information. It should tailor requests to avoid sweeping in things like sources, editorial deliberations, or other discussions essential to the newsgathering process. These suggestions are modest but vital institutional firewalls against congressional abuse of its oversight power.

The public cannot be informed — cannot check officials, evaluate policy, or hold politicians accountable — without strong protections for the press freedom to share information and to criticize without retaliation. Alexander Hamilton warned that constitutional safeguards are often not enough. The freedom of the press, he wrote in Federalist No. 84, rested not in “fine declarations” but rather in the “general spirit of the people and of the government.”

Congress must take it upon itself, in Harp’s case and others, to embody that spirit of a free press and refrain from investigating journalists for merely doing their job.

Last year, the Satanic Temple of New Hampshire put up a Baphomet statue (a part-human, part-goat satanic deity) in front of the State House in Concord. People vandalized it and knocked off its head. Concord vowed to review its policies after its mayor described the statue as “deliberately provocative and disturbing.” That raised major constitutional concerns.

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FIRE wrote to Concord, arguing that the government could not discriminate against disfavored displays. In a victory for free speech, Concord kept the statue and arrested the perpetrators. This year, despite questions from public officials, Baphomet is back up in front of the State House.

New Hampshire’s backing of the Satanic Temple’s right to display its religious symbol illustrates a core First Amendment principle: When the government invites private holiday displays, the First Amendment bars viewpoint discrimination.

What the Free Speech Clause requires

The threshold question: who is speaking?

When the government — such as a town council or a public school — puts up holiday displays, it’s subject to the First Amendment’s Establishment Clause. When the government opens up a public place to private groups or individuals to display their own religious symbols, it is subject to the Free Speech Clause.

Understanding public forum doctrine

If the government allows private groups or individuals to display their own symbols, the question is then one of forum. Public forum doctrine is a First Amendment framework that determines the level of constitutional protection afforded to speech on government property. Some forum types allow for more restrictions, but viewpoint discrimination is always constitutionally forbidden.

The Supreme Court identifies three types of public forums: traditional, limited, and designated. Traditional public forums are those historically used for public assembly, such as streets and parks, where regulatory ability is most limited. In these spaces, restrictions based on the content (not just viewpoint) of speech are almost always unconstitutional.

Designated public forums arise when the government intentionally opens public properties for expression. Once the government opens up a designated public forum, the same rules that apply to traditional public forums apply as long as the government keeps the forum open.

Finally, limited public forums are places the government opens for expression by limited groups or specific topics. The government can be slightly more restrictive here, with the ability to impose restrictions that are viewpoint neutral and reasonable in light of the purpose served by the forum. For example, a city council might establish a public comment period at its meetings but require that comments be related to city business.

No matter which type of forum exists, viewpoint discrimination is prohibited

Courts have reached different conclusions on whether government properties (other than parks, sidewalks, or other traditional forums) opened up for holiday displays constitute limited or designated public forums depending on the circumstances. Regardless, even when the government can set subject matter limits, it can’t discriminate by viewpoint within those categories. The Supreme Court has long barred censorship merely “because public officials oppose the speaker’s view.” Perry Education Association v. Perry Local Educators’ Association (1983).

Last year in Gallatin, Tennessee, a library allowed 20 different organizations to decorate Christmas trees to display on its premises. The mayor directed the library to remove one of the trees with a gay pride message, citing a policy against “political” decorations. That type of policy is constitutionally suspect in a limited public forum like the library tree exhibition and the tree should not have been removed.

Just as constitutionally suspect are government attempts to limit religious displays in public forums for fear of endorsing religion. In Shurtleff v. Boston (2022), Boston allowed different groups to fly flags of their choice over Boston’s city hall. Some included foreign countries’ flags or the pride flag. When the city denied a request to fly a “Christian flag,” the Supreme Court treated that as unconstitutional viewpoint discrimination. Put simply, religion is a viewpoint too. Boston could not approve a pride flag and deny a Christian one.

Attempts to classify certain messages as offensive, disturbing, or otherwise not in the holiday spirit count as viewpoint discrimination. In other words, under the First Amendment, if the government allows people to publicly celebrate Christmas, it cannot dictate how they do so just because officials dislike a particular perspective.

Common neutral rules

That begs the question: what can the government do once it opens up a forum for holiday displays?

Usually OK — time, place, and manner rules

The government can usually impose what are known as “time, place, and manner” restrictions on speech in public forums. In the holiday display context, this could mean limiting the size, height, and distance between displays — all without regard to the display’s content. In other words, cities can reasonably regulate logistics as long as they don’t police viewpoints.

Red flags — often viewpoint discrimination in disguise

Some rules masquerade as viewpoint neutral time, place, and manner restrictions, but are actually viewpoint discriminatory. Look no further than the New Hampshire Baphomet statue, where the mayor argued that the display was too provocative. On the surface, it might seem that the mayor advocated for a neutral “provocation” principle where any display that causes a reaction could be taken down. But that’s not a neutral principle at all — it means enabling a heckler’s veto over unpopular speech. Restricting speech because members of the public, rather than government officials, dislike its viewpoint is still viewpoint discrimination.

Perhaps the most common problem with holiday display policies are rules that feign neutrality by requiring “good taste” or “respect.” But what’s respectful to one religious group might be offensive to another. These rules invite subjective message policing by the government, which does not and should not have a dog in the fight when it comes to the tone of expression.

The bottom line

In the end, the government can choose whether to open up non-traditional public forums for public holiday displays or not. If it doesn’t, there is no free-floating constitutional right to put up a Satanic display or a Christmas tree as one pleases. For example, the government has not opened up court rooms for holiday displays, so one could not just walk up to the bench and place a giant menorah on it. But when the government solicits holiday decorations, it can’t discriminate between a menorah, a Christmas tree, or even a Satanic statue.

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Marshall argued 32 cases before the Supreme Court during his career, winning 29 of them. Many of these were historic civil rights victories. As a result of this record he was legendary, and as a result of his heritage, his career was historic. He was the first African American to serve as U.S. Solicitor General and the first to serve on the Supreme Court. President Lyndon B. Johnson made Marshall’s historic appointment to the Court of Last Resort in 1967, where he served until 1991.

But Marshall was also a great free-speech defender for the powerless. Consider Procunier v. Martinez (1974), in which the Court addressed California Department of Corrections rules related to the censorship and reading of inmate mail. The Court invalidated some of the restrictions, but Marshall cut deeper in his concurring opinion, emphasizing the importance of inmates receiving outside mail:

The First Amendment serves not only the needs of the polity, but also those of the human spirit — a spirit that demands self-expression. Such expression is an integral part of the development of ideas and a sense of identity. To suppress expression is to reject the basic human desire for recognition and affront the individual’s worth and dignity.

In other Supreme Court cases involving the rights of the incarcerated, he dissented, accusing his colleagues in the majority of giving short shrift to the notion that prisoners are human beings, more than just “slaves of the state.” In one dissent, he wrote that courts should not “blindly defer to the judgment of prison administrators.”

Marshall’s jurisprudence on public employee free-speech rights was arguably even more impressive. He authored the Court’s majority opinion in Pickering v. Board of Education (1968), still the Court’s seminal decision for public employees. The case involved a high school teacher named Marvin Pickering, who was fired for sending a letter to his local newspaper criticizing the local school board for giving short shrift to academics and spending too much money on athletics.

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Marshall emphasized that public employees do not lose all of their free-speech rights when they accept public employment, often retaining the ability to speak out on matters of public concern or importance. He created the language that formed the basis of the Pickering balancing test: “The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

Marshall also famously warned in Rankin v. McPherson (1987) that “[v]igilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees’ speech.”

While he did not write the majority opinion in the historic free speech case Tinker v. Des Moines Independent School District (1969), in which the Court determined that students have the free speech right to wear black peace armbands in public schools, Marshall did question the attorney representing the school board. He incredulously commented, “seven out of eighteen thousand, and the school board was concerned that seven students wearing armbands would disrupt eighteen thousand.”

It was obvious to all where Marshall stood in the case — on the side of the students who peacefully protested.

Marshall also authored a short dissenting opinion in Bethel School District v. Fraser (1986), which carved out an exception for student speech that was considered vulgar or lewd. The Court voted 7-2 in favor of Washington school officials, who disciplined a student for giving a nominating political speech laced with sexual innuendo. To the majority, the speech was immature and beyond the boundaries of socially appropriate behavior. Marshall, however, questioned the broad deference given to school officials, writing in his dissent that “where speech is involved, we may not unquestioningly accept a teacher’s or administrator’s assertion that certain pure speech interfered with education.”

Marshall showed sensitivity to freedom of expression even in cases involving threatening expression. Consider his concurring opinion in Rogers v. United States, a prosecution of a man who walked into a hotel coffee shop in Louisiana and announced that he was Jesus Christ, opposed President Richard Nixon visiting China, and said that he would go to Washington D.C. to kill the president. The Court reversed the conviction based on improper judicial comments to the jury, but Justice Marshall had serious First Amendment concerns with convicting a person under an anti-threat statute unless the defendant subjectively intended the statements to be threatening. The jury instructions in the case allowed the jury to convict Rogers if a reasonable person would interpret the statements as threatening. To Justice Marshall, this was a negligence standard insufficient to protect freedom of expression. He instead interpreted the anti-threat statute “to require proof that the speaker intended his statement to be taken as a threat, even if he had no intention of actually carrying it out.”

A chief methodological tool in First Amendment law is determining whether a law is content-based or content-neutral, and Marshall also contributed mightily to First Amendment doctrine in this vein. The ultimate concern is that when the government discriminates against speech based on content, it is engaging in a type of attempted thought control. “To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship,” Marshall wrote in Chicago Police Department v. Mosley (1972). “The essence of this forbidden censorship is content control.”

In the Chicago case, an African American man protested outside of a Chicago high school he believed engaged in racially discriminating hiring practices. He was cited for violating a city ordinance prohibiting picketing within 150 feet of a public school. But the ordinance had a content discrimination problem because it allowed labor picketers. Thus, under the ordinance, labor picketers were favored and other picketers, like Earl Mosley, were disfavored. This was unacceptable to Justice Marshall. He saw this as classic content discrimination and famously wrote, “above all, the First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”

Countless courts have cited this memorable passage when discussing the content discrimination principle. In the case, Marshall also explained that when the government favors one group of speakers over another, it violates not just the First Amendment but also the Equal Protection Clause of the Fourteenth Amendment — connecting Marshall’s free speech advocacy with his civil rights advocacy.

Marshall was also the first justice to use the exact phrase “right to receive information and ideas.” In First Amendment law, we consider not just the free-speech rights of the speaker but also the expression rights of the listening or consuming public. The right to receive information and ideas is a profoundly important free-speech principle that courts have recognized in numerous circumstances, such as the censorship of library books, the suppression of truthful commercial speech, and the videotaping of the police.

In the aforementioned Stanley v. Georgia, a case involving an invasive search of a man’s home that turned up allegedly obscene films, Marshall explained that this right applied no matter the “social worth” of the underlying material. He also emphasized that freedom of expression is inextricably intertwined with privacy, writing that “if the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.”

Thurgood Marshall was a giant in American law and culture. His civil rights legacy and Supreme Court advocacy are rightfully honored. But his steadfast commitment to freedom of expression should be equally celebrated. Marshall refused to accept the idea that the government could limit or prohibit speech, whether the speaker was an inmate, employee, or student. These individuals retained the right to individual self-fulfillment and often contributed mightily to public discourse. Marshall was one of the Court’s First Amendment stalwarts and his opinions contained passages that have become First Amendment lore. For this, he should be known not just as a steadfast champion of civil rights, but also as a titan in the fight to preserve free expression.

In August, FIRE sued Secretary of State Marco Rubio for violating the First Amendment.

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.

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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.

Of course, the government sees it differently. They have leveled several arguments for why their conduct is defensible, necessary, and constitutional. However, a brief filed on October 20 by FIRE explains why the government’s arguments don’t withstand scrutiny.

Here’s a breakdown of the government’s claims and why the law points in the other direction.

The government says it isn’t targeting protected speech — despite all evidence to the contrary

The government’s attorneys in this case insist that the claims of FIRE’s plaintiffs — The Stanford Daily, which employs the writing of noncitizen journalists and covers the impact of the war in Gaza on campus, and Jane and John Doe, who engage in pro-Palestinian advocacy — should be dismissed because the government, the attorneys argue, “do[es] not pursue visa revocations and removal proceedings purely based on political speech.”

Unfortunately, everything government officials have said and done proves otherwise.

President Trump, for instance, has vowed to deport “any student that protests” and revoke visas of “antisemitic” students. Rubio has stated publicly that “people that are supportive of movements” he determines “run counter to the foreign policy of the United States” are subject to visa revocation and deportation.

Officials tasked with carrying out these promises have also testified that a wide variety of pro-Palestinian speech, including chanting “from the river to the sea, Palestine will be free,” calling Israel “an apartheid state,” and “criticizing Israel’s actions in Gaza,” are sufficient to justify action under the revocation and deportation provisions. These are all forms of political expression protected by the First Amendment, proving in both word and deed that the government is in fact targeting noncitizens for their free speech.

“Secretaries Noem and Rubio are engaging in a mode of enforcement leading to detaining, deporting, and revoking noncitizens’ visas solely on the basis of political speech,” U.S. District Judge William Young wrote in a 161-page assessment of the Trump administration’s behavior, “and with the intent of chilling such speech and that of others similarly situated.”

And that chilling effect is another important aspect of this case.

The government’s actions are a chill on protected speech

When combined, the two provisions of the Immigration and Nationality Act grant the secretary of state nearly unlimited authority to target noncitizens whose protected speech they dislike, to revoke the visas of those noncitizens, and to initiate deportation proceedings.

If you’re a visa or green card holder in the United States, that’s going to make you think twice about speaking your mind — and that’s the point.

FIRE’s plaintiffs John and Jane Doe have engaged in and planned to engage in speech about American foreign policy and Israel — including accusing Israel of committing “genocide” and using the slogan “from the river to the sea, Palestine will be free.” All of this speech is protected by the First Amendment, but because the provisions of the Immigration and Nationality Act enable the secretary of state to revoke a visa and render noncitizens deportable based on this exact type of speech, that speech is being chilled. Jane Doe is choosing not to speak out anymore, and John Doe is continuing to speak but fears enforcement action.

FIRE’s other plaintiff, The Stanford Daily, is experiencing a similar chilling effect. As a newspaper committed to “to cover[ing] all relevant campus activities in an unbiased fashion and provide an outlet for Stanford community members to publish opinions,” the newspaper has a keen interest in covering the voices of students on campus — which necessarily includes noncitizens with pro-Palestinian views. However, due to the provisions of the Immigration and Nationality Act, as well as the actions Rubio and the Trump administration have already taken to target disfavored speech, noncitizen journalists have refused assignments and even quit the newspaper out of fear. One need only to look at the case of Rümeysa Öztürk, a Tufts student who was detained for writing an op-ed critical of Israel, for ample reason behind The Stanford Daily’s concerns.

The implications here should be obvious. If there is a credible threat of the government revoking your visa and engaging in deportation proceedings for speech you publish in your school newspaper, you’re unlikely to take the risk. This not only violates the First Amendment rights of these noncitizens, it also harms the ability of all citizens to read and hear perspectives about matters of public importance that the current administration doesn’t like.

The provisions of the Immigration and Nationality Act are unconstitutional and must be struck down

The First Amendment prohibits Congress from enacting — and the executive branch from enforcing — laws penalizing speakers because of their opinions, no matter their immigration status.

It’s as simple as that.

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The idea, from our nation’s founding, is to protect the “inalienable” right to free expression. Our Founders did not believe that free speech was a privilege granted to us by our government, but rather a right inherent to us all, which required protection from government. And there is no historical merit to the idea, forwarded by some, that these rights were only ever intended for American citizens. In fact, many of the most prominent and controversial voices during our nation’s founding were noncitizens.

This is why the Supreme Court has repeatedly recognized that the First Amendment’s protection for free speech applies to noncitizens, noting in cases such as Kwong Hai Chew v. Colding that:

[O]nce an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders. Such rights include those protected by the First and the Fifth Amendments … They extend their inalienable privileges to all ‘persons’ and guard against any encroachment on those rights by federal or state authority.

For all of these reasons, the revocation and deportation provisions of the Immigration and Nationality Act — which the government itself has publicly acknowledged allows it to revoke noncitizens’ visas and render them deportable for protected expression — are an unconstitutional violation of the First Amendment.

The government argues that, because its actions involve immigration and foreign policy in this case, its “authority is at its zenith” and its arguments are “entitled to the most deference from the courts.” However, it is basic high school civics, and noted in the 1803 case Marbury v. Madison, that “it is emphatically the province and duty of the judicial department to say what the law is.”

The Supreme Court has also explained, as it did in Holder v. Humanitarian L. Project, that “[o]ur precedents, old and new, make clear that concerns of national security and foreign relations do not warrant abdication of the judicial role. We do not defer to the Government’s reading of the First Amendment, even when such interests are at stake.”

And as the Ninth Circuit court noted in Washington v. Trump, “the Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context.”

The Constitution does not disappear when important issues are at stake. The point of a written constitution is to prevent the political branches from declaring the limits of their own power. The provisions of the Immigration and Nationality Act are a clear violation of these principles. Both constitute viewpoint and content discrimination because they permit the government to impose adverse immigration consequences on lawfully present noncitizens simply because the secretary of state dislikes their political speech. No person should hold such power under our system of government. For these reasons, FIRE is seeking a landmark ruling that these provisions are unconstitutional to the extent they allow the secretary of state to revoke visas or initiate deportation proceedings based on protected speech.

America is different, and that’s a good thing

Regardless of your opinions on the political speech in question, if you value the First Amendment, this case should matter to you. This doesn’t just implicate the expression of lawfully present noncitizens. It also implicates your ability to hear speech that the government finds unfavorable to its interests — and that is a critical freedom that sets America apart.

As FIRE’s brief notes:

America is different. Over the centuries, as the world’s nations jailed, censored, and exiled unpopular speakers in the name of some pressing interest, we charted a different course. In our country, Thomas Jefferson explained, “the rights of thinking, and publishing our thoughts by speaking or writing” are inalienable rights belonging to the individual and never surrendered to a government’s control. To protect those inalienable rights, the Founders crafted the First Amendment, ensuring that “Congress shall make no law” abridging the right of individuals to think and speak for themselves. The Bill of Rights’ opening command, forged when noncitizen Europeans were some of the most prolific and controversial commentators of the day, makes “no distinction between citizens and resident aliens.”

For a more detailed and granular assessment of the arguments forwarded in this case, we encourage you to read the brief in full.

On Sept. 15, 2025, U.S. Attorney General Pam Bondi threatened to target Americans for “hate speech,” saying, “We will absolutely target you, go after you, if you are targeting anyone with hate speech.” This essay was originally published on Feb. 8, 2022.

A recent survey from the Foundation for Individual Rights in Education found that a majority of Americans (57%) correctly recognize that the First Amendment protects hate speech from governmental regulation, punishment, or censorship — but 45% think that it should not be protected.

Why is hate speech protected?

The First Amendment makes no general exception for offensive, repugnant, or hateful expression.

In Snyder v. Phelps, the United States Supreme Court protected in an 8-1 decision the hateful speech of the Westboro Baptist Church — known for picketing military funerals with signs that read “God hates fags” and “Thank God for dead soldiers” — during a 2006 protest near the funeral of Lance Corporal Matthew A. Snyder, a Marine killed in Iraq. Federal courts even protected the free speech rights of Nazis, who in 1977 were denied a permit to march through Skokie, Illinois, a village where many former Holocaust survivors lived. (Although the Nazis prevailed in court, the march actually never took place.)

As FIRE has explained many times before, speech by adults as free citizens does not lose First Amendment protection because it is considered hateful. This is because hate speech in and of itself is protected speech, particularly when spoken by adults on their own time.

When does hate speech lose First Amendment protections?

Not all hate speech is protected by the First Amendment, since hateful expression can fall within certain, narrow categories of unprotected speech such as:

1. Incitement to imminent lawless action (incitement);

2. speech that threatens serious bodily harm (true threats); or

3. speech that causes an immediate breach of the peace (fighting words).

If the hateful speech falls within one of these unprotected categories, then it is not protected by the First Amendment. If it falls outside these categories, then the speech will remain protected by the First Amendment in most contexts, with a handful of other narrow exceptions for public employees and institutions. For example, a public employer can discipline a public employee, like a police officer or firefighter, who hurls a racist invective at a citizen while on duty. Likewise, a public grade school official can punish a student for maliciously yelling a racial slur at another student in the hallway. Officials at K-12 institutions may reasonably believe that such speech would cause a material and substantial disruption of school activities and interfere with the rights of others.

The trouble with regulating hate speech

The First Amendment provides the greatest degree of protection to political speech, disallows discrimination against speech based on viewpoint, and generally prohibits the passage of vague or broad laws that impact speech. Laws must not sweep too broadly and must define key terms so that speakers know when their speech crosses the line into illegality.

A key problem with regulating hate speech, as free-speech scholars such as Nadine Strossen have identified, is that it remains difficult, if not impossible, to define exactly what constitutes hate speech. There remains an eye-of-the-beholder phenomenon with hate speech. Strossen writes in her book, “Hate: Why We Should Resist It with Free Speech, Not Censorship,” that “the term ‘hate speech’ is not a legal term of art, with a specific definition; rather it is deployed to stigmatize and to suppress widely varying expression.”

As Supreme Court Justice Oliver Wendell Holmes expressed so eloquently in his 1929 dissent in United States v. Schwimmer, “[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.”

Nearly 90 years later, in 2017, Justice Samuel Alito memorably expressed this concept in Matal v. Tam with a homage to Justice Holmes, writing:

Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”

A free society must give much breathing space to hateful speech in order to avoid thought control and the censorship of unpopular views by the government. Instead of stifling free speech, we, as free citizens, have the power to most effectively answer hateful speech through protest, mockery, debate, questioning, silence, or by simply walking away.

Last week, FIRE released the results of our survey of the Facebook and Twitter/X settings of public universities and colleges. These records, obtained through state public records laws, revealed the extent to which some 198 institutions are censoring content and blocking users on their official social media accounts.

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Asking for these records is a simple process and may serve as a useful introduction to public records for student journalists — or, for those who already have experience with them, a useful exercise in transparency. FIRE is sharing a copy of the language our requests used, which can be easily replicated for your public university or for other government entities. (And even if your institution was already one of the 200-some we scanned, it may be worth requesting the records again, as your institution’s settings may have changed.)

Here’s how to request the Facebook and X settings from your own institution.

First, it’s useful to get a background on your state’s public records laws. The Reporters Committee for Freedom of the Press maintains a useful guide to each state’s public records laws. Knowing what records are accessible, and what exceptions there are, makes it easier to frame a request that is less likely to be rejected.

Second, you’ll want to identify your institution’s records custodian — that is, the person or office that handles public records requests. Many institutions list them on their website or in their policies; if not, you can usually direct a request to the general counsel or public relations office.

Third, draft a request using the language below, or using the Student Press Law Center’s helpful public records letter generator. To replicate our request, you’ll need to replace some of the language below, in particular the web addresses for your institution’s Facebook and X pages.

Fourth, when you send your request, keep track of when you sent it, as many states have a deadline to provide an initial response. That deadline doesn’t always mean that the agency has to provide the records by that deadline, but most states require them to acknowledge your request or tell you whether they plan to provide the records.

If they refuse or fail to produce the records, be prepared to appeal. If there’s no formal appeal process, consider informally asking a higher-up at your institution — like the president or chancellor — to reconsider the denial, explaining why transparency is important or why their interpretation of the open records law is misplaced. (Some examples of our own informal appeals — with varying degrees of success — can be found here and here.) If your state provides an ombudsman or independent agency for an appeal, consider going that route.

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If you get a response (or if you encounter a stone wall), we’d be interested in learning what you uncover. Please feel free to send your stories or questions to FOIA@thefire.org. And, as always, if you encounter censorship or threats to your rights on campus, get in touch with FIRE to see if we can help.

A template public records request:

The following is a lightly edited version of the request sent to Michigan State University:

This is a request for records pursuant to the Michigan Freedom of Information Act (Mich. Comp. Laws Ann. §§ 15.231 et seq.). If you are not the records custodian for MSU, please identify the correct person to contact.

This request seeks records relating to restrictions and settings concerning the official Facebook and X accounts for MSU, and should be directed to the person responsible for operating those accounts.

RECORDS REQUESTED

I request the following records:

1. A copy of the settings for the Facebook page maintained by Michigan State University (available here). This list is accessible by (A) logging into the Facebook page as an administrator, and then (B) clicking “Settings” at the top of the official page to go here.

2. A copy of the list of people or pages banned from the Facebook page referenced above. This list is accessible by (A) logging into the Facebook page as an administrator, (B) clicking “Settings” at the top of the official page, (C) clicking “People and Other Pages” in the left column, and (D) selecting “Banned People and Pages” from the drop-down menu to go here.

3. A list of the “blocked accounts” by the X account maintained by Michigan State University (available here). This list is accessible by navigating to here.

Fee waiver request: This request concerns a matter of public interest. The social media restrictions imposed by public institutions and officials — including the president, governors, and public universities — have been challenged on First Amendment grounds. This survey seeks to explore the extent to which public colleges and universities have similar restrictions.

The public interest would be well-served by granting a fee waiver. The request is not being sought for a commercial purpose, but is instead sought by a nonprofit organization to provide the public with information concerning the conduct of government actors as that conduct pertains to civil liberties in higher education.

If a fee waiver is not granted, please apprise me if the estimated costs will exceed $10.

Request for expedited processing: Completion of this survey depends on the institution with the slowest response time. We request that Michigan State University produce responsive records on an expedited basis. As you may be aware, a public body in Michigan has five business days to respond. (Mich. Comp. Laws. Ann § 15.235(2)).

Appeal information: If you deny any portion, or all, of this request, please provide me with a written explanation of the reason(s) for your denial, including a citation to each specific statutory exemption you believe justifies the refusal to release the information and notify me of the appeal procedures available to me under the law. If you conclude that portions of the records that I request are exempt from disclosure, please release the remainder of such records for inspection and copying, redacting only the portion or portions that you claim are exempt.

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Originally published March 7, 2023.

They say there’s no such thing as bad press, but it’s unlikely you’ll find too many politicians and public figures who can wholeheartedly agree. Their relationship with journalism and commentary — especially if it’s critical of them — has always been a contentious one.

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And that’s a good thing.

If you’re a public figure or politician, there’s probably nothing you’d want more than to stop your critics from printing commentary you find unfair or damaging to your reputation. If you could sue for defamation, hit them in their wallets, and have that make other people think twice before coming after you, you’d probably sleep much easier at night.

The First Amendment’s guarantees of free speech and a free press limit those lawsuits — and for good reason. Using your political and financial power to bully critics into silence would make investigative journalism even more difficult, chilling critical reporting and severely hobbling our discourse and our democracy.

That’s what the Supreme Court decided in its landmark 1964 New York Times Co. v. Sullivan decision, which has deterred the powerful from using defamation lawsuits to intimidate and silence for more than 60 years, ruling that “debate on public issues should be uninhibited, robust, and wide-open.”

It should be no surprise, then, that Sullivan has been a target in recent years.

There have been numerous bids for the Supreme Court to overrule the Sullivan decision, and Justices Clarence Thomas and Neil Gorsuch have both expressed a willingness to revisit it. Politicians from former President Donald Trump to Florida Gov. Ron DeSantis have publicly attacked the Sullivan decision and its underlying arguments, and Florida state legislator Alex Andrade filed a bill in February 2023 designed to effectively overturn it.

Critics believe Sullivan gives the media unfettered license to publish defamatory coverage, leaving its victims with no recourse to respond. Many also believe overturning the decision would give regular people teeth to bite back against what they view as the media’s abuse of power.

But would reversing this 1964 Supreme Court precedent really protect the little guy and balance the scales?

Not at all. In fact, Sullivan has historically given countless Davids a fighting chance against a long line of Goliaths. Reversing the decision would be like taking away David’s sling and stones.

In this FIRE explainer, I’ll break down the details of the Sullivan decision, address current criticisms, and outline why reversing it would be disastrous for free expression, a free press, and the little guy.

New York Times v. Sullivan was a big deal

In 1960, civil rights activists ran a full-page advertisement in the The New York Times titled “Heed Their Rising Voices.” Its authors decried “Southern violators” — which included the police department of Montgomery, Alabama — for suppressing nonviolent protests at Alabama State College and harassing Dr. Martin Luther King, Jr.

However, the ad’s list of grievances contained some inaccuracies. It claimed Dr. King was arrested seven times in Alabama, when it was actually four. It alleged Alabama police “ringed” the college after a peaceful protest, when in reality they only deployed nearby. It also claimed the protesting student body’s “dining hall was padlocked in an attempt to starve them into submission,” which never happened.

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Though not explicitly named, Commissioner of the City of Montgomery L.B. Sullivan, who supervised the Montgomery Police Department, made note of these errors and took advantage of them. He filed a libel suit against four preachers whose names appeared in the advertisement and The New York Times, claiming their use of the word “police” in the ad implicated and directly defamed him.

Sullivan won in the Alabama state courts. A jury in the Circuit Court of Montgomery County awarded him $500,000 — the equivalent to more than $5 million today — and the Supreme Court of Alabama concurred.

The Supreme Court of the United States, however, came to a different decision when it heard the case in 1964. It ruled unanimously in favor of the paper and the preachers, concluding that the First Amendment limits the ability of public officials to use state libel law to stifle public debate. Most notably, the Court held public officials suing for libel must prove “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.”

In his opinion, Justice William Brennan emphasized that debate “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” In other words, the Court protected the press’ and the average citizen’s right to engage in democratic debate and criticism without worrying about the legal tantrums of public officials.

Sullivan’s libel suit wasn’t the only one filed against The New York Times over the “Heed Their Rising Voices” ad. In fact, five other libel claims were brought by Alabama officials, seeking a total of $3 million in damages — more than $28 million in today’s dollars. And that’s not all. Other officials in segregated states sued papers favorably covering the Civil Rights Movement, bringing the total potential damages to almost $300 million — just under $3 billion when adjusted for inflation.

Sullivan and his allies were taking advantage of defamation law to win significant verdicts against media outlets — deeply unpopular with juries in the deep south — that covered the Civil Rights Movement, making it costly to cover the authorities’ abuses.

Without the Sullivan decision, that kind of pressure may have bankrupted these papers and hindered perhaps the most important social movement in American history.

Does New York Times v. Sullivan protect falsehoods?

Addressing the inaccuracies in the advertisement Sullivan seized upon, the Supreme Court noted “erroneous statement is inevitable in free debate,” and echoed James Madison’s statement, recounted in “Elliot’s Debates on the Federal Constitution,” that, “Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press.”

The “actual malice” standard protects people who make mistakes and those who genuinely believe what they are saying about powerful people, even if they’re wrong — but it does not protect deliberate falsehoods. And while the standard set in Sullivan is a high bar, the alternative would be worse, the Court observed:

A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions — and to do so on pain of libel judgments virtually unlimited in amount — leads to a comparable ‘self-censorship.’ …Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of doing so.

It should be clear who “the little guy” was in this case. The Court’s ruling protected the speech of those fighting for equality and freedom — and those reporting on it — when the odds were against them.

But have things changed? Is the bar now too high? Has the little guy — in this case, activists and the media — become the big guy? Critics seem to think so, but they’re wrong.

Is there valid criticism of New York Times v. Sullivan?

New York Times v. Sullivan is a necessary bulwark against self-censorship and the silencing of critics through financial and legal pressure. A few criticisms warrant grappling with, however.

One is that the eventual expansion of the decision’s scope to include public figures rather than just government officials is a problematic overextension. In two 1967 cases, Curtis Publishing Company v. Butts and Associated Press v. Walker, the Court held those with “sufficient continuing public interest” and “sufficient access to the means of counterargument,” are public figures analogous in power and influence to public officials, and therefore subject to the same protections outlined in Times v. Sullivan.

Perhaps more concerning to critics is the Supreme Court’s Gertz v. Welch decision, which extended the “actual malice” standard to “limited-purpose public figures,” such as participants in a specific public controversy.

Critics of Sullivan argue these subsequent expansions put everyday people — like Nicholas Sandmann, the “Covington Kid” who faced intense criticism after a video of him facing a Native American elder during a protest went viral — in a compromised position. The video appeared to show Sandmann and his Covington High School classmates wearing MAGA hats, taunting a Native American elder and instigating a confrontation. Longer videos were later released which added more context to the story, but not before Sandmann was thoroughly maligned in the press.

From the critics’ perspectives, Sandmann is David standing before the social media and legacy media Goliath, and he should have the right to sue and fight to protect his reputation.

New York Times v. Sullivan is a necessary bulwark against self-censorship and the silencing of critics through financial and legal pressure.

However, Sandmann already had that right, and he took full advantage of it. After the whirlwind of coverage he received, he sued various news outlets for defamation — and while he lost a few, he also reached a settlement with The Washington Post and others. Beyond that, multiple writers, journalists, and news outlets criticized the initial reporting of the incident, putting the truth into the public record in the same way the inaccuracies had been. All of this lends little credence to critics’ claims about Sandmann’s powerlessness in the face of bad reporting.

Another criticism of Sullivan is that proving “actual malice” is too difficult, allowing journalists and publications to get away with libel and defamation against public figures. This, again, is unfounded. The high bar certainly makes it harder to prove the claim, but it is far from impossible. Plenty of politicians and public figures have pursued and swayed juries in defamation cases.

Lowering the bar below actual malice would also make it more difficult to weed out defamation lawsuits filed not for legitimate cause but to bully and muzzle critics. Again, it’s not difficult to see who “the little guy” is in these scenarios.

Overturning Sullivan would imperil free speech

Sullivan is a case about the press, but it’s not just a press case. The Sullivan decision doesn’t protect only journalists, publications, or activists like the civil rights protestors who placed the “Heed Their Rising Voices” ad in 1960. It also extends to comedians and satirists, outspoken students and parents on social media, and anyone in any arena who chooses to comment on or criticize the actions and ideas of public figures, institutions, and elected officials.

Whether they’re right or wrong or whether you agree with them or not, these people are, by definition, “the little guy.” More often than not, they don’t have massive platforms, deep pockets, or the financial resources to defend themselves against the defamation claims of those with political and social power.

Sullivan protects those little guys. If a poorly worded comment or genuinely mistaken claim can lead to financial ruin, we’re going to be far less likely to make those comments or claims at all, even when we should. This would have a chilling effect on free expression and a free press, and would effectively prevent us from using the most fundamental tools of social change at our disposal: the right to speak, challenge, criticize, argue, and debate, even if those to whom we direct our ire have more money, power, and prestige than we do.

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Last updated Oct. 2, 2024.

In 1873, a high school dropout and Civil War veteran traveled to Washington, D.C., and persuaded Congress to pass a law that would impact obscenity law and women’s reproductive health for more than 150 years. His name was Anthony Comstock, and the law would come to be known as the Comstock Act. It was the first federal law to categorize contraceptives and abortion medications as obscene and ban them from the mail.

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These days, few people aside from historians know Comstock’s name, but he is in the news again this year thanks to debates over women’s reproductive health. If elected president for a second term, former President Donald Trump may use this “zombie law” to ban medication abortions and surgical abortions, miscarriage care, and even contraception. Many court cases since the Comstock Act’s passage have challenged and narrowed the scope of the law, and the Biden Department of Justice does not enforce it. But in a post-Roe v. Wade era, pro-life advocates have argued in federal court that the law prohibits the mailing of a medication abortion pill, and some municipalities have passed ordinances requiring residents to comply with it.

The Comstock Act is cited, though not by name, in Project 2025, a policy plan for a second Trump term created by the conservative Heritage Foundation. And Jonathan Mitchell — the lawyer who wrote Texas’ abortion “bounty hunter” law, who is a possible DOJ head in a Trump administration — told The New York Times, “We don’t need a federal ban when we have Comstock on the books.”

This explainer will tell you everything you ever wanted to know about sex in the nineteenth century, the zealot Anthony Comstock, and his law’s effect on contraception, abortion, and free speech.

‘Don’t You Know Who I Am? I’m Anthony Comstock!’

At the height of his power as a postal censor, Anthony Comstock carried a revolver, had rage issues, lied to the press, and complained continually about his detractors. Once, he was nearly run over by a mail carriage. He shook his badge at the horse and said, “Don’t you know who I am? I’m Anthony Comstock!” Those who hated him called him “Smutty Tony.” On the way to the Newark jail, an obscene book dealer slashed him in the face and severed his facial arteries. Comstock grew mutton chops to hide his wound. After that he had a new nickname: “Scar-faced Tony.”

Comstock was born in New Canaan, Connecticut, in 1844, the fourth child of his parents and third to survive past infancy. He adored his deeply pious mother, Polly Lockwood, who was a direct descendent of the Puritans, calling her “the loveliest mother that ever lived.” The Comstocks were Congregationalists, and Polly read all her children Bible stories that emphasized self-sacrifice and moral courage. Comstock idolized Polly, who epitomized the “Victorian ideal” — the mother as the religious and moral anchor of family and home. “I cannot but feel that the teachings of my mother are vastly superior to anything that my opponents can offer or recommend,” he said.

When Comstock was 10 years old, he arrived home from school to find his mother dead. Polly had died of a hemorrhage after giving birth to Comstock’s baby sister, Harriet, her eighth child.

At 16, he left school to work as a clerk at a country store in Winnipauk (present-day Norwalk, Connecticut). One day he heard that a rabid mastiff was running through the streets. He went to his room, prayed, grabbed a few guns, and went out in pursuit of the dog. After climbing a wall he heard a howl. The dog was 20 feet away, his mouth open and foaming. Comstock scrambled down, the dog approaching him. He raised his pistol, fired, and hit the mastiff in the chest. The dog rolled over and Comstock shot him in the brain, dead. He would later compare obscenity to a rabid dog.

He enlisted in the Union Army at age 19 and was loathed by his fellow soldiers for dumping out his whiskey ration (at least he could have given it to someone else). One day he arrived at his quarters to find that his quarter-mates had set fire to his bunk bed.

During his war service, Comstock masturbated obsessively, though at 19 there is really no other way to masturbate. Ridden with guilt, he diarized his (mostly failed) attempts to avoid weakness and resist Satan’s temptations.

After being discharged from military service, Comstock tried to make his way in the dry goods business in Connecticut with little success. A wealthy banker cousin gave him money and said, “Go to New York and find something to do!”

On Pearl Street in Lower Manhattan, Comstock took a room in a cheap boarding house and immediately felt out of touch with his housemates, who were all young men. By 1860, 46% of the male population of New York was between the ages 15 and 30. At night these men went out to enjoy the “sporting life” — boxing, drinking, playing billiards, reading smut, and buying sex.

At “cigar shops” the salesgirls offered lunch hour sex in upstairs rooms. “Pretty waiter girl” saloons abounded, where all the waitresses were sex workers. The obscene book trade was booming. “Fancy books” described and depicted orgies and group sex. Popular titles included “The Writings of Paul de Kock” and “Women’s Rights Convention.”

Comstock got a job as a porter in a dry goods shop on Warren Street. One day, a coworker told him he had bought a dirty book and became “diseased” (the man likely contracted gonorrhea after visiting a prostitute). Outraged, Comstock decided to get the bookseller arrested, believing the reading material had precipitated the gonorrhea.

He ratted out the bookseller to a cop, but the cop tipped him off and the bookseller stayed in business. It didn't matter. Comstock had a new side hustle: vice hunting, or roaming the streets to get booksellers arrested.

He soon realized that most of the dirty books in New York were published by only a few men. If he could buy their bookplates and destroy them, he could stanch the flow of smut. But he needed cash, so he wrote a letter to the New York YMCA to ask for money.

His timing was perfect. Like Comstock, the YMCA scions were concerned about the many dangerous influences on young men in New York. These wealthy, Christians, like financier J.P. Morgan and soap magnate Samuel Colgate, were eager to maintain social order in a changing world. They believed porn, prostitution, birth control, and immigration all threatened to upend society.

They sent him money and soon a YMCA committee began paying Comstock a salary to pursue obscene book dealers. In less than two years, seven people whose arrests he caused committed suicide. “I am sure the world is better off without them,” Comstock wrote. Later, the suicide count increased to 15.

Comstock began to think about a federal law that would make obscenity a more serious crime and criminalize the mailing of abortifacients — medicines that cause abortion — and contraception. Comstock viewed abortionists, mostly women, as preying upon young women who had gone astray. And, in his view, abortion was a means of covering up their “sin” of having sex.

Abortion ads proliferated in newspapers like The New York Herald and New-York Tribune. Though delivery had killed Comstock’s mother, this trauma brought Comstock no empathy for reproductive freedom: He believed his mother had died in sacrifice to her highest duty.

In 1870 Comstock was married, and he and his wife had a baby girl, Lillie on December 4, 1871. On June 28, 1872, he left them at home with a nurse and went to court to testify against a Nassau Street smut peddler. When he returned, Lillie was dead - of summer diarrhea, a then-common disease in infants. That night he wrote in his diary, “The Lord’s will be done. Oh, for grace to say it and live it!”

A terrible speller with no legal background and a tenth grade education, Comstock wrote a crude first draft of the Comstock law. The YMCA benefactors enlisted Benjamin Vaughan Abbott, a Harvard Law School graduate who had drafted New York State’s penal code, to revise it, and Supreme Court Justice William Strong, a graduate of Yale Law School, to put it in legal form.

The proposed law made it illegal to mail any “obscene, lewd, or lascivious book, pamphlet, picture, paper, print”; “any article or thing designed or intended for the prevention of conception or procuring of abortion”; and any “information” (advertisements) on how to buy contraception or get an abortion. People could also be punished for sending letters with curse words in them. Maximum fines were $5,000 (equivalent to around $130,000 today). The maximum penalty was 10 years of incarceration.

The YMCA sent Comstock to the nation’s capital to lobby on behalf of the law. To amass support, he laid out what he called his “Chamber of Horrors”: etchings, engravings, dildos, and birth control devices in the vice president’s room under a shimmering chandelier. It was the most shocking display of sex that politicians had ever seen (at work, at least).

Rep. Clinton L. Merriam of New York, an ally and financial supporter of the YMCA, introduced Comstock’s bill in the House of Representatives. Congress was reeling from the Credit Mobilier scandal, a graft scheme among powerful politicians, and wanted an easy win like a stiff obscenity law.

Only one legislator raised concerns about the birth control portion of the law: Sen. George F. Edmunds, a Republican from Vermont. Edmunds suggested an amendment allowing people to buy contraception from their doctors, but the idea was squelched by a Republican senator from Connecticut, another YMCA ally.

On March 3, 1873, President Ulysses Grant signed the Comstock Act into law and appointed Comstock Special Agent to the Post Office. The next day, Comstock turned 29.

Obscene literature and articles of immoral use

In the 12 years following the federal law’s passage, 24 state legislatures passed “little Comstock laws” modeled on it. Some were even more restrictive than the federal law. Connecticut criminalized the act of trying to prevent pregnancy, which could even include withdrawal, or coitus interruptus.

The YMCA formed the New York Society for the Suppression of Vice and appointed Comstock its salaried secretary. In the society’s Nassau Street office, Comstock displayed a large photo of himself above the rolltop desk.

The effect of the law was immediate. Medical advice books on anatomy, contraception, pregnancy, and childbirth were forced underground, and book sections related to contraception were excised. Health and radical publishers rejected contraception ads for fear of being arrested. Druggists warned customers that small packages would be examined at post offices. In New York, Philadelphia, Boston, and Chicago, condoms and diaphragms became harder to find. And abortionist ads disappeared from newspapers.

Radical publishers and thinkers immediately voiced their opposition to the law. During the 1870s, the “freethought” movement was booming, and this unconstitutional law represented an assault on rights guaranteed in the First Amendment.

Freethinkers, who supported less restrictive divorce laws, open marriage, marriage based on love, separation of church and state, freedom of religion, and freedom of political belief organized to try to overturn the Comstock law. In their newspapers and journals, some of which reached audiences of hundreds of thousands, many anti-Comstockians sold contraceptives like vaginal douching syringes, which could be used for douching after sex. They were furious that the law restricted them, their readers, and their customers. Free love historian Hal Sears called this group “sex radicals.”

Comstock feared and loathed these sex radicals, who he called “long-haired men and short-haired women.” He decoyed them so they would send him their publications, using fake names like “E. Edgewell” and “J. Beardsley.”

Sex radicals filled thousands of columns with anti-Comstock messages. Two papers edited by women began selling vaginal syringes under the name “Comstock syringe.” In 1879, D.M. Bennett, a freethought publisher and writer, was sentenced to 13 months of hard labor for sending free lovers Angela and Ezra Heywood’s pamphlet “Cupid’s Yokes,” which harshly criticized the Comstock law while advocating women’s rights and “male continence,” a form of contraception in which the man orgasms without ejaculating. Bennett died two years after his release from the Albany Penitentiary at the age of 63.

Anti-Comstockians led by Bennett circulated a petition to revise the Comstock Act, and it received 70,000 signatures. Bennett wrote a pamphlet called “Anthony Comstock: His Career of Cruelty and Crime,” and sent 15,000 copies and the petition to editors and politicians. On Aug. 1, 1878, protesting the arrests of a woman doctor and the free love publisher Ezra Heywood, an anti-Comstock group called the National Defense Association held an Indignation Meeting in Boston’s Faneuil Hall. Six thousand people attended.

But the protests were unsuccessful, and the House law revision committee decided to let the law stand. In later years the Comstock Act was expanded to encompass certain political speech in response to rising anarchist sentiment popularized by Emma Goldman in her journal Mother Earth. In New York state, the Comstock law was revised to criminalize talking about contraception. Emma Goldman was later charged and tried under this provision.

SIGN FIRE'S PETITION TO POSTHUMOUSLY PARDON PUBLISHER D.M. BENNETT

The last court case Comstock attended, in 1915, was brought against Margaret Sanger’s husband, Bill Sanger, who had given a birth control pamphlet to an undercover detective, who falsely claimed he only wanted to translate it to other languages. In court Sanger called Comstock a victim of “incurable sexphobia.” Comstock shouted at the anarchists and activists in the courtroom.

The judge found Sanger guilty, saying women advocating for the right to vote should instead “advocate women having children.”

Comstock died just days after the Sanger trial concluded, on September 21, 1915, of pneumonia and “mental strain.” His law would begin to falter in the decades that followed.

The Comstock law’s legacy

The obscenity portion of the Comstock law began to be undermined in United States v. One Book Called Ulysses, when a federal judge ruled that James Joyce’s Ulysses was not pornographic or obscene. Ultimately, the Supreme Court in 1957 unraveled the constitutional basis on which the Comstock Act operated, holding in Roth v. U.S., that obscene material had to be judged as a whole, apply primarily to a prurient interest in sex, and lack any redeeming social importance.

The birth control provisions were also overturned in several cases, including Griswold v. Connecticut. The Supreme Court found that the Connecticut Comstock law violated the right to marital privacy — and after the decision, married women could legally get birth control from their doctors. (Unmarried women could not get birth control from their doctors until 1972.)

The Comstock law is in the news today because of the effect it may have on birth control, abortion, and freedom of speech. But it also represents an often overlooked inflection point in free speech history.

In 1902, a group of free speech advocates called the Free Speech League (FSL) held a fundraising dinner for sex educator Ida Craddock, who had been charged under state and federal Comstock laws and been imprisoned on Blackwell’s Island for selling marital advice guides. The dinner was the group’s first official event.

The FSL, the twentieth century civil liberties group most similar to FIRE, had been founded in 1901 by Theodore Schroeder, in response to suppression of political speech after President William McKinley was assassinated by an anarchist. While Craddock was in prison, the New York State legislature passed the New York Criminal Anarchy Law, which made it a crime to advocate the violent overthrow of the government. FSL members were opposed to the Criminal Anarchy Law and sought “to maintain the right of free speech against all encroachments.” The league supported anarchist, birth controller, and Comstock target Emma Goldman, giving her legal and financial support and defending her right to speak at large venues across the U.S.

In 1920, some FSL members formed the American Civil Liberties Union. Free speech historian David M. Rabban has written that the FSL was the first organization to advocate freedom of speech and the press “for viewpoints its members opposed.” Sex radicals made free speech possible.

FIRE is currently petitioning the Biden administration to posthumously pardon freethought publisher D.M Bennett. A pardon, the petitioners argue, would “send the important message that Victorian-era laws should not be revived to undermine Americans’ individual rights.”

Amy Sohn is the author of 13 books including the novels "Prospect Park West" and "Motherland." Her most recent, "The Man Who Hated Women: Sex, Censorship, and Civil Liberties in the Gilded Age," tells the stories of eight women prosecuted under the Comstock law. It won a First Amendment award in book publishing from the Hugh M. Hefner Foundation and was named a Smithsonian Top Ten History Book.

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As our nation takes the day to celebrate the legacy of the Rev. Dr. Martin Luther King, Jr., for those of us at FIRE it’s worth pausing once again to consider the contributions of the movement King came to represent to the conception of First Amendment and due process rights FIRE continues to defend today. The reality is that FIRE would not and could not exist if not for two movements. First is the Enlightenment, which brought us (among many other things) the United States, the Bill of Rights, and the idea — enshrined in our founding documents, if not in practice — that “all men are created equal.” Second is the African-American civil rights movement of the 1950s and 1960s, which set the modern template for successful and peaceful activism. Without that movement’s example, it’s hard to imagine how FIRE, along with countless other groups of every political persuasion, would exist and thrive today.

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That’s why I am so pleased to commend to you today this article in The American Prospect by Professor Randall Kennedy, a former clerk for United States Supreme Court Justice Thurgood Marshall, who is Michael R. Klein Professor at Harvard Law School. As one of America’s best-known legal scholars and author of too many publications to count, Kennedy is (or should be) an obvious potential candidate to replace Drew Gilpin Faust, who is stepping down as president of Harvard. I urge those who follow FIRE, or those who have even a passing interest in how campus rights came to their full flowering, to read the article in full. Titled “The Forgotten Origins of the Constitution on Campus,” Kennedy notes at the outset of the article that,

We should recall that in order to more militantly battle Jim Crow segregation, black high school and college student activists in the Deep South brought the federal Constitution to campus. They initiated the lawsuits that prompted judges to recognize that students at public schools are entitled to federal constitutional rights to due process and free speech. In the history of anti-racism, their demands were not atypical. Ardent champions of racial justice have typically been ardent champions of civil liberties. The Second Reconstruction of the 1960s, for example, prompted not only the emergence of law aimed at undoing racial hierarchy; it also prompted the growth of expansive constitutional doctrines on free expression.

There are those on campus today who argue that free speech is a scam, is unnecessary, or is a tool for the exclusive use of oppressors of various kinds. While our society’s respect for free speech and expression means — and must always mean — that students, faculty, and administrators have every right to argue for the elimination of freedom of expression, that doesn’t make their argument correct. To the contrary, history indicates that it is gravely, grievously wrong. Kennedy relates the story of one Alabama State student, Bernard Lee, who was expelled for the “offense” of demanding to be served at a white-only snack bar in the county courthouse. Lee, who later served alongside King, wrote the following to Alabama governor John Patterson, who pushed for the expulsion of Lee and other students involved in the sit-down strike.

We went to the snack-bar not as hoodlums, but in the same manner and spirit in which other college and university students have done in other parts of the country. Our purpose was to express our resentment of a scheme that fails to recognize its responsibility to decent and orderly persons of all creeds, color or nationalities. …

Our cause is just. We are asking that you study it with an open mind and give President Trenholm the authority to settle this issue with us.

We are reasonable and considerate. We may be crushed, but we shall not bow to tyranny.

Lee, King, and the many other figures in the civil rights movement had the courage of their convictions. They had faith that if they were only given a fair chance to make their arguments, to express their convictions, and to bring awareness to injustice, they would triumph. Looking back, it might seem like their victory was certain, but a quick survey of the state of the world shows that oppression and discrimination are more the rule than the exception. They won because despite the legally institutionalized oppression of the Jim Crow South, America had also dedicated itself to ideals that ran deeper still: the ideas of free speech and equal justice under law. This is America’s great advantage: our protections of freedom of speech, expression, press, and conscience make it possible to correct our own mistakes. At our best, we persuade our fellow citizens rather than rule over the less powerful. Martin Luther King and Bernard Lee understood that this was the promise of America. On this day, when we celebrate King’s legacy, I hope we come to fully understand it as well.

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Regardless of where you stand on “diversity, equity, and inclusion,” or DEI, on college campuses, it’s clear that it’s a contentious issue. In recent years, there have been many efforts to either enshrine or eliminate DEI in school admissions, hiring, curricula, and more — and that’s when things can get hairy from a free speech standpoint.

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Universities have a right to define and adopt institutional values aimed at becoming more successful institutions of higher learning. However, there’s a risk of going too far in how those values are applied, which can quickly lead to free speech and academic freedom violations on campus. Efforts to combat these excesses can also threaten free expression and free inquiry. What’s more, in addition to being a set of ideas or practices, DEI is also big business — and there are times where the interests of that business do not align with the mission of higher education.

In any case, FIRE will always defend First Amendment principles.

So how do we know when DEI becomes a campus free speech problem? In this explainer, we’ll cover when, why, and how DEI — and efforts to counter it — can compromise free expression and academic freedom in higher education.

‘Diversity,’ ‘equity,’ and ‘inclusion’ versus ‘DEI’

The terms “diversity,” “equity,” and “inclusion,” at least as they are commonly defined and understood, generally stand for values of tolerance, fair treatment, and pluralism that most Americans share and wish to uphold.

Many American colleges and universities explicitly endorse these values in their commitment to DEI. Harvard, for instance, notes that its emphasis on diversity “is rooted in our fundamental belief that engaging with unfamiliar ideas, perspectives, cultures, and people creates the conditions for dramatic and meaningful growth.”

So why all the controversy?

One answer is that these terms are often defined differently within academia and in DEI programs. For example, while “equity” may literally mean “freedom from bias or favoritism,” many applications of the term in DEI contexts emphasize “equality of outcome” as its stated goal — which can easily require an insistence on bias and favoritism to achieve. This kind of discrepancy results not only in myriad miscommunications and misconceptions that plague the larger discourse around DEI, but also in wildly different approaches between that of DEI programs and administrators, and people working off of the common definitions of “diversity,” “equity,” and “inclusion.”

Another problem is that, beyond being a mere abbreviation for those three terms, “DEI” is also the blanket label for a body of thought that includes a much larger collection of ideas, research, scholarship, practices, and proposals — including “anti-racism,” “intersectionality,” “critical race theory” and more. In our institutions of higher education, that larger constellation of concepts can grow into an ideological orthodoxy that affects everything from faculty hiring and tenure to campus programs and policies.

Orthodoxies of any kind run afoul of a university’s mission of free inquiry and open discourse — and when enforced by campus administrators, the orthodoxy created by DEI clearly threatens free speech and academic freedom.

This broader version of DEI is what we will focus on here.

The impact of DEI administrative bureaucracy

According to an analysis by The College Fix, “Harvard ​​University employs about 1,352 full-time administrators for every 1,000 undergraduate students.”

If you find this student-to-admin ratio strange, it’ll probably shock you to learn that it’s the norm across the country. A 2023 article by Forbes notes that college campuses are hiring more and more administrators every year — which raises the question that Harvard’s own student newspaper has asked: “What do they all do?”

Unfortunately, they don’t tend to protect free speech on campus. FIRE has argued numerous times that administrative bloat is a real and consistent threat to free expression in higher education. And the particular combination of administrative bureaucracy and ideological orthodoxy dictated by DEI tends to result in free speech and academic freedom violations for both students and faculty.

For example:

• At the University of Central Florida, tenured professor Charles Negy was investigated and threatened with termination by DEI administrators over offensive tweets.

• At Yale, a law student was summoned to meetings, pressured to apologize, and recommended to take bias training by the law school’s Associate Dean of Student Affairs and Director of Diversity, Equity & Inclusion for using the term “trap house” in a party invitation.

• At Syracuse University, DEI administrators led the adoption of new policies that would hold bystanders responsible for “bias-related incidents” and “hate speech,” instructing students to report incidents either to the school’s Office of Equal Opportunity, Inclusion and Resolution Services or anonymously through its bias reporting policy.

These are just a few examples, but they illustrate the problem at hand.

“When colleges act more like giant corporations and less like educational institutions, student and faculty rights suffer,” FIRE notes in its 10 common-sense reforms for colleges and universities. “Massive administrative bureaucracies lead to initiatives that undermine and distract from a college’s core mission and result in violations of free speech and academic freedom rights.”

When does DEI violate free speech rights?

FIRE only takes a position on DEI efforts (as well as responses to it) if they implicate free speech, academic freedom, or establish an orthodoxy in higher ed. The two worst ways it can do this is by either restricting speech or by compelling it.

There has been plenty of restrictive DEI-related speech policing on campus in the form of words you can’t say, opinions you can’t voice, and ideas you can’t engage with. But there are also clear incidents of administrators, in the name of DEI, dictating things you must say and ideas you must agree with on the threat of discipline, termination, or loss of professional opportunities. These pressures often come in the form of DEI statements, curricular assessments, DEI standards used for faculty hiring, promotion, and tenure, and more.

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One of the clearest cases of DEI compelling speech is the California Community Colleges system’s regulations for faculty — over which FIRE filed a lawsuit. Under these rules, the more-than-54,000 professors in the system must not only endorse “anti-racist” viewpoints but also actively incorporate these ideas into their curricula and classroom teaching. This includes requiring professors to “acknowledge” that “cultural and social identities are diverse, fluid, and intersectional,” and insisting that they develop “knowledge of the intersectionality of social identities and the multiple axes of oppression that people from different racial, ethnic, and other minoritized groups face.”

The California Community College regulations also warn professors not to “‘weaponize’ academic freedom” to “inflict curricular trauma” on students by exposing them to different perspectives, turning the very concept of intellectual diversity into a violation of the schools’ policies.

Whatever the intentions of administrators, these regulations effectively serve as political litmus tests, ensuring every step of the way that only those willing to conform to specific perspectives are able to acquire positions and advance in their careers. FIRE President Greg Lukianoff calls this system of ideological pressures and professional barriers “The Conformity Gauntlet.”

By dictating how and whether certain ideas must be discussed, the California Community Colleges regulations also compel faculty to endorse highly contested ideological perspectives in their classrooms. These policies violate faculty’s First Amendment rights, which is why FIRE sued on behalf of six professors who teach within the State Center Community College District.

Given how egregious these violations are, it’s no surprise that lawmakers would want to pass legislation to combat them. FIRE even drafted the Intellectual Freedom Protection Act as a model for how concerned elected officials can prohibit political litmus tests on campus without also violating the First Amendment. The state of Kansas has adopted FIRE’s model legislation, which will hopefully inspire others to follow its lead.

Unfortunately, other potential legislation neglects the First Amendment concerns — and as a result also begins to restrict speech in the name of the lawmakers’ own ideological perspectives.

When do anti-DEI efforts violate free speech rights?

When the government tries to regulate what ideas, concepts, and topics can be taught and talked about in college classrooms, they threaten the free speech rights of students and faculty — and there have been many attempts in recent years to do just that.

In 2023 alone, Alabama, Arkansas, Mississippi, Missouri, North Dakota, Oregon, South Carolina, Texas, West Virginia, and Wyoming introduced either legislation or executive orders seeking to ban so-called “divisive concepts” from classroom discussion and curricula in their colleges and universities. Unfortunately, these efforts also violate the free speech rights of students and faculty on campus — which is why FIRE opposes them.

There is a world of difference between legitimate efforts to reduce speech-chilling bureaucracy — such as MIT banning diversity statements in faculty hiring — and politically-motivated attempts to restrict what students or faculty can say. And there’s no better example of the latter than Florida’s “Stop WOKE Act.”

Officially called the “Individual Freedom Act,” the statute seeks to suppress certain perspectives and ideas on campus that the government deems inappropriate. This includes discussions related to racial or sex-based bias, whether values such as “merit” or “colorblindness” are racist, and whether certain groups experience “privilege” on the basis of their sex or skin color.

The Stop WOKE Act’s vague language and overbroad restrictions would require faculty to censor guest speakers and avoid even the mere discussion of topics like racism, or else face potential discipline or termination. As a federal court opined when it struck down key elements of the law, this is a “positively dystopian” violation of both students’ and faculty’s First Amendment rights.

FIRE is proud to have prevailed in its lawsuit against the law at the district court level, and we’re confident Florida’s appeal of the decision will not succeed.

DEI is also a problem off campus

Since college campuses are often ground zero for our hottest cultural conflicts, and because public universities are beholden to First Amendment principles (as are private schools that explicitly commit to them), it’s worth paying special attention to DEI’s effect on higher education. But of course DEI extends well beyond college campuses.

For years, organizations and businesses across the country have employed various forms of DEI in their hiring practices, professional development, and messaging — and there have been plenty of controversies resulting from those efforts. To the extent that those controversies implicate free speech, FIRE will be ready to step in.

And while private businesses aren’t bound by the First Amendment — allowing them to dictate (within the bounds of anti-discrimination law) their hiring practices, codes of conduct, messaging, and organizational norms — their DEI commitments could still detract from a broader culture of free expression. For example, after PayPal temporarily shut down a London-based free speech organization’s account in 2022, PayPal’s spokesperson gave a vague explanation about “protecting the ideals of tolerance, diversity and respect for people of all backgrounds.”

Private companies’ DEI policies could also chill speech to the extent that they hang the threat of punishment over employees for personal, off-the-clock speech — firing people for criticizing DEI itself, or for commentary on issues of public concern that employers perceive as being in conflict with DEI.

DEI has also crept into public institutions in ways that may stifle speech or even compel affirmation of contested views, which also raises First Amendment concerns. The City of West Hollywood, for example, requires large organizations applying for art project grants to submit a “cultural equity” statement.

FIRE is also keeping a close eye on these off-campus dynamics and will, as always, defend freedom of speech when anyone’s First Amendment rights are violated.

Whether you’re pro- or anti-DEI, we must all be pro-free speech

First Amendment law is clear that legal protections for speech do not depend on the speech’s viewpoint. However detestable any individual may find a particular viewpoint, it is the right of every American to speak their minds and hear ideas they are interested in.

It is the purpose of higher education to allow students and faculty alike to engage in difficult discussions, entertain controversial concepts, and explore divergent perspectives. To this end, it is imperative that our colleges and universities promote and protect academic freedom — meaning ideological diversity is just as important to a functioning educational institution.

With respect to DEI, FIRE’s position is simple: All ideas should be open to discussion and debate, and all topics should be freely taught.

When speech is compelled or restricted on the basis of ideology, when an ideology becomes a political litmus test, loyalty oath, or barrier to professional and academic achievement, and when political actors try to use the power of the state to silence dissent and suppress disfavored ideas, that is a violation of free speech principles — and FIRE will fight it every step of the way.

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On April 21, 2025, Harvard University filed a lawsuit against the Trump administration after the federal government froze $2.2 billion in federal research funding with threats of more cuts to come. The administration claimed Harvard failed to address anti-Semitism on campus, especially in the aftermath of Hamas’ attack against Israel on Oct. 7, 2023, and issued a list of demands in exchange for lifting the freeze.

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These demands included adopting an ideological litmus test for foreign students, a comprehensive mask ban, an audit of disfavored academic departments, mandated reforms to the university’s internal governance structure, and eliminating diversity programs. Harvard argued that these demands and the funding cuts that followed violated its institutional autonomy and constitutional right to free speech and academic freedom. In the lawsuit, the university is asking the court to restore its funding and block the government from imposing such requirements in the future.

In retaliation, the Trump administration announced on May 22 that it decertified Harvard’s participation in the Student and Exchange Visitor Program, thereby revoking Harvard’s ability to enroll international students. Should Harvard wish to retain its certification, the letter concluded, it must respond to a list of Department of Homeland Security demands within 72 hours, including handing over “all audio or video footage, in the possession of Harvard University, of any protest activity involving a nonimmigrant student on a Harvard University campus in the last five years.” The government’s demand for a surveillance state at the university is anathema to American freedom.

President Trump also publicly threatened Harvard’s tax-exempt status because of what he called “political, ideological, and terrorist inspired” ideas being expressed on the Cambridge campus. The IRS has reportedly begun considering removing Harvard’s tax exemption.

Taken in sum, the Trump administration is employing every means at its disposal — no matter how unlawful or unconstitutional — to retaliate against Harvard and other colleges and universities for speech it doesn’t like. It must stop. FIRE supports both of Harvard’s lawsuits challenging the federal government’s shocking overreach.

Below are answers to questions FIRE has received about the situation at Harvard.

Harvard isn’t entitled to federal funds. Why is FIRE defending it?

You’re right. Harvard isn’t entitled to federal funding. No institution is.

But Harvard — just like you (or FIRE, or any person or organization) — is entitled to a federal government that follows the law. And just as the law gives us certain protections, it also says the government can’t cancel funding on a whim, like the administration did.

Let’s take a closer look.

The vast majority of colleges and universities receive federal funds. These funds mostly consist of financial aid, like Pell grants, and grants for scientific and medical research. Of the $9 billion reportedly under review by the Trump administration, the Harvard Crimson estimates over $6 billion comes in the form of funding for five regional hospitals associated with the university, along with $2.7 billion in research funding at the university itself.

To be eligible to receive federal funding, institutions pledge to follow federal anti-discrimination laws. Those laws include Title VI, the federal law that prohibits colleges and universities from discriminating on the basis of race, color, and national origin. Since the George W. Bush administration, the federal government has interpreted Title VI as prohibiting anti-Semitic discrimination, too.

So far, so good. Colleges get government funding for students and research. The federal government in return gets (among other things) a commitment that those colleges won’t engage in or tolerate discrimination. That’s the deal.

And the deal has rules to protect colleges, the government, and the taxpayers who foot the bill from being negatively affected by arbitrary decisions. Before the federal government can pull funds from an institution, it has to take a series of steps.

First, the Department of Education must investigate complaints about discrimination. If it finds problems, ED is required to work with an institution to address those problems “by informal means whenever possible.” This is the most common process, where the department’s Office for Civil Rights enters into a “resolution agreement” with an institution to ensure compliance with Title VI.

If that doesn’t work, for whatever reason, here’s what happens next. In order to strip federal funding, the department must give notice to the institution again and provide an opportunity for an administrative hearing where the institution can challenge the determination. If the determination stands, ED then has to report this to Congress and give 30 days’ notice before it actually terminates funding to the affected programs. ED may also refer the matter to the Department of Justice for litigation.

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In short, one way or another, the federal government is going to have to provide evidence and prove its case if it wants to pull out of the deal.

Those are a lot of steps, but they’re important. They protect students by making sure colleges live up to their obligations. And they protect colleges by making sure they have an opportunity to contest the allegations as well as a chance to make things right.

These rules are also important because they provide a safeguard against political bias, risk of error, and governmental overreach.

Even the federal government acknowledges the role of due process and following existing statute. In a federal court filing earlier this month, the government wrote, “But ED’s only power is to withhold funding from institutions receiving federal funding, after a robust process required by statute and aimed at ensuring compliance.” In that same court filing, the government reiterated that point, writing that “by statute and regulation, numerous steps aimed at ensuring compliance must occur before ED may withdraw funding.”

Without these rules, an administration could, for example, decide to dramatically expand the definition of “sexual harassment” to include core protected speech and to remove due process protections from sexual misconduct hearings, using the threat of federal funding to force schools to go along with it. That’s exactly what happened under President Obama — and FIRE fought back.

And without these rules, nothing prevents the federal government from arbitrarily declaring a university in violation of federal law, yanking federal funding, and demanding fealty and censorship.

That’s what President Trump is doing now. And again, FIRE is fighting back.

Is the federal government entitled to documentation of ‘any protest activity’ at Harvard?

The Trump Administration’s demand that Harvard produce audio and video footage of all protest activity involving international students over the last five years sets off constitutional alarm bells. The demand is so broad that it would include not just illegal activity, but “any protest activity,” including protected speech. This sweeping fishing expedition must be flatly rejected.

Although the demand is for “any protest activity” of international students, this would certainly sweep in American citizens as well, including Americans engaged in protected expression alongside international students. The federal government is already arresting and seeking to deport students for engaging in protected political activity it doesn’t like. Were Harvard to capitulate to these additional unlawful demands from the Department of Homeland Security, more students could face such consequences.

The message from the administration couldn’t be clearer: Keep your mouth shut, or else.

Can the federal government revoke Harvard’s tax-exempt status based on the opinions expressed by the institution, or its students, or faculty?

No. Threatening to strip a university of its tax-exempt status based on its expression — or that of faculty, staff, or students — sets a dangerous precedent.

The Internal Revenue Code grants tax-exempt status to educational institutions that operate for the public good, without engaging in substantial political or lobbying activities, and very broadly construes the notion of the public good precisely because it is not intended to serve as referee for the intense social and political debates key to politics in a liberal democracy.

Past efforts to weaponize the agency against political opponents, from President Nixon’s desire to audit those on his “enemies list” to the targeting of conservative nonprofit groups for excessive scrutiny under President Obama, have been near-universally condemned. Using the IRS as a tool for political retribution undermines the agency’s impartiality and jeopardizes the foundational principle of equal justice under law.

Is FIRE saying that what happened to Jewish students at Harvard and other colleges is OK?

No. As FIRE has consistently noted, some campus protests veered into violations of both campus rules and the law. Examples include when protesters took over buildings, blocked access and exit to and from areas of campus, disrupted classes, or committed acts of violence against Jewish students.

In responding to these incidents — or failing to respond — Harvard, Columbia, and other colleges may well have been in violation of their obligations under Title VI. If they refused to correct their mistakes as the process played out, revoking their funding might have been justified and legal.

But the process matters.

What FIRE is saying is that the law is important. Following it isn’t optional. It protects all of us — students, faculty, administrators, families, scientists, hospitals, and the entire country. The administration can’t just decide unilaterally to skip steps.

If you support President Trump — or just don’t like Harvard — remember this: Any power the president seizes to ignore the law now won’t magically disappear when he leaves office. It will be wielded by his successors, too. And this time, it might well target schools or other organizations you like.

Didn’t Harvard rank last for free speech on your list?

It sure did — two years in a row, in fact.

But one of the reasons we created our rankings was to give colleges and universities an incentive to do better. Protecting expressive rights on campus is a big part of our mission, and Harvard has a long way to go. Indeed, Harvard (like Columbia) makes a politically popular target precisely because so many people resent its years of engaging in the kind of behavior towards dissenting students and faculty that FIRE was founded to combat.

But lately Harvard has been making an effort, and we won’t succeed by writing schools off. And we definitely won’t succeed by allowing the federal government to take them over, trading one dominant ideology for another.

You can’t censor your way to free speech.

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Some public universities and other government entities have punished or threatened to punish individuals who refuse to use others’ specified pronouns. Below, we explore the serious compelled speech issues raised by pronoun mandates.

Do pronoun mandates raise First Amendment and free speech issues?

Yes. When the government mandates what pronouns individuals must use when referring to others, it threatens to force some people to say things that contradict their beliefs. Any policy compelling the use of certain pronouns intrudes on the right to private conscience and, when it comes from the government, violates the First Amendment.

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Government-compelled speech is an especially pernicious abuse of power. In the 1943 landmark case of West Virginia State Board of Education v. Barnette, the Supreme Court declared that “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.” Compelled speech, Justice Jackson wrote, “invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”

As bad as it is to tell people what they can’t say, it’s even worse to tell them what they must say. Freedom of conscience and individual autonomy mean freedom to refuse to say anything that runs counter to our values and beliefs, no matter how badly those in power want us to express views and ideas they support.

The refusal to use an individual’s stated pronouns may cause offense or discomfort. But this alone does not bring it outside the First Amendment’s protection. However, as explained below, repeated use of non-preferred pronouns could, in some circumstances, be part of a course of conduct that rises to the level of punishable harassment.

Is refusing to use someone’s specified pronouns discrimination or harassment?

Absent more, refusing to use a person’s specified pronouns would not constitute punishable discrimination or harassment. Any rule punishing the mere refusal to do so would unconstitutionally compel speech.

But it’s possible that, in certain circumstances, persistent and unwelcome use of non-preferred pronouns in speech targeted at that individual could be part of a pattern of punishable conduct. In the educational context, the Supreme Court has defined actionable discriminatory harassment as conduct that is “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” It’s a high but not unreachable standard intended to prevent harassing conduct while protecting speech that merely causes offense.

Imagine, for example, a transgender college student named Chris uses she/her pronouns. Whenever another student, Mike, sees Chris on campus, he walks up to Chris and intentionally and repeatedly refers to Chris as “he” with the intent to cause emotional distress. Mike regularly stands outside Chris’s dorm room and loudly refers to Chris as “he” or “him.” Mike also frequently calls and texts Chris asking why Chris “pretends to be ‘she’ instead of ‘he.’” Mike continues this behavior after Chris asks him to stop. Chris becomes increasingly distressed and can’t focus on schoolwork. Mike’s pattern of conduct would likely cross the threshold for harassment.

The standard for harassment in the workplace is different. Conduct would have to give rise, considered in its totality, to a work environment a reasonable person would consider hostile, abusive, or intimidating.

Can universities require students to use each others’ specified pronouns?

Not at public universities. Students do not lose their First Amendment rights when they step onto campus. Public universities may neither compel students to use particular pronouns when referring to others nor punish use of non-preferred pronouns, absent a showing it satisfies the standard for punishable discriminatory harassment.

Insofar as private colleges not bound by the First Amendment generally commit to free speech, compelling or punishing pronoun use in ways incompatible with the First Amendment would violate those promises.

Can a university require its faculty to use students’ specified pronouns?

Universities have somewhat greater leeway to regulate faculty speech than student speech, but that leeway is still limited by faculty’s expressive rights and academic freedom in and outside the classroom. A rule that categorically prohibits any use of non-preferred pronouns — even accidental, or outside the context of teaching in, say, a public social media post — would be overbroad in violation of the First Amendment (or a private university’s free speech and academic freedom promises).

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Even in the classroom, faculty at public universities have a First Amendment interest in approaching pronouns consistent with their ideological beliefs. The only federal appellate court that has addressed the issue held that a professor had a strong First Amendment interest in refusing to use a student’s stated pronouns because they carried an ideological message with which the professor disagreed — that is, that people “can have a gender identity inconsistent with their sex at birth.” Absent more, the U.S. Court of Appeals for the Sixth Circuit held in Meriwether v. Hartop, the refusal to use a student’s preferred pronouns could not give rise to a claim of discrimination or harassment.

The Meriwether court notably also gave weight to the fact that the professor had attempted a compromise of referring to a transgender student in his class by the student’s last name alone.

In these types of scenarios, a reasonable alternative that circumvents the use of third-person pronouns may be available to avoid unconstitutionally compelling speech.

If a university cannot impose pronoun mandates, what can it do with respect to pronouns?

Universities can encourage use of preferred pronouns, offer ways for students and faculty to identify their pronouns, and use those pronouns for university IDs, directories, and other institutional resources or communications.

What about K-12?

Although K-12 public school students do not relinquish their First Amendment rights at the schoolhouse gate, officials there have more authority over student speech than college administrators. Public K-12 schools can punish intentional and repeated use of a classmate’s non-preferred pronouns if part of a course of conduct that constitutes actionable harassment as defined above, or that otherwise interferes with the rights of others, or if it materially and substantially disrupts the learning environment. But a blanket policy punishing any use of non-preferred pronouns — regardless of intent or context — likely violates the First Amendment as overbroad.

Can non-university government employers impose pronoun mandates?

Public employees retain First Amendment rights to speak as private citizens, so insofar as pronoun use implicates a contentious social issue, the subject cannot fully avoid touching on a matter of public concern. Government employers may not punish employees for their speech as private citizens on matters of public concern without establishing an interest in workplace efficiency (such as avoiding significant impairment to co-worker relations) that outweighs the employee’s expressive rights.

But when public employees speak on behalf of their employer or in performing job duties, their speech receives little to no First Amendment protection (except in the case of public university faculty who, as explained above, enjoy academic freedom.) So, for example, a government agency could probably require an employee to use certain pronouns when writing press releases for the agency.

Nevertheless, workplace speech that isn’t part of an employee’s job duties (think two coworkers chatting in the break room about the news) retains First Amendment protection.

Under workplace anti-discrimination law, knowingly and repeatedly using a colleague’s non-preferred pronouns could be part of a pattern of conduct severe or pervasive enough to create a hostile work environment, but the government would not be justified in compelling employees to use certain pronouns.

How do these principles apply to private employers?

Private employers are not bound by the First Amendment, so they are generally free to make their own rules concerning employee speech, including pronoun use. Like public employers, they must comply with anti-discrimination laws, but those laws cannot force private employees to use coworkers’ preferred pronouns.

What’s the significance of newer, non-traditional pronouns?

Some believe traditional masculine/feminine pronouns are insufficient to capture the range of possible gender identities, which has led to the emergence of “neopronouns,” such as ze/zir, and instances of individuals adopting fluid or changing pronouns. These developments create more potential for ideological disagreement and honest misunderstandings, reinforcing how pronoun mandates threaten free speech and freedom of conscience.

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Can someone employ a voice actor, or even use artificial intelligence, to copy your voice and then use that audio likeness to sell a service without your permission? And does the First Amendment protect the copycats?

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That’s what actress Scarlett Johansson alleged happened in May 2024 when she accused OpenAI of appropriating her voice for ChatGPT’s voice companion called Sky. Following Johansson’s accusation, OpenAI pulled the voice, but CEO Sam Altman denied that Sky was supposed to sound like Johansson. However, he acknowledged asking Johansson to voice the program, which she declined to do.

For some, these conversations might evoke the 2013 film “Her,” wherein the protagonist, played by Joaquin Phoenix, falls in love with a computer voiced by Johansson. Indeed, just one day before OpenAI released Sky, Altman posted the word “her” to X.

While OpenAI employed a voice actor to allegedly imitate Johansson, future generative artificial intelligence could be able to do so without any human samples.

A remote corner of intellectual property law — the right of publicity — might provide a remedy in those cases.

The right of publicity allows people to sue entities that appropriate their voice for profit. Just as someone can trademark a distinctive logo, the right of publicity allows people to protect their distinctive likenesses — including their voices. Ultimately, Johansson has yet to sue OpenAI, but her potential case illustrates how plaintiffs might take action against companies for appropriating their voices whether through voice actors, or even through AI-generated models.

But the right of publicity does not merely apply to voice appropriation. In the most classic cases, it can protect against pictures, drawings, or other depictions of celebrities’ images from appearing in products or advertisements. It can protect college athletes whose images are appropriated for video games. The right of publicity can also protect performers against appropriation of unique audiovisual aspects of their performance, either by other performers, or through unauthorized broadcasting of their performance. Yet the right also has its limitations, and may not apply where similarities are broad or outweighed by transformative aspects of the new work.

This article will explain the relevant law, working through Johansson’s case to demonstrate the right of publicity’s reach and the types of arguments plaintiffs might make to win their cases.

The right of publicity

Black’s Law Dictionary defines the right of publicity as the “right to control the use of one’s own name, picture, or likeness and to prevent another from using it for commercial benefit without one’s consent.”

To establish the right of publicity, plaintiffs must show that:

1. the plaintiff is identifiable;

2. the appropriating entity gained a commercial advantage from the use;

3. the use was unauthorized;

4. the use caused the plaintiff monetary harm.

This explainer will highlight California law and legal precedents established by the U.S. Court of Appeals for the Ninth Circuit because California is where many celebrities assert the right of publicity and therefore has the most developed body of law. As we will see below, California and the Ninth Circuit differ in some important ways from other jurisdictions.

When is a voice identifiable?

For starters, what does it mean that a voice is “identifiable”?

Especially for actors and musicians, voice is as much a part of someone’s celebrity as any other personal characteristic. Even casual fans of Bob Dylan, Axl Rose, or Snoop Dogg are readily able to identify songs based on nothing more than an utterance of their voice. Or as the Ninth Circuit explained in Midler v. Ford Motor Co., “a voice is as distinctive and personal as a face.”

In Midler, the automobile company Ford asked singer and actor Bette Midler to lend her voice to a song — one of her own — for a commercial. But Midler declined, so Ford hired one of her backup singers to voice the part instead and instructed the singer to imitate Midler’s voice. In its ruling, the Ninth Circuit held that Midler’s voice alone could establish her identity, and she ultimately won the case.

Under precedents set by the Ninth Circuit, someone’s voice is identifiable if it is distinctive and widely known. For example, in Waits v. Frito-Lay, Inc., singer Tom Waits successfully sued Frito-Lay for imitating his raspy voice in a Doritos commercial. The Ninth Circuit held that Waits’ raspiness was distinctive. However, other qualities, like an accent or a particular pitch, might also be sufficient. The singer-plaintiffs in both Midler and Waits were recognizable public figures and therefore “widely known,” but there is no hard test.

Voice imitation does not defeat the identifiability test because the right of publicity protects against the appropriation of likeness, not merely against literal copying. Frito-Lay and Ford did not sample or secretly record Waits or Midler. However, by using voice actors to imitate them, Ford and Frito-Lay employed their likenesses and lost.

NCAA Student-Athlete Name & Likeness Licensing Litigation also illustrates the point. When video game creators animated prominent NCAA football players, the creators altered details like the jersey numbers. The animated players, by definition, were not literal depictions of the players, but the U.S. District Court for the Northern District of California held that the players were identifiable because the public could still discern that the animated players represented actual people.

When is a voice distinctive and widely known?

On the most basic level, Johansson needs to prove that Sky sounds like her. A jury makes these subjective decisions. However, on a motion to dismiss, the court must determine if Johansson’s voice is similar enough to continue.

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To surmount that initial hurdle, Johansson must show that her voice has some unique quality. Johansson can more easily establish that her voice is widely known. She is the top-grossing actress of all time, and stars in numerous films and commercials. Because she is likely even more popular than Midler or Waits, she can likely establish that her voice is identifiable.

OpenAI might point out that it hired a voice actor. Indeed, it did not sample Johansson’s voice, or as some have suggested, create an AI rendering of it. But this does not matter, as Waits and Midler both establish that imitation does not preclude identifiability.

If Sky sounds like Johansson, and Johansson is sufficiently recognizable on her own, then she may meet the identifiability requirements.

How can you prove commercial advantage?

The idea behind the right of publicity is that one’s image is intellectual property. Accordingly, someone’s likeness must have monetary value to receive protection. Plaintiffs must therefore show that the defendant appropriated their likeness for commercial advantage.

A defendant gains a commercial advantage when it appropriates the plaintiff’s likeness in an advertisement or in a product itself. For example, California’s right of publicity statute applies to “any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products . . . for purposes of advertising or selling.”

Under normal circumstances, the celebrity would film an advertisement for the company, selling their product in return for monetary gain. Or the celebrity would license their likeness for the product. But when the celebrity is cut out of the equation, and their likeness used without their consent, then the company is basically using a person to sell a product against their wishes, which is especially important if that person does not like or want to be associated with the project.

Thus, OpenAI’s alleged use of Johansson’s voice was likely for a commercial advantage. Johansson’s voice might draw users to subscribe to ChatGPT. Users might be fans of the movie “Her” like Sam Altman. They might be Johansson fans. At very least, Johansson would benefit from indicating that she is the top grossing actress of all time, so her perceived endorsement of ChatGPT would likely help OpenAI sell subscriptions.

Johansson might also point out that OpenAI courted her for the role, an acknowledgment of the value she would bring to the product. Johansson could argue that when Altman could not employ the real “Her,” he pivoted to copying to gain the commercial advantage without having to compensate Johansson.

Was using Johansson’s voice unauthorized and did it result in monetary harm?

The “unauthorized” element is simple: if the plaintiff did not consent to the use, the use is unauthorized. This is a question of fact for the jury. Both OpenAI and Johansson admitted that she did not consent to the use.

Similarly, the “harm” prong is straightforward: it asks how much money the plaintiff stood to gain under proper licensing. This would require calculating how much money OpenAI made from Sky before pulling the voice.

Potential defenses against right of publicity

Is the use transformative?

Fair use doctrine, shaped by free expression prerogatives, might help companies defend right of publicity claims. In analyzing these defenses, like in other areas of intellectual property law, courts weigh free expression principles against property interests.

First, there is transformative use. Sometimes referred to as “expressive use,” this question is qualitative, not quantitative. Transformative use requires showing that the defendant’s work alters the “raw materials” of someone’s likeness. But how much altering is enough? The defendant must transform the original until it becomes, as the Supreme Court of California held in Comedy III Productions, Inc. v. Gary Saderup, Inc., the defendant’s “own expression.” In other words, it must become the expression of something other than the celebrity’s likeness.

If a court finds that Sky sounds like Johansson, OpenAI will have a challenging time arguing that Sky transforms Johansson’s voice. OpenAI did nothing to alter the sound of Johansson’s voice, which are Sky’s “raw materials.”

OpenAI would therefore have to argue that context transforms the use. Unlike Midler and Waits, where Ford and Frito-Lay copied the plaintiffs in versions of their own songs, Sky does not copy content. Sky merely copies Johansson’s sound. Because Sky reads AI-produced messages in response to users’ unique inquiries, users would never believe that Johansson actually recorded all those messages. Thus, any expressive material Sky “produces” is not Johansson’s, but rather belongs to the makers of the AI.

Yet external context alone — without acting upon the original identity in some non-trivial way — is likely not enough to render a work transformative. Take Hart v. Electronic Arts, Inc., another football video game case (in the U.S. Court of Appeals for the Third Circuit, which employs a similar test to the Ninth). There, the Court held it “improper” to ask whether the unrealistic nature of the game’s non-player animations transformed the entirety of college football. A video game enthusiast could make the players do things they would not normally do on the field — like make a quarterback punt the ball — but because the quarterback still looked like his real-life counterpart, it did not constitute transformative use.

As in both Hart and Comedy III Productions, for OpenAI, it only matters that Sky allegedly sounds like Johansson. The voice’s content, even if user-generated, is extraneous to the analysis. OpenAI is likely incapable of providing any kind of transformative context because it does not know the context — each context is unique to the user, who generates Sky’s responses. So, it is within this narrow, vocal aspect that OpenAI must transform Johansson’s voice.

Does the defendant’s work’s value derive from the artistry or the raw material?

Next, the value of the work must derive from something “other than the fame of the celebrity.” In Comedy III Productions, the California Supreme Court found that the defendant’s charcoal print depiction of the Three Stooges “subordinated” the printer’s artistic skill to a “literal” depiction of the Stooges. The defendant artist’s depiction was not literal. It was not a color photograph, but the artist took no liberties with the Stooges’ appearances. Accordingly, the print’s value primarily derived from the Stooges’ likenesses.

OpenAI’s stronger transformative work defense is that Sky’s economic value does not derive from the raw material of Johansson’s voice.

Rather, Sky’s value lies in the actual service provided, that is, the voice’s ability to interact with users. Sky would possess that value regardless of whether it sounded like Johansson or not. This question is like the “commercial advantage” test above, but here, the defendant must carry the burden of showing that it does not, in fact, derive commercial advantage from the appropriated likeness. To accomplish this, the defendant must affirmatively show that the work’s artistic qualities communicate its value.

Will AI kill the video stars?

The right of publicity presents several unresolved questions.

A key issue is the right of publicity’s scope. For instance, in Rogers v. Grimaldi, the U.S. Court of Appeals for the Second Circuit limited New York’s right of publicity only to advertising. However, as discussed above, the Ninth Circuit in Comedy III extended it to non-advertising contexts, emphasizing economic interests.

Another contentious area is the duration of the right. Some jurisdictions, like California, recognize post-mortem rights extending decades after death, while others, like New York, limit the right to the individual’s lifetime. This inconsistency creates uncertainty for estates and heirs.

Lastly, different courts have employed various tests for free speech-based defenses. These tests are borrowed from other areas of intellectual property law, like the Copyright fair use statute. For example, while the Third and Ninth Circuits employ a transformative use test, discussed above, the Eighth Circuit’s “predominant use” tests ask if the primary use of the person’s likeness is to exploit the commercial value of that likeness. Different still, the Fifth and Sixth Circuits employ the “Rogers Test” which asks if the likeness is artistically relevant to the underlying work. For example, one jurisdiction might protect a company’s use of a competitor CEO’s voice in an advertising campaign, but another might not.

Essentially, then, expressive fair use protections vary wildly across jurisdictions for artists, companies, and others who wish to depict celebrities in their work.

The Supreme Court has yet to resolve these differences, but AI-generated or other voice copying cases might push the Court in that direction.

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We know the term “Orwellian” gets thrown around a lot these days. But if a government entity dedicated to investigating and even reeducating Americans for protected speech doesn’t deserve the label, nothing does.

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This step towards the Stasi isn’t hypothetical, either. It’s real. The governing bodies in question are called bias reporting systems, and the odds are they’re already chilling free expression on a campus near you. What’s worse, they aren’t staying there — now municipalities and states are using them, too.

In this explainer, we’ll break down what bias reporting systems are, how they’ve spread beyond campus, and why they’re a threat to free speech.

What are bias reporting systems?

If you’ve been on campus in the last decade, you’ve likely heard of bias reporting systems — or, as they’re sometimes called, bias response teams. Their structure and terminology vary, but FIRE defines a campus bias reporting system as any system that provides:

1. a formal or explicit process for or solicitation of

2. reports from students, faculty, staff, or the community

3. concerning offensive conduct or speech that is protected by the First Amendment or principles of expressive or academic freedom.

Bias reporting systems generally solicit reports of bias against identity characteristics widely found in anti-discrimination laws. Western Washington University, for example, defines a “bias incident” as “language or an action that demonstrates bias against an individual or group of people based on actual or perceived race, color, creed, religion, national origin, sex, gender identity or expression, disability, sexual orientation, age, or veteran status.” Some systems also invite reports of bias against traits like “intellectual perspective,” “political expression,” and “political belief,” or have a catch-all provision for any other allegedly biased speech.

Many colleges have bias response teams that consist not only of administrators but law enforcement. They often investigate complaints and summon accused students and faculty to meetings.

You might be wondering, “Don’t civil rights laws already cover this sort of thing?” Well, not quite. Bias reporting systems cover way more expressive ground than civil rights laws do, which puts these systems at odds with First Amendment protections. They generally define “bias” in such broad or vague terms that it could be applied to basically anything the complainant doesn’t like, including protected speech. This is doubly so when a school includes that vague and subjective word “hate” as another form of language or behavior worth reporting.

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That’s a problem at public colleges, which are bound by the First Amendment, and also at private colleges that voluntarily adopt First Amendment-like standards. Bias reporting systems completely ignore the fact that “hate speech” has no legal definition, and that unless a given expression clearly falls into one of the clearly-defined categories of unprotected speech, like true threats or incitement to immediate violence, it is almost certainly protected by the First Amendment. This remains so regardless of how anyone might feel about the speech itself.

These initiatives incentivize and in many cases encourage people to report each other for disfavored expression. As you can imagine, these systems often lead to unconstitutional infringements on protected student and faculty speech and chill expression on campus.

For example, after the University of California, San Diego received bias incident reports about a student humor publication that satirized “safe spaces,” administrators asked the university’s lawyer to “think creatively” about how to address the newspaper, which they felt “crosse[d] the ‘free speech’ line.” And at Connecticut College, pro-Palestinian students were reported for flyers mimicking Israeli eviction notices to Palestinians, prompting an investigation by a dean.

These are just a couple of instances where bias reporting systems have crossed the line. Sadly, there are plenty more, spanning FIRE’s research and commentary going back as far as 2016 — and none of them are good news.

Sound Orwellian enough for you yet? Wait until you hear how bias reporting systems work off campus.

Bias reporting systems have graduated from campus into everyday life

Exporting campus bias reporting systems to wider society is a disastrous idea. No state should be employing de facto speech police. But of course, that hasn’t stopped state and city governments from trying.

Bias reporting systems have been popping up in one form or another across more than a dozen state and city municipalities in the last four years, usually consisting of an online portal or telephone number where citizens are encouraged to submit reports.

If you’re thinking this is just like the hate crime hotlines that many states have had for years, there is one important difference: namely, the word “crime.” While the new bias reporting systems will similarly accept reports of criminal acts, they also actively solicit reports of speech and behavior that are not only not crimes, but also First Amendment-protected expression.

They know this, too.

Vermont state police protocol, for instance, describes the information it compiles as being on “biased but protected speech.” This raises the obvious question of why the police are concerning themselves with Americans lawfully exercising their fundamental rights, and opens the door to police responses that violate those rights.

Wherever they’ve popped up, these bias reporting systems have been bad news. Washington Free Beacon journalist Aaron Sibarium’s research has turned up a number of alarming examples. In Oregon, citizens can report “offensive ‘jokes’” and “imitating someone’s cultural norm or practice.”

Meanwhile, in Maryland, the attorney general’s office states on its website that “people who engage in bias incidents may eventually escalate into criminal behavior,” which is why “Maryland law enforcement agencies are required by law to record and report data on both hate crimes and bias incidents.” But these speculative concerns do not justify the chilling effect bias reporting systems create. Not only do these systems solicit complaints about protected speech, they also cast an alarmingly wide net. It’s hard to believe, for instance, that many “offensive jokes” are reliable signs of future criminal activity.

But that’s not the worst of it. In Philadelphia — home of FIRE, the Liberty Bell, and the Constitution — authorities fielding “hate incidents” can now ask for exact addresses and various identifying details about the alleged offending party, including their names. According to Sibarium, city officials will in some cases “contact those accused of bias and request that they attend sensitivity training.”

You heard that right. If you’re reported for a “non-criminal bias incident” in the city of Philadelphia, the city may request that you take a course meant to teach you the error of your ways. “If it is not a crime, we sometimes contact the offending party and try to do training so that it doesn’t happen again,” Saterria Kersey, a spokeswoman for the Philadelphia Commission on Human Relations, told Sibarium.

The training is voluntary, but it reflects an unsettling level of government interference in the thoughts and opinions of the public.

At this point you’d be forgiven for thinking that “Orwellian” is an understatement.

Bias reporting systems are a threat to free speech on and off campus

Thankfully, there has been some considerable pushback on bias reporting systems — though not entirely successful. Washington, for example, introduced a bill to create a statewide bias reporting system, but it failed to advance out of the Senate Ways and Means committee. However, a new version of the bill passed in March of 2024, and Washington is now set to establish a bias reporting system this year.

The threat remains real, and the consequences of these speech-chilling initiatives are further-reaching than it might seem at first glance.

On campus, the mere existence of bias reporting systems threatens one of the purposes of higher education, if not the purpose: the free exchange of ideas. Some courts have recognized that bias reporting systems may chill protected speech to such a degree that they violate the First Amendment.

The state-level reporting systems raise similar First Amendment issues — especially when law enforcement is involved. Like their campus counterparts, the state systems use expansive definitions of “bias” and “hate” that could encompass a vast range of protected expression, including speech on social or political issues.

However, unconstitutionality isn’t the only concern. Even a bias reporting system that stays within constitutional bounds can deter people from freely expressing their thoughts and opinions. If they are afraid that the state will investigate them or place them in a government database just for saying something that offended another person, people will understandably hold their tongues and suppress their own voices. Moreover, the lack of clarity around what some states actually do with the reports they collect is itself chilling.

The ability to speak freely is core to our democracy. Any system or protocol that stifles or inhibits free expression is antithetical to the principles and ideals of our institutions of higher education and our republic. In both word and deed, bias reporting systems fundamentally undermine these principles — and now seriously threaten the First Amendment rights of not just students and faculty, but also ordinary citizens.

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If you could trace every pro-free speech argument you’ve ever heard back to John Stuart Mill, it’d be no surprise.

The British philosopher’s 1859 essay “On Liberty” remains one of the most concise and comprehensive defenses of individual freedom ever written. In its second chapter, “Of the Liberty of Thought and Discussion,” Mill laid out extensive appeals for free speech, free inquiry, and open discourse that are still quoted by lawyers, teachers, journalists, and free speech advocacy organizations like FIRE to this day.

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But what did Mill actually say about free speech? Why has his commentary stood the test of time? In this explainer, I’ll break down the most potent and powerful free speech arguments in “On Liberty,” why they matter, and how they still apply nearly two centuries later.

Mill’s three-pronged defense of free speech, free inquiry, and open debate

Many proponents of individual liberty tend to focus on governmental authority as the prime danger to their personal freedoms. But the threat to free expression that most worried Mill didn’t come from the government. Rather, it came from the conformity imposed on individuals by society.

This is why Mill began the chapter by noting the potential dangers of what he calls the “tyranny of the majority,” arguing for “protection…against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose…its own ideas and practices as rules of conduct on those who dissent from them.”

It’s easy to understand the drawbacks of a king, dictator, or aristocracy’s opinions trumping all others. One person or group can be fallible, destructive, or malicious in asserting their authority, causing widespread suffering for the sake of a powerful few.

But majority opinion in democratic societies can be just as fallible, just as powerful, and just as dangerous — especially when backed by the government:

[Government silencing of speech] is as noxious, or more noxious, when exerted in accordance with public opinion, than when in opposition to it. If all mankind minus one, were of one opinion, and only one person were of contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.

But why should the single minority opinion still be heard?

This is where Mill laid out his three-pronged argument for why no opinions — regardless of how poorly-subscribed or incorrect they are — should be silenced. FIRE president Greg Lukianoff calls it Mill’s Trident, and describes it as follows:

“In any argument there are only three possibilities. You are either wholly wrong, partially wrong, or wholly correct — and in each case free speech is critical to improving or protecting those positions.”

Prong One: The silenced opinion might be correct

Mill’s first point is the most obvious: Humans are prone to error and overconfidence, and our opinions — even if held by the vast majority — may be wrong. Silencing dissent not only neglects this fact but also actively prevents our errors from being corrected.

“All silencing of discussion is an assumption of infallibility,” Mill wrote. “To refuse a hearing to an opinion because they are sure it is false is to assume that their certainty is the same thing as absolute certainty.”

History is rife with examples of absolute certainty getting in the way of progress. The idea that the Earth was round, for instance, challenged prevailing orthodoxies and was actively suppressed by the powers that be. Hindsight allows us to clearly see this mistake, but what’s so different about our current moment?

“Ages are no more infallible than individuals,” Mill wrote. “It is as certain that many opinions, now general, will be rejected by future ages, as it is that many, once general, are rejected by the present.”

However confident we may be, we should avoid the certainty that prevents us from hearing opinions we dislike. As Mill pointed out: “The fatal tendency of mankind to leave off thinking about a thing when it is no longer doubtful is the cause of half their errors.”

But what about things we know are false? Why should we tolerate arguments in favor of flat Earth, for example, now that we know beyond all reasonable doubt that they’re provably wrong?

To this, Mill argued that airing even erroneous opinions still has value — both for those who hold them and for those who do not.

Prong Two: Even falsehoods improve our understanding of the truth

“The peculiar evil of silencing the expression of an opinion is that it is robbing the human race,” Mill wrote. “If the opinion is right, they are deprived of the opportunity of exchanging error for truth. If wrong, they lose what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”

Mill argued that the foundation of knowledge goes much further than simply holding factually correct views. It is just as important, if not more so, to understand why those views are correct and why the opposition is wrong. The surest way to gain that understanding is through constant conflict with robust dissent — even if that dissent is incorrect.

“So essential is this discipline to a real understanding of moral and human subjects,” Mill wrote, “that if opponents of all important truths do not exist, it is indispensable to imagine them.”

To Mill, the mere restatement of facts — even incontrovertible ones — without understanding why they are facts, is “dead dogma,” and its adherents are akin to religious zealots. This leads to one of Mill’s most famous and often-quoted arguments in favor of open discourse:

He who knows only one side of the case, knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side; if he does not so much as know what they are, he has no ground for preferring either opinion.

Above all this, Mill saved his harshest criticism not for those who keep themselves from hearing dissent, but those who deprive others of hearing it.

“The usefulness of an opinion is itself [a] matter of opinion: as disputable, as open to discussion and requiring discussion as much, as the opinion itself,” he wrote. “It is not the feeling sure of a doctrine (be it what it may) which I call an assumption of infallibility. It is the undertaking to decide that question for others, without allowing them to hear what can be said on the contrary side.”

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And for those worried that constant engagement with falsehoods will eventually erode the truth, Mill noted that “Truth gains more even by the errors of one who, with due study and preparation, thinks for himself, than by the true opinions of those who only hold them because they do not suffer themselves to think.”

These points highlight Mill as one of the earliest evangelists for a culture of free speech in human history. England did not have anything like the First Amendment to the Constitution (and still doesn’t), and nowhere in “On Liberty” did Mill suggest that it should ratify such a law.

Mill was thinking beyond government authority and focusing on promoting free speech in and among individual citizens. Eighty-five years before Judge Learned Hand would remark that “Liberty lies in the hearts of men and women,” and that “when it dies there, no constitution, no law, no court can even do much to help it,” the Englishman John Stuart Mill was extolling the importance of free speech as a cultural value.

So far, we’ve covered the first two prongs in Mill’s Trident: If we’re wrong, hearing dissent helps us correct our errors. If we’re right, dissent helps us strengthen our arguments and understanding.

But how often is someone actually at either of those rhetorical extremes?

Not often at all. And that’s where the final prong in Mill’s Trident comes in.

Prong Three: Most arguments are neither true nor false, but a mixture of both

“One-sidedness has always been the rule, and many-sidedness the exception,” Mill wrote. “Hence, even in revolutions of opinion, one part of the truth usually sets while another rises.”

Our flawed perceptions being what they are, it will be a rare moment when any one person or any one group possesses the full and complete picture of reality. This is why opposition must not only be valued, but actively sought out and encouraged.

“Very few have minds sufficiently capacious and impartial to make the adjustment with an approach to correctness,” Mill wrote, “and it has to be made by the rough process of a struggle between combatants fighting under hostile banners.”

Mill believed that one of the most important functions of a culture of free inquiry is keeping one another honest. It’s easy to succumb to bias, motivated reasoning, and delusion when we are alone and unchallenged. “Only through diversity of opinion is there, in the existing state of human intellect, a chance of fair play to all sides of the truth,” he wrote.

This is perhaps the most important of Mill’s three main appeals for free speech and against silencing dissent: As flawed individuals, we can never know the full truth. But by uniting and colliding our perspectives with those of others, we can get ever closer to it — and ensure that our minds don’t stagnate even after we’ve found it.

Why John Stuart Mill’s arguments for free speech endure

Despite being a fierce and principled proponent of free expression (and freedom in general), Mill held no illusions that free speech would eliminate all dogmatism, ignorance, or division.

“I acknowledge that the tendency of all opinions to become sectarian is not cured by the freest discussion, but is often heightened and exacerbated thereby,” he wrote. “The truth which ought to have been, but was not seen, being rejected all the more violently because proclaimed by persons regarded as opponents.”

However, Mill also knew that the game was much bigger:

It is not on the impassioned partisan, it is on the calmer and more disinterested bystander, that this collision of opinions works its salutary effect. Not the violent conflict between parts of the truth, but the quiet suppression of half of it, is the formidable evil; there is always hope when people are forced to listen to both sides; it is when they attend to only one that errors harden into prejudices, and truth itself ceases to have the effect of truth, by being exaggerated into falsehood.

In the age of social media, livestreamed debates, and long-form podcasts where guests and hosts duke it out on issues of the day — often in the most tribal ways possible — it is a benefit to the audiences and the public that all perspectives are aired and critiqued.

Mill believed that partisanship and tribalism weren’t nearly as bad as echo chambers, because the latter keep people from even seeing that there is another side to an argument. It’s in that circumstance that dissent or difference begins to be seen as not just wrong, but evil. When disfavored views are suppressed on that basis, all the benefits of engagement become unattainable.

For these reasons, Mill’s careful and considered defense of “absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological,” remains relevant even two centuries after the publication of “On Liberty.” Mill was able to see clearly what so many advocates for censorship still fail to recognize or concede: Without a constant search for truth, the ability to recognize it when we find it, and the capacity to intelligently discern it from falsehood through discussion and debate, how can we ever know we’re on the right track? How can we ensure we stay on track?

Mill understood that free speech, free inquiry, and open debate are the keys to human progress. They aren’t just vital to human well-being, but foundational. As he wrote in conclusion to his second chapter of “On Liberty,” these are the human freedoms “on which all their other well-being depends.”

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Renowned English author and revolutionary John Milton is most famous for writing the epic poem “Paradise Lost” — the Genesis story aimed at “justifying the ways of God to men.” But if you’re a fan of free speech, Milton’s most important work for you may be “Areopagitica,” a short polemical pamphlet he wrote 23 years earlier, which argued “For the Liberty of unlicensed printing.”

Written in 1644, “Areopagitica” was a work of its own tumultuous political moment. The British Parliament had just overthrown and beheaded the king of England, Charles I. They judged him tyrannical for, among other things, refusing to let Parliament check his power over English governance. Adding to this, fights over religious truth — and related fights over the proper role of the church in government and daily life — simmered across Europe since Johann Gutenburg invented the printing press. The resulting proliferation of printed media — broadsides, pamphlets, books — allowed people to read on a scale that simply hadn’t been economically or technically possible.

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A renowned poet from a young age, Milton shifted gears during the middle of his career, turning his pen toward political pamphleteering and arguing over the structure of government and religion. In “Areopagitica,” written at 36, he presented a plea to his own faction: the forces that had overthrown Charles I and now wanted to change the law so that all books published must be “licensed” first by the government.

Milton argued that Parliament was acting like the tyrant king they’d just overthrown, and aimed to persuade its members that they made a grave error against their own best natures — and against reason itself.

So what does Milton say in this work? How did it come to be understood as one of the foundations of our modern understanding of free expression? In this explainer, we’ll examine Milton’s free speech arguments in “Areopagitica,” his contradictory advocacy for post-publication censorship, and why his advocacy and reasoning still (mostly) matter today.

Milton’s arguments for free expression

Milton designed “Areopagitica” as both a polemic aimed at persuading specific people and a general exploration of the issues around freedom of the press. In it, Milton makes several separate but parallel points, and tries to argue not merely by his own reasoning but also by the reasoning of the people he is trying to persuade.

For example, the title, “Areopagitica,” is an allusion to the Areopagus — the hill in Athens named for the god Ares. As Milton’s audiences at the time would have understood from their schooling on classical antiquity, it was on this hill that there once stood a court that handled important public business. This included the business of censorship, similar to what the British Parliament of Milton’s time had recently legislated.

The difference, however, was that ancient Greek pre-publication censorship was actually much less onerous than what England was now doing, and Milton made that point clear in “Areopagitica.” He also described how in ancient Rome at the time of Cicero or Catullus — poets and politicians Milton knew members of Parliament venerated — censorship was less stringent than Parliament’s current licensing law demanded.

Flattering the good taste of members of Parliament, Milton rattles off references to famously irreverent and edgy schools of philosophy that were nonetheless tolerated by the censors of the time. In ancient Athens, he points out, “we do not read that either Epicurus, or that libertine school of Cyrene, or what the Cynic impudence uttered, was ever questioned by the laws.” Milton also notes that in ancient Rome, the censors were relatively permissive too. And it is only because of this permissiveness that these philosophical treasures could be known and appreciated by the people of Milton’s time.

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To drive it home — and to further scandalize his intended audience — Milton emphasizes that the rules imposed by Parliament’s licensing law are similar to the dreaded index of banned works upheld by the Roman Catholic Church. Given that the Church was the enemy of liberty-loving Protestant England, Milton’s comparison seemed to ask by implication: Did these modern Englishmen really want to be like the Catholics? Does all their licensing make their societies better, with less trouble?

As he puts it: “If the amendment of manners be aimed at, look into Italy and Spain, whether those places be one scruple the better, the honester, the wiser, the chaster, since all the inquisitional rigor that hath been executed upon books.”

According to Milton, the licensing law was downright un-English — which, to Englishmen of the time, was a scathing criticism.

Milton’s contradictory beliefs about book bans

Throughout “Areopagitica,” Milton repeatedly draws the distinction between what he called “licensing,” or pre-publication censorship, and “censorship,” which occurs after a book has already been printed and distributed. It is the former that he rails against in “Areopagitica.” The latter was something Milton didn’t have much disagreement with. In fact, Milton would later become the Secretary for Foreign Tongues for the government — a job which included actually doing state censorship.

A few years after writing Areopagitica, Milton would serve as the censor for the Mercurius Politicus, a proto-newspaper aligned with Parliament and published until the beheaded king’s son was restored to the throne in 1660.

It gets worse, too. By 1649, Milton’s role in government even involved the pre-publication censorship of books — the very thing he previously argued against in “Areopagitica”!

This is an intellectual twist that makes Milton a much more complex historical icon in the history of free speech, and there are competing opinions on what to conclude from Milton’s contradictions. Some Milton scholars argue that in his government position he actually undermined censorship by doing his job poorly — though records make that hard to prove.

Others, of course, put it down to something much simpler: the human capacity for hypocrisy. FIRE senior fellow Jacob Mchangama, author of “Free Speech: A History from Socrates to Social Media,” even coined a term for Milton’s supposed fickleness on censorship: “Milton’s Curse,” defined as the tendency for advocates against censorship to be selective about how they apply their free speech principles.

Nonetheless, even if Milton’s actual actions do not live up to the free speech principles we might like today, he must still be understood as having contributed a great deal to pro-free speech discourse. He took an early stand in articulating the ideas behind why censorship was an offense to freedom and reason — and he did so in works that commanded tremendous influence, both in his own time and in our own.

That influence comes down to what nobody can knock Milton for: The sheer force and quality of his writing. For instance, his discussion of the value of books plucks at the heartstrings in a way that might leave even the most enthusiastic book-banner queasy:

Books are not absolutely dead things, but do contain a potency of life in them to be as active as that soul was whose progeny they are; nay they do preserve as in a vial the purest efficacy and extraction of that living intellect that bred them. I know they are as lively, and as vigorously productive, as those fabulous Dragons teeth; and being sewn up and down, may spring up armed men. And yet on the other hand, unless wariness be used, as good almost kill a Man as kill a good Book; who kills a man kills a reasonable creature, God’s Image; but he who destroys a good Book, kills reason itself, kills the Image of God, as it were in the eye.

Perhaps most importantly, Milton’s appeal to the reader is grounded on one fundamental thing: his immovable belief in individual reason.

Milton as a proponent of reason

In what is perhaps the most radical argument in “Areopagitica,” Milton argues that by banning books before they have a chance to circulate, the state attempts to tell people what to think. As a result, the people can’t really think at all.

“A man may be a heretic in the truth,” he writes, “and if he believes things only because his Pastor says so, or the Assembly so determines, without knowing other reason.”

Milton believed that without actually hearing out the arguments in question, neither a person nor society can figure out what they truly believe. If they merely believe what they are told without considering the alternatives deeply, then they don’t truly believe it.

So, he argues, Parliament — and the readers of his pamphlet — should trust their own convictions. They should have confidence that their arguments can win out even when people can read and hear opposing viewpoints. Or as Milton put it:

I cannot praise a fugitive and cloistered virtue, unexercised and unbreathed, that never sallies out and sees her adversary, but slinks out of the race, where that immortall garland is to be run for, not without dust and heat. Assuredly we bring not innocence into the world, we bring impurity much rather: that which purifies us is trial, and trial is by what is contrary.

Here, among all the arguments against the licensing law Milton wanted repealed, we have the very essence of his general argument for a free press: Trust people, you chickens.

Without allowing people to consider potentially wicked ideas, untruths, and whatever else is out there, they will never figure out for themselves what ideas are deserving of merit in the first place. A system of pre-publication censorship only makes sense if we already have all the answers — and we don’t. Never have. Never will. Since finding the answers is a never-ending process, we should not designate it to the state, a cleric, or any expert class. The best we can do is to circulate ideas and texts and fight it out amongst ourselves.

Or as Milton put it nearly 275 years before Justice Oliver Wendell Holmes Jr. coined the “marketplace of ideas” argument for free speech:

And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter. Her confuting is the best and surest suppressing.

Of course, even Milton seemed incapable of trusting people very much. After all, it is not difficult to see Milton’s reasoning against pre-publication censorship applying just as well to censorship after the fact — which is why his logical dissonance is so difficult to reconcile.

Regardless, the arguments transcend the man, and their impact reverberates in free speech discourse to this day.

Why ‘Areopagitica’ still matters

Areopagitica is not just a historical curiosity — something a college course on the history of English literature or political thought might include. It is so much more than that. It is one of the foundational documents of the Enlightenment and, more broadly, western liberalism, and it has endured as such for nearly 400 years.

No doubt if FIRE existed in 1644 England, we would have supported Milton’s view that the 1643 licensing law ought to be repealed. We would also have repudiated his advocacy for post-publication censorship. It’s no different to FIRE’s approach today, where many public figures and politicians are inconsistent, at best, when it comes to free speech. Milton was an imperfect advocate, but without “Areopagitica,” there may never have been an intellectual tradition of free speech to uphold today. At the very least, without Milton that tradition would be a much poorer one.

Ultimately, the reason why lovers of free expression ought to care about “Areopagitica” is deeper and more general than any one law or any one writer. It’s that for hundreds of years, societies have faced crises of trust framed as crises of truth. In his famous pamphlet, Milton was the strongest advocate — and one of the earliest — for the position that when questions about what is true and what is valuable arise, the least imperfect final authority is the individual’s own conscience and reason.

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