Think of a political or social issue you care about. Now imagine your local city council is considering taking some action related to that issue. You decide to show up to the public comment period and make your voice heard. Then you learn that local police will be monitoring the meeting, looking specifically for “unusual questions,” “verbal conflict,” “emotional confrontations,” “social media amplification,” and more. Such conduct will be treated as “suspicious behavior” posing “public safety risks.”

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Would you think twice about freely sharing your opinion? Unfortunately, that thought experiment isn’t hypothetical. In a recent report, 404 Media published a bulletin from a government-owned intelligence hub called the Orange County Intelligence Assessment Center. The bulletin warned law enforcement to monitor a July 21, 2026, city council meeting in Costa Mesa, California, at which critics of automated license-plate reader cameras planned to express their concerns. “While no credible threats were identified directed towards this event,” the bulletin said, “overall public sentiment has been predominantly negative, with numerous online comments expressing opposition to the cameras and calling for their removal.”

So because the public is expressing opposition online, police will now be watching the meeting for any “unusual questions” or “verbal conflict”? Whether you support surveillance technology or are certain it will be the death of freedom, you should be free to express that view without fear.

Of course, law enforcement agencies can develop legitimate concerns about monitoring and preventing actual threats to public safety at city council meetings. In fact, free speech values demand that they do so — violent responses to speech make the climate for free expression worse for everyone. Think of Charlie Kirk. Or Salman Rushdie. Or Gabby Giffords. Remember Martin Luther King Jr. and the magazine Charlie Hebdo. Violent attacks against controversial speakers not only violate the rights of the speakers, but have negative consequences for free speech in general. FIRE has found that half of students surveyed shortly after Charlie Kirk’s assassination in 2025 were “less comfortable attending or hosting controversial public events on their campus.” Supreme Court Justices Elena Kagan and Amy Coney Barrett testified before Congress this summer, describing rising threats to their physical safety.

Tragically, participating in public discourse in 2026 requires a certain amount of physical courage. Law enforcement is properly and crucially charged with preventing violent responses to controversial speakers. But when that vigilance turns into prophylactic tracking and monitoring protected speech, we have a problem.

First, encouraging the police to surveil First Amendment-protected activities, like speaking emotionally or asking unusual questions at public meetings, discourages people from engaging in those activities. Bulletins like the one 404 Media obtained create a chilling effect, causing people to self-censor. Elected officials should know how their constituents really feel about automated license plate readers, or any other contested issue.

Second, it’s a short drop from encouraging the cops to surveil protected speech to encouraging them to retaliate against that speech. After all, why should the cops monitor so-called “suspicious activity” if not to take some action when they encounter it? It’s not difficult to imagine a police officer relying on the intelligence bulletin as a permission slip to target critics of plate readers.

Third, law enforcement tracking of protected speech blurs what should be an extremely bright line between protected speech and true threats or actual violence. True threats are a narrow, carefully defined category of speech outside the First Amendment’s protection. But distinguishing serious expressions of an intent to commit unlawful violence (true threats) from charged political rhetoric (protected speech) is essential to keeping the government from interfering with, retaliating against, or chilling discourse on important issues. And alarmingly, the line between free speech and its opposite — actual violence — needs reinforcing now more than ever. According to a December 2025 FIRE survey, nine out of 10 undergraduates believe “words can be violence.”

It’s essential that law enforcement get this right. Just look at countries that target and surveil speech that would be protected under the First Amendment.

China, which relies on a surveillance network so vast that estimates suggest the country has roughly three cameras for every seven people, sentenced a student to “six years’ imprisonment for joining pro-democracy protests in Australia.” With the help of an array of digital surveillance tools, Iran arrested around 50,000 anti-government protesters, some of whom have been executed. And thanks to Russia’s comprehensive network of CCTV cameras and biometric databases, the “days when outspoken Russians could flee to remote towns to avoid the authorities, as they did during Stalin’s purges, are largely over.”

We’re seeing surveillance and retaliation for protected speech here in the United States too. In a recent FIRE case, ICE tracked a Rochester resident to a New York City hotel where he was staying with his 7-year-old daughter because of one critical email in which he compared then-ICE Director Todd Lyons to a Nazi and said his conscience would haunt him. Elsewhere, documents obtained by USA Today revealed “what legal observers feared: Protesters are being tracked and logged into a secret database for what they argue is exercising protected First Amendment speech” related to ICE activities. The Orange County intelligence bulletin from this summer is another data point in an increasingly concerning pattern.

We must not allow even legitimate concerns about safety to tempt us to loosen the constraints that the First Amendment places on the government. As FIRE President and CEO Greg Lukianoff has said, “You are not safer for knowing less about what people really think.”

This essay was originally published on Oct. 27, 2026, on Reason.

A Pennsylvania man put up Halloween decorations around his property. He had no idea they would unleash the horrors of government jawboning.

Mark, whose real name is being withheld, is a homeowner in Bristol Borough, a suburb near Philadelphia. He decorated his home with a small graveyard, two monster scarecrows, and five mannequins hanging from a large tree on his property. One additional mannequin was lashed to the tree. The faux bodies were wrapped in black plastic secured with duct tape.

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Now local officials are haunting Mark.

At an Oct. 12 borough council meeting, a neighbor complained about Mark’s decorations, concerned the display looked too close to lynching. Karla Scott said the decorations are “very offensive, not just to the black people in the community, but the community as a whole.” Scott told FOX 29 that her “mind went back to what my ancestors went through being hung from trees with nooses around their neck.” (In the televised story, the reporter gives a trigger warning and then blurs the very decorations viewers are supposed to judge as either offensive or old-fashioned spooky fun.)

After Scott voiced her concerns, Council President Ralph DiGuiseppe said Mark had broken no ordinance and that Mark told the borough he would not take the decorations down. “They’re just Halloween decorations,” Mark told the Bucks County Courier Times. “I think it’s been blown out of proportion.”

Despite acknowledging that Mark had violated no ordinance, DiGuiseppe noted a zoning inspector nevertheless visited his house immediately after the decorations went up.

“Our borough inspector did stop there and talk to him. But we were unsuccessful….[Mark] feels they’re Halloween decorations, and he won’t take them down,” DiGuiseppe told Scott at the meeting. DiGuiseppe then turned to another official who said, “We’ll continue our efforts.”

The decorations have divided the community, with some residents saying they’re simply Halloween decorations and others saying they’re racially insensitive. After receiving a complaint from a resident, the local NAACP chapter said in a statement on Facebook, “Something can be legally permissible and still be profoundly harmful.” The statement also called for “continued engagement by borough leadership and voluntary reconsideration of the display. This is not about restricting Halloween celebrations or freedom of expression. It is about historical awareness, empathy, and respect for our neighbors.”

But Mark’s insistence that he would not take them down hasn’t been respected by the borough. He was also contacted by Bristol Borough Manager James Dillon and other members of the council, according to Fox News Digital, which also did not publish any pictures of the display. Mark again said he would not take the decorations down. When the mayor of Bristol Borough, Frank Peranteau, reached out to him, Mark invited the mayor to have dinner with his family to discuss the matter. In an email to Reason, Peranteau said he wasn’t there to try and change Mark’s mind and “found him to be a genuinely caring person with no signs of prejudice.”

Nevertheless, things get spooky when government officials won’t take no for an answer when contacting a law-abiding resident to “voluntarily” take down his constitutionally protected expression on his own property. This behavior by borough leadership and staff looks very much like jawboning, which is when government officials try to chill private citizens from exercising their constitutional rights through pressure or indirect threats.

While Scott and other community members may prefer there be a rule to prevent such decorations, an ordinance banning “offensive” lawn displays would be dead on arrival, constitutionally speaking. It would be viewpoint discrimination and a direct violation of the First Amendment.

Mark says he may have considered removing the display if Scott had approached him and explained how she felt, according to Peranteau. “He told me that he was upset at the way things were handled in the beginning and he may have considered removing the display then had it been different,” the mayor said, “but it was a matter of principle at that point.”

Talking with your neighbor may resolve more than summoning government ghouls.

There’s a groundswell of demand to “do something” in the wake of the sexual assault claims at Cornell. But amid the outrage and concern over the incident, it’s critical to remember that one attempted remedy we actually know will not work is to return to a campus justice system in which the burden of proof is on the accused and basic civil liberties are cast aside. That social experiment has already been run. It failed.

Title IX, the law against sex discrimination in federally funded education programs, was passed in 1972. Debates at the time focused on how it would affect single-sex colleges and college athletics. Explicitly aimed at sex discrimination, the text of the law itself mentions neither sexual assault nor sexual harassment. Those became matters for Title IX gradually over the next couple of decades, as courts determined that sexual assault and sexual harassment were both forms of sex discrimination, and therefore covered under Title IX.

The Jane Doe lawsuit against Cornell and the accused students (as well as a fraternity, a sorority, and a local bar) hit national news at nearly the same time that the Trump administration officially removed the Biden-era regulations from the Federal Register. While almost certainly not related, some have connected the two, citing the Cornell incident to argue that regulations surrounding Title IX need to be changed again to reduce due process protections for the accused.

The Democratic Women’s Caucus in Congress, for example, has called for strengthening and expanding Title IX protections. “Just yesterday, Trump and Republicans eroded the processes in place for sexual misconduct investigations” by officially reinstating the 2020 regulations, the caucus said in late September. And the National Women’s Law Center pointed to the Cornell situation to argue that the 2020 rules removed “obligations for educational institutions to respond to sexual harassment” and have “led to fewer survivors wanting to report because they view the Trump administration’s 2020 rule as not one that is intended to protect them.”

Given the lurid and appalling details of the Cornell case, it’s no surprise we’re seeing calls to make such alleged misconduct easier to punish.

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But we don’t have to guess about whether this would be a bad idea. As a nation, we have already run a generation-long experiment of having the higher ed sector conduct Title IX complaint processes unburdened by even rudimentary protections — and it was a disaster. Since FIRE’s inception in 1999, we have seen case after case in which colleges held sexual misconduct “hearings” hardly worthy of the name, routinely denying accused students (and sometimes also the alleged victims) basic protections such as:

• The presumption of innocence;

• Notice to the accused student what he or she has allegedly done wrong, and the day; and location of the alleged wrongdoing;

• Notice of what rules were allegedly violated;

• The ability to review the evidence;

• The right to call and question witnesses at a disciplinary hearing;

• The ability to question the person making (or denying) the accusation;

• The right to impartial fact-finders.

That list of omissions may seem incredible. How could any proceeding be fair without these fundamental protections?

But it’s no exaggeration. For several years, FIRE produced Spotlight on Due Process reports to highlight the grim campus reality. In the first of those reports, issued in 2017, we rated the top 53 schools in that year’s U.S. News & World Report rankings based on 10 fundamental elements of due process, including all of those listed above. None of them fully provided all 10 protections. One school actually had a sexual misconduct policy that didn’t provide any of the 10 protections, even in part. Thirty-nine of the 53 schools did not even guarantee students the right to be presumed innocent until proven guilty, and 37 did not allow for meaningful cross-examination.

Elementary due process protections are essential for a credible system

Americans old enough to have been in high school or college around the turn of the millennium will likely remember at least two of the most prominent campus sexual assault stories: the 2006 Duke Lacrosse rape accusations, and the 2014 Rolling Stone story about an alleged incident at a University of Virginia fraternity house. Both stories turned out to be fraudulent. Both ended with millions of dollars being paid out in the wake of lawsuits, and the destruction of the careers of Mike Nifong, the Durham County district attorney disbarred for his persecution of the accused Duke students, and Sabrina Rubin Erdely, the author of the Rolling Stone piece.

It would be foolish to extrapolate from these two cases that allegations of campus sexual assault are likely to be false. But it is equally foolish to come away with the conclusion that it’s not worth implementing basic protections to prevent false accusations from ruining the lives of those who are unjustly (or even just erroneously) targeted. Indeed, one need not get anywhere near an alcohol- and drug-fueled fraternity party to become involved in a campus Title IX controversy.

Because sexual harassment allegations frequently involve claims about sex-related expression (and sometimes only expression), the same campus courts and proceedings that deal with situations like the “Cornell 7” also deal with accusations that cover nothing more than speech someone claims to have found offensive. Both are adjudicated under the aegis of Title IX.

A generation of Title IX abuse to silence protected expression

Since FIRE’s inception, we have warned about the use of Title IX sexual harassment policies to police pure expression rather than conduct. In one of FIRE’s very first cases, more than 26 years ago, we wrote to Columbia Law School about an investigation into a well-known criminal law professor based on charges that he had created a hostile environment for his students by using an exam hypothetical that discussed violence against women. (Columbia ultimately agreed the speech was not harassment.) And then we spent decades repeating varieties of that over and over again to colleges from sea to shining sea: in 2000 (again), the University of Oklahoma. In 2001, Tufts. In 2004, Occidental and the University of New Hampshire. To New Jersey’s William Paterson University, as well as to the University of Pennsylvania, in 2005. To Temple in 2006. To East Georgia College in 2009. To Yale in 2010. (This is just a subset of public cases from the 2000s; it does not include cases in which FIRE was privately involved.)

The next decade only provided more of the same. Making things worse was a “Dear Colleague” letter issued by the U.S. Department of Education’s Office for Civil Rights in April 2011 that aimed to get schools to enforce Title IX in a manner that guaranteed that more of the accused would be found responsible for sexual misconduct, regardless of whether or not they were actually more likely to have committed the offense.

By effectively ordering schools to use a “preponderance of the evidence” standard instead of a higher standard such as “clear and convincing evidence,” the “Dear Colleague” letter, in a stroke, made it far easier to officially brand someone a harasser or even a rapist, at a level of certainty only infinitesimally better than a coin toss. It also encouraged schools to adopt a “single investigator” model where one person could serve as the investigator, prosecutor, and judge over Title IX hearings, with all the conflicts of interest that entails.

Colleges quickly implemented these changes, leading to an even greater flood of instances in which the rationale of sexual harassment was used as an excuse to silence protected speech. Again, cases at the University of Denver in 2011, the University of Colorado in 2013, the University of Alaska-Fairbanks in 2013-14, Louisiana State University and Northwestern in 2015, the University of Delaware and Brooklyn College in 2016, and Wichita State and Northwestern (again) in 2017 represent just a small subset of instances of 2010s-era Title IX abuses. By 2017, FIRE was aware of at least 180 lawsuits over unfair disciplinary procedures in the wake of the 2011 “Dear Colleague” Letter.

The situation at Northwestern University deserves special consideration because it illustrates so well the danger this expansive Title IX regime posed to expression about sex and gender. Both cases deal with Professor Laura Kipnis, a feminist film professor whose alleged Title IX offense, warranting a 72-day-long investigation, was . . . criticizing the university’s Title IX regime in an essay for the Chronicle of Higher Education titled “Sexual Paranoia Strikes Academe.” Northwestern University, a perennial resident on just about every list of top colleges in the United States, with massive resources and access to the finest attorneys, took more than three months to determine whether it is a violation of Title IX to criticize Title IX. (It is not.) Actually, that’s too charitable to Northwestern; it only dropped the investigation after Kipnis wrote a follow-up essay for the Chronicle titled “My Title IX Inquisition” that detailed the ludicrous process of the investigation and embarrassed Northwestern into throwing in the towel.

But wait — there’s more!

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Northwestern wasn’t done with Kipnis yet. Kipnis, already the author of several books, wrote another one about her Title IX experience, publishing “Unwanted Advances: Sexual Paranoia Comes to Campus” in April 2017. Can you guess what happened next? Sure you can! Just guess the most absurd possible thing Northwestern could do in response to the book.

That’s right: Northwestern launched another bogus Title IX investigation into Kipnis for the offense of writing a book criticizing the events of two years prior, when Northwestern launched a bogus investigation into Kipnis for criticizing the Title IX investigation process. Harvard Law School Professor Jeannie Suk Gersen broke the news in a New Yorker essay titled “Laura Kipnis’s Endless Trial by Title IX.” The title of Gersen’s essay itself makes a critical point: while Kipnis was ultimately cleared in all of these Title IX investigations, the “endless trial” enabled by the process was itself more than enough to punish the outspoken and chill the speech of those who don’t feel they can afford to speak out.

Title IX abuses spur needed reform

These kinds of abuses committed in the name of Title IX had, especially after the 2011 “Dear Colleague” letter, become too common and severe to ignore. Accused students filed over 700 lawsuits alleging procedural violations, resulting in over 200 rulings (and likely even more settlements) favorable to the rights of the accused. With courts traditionally reluctant even to consider second-guessing college disciplinary measures, these numbers were eye-opening. FIRE was challenging the letter itself in court when Donald Trump won the 2016 presidential election, and the new administration made promises of reform.

In September 2017, then-Secretary of Education Betsy DeVos rescinded the 2011 “Dear Colleague” letter, with the department ultimately going through the proper notice-and-comment process needed to implement unambiguous, legally binding regulations on how colleges administered Title IX.

That process lasted until 2020, when the new regulations finally went into effect, with an explicit acknowledgment that the Department of Education would apply the Supreme Court’s speech-protective standard for peer harassment in the education context, as well as new and badly needed guarantees of basic due process for those involved in Title IX proceedings, including:

• Proper notice of the allegations against the accused, including the identities of the parties and the date and location of the alleged incident;

• The right of all parties to inspect and review the gathered evidence, including exculpatory evidence;

• The right to cross-examine all parties and witnesses (through an advisor);

• The right to an advisor of one’s choice, who may be a lawyer;

• The right to a live hearing with a fact-finder who is not also the “prosecutor”;

• The right to a written finding, and to appeal that finding.

These are the very rudiments of a fair hearing that were missing from Title IX adjudications for decades, and the changes received heartening cross-partisan support, including from federal appeals courts. Several courts had already found that constitutional due process required institutions to provide some of these procedural protections, so it’s not as though adding them was unworkable. Additionally, the Los Angeles Times editorial board — hardly a Trump ally — opined in 2020 that the rules made “reasonable changes for the most part, curbing some of the excesses of the previous system.”

The Biden campaign promised to rescind those regulations if elected. It tried to keep that promise, restarting the regulatory process and promulgating new regulations that eliminated the guarantees of a live hearing, cross-examination, weakened the right to an advisor, and allowed the single-investigator model in which a single administrator could serve as prosecutor, judge, and jury. Thankfully, most of the changes were quickly blocked by multiple federal courts and have now been removed from the books.

The need for basic due process protections should be as nonpartisan an issue as one can imagine, given that nobody, Democrat, Republican, or otherwise, would choose to be subjected to a kangaroo court should they be the ones accused.

Cornell’s fraternity shutdown demonstrates once again that due process and expression are inextricably linked

Cornell’s latest move in the controversy almost seems intended to illustrate that free expression, right alongside due process, is imperiled when colleges make policy by reacting in the face of controversy rather than according to the principles that would best serve their students and the institution in the long run.

On Tuesday, Cornell President Michael Kotlikoff announced that “All parties and social events in Interfraternity Council (IFC) houses at Cornell will be suspended for the remainder of the 2026-2027 academic year” to “provide time for a thorough review of fraternity life at Cornell to determine whether and how it can safely continue.” How this will be enforced is an open question, but at least some social events held by fraternities have an expressive component, such as the philanthropy events required by practically every national Greek organization (and, apparently, all of Cornell’s IFC fraternities).

What, if anything, constitutes a party or social event versus an expressive event? More to the point, when the university president decrees that “[t]here will be zero tolerance for violations of this directive,” would you take the risk of hosting any event or gathering, no matter how non-festive or expressive?

And who will bear the brunt of this ban? Five of the seven students accused are no longer at Cornell, including the two who were expelled, and the Chi Phi fraternity chapter at whose house the incident allegedly took place was shut down in 2024. Cornell’s punishment of the fraternity system therefore falls only on the members of the fraternities who were not involved in the incident, and which is flatly guaranteed to include a large number of individuals who can only be considered completely innocent of any wrongdoing. Many would not have even been present on campus in 2024.

That’s the reason guilt by association is so offensive to the American conception of justice: It guarantees that the innocent will be punished along with the guilty.

Nor is it defensible for Cornell to implement these restrictions in the name of “strengthening campus safety” almost two full years after it was made aware of the incident in question. If Cornell administrators truly believe the incident warranted a shutdown of all fraternity social events in the name of campus safety, waiting 23 months to do so while students remained in danger would be utterly unconscionable. Given that such a level of callousness seems unlikely, one can only conclude that the ban on social events is a move aimed at public relations rather than public safety, and one more certain to chill protected speech than it is to protect student safety.

The proverbial definition of insanity is doing the same thing over and over again and expecting a different result, yet that’s precisely what those advocating a return to a Title IX scheme that disregards both due process and freedom of expression propose to do. It won’t work, and it’s long past time for that failed experiment to be abandoned for good.

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This essay was originally published by The Dispatch on Sept. 28, 2026.

When President Donald Trump returned to office in 2025, he promised to “restore freedom of speech.” He reneged weeks later, trying to limit the Associated Press’ access over its decision not to refer to the Gulf of Mexico as the Gulf of America. And his administration has threatened regulatory action against networks over commentary by late-night comedians.

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But he made his most direct attack on free speech September 18 when he kicked reporters from CNN, MS NOW, and Politico out of the White House. The administration cited unsubstantiated “national security” concerns after originally complaining the outlets published “purposely negative stories.”

The three outlets took the White House to court last Wednesday, winning a temporary restraining order early Thursday morning. The court reaffirmed long-standing precedent in its ruling: “The loss of constitutional freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” The order lasts for 14 days, but should the court make it last while the case proceeds, Trump will be able to appeal.

Not only do the news outlets have strong constitutional grounds to stand on, but they can also point to America’s rich history of independent reporting. For nearly 130 years, reporters have worked inside the White House, and presidents of both parties have bristled at what they wrote. That friction almost always was resolved through negotiation, ground rules, and reporters standing up for one another.

Courts stepped in only when that arrangement broke down. Trump has shattered it.

A bulwark of liberty

The independent press is sewn into our country’s fabric. Thomas Jefferson famously wrote: “Were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter.” The American project, were it to succeed, required information to come from the people — not from the government.

His home state of Virginia adopted the following language in its own Declaration of Rights: “The freedom of the press is one of the greatest bulwarks of liberty, and can never be restrained but by despotic Governments.” Many other states followed suit.

But as president, Jefferson bristled at the press. In 1807, he wrote: “Nothing can now be believed which is seen in a newspaper. Truth itself becomes suspicious by being put into that polluted vehicle.” And that followed years of Federalist Party censorship under the Sedition Act. President John Adams used the law to lock up opposition printers, like Benjamin Franklin Bache, who defended the French Revolution and sharply criticized both Washington and Adams.

The public ultimately rejected the Sedition Act, and the Federalists went extinct.

Birth of the White House press corps

By the end of the 19^th century, a true White House press corps began to emerge. When a man named William “Fatty” Price started staking out staff and guests outside the White House’s North Portico, his Washington Evening Star column took off. Other reporters quickly caught on and began to chase leads on the White House grounds. A permanent White House beat was born. By early 1898, President William McKinley had given a table in the White House’s second-floor corridor to Price and his self-proclaimed “newspaper gang.” At the same time, McKinley’s staff asked reporters to stick to those “proper facilities.”

Since then, there’s been press inside the White House. That’s come with its own challenges, and many presidents have tried to limit press they found hostile.

The fact that this relationship has lasted for so long — despite many bumps in the road — points to our Constitution’s strength. It points to the perseverance of a fundamental free-speech value: We allow the people to tell the story, not the government.

Under that new setup, Price wrote, there was “no giving out of prepared news … Sometimes it’s a question of hard digging, as the miner put it, to unravel a story.”

While “hard digging” was bound to bother some presidents, the relationship was mutually beneficial. Presidents gained a regular channel to the public, while reporters gained access inside the White House, letting them independently observe and report on the presidency.

Rise of the White House Correspondents’ Association

Some tension, however, was inevitable. In 1913, President Woodrow Wilson made what he understood to be an off-the-record remark about the ongoing Mexican Revolution. When the comment appeared in a New York newspaper, Wilson was “furious” and threatened to end presidential press conferences altogether.

He didn’t. Instead, Washington correspondents proposed rules to formalize White House access, and Wilson agreed. Reporters would not quote the president without his consent, and attendance was limited to accredited journalists. Six months later, after another dispute over stock market “tipsters” crowding into Wilson’s press room, White House reporters formed their own organization to police the rules: the White House Correspondents’ Association, headed by Fatty Price.

Reporters and the president were now treating their inevitable tension as something to manage — not a reason to shut the press out. In 1926, President Calvin Coolidge told his press pool that accurate reporting of the presidency was “rather necessary to the carrying on of our republican institutions.” Coolidge didn’t think that meant dictating his own account of what happened inside the White House. He preferred to leave that work to the reporters, who could draw their own conclusions and interpretations — what Coolidge called the “art of reporting.”

Three years later, at his final press conference, Coolidge emphasized that point: “I have left the work of reporting the affairs of my administration to the experts of the press. Perhaps that is the reason that the reports have been more successful than they would have been if I had undertaken myself to direct them.”

President Franklin D. Roosevelt further empowered the White House press corps’ independence. At his first presidential press conference in 1933, FDR scrapped the practice of requiring reporters to submit written questions in advance. He understood the political risk of that move, telling reporters they would ask questions that, as he put it, “I do not want to discuss, or I am not ready to discuss, or I do not know anything about.”

He opened the floor anyway.

Eventually, however, courts had to answer the question of what would happen if a president tried to remove such access.

The courts weigh in

In the 1977 case Sherrill v. Knight, the Secret Service had denied journalist Robert Sherrill a White House press pass, citing vague security concerns. The U.S. Court of Appeals for the D.C. Circuit held that “arbitrary or content-based criteria for press pass issuance are prohibited under the first amendment.” The White House did not have to “open its doors to the press, conduct press conferences, or operate press facilities” in the first place. But once it had chosen to do so, the court said, access could not be denied arbitrarily.

If that’s the case, some might say, then what about President Barack Obama’s attempts to marginalize Fox News? What about President Joe Biden’s limits on White House press badges?

Those are fair questions. The Obama administration excluded Fox News from some interviews with a Treasury official. That was wrong. Fox News never challenged the decision in court, but Sherrill and other important precedents probably would’ve stood in the government’s way. Other major news organizations rallied behind Fox News (just as they have rallied behind CNN, MS NOW, and Politico today) by refusing to interview the Treasury official unless Fox News was let into the pool. The administration backed down.

The Biden policy was different. In 2023, the Biden administration instructed every hard-pass holder to reapply under new criteria, including full-time employment at a news organization and a Washington-area address. That was constitutional because the rules were viewpoint-neutral and applied to everyone — no matter what they published.

Press access may be a privilege, but “privilege” is not a magic word that allows the government to avoid constitutional problems. Neither is “national security” — at least not without significant proof from the government that some security interest is at stake. And Judge Timothy Kelly, the Trump appointee who just ordered the White House to reinstate the banned outlets’ access, agreed. He held that “the record lacks factual support” for Trump’s contention that revoking access will protect national security.

The First Amendment does not obligate the president to open up any area of the White House to reporters. But once the White House does create a space for the press to gather news and ask questions, it can’t exclude reporters “merely because public officials oppose the speaker’s view.” And even policies that are reasonable and neutral on their face, such as protecting national security, are unconstitutional if they lack factual support or the government uses them as a pretext to punish disfavored speakers.

That’s exactly what the Trump administration is doing here, and it hasn’t hidden its reasons. Trump announced the ban on the outlets “as a result of their constant ‘reporting’ FAKE NEWS.” He also attributed the ban to “cumulative stories over the last few years.” Vice President J.D. Vance was just as direct. He claimed that about 92 percent of the three outlets’ stories on the administration were negative and called their coverage “effectively far-left propaganda.”

Reporters belong in the people’s house

Whether these outlets are fair to the president is beside the point. Ever since Fatty Price first staked out his place on the White House beat, reporters of various persuasions have roamed the building’s halls. That’s always been a good thing. The American people benefit from seeing different accounts of what’s going on in the nation’s highest office. Judge Learned Hand put it best in a line the Sherrill court quoted: “Right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection.”

The history of the White House and its press corps is full of presidents who were tempted to do what Trump has done but didn’t. Even Jefferson, a free-press evangelist, complained that nothing in a newspaper could be believed. Whether it was Wilson threatening to end press conferences or Obama limiting Fox News’ access to pool interviews, other reporters ultimately stepped in and helped refine the arrangement. Courts were an avenue of last resort.

Ultimately, though, this isn’t just about CNN, MS NOW, and Politico. If Trump can ban any news outlet whose reporting he dislikes from the White House halls, a future Democratic president could just as easily ban Newsmax, Fox News, or Breitbart. It’s often the outlets a president perceives as most hostile to his cause that stand to reveal the most about his administration.

And those revelations are a gift to both the public and the president. They are the lifeblood of democracy, allowing the people to hold their leaders accountable and the president to improve his administration.

This piece originally appeared at The Dispatch on Sept. 25, 2026. To read the counterpoint by , “To protect legitimate speech, get serious about penalizing civil terrorism,” click here.

Defining exactly what constitutes a terrorist act continues to be maddeningly elusive to terrorism experts, international organizations, and legislators across the globe. One reason remains the impulse, by democratic and authoritarian countries alike, to redefine political dissent and low-level criminality as terrorism.

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In 1992, Alex P. Schmid, one of the world’s leading terrorism experts, proposed a short but morally clarifying definition of terrorism: “the peacetime equivalent of a war crime.” Schmid wanted to distill what made terrorism an atrocity, and he would later warn about the danger of giving national governments the power to redefine terrorism in their own self-interest. By attaching “a pejorative label for certain acts of political agitation and violence” to critics, Schmid wrote, government officials can weaponize the terrorist smear “to muzzle printed press, television and social media.”

Tal Fortgang, a legal policy fellow at the Manhattan Institute, takes the opposite approach. Rather than define terrorism precisely to avoid such authoritarian overreaches, he wants to broaden it to encompass misdemeanor offenses that make modern life more difficult. In early June, Fortgang published “Model Legislation: An Act to Combat Civil Terrorism.” His proposal aims to make political activists think twice before they engage in or help facilitate coordinated acts of civil disobedience and low-level crimes—like blocking a road, destroying property, and vandalism—by elevating them to felonies. It takes aim at precisely the kind of unlawful blocking of traffic pro-Palestinian and anti-Zionist protesters engaged in yesterday to protest Israeli Prime Minister Benjamin Netanyahu’s speech before the United Nations General Assembly in Manhattan.

His draft legislation is supposed to be a serious public policy proposal. It’s not. Instead, it threatens all Americans’ First Amendment rights, whether you’re on the left or the right.

Partisan legislation, bipartisan abuse

Fortgang’s stated legislative purpose is “to promote civil tranquility by holding those who seek to disrupt it for political purposes accountable.” What exactly is “civil tranquility”? Fortgang never defines it.

But there’s a lot of mischief lurking in that concept, considering how easy it is to “disrupt” something so nebulous as “civil tranquility” for “political purposes.” After all, protest marches disrupt civil tranquility. So do even the most tepid pro-life protests where drivers honk their horns expressing agreement that abortion is murder. Hell, a provocative op-ed or social media post arguably could upset Fortgang’s ideal of civil tranquility.

All of those examples involve core political speech protected by the First Amendment, as Fortgang would no doubt agree. As Justice William O. Douglas wrote back in 1949, “A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

Yet Fortgang’s legislative purpose runs the other direction. How comfortable would you be organizing or participating in a protest, or promoting it on social media, if it could “stir people to anger” or “induce a condition of unrest” in which some people cross the line into illegal activity? A chilling effect could result, particularly because Fortgang’s proposal also targets whoever “knowingly aids, abets, funds, organizes or otherwise facilitates” the low-level crimes he associates with civil terrorism.

Beyond Fortgang’s definitional problems lies a much bigger one: how officials will abuse his proposal as some activists cross the line into illegal conduct. Like most idealistic projects gone wrong, reasonable goals and partisan politics mix in poisonous ways.

In his Wall Street Journal op-ed, “Block a Road, Go to Prison,” Fortgang says as much. His legislative targets are “left-wing radicals” who are “trying to circumvent the political process by making life miserable until Americans cry uncle.” The “radicals” do so by “blocking roads, occupying campus spaces, vandalizing property, stealing and burning government-owned flags, and even assaulting law enforcement.”

To bring these “civil terrorists” to heel, Fortgang argues, legislators need to throw the book at them by upgrading their “favored misdemeanors to felonies when done in groups or with the intent to support criminal enterprises.”

In an America plagued by tribalism, the one thing we should be able to agree on is that public officials can and do misuse the legal system to stifle protected speech. No political party has a monopoly on censorship or weaponizing the law for partisan purposes.

Conservatives upset at pro-Palestinian or Black Lives Matter protest tactics should remember their response to Attorney General Merrick Garland’s October 2021 memo. That directive instructed the FBI to partner with state and local law enforcement on strategies to crack down on the alleged harassment and intimidation of public school officials at school board meetings by angry parents during COVID. In response, the FBI’s counterterrorism and criminal divisions created a threat tag called “EDUOFFICIALS” for investigations and assessments into alleged threats targeting teachers, school staff, school board members, and administrators.

According to FBI whistleblowers cited by House Judiciary Republicans, the FBI quickly used counterterrorism resources to investigate protected speech. In one instance, the FBI interviewed a woman who told a local school board that “we are coming for you,” because she belonged to the right-wing advocacy group Moms for Liberty and owned a gun. According to the woman, she meant Moms for Liberty was coming for school board members’ seats during the next election.

That same conflation of protected speech and low-level crimes with terrorism is already happening at the state level. In 2024, the International Center for Not-for-Profit Law (ICNL) published a report calling out this trend and the ways state officials were already abusing domestic terrorism laws to stifle First Amendment rights of speech, assembly, and petition.

Take Oklahoma as an example of the dangers created by a sprawling definition of terrorism. In the state, notes the ICNL, “a predicate offense for terrorism includes any act of violence that results in damage to property or the threat of such violence.” Armed with this statute, an Oklahoma City prosecutor in 2020 brought terrorism charges against five young defendants, including three teenagers, for setting a sheriff’s van on fire and breaking windows of a local bail bonds business at a Black Lives Matter protest. If convicted, these alleged vandals could have been sentenced to life in prison—life.

One of the five defendants charged with terrorism, Eric Christopher Ruffin, eventually reached a plea deal with the district attorney. In exchange for pleading guilty to third-degree arson, Ruffin, who continues to maintain his innocence, received a three-year deferred sentence. Ruffin’s ordeal shows how authorities can leverage terrorism charges to get defendants to plead down to lesser charges for fear of the consequences. And it raises the question: What kind of threat was Ruffin to public safety if this “terrorist” will never see the inside of a prison cell?

It’s not just people engaging in protest who need to worry, but those who support, work with, fundraise for, or donate to organizations connected to protest. The ICNL calls out Tennessee as one absurd example, because any offense is a predicate offense of terrorism in the state.

“As such, under Tennessee law,” notes the ICNL report, “knowingly providing material support or resources for an act of terrorism, such as providing a water bottle to someone involved in an unlawful sit-in that is deemed to be attempting to influence government policy by intimidation, is a felony punishable by up to 60 years in jail.”

These examples give good reason to worry that police and prosecutors across the country already have too much discretion to turn protesters who break the law into “domestic terrorists” without Fortgang’s legislative contribution. Conservatives would do well to remember that administrations come and go and political maps shift. If enacted, the type of legislation proposed by Fortgang is a loaded gun waiting to be picked up by any governor or mayor’s office and aimed directly at its political opponents.

A disproportionate response to a real problem

No one likes some idiot who lies down in the road and makes it harder to get to work or pick the kids up from school on time. But they’re not terrorists—civil or otherwise—unless you want to rob that word of all meaning.

Fortgang will no doubt argue I’m hyperventilating here. He’s anticipated these critiques before. “Civil terrorism simply refers to the illegal acts, which use the logic and tactics of terrorism without the degree of violence generally associated with the term,” Fortgang wrote in City Journal last March. “Panicking over the word ‘terrorism’ is just a knee-jerk reaction to accurate legal language.”

Yet stating “without the degree of violence” gives up the game. That’s why Schmid’s definition is so useful: “the peacetime equivalent of a war crime.”

Anyone who looked up at the New York City skyline a few weeks ago and saw the two light beams shooting up into the sky understands what true terrorism is—nearly 3,000 people murdered across lower Manhattan, at the Pentagon, and in a field in rural Pennsylvania; 168 people, including 19 children, killed by a truck bomb in Oklahoma City; mail deliveries turned into nightmarish games of peek-a-boo.

Blocking a road chanting “Free Palestine” and turning a Ryder rental truck into an improvised explosive device don’t belong on the same spectrum. Calling both terrorism isn’t a matter of degree. It’s a category error that invites censorship and repression.

Schmid’s short yet elegant definition gets the proportions correct so the response can also be proportionate. Unlike Fortgang’s “civil terrorism,” it separates real terrorists from pro-life protesters who block the sidewalk in front of an abortion clinic or pro-Palestinian protesters who block entrances to campus.

Anyone remotely reasonable understands activists who break the law deserve to be punished, sometimes harshly based on the facts. But they don’t deserve to rot behind bars or be smeared with a radioactive label associated with some of the worst people, groups, and movements in history for blocking a road, smashing windows, or scuffling with police.

Fortgang’s proposal is understandable and his targets unsympathetic. That’s what makes it so dangerous to free speech.

This essay was originally published by Reason on Aug. 27, 2026.

Later today, a federal judge in Minneapolis will hear a motion for discovery in the Minnesota 15 antifa case. If granted, it could eventually reveal just how far the tentacles of the Trump administration’s vast surveillance, harassment, and intimidation campaign against its critics in Minnesota reached — and how much of it continues today.

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In mid-June, the federal government unsealed an eight-count indictment against 15 activists for allegedly interfering, sometimes violently, with the federal immigration crackdown that roiled the Twin Cities last winter, during which federal agents shot and killed Renée Good and Alex Pretti. One of those indicted, Isaac Sant, faces two counts: conspiracy to impede or injure a federal officer and interstate stalking.

Sant will have his day in court, and if the case goes to trial, a jury will decide whether the government has proved its case beyond a reasonable doubt. But as he and his attorney mount a defense, they have filed a motion for discovery accusing the federal government of “an unprecedented campaign by DHS (Department of Homeland Security) to spy on Minnesotans,” based on the government’s own initial disclosures.

Alleging that his prosecution is the result of a political witch hunt based on First-Amendment-protected activity, Sant and his attorney, Kevin C. Riach, are asking a federal court in Minnesota to force the government to release any and all communications and materials related to the charges Sant faces. (Earlier this week, Protect Democracy filed an amicus brief in support of Sant’s discovery motion on behalf of the Cato Institute, the Society for the Rule of Law, and the Foundation for Individual Rights and Expression.)

What has already been revealed in this case conjures up the ghosts of Sen. Joseph McCarthy (R–Wisc.) and FBI Director J. Edgar Hoover. At the center of it all is Homeland Security Investigations, the DHS’ principal criminal investigative arm, which is acting more like a domestic spy agency than a law enforcement agency bound by the Constitution.

During last winter’s Operation Metro Surge, undercover HSI agents surveilled and infiltrated meetings at churches, parks, libraries, schools, and union halls and gained access to encrypted Signal chats under initiatives dubbed “Operation Keyhole,” “Operation Puppet Master,” and “Project Whipple Shield.”

In one incident in February, an undercover agent wormed their way into a meeting at the Prince of Peace Lutheran Church in Roseville, Minnesota, a suburb bordering the Twin Cities. The undercover agent recorded the license plates of activists opposing Immigration and Customs Enforcement activity and then matched the plates to their owners, creating dossiers that included names, photos, addresses, and even more intimate details, such as information about their families and employment.

“None of these individuals did anything other than engage in First Amendment speech in a church meeting room,” wrote Riach in the discovery motion. “Yet now their personal information is memorialized in a DHS dossier.”

During a recent service at the church, interim pastor Steve Sylvester told his congregation that the federal government had surveilled the church last winter. “It feels weird,” Sylvester told NPR. “It feels like I’m living in 1950s Eastern Europe.” Sylvester’s church wasn’t the only one under watch in this American remake of The Lives of Others.

In May, another undercover agent wore a wire to a training held at University Baptist Church in Minneapolis and hosted by Left Jab, a lefty mixed martial arts club dedicated to “community self-defense.” The surveillance led to some black comedy. “Due to the physicality of the event,” reads the HSI report of investigation, the undercover agent’s “concealed body-worn audio recorder erroneously fell to the floor of the gymnasium near the end of the training. UCA–5022 briefly left the gymnasium, realized she no longer had the device, and returned to the gymnasium to retrieve the device from the floor.”

But Cody Sanders, interim pastor of University Baptist, wasn’t laughing. “I do imagine people will look over their shoulder a little more and wonder, ‘Is there someone here who’s trying to gather information?’ Or when they see a strange car in the parking lot,” Sanders told NPR. “I hope we can resist the kind of suspicion that this is likely to generate.”

But that’s a feature, not a bug, of these kinds of police-state tactics. Revelations like these supercharge the corrosive power of paranoia, making people fear that something they say or someone they associate with could land them in a federal database. Constitutional rights don’t mean much if you’re afraid to exercise them.

The authoritarian tactics, however, don’t stop there. Bypassing judicial scrutiny, HSI issued administrative summonses and subpoenas targeting the financial records of labor unions and progressive nonprofits. Without the organizations’ knowledge, the agency sought more than three years’ worth of records from the Service Employees International Union, Communications Workers of America, and the International Federation of Professional and Technical Engineers. They also sought financial records from the Sunrise Movement and Voices for Racial Justice, both progressive groups.

The federal government itself ties this investigation to National Security Presidential Memorandum–7 (NSPM–7). In HSI’s own report of investigation, the synopsis states plainly that the investigation at Prince of Peace church was opened in “accordance with” the memorandum.

Issued by President Donald Trump after the murder of conservative activist Charlie Kirk, NSPM–7 explicitly places political beliefs within its domestic terrorism framework. The policy directive describes “anti-fascism” as an umbrella under which “violent and terroristic activities” occur and lists beliefs such as “anti-Americanism, anti-capitalism, and anti-Christianity,” as well as what it calls “extremism on migration, race, and gender,” as among the “common threads” animating violent conduct. It then tasks the national and local Joint Terrorism Task Forces with coordinating and supervising “a comprehensive national strategy” and directs the Justice Department to pursue prosecutions.

In her December memo implementing NSPM–7, then-Attorney General Pam Bondi addressed civil liberties concerns in a footnote. “The United States Government does not investigate, collect, or maintain information on U.S. persons solely for the purpose of monitoring activities protected by the First Amendment,” the second footnote reads. “No investigation may be opened based solely on activities protected by the First Amendment or the lawful exercise of rights secured by the Constitution or laws of the United States.”

When NSPM–7 was issued, civil liberties organizations such as FIRE warned that the policy directive and its implementation would likely lead to the feds investigating government critics for First Amendment-protected activities absent any evidence of criminal wrongdoing. That prediction is now unfortunately coming true, despite the government’s assurances it wouldn’t cross the line.

In the months and years ahead, activists, journalists, lawyers, and legislators will try to get to the bottom of NSPM-7’s vast surveillance apparatus. Time will tell how many Americans were swept into these programs without evidence of wrongdoing and how many were chilled from exercising their rights to free speech and association.

This discovery motion is one of the first attempts to help uncover the truth.

Ronnie London is general counsel and director of litigation at FIRE.

A federal appeals court held Wednesday that a New Hampshire school district likely violated the First Amendment when officials punished parents for silently donning pink “XX” wristbands at halftime — and refusing to remove them — in protest of the opposing girls’ soccer team fielding a transgender player.

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That tracks with FIRE’s amicus brief arguing the trial court’s extension of student-speech precedent to adults in public forums is unprecedented, unwarranted, and a serious threat to adults’ exercise of First Amendment rights — rights school officials shouldn’t be policing at events open to the public simply because they disagree with the message.

The court reached its decision without answering whether speech by adults at a public high school event should be governed by the First Amendment rules for public forums, or those that give schools more authority over student speech, such as Tinker v. Des Moines, Hazelwood v. Kuhlmeier, Morse v. Frederick, and B.L. v. Mahanoy. The court also declined to decide whether those student-speech rules give schools the same power over parental or other adult speech.

Rather, the court focused on what it called the narrower “question at the center of this appeal” of whether school officials violated the First Amendment when they used the district’s “Public Conduct on School Property” policy to punish parents for wearing pink “XX” wristbands to protest transgender girls playing girls’ high school sports.

On that score, the court said, “the record evidence demonstrates the likelihood that the school district imposed sanctions … because it disagreed with the protest message conveyed.” That does not square with longstanding Supreme Court law holding “the government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”

The court cited the various school officials’ reasons for sanctioning the parents, including the superintendent’s statements that the “XX” symbol conveyed an “exclusionary” message about gender that was “intimidating, threatening, harassing, and discouraging,” and those by the principal who ordered the parents to remove the wristbands, who called the symbol “hateful” and “anti-trans.” In the court’s view, those statements showed school officials were objecting to the viewpoint behind what the parents were saying.

The court also rejected the school’s argument that it had a legitimate interest in restricting the parents’ speech because it might cause a disruption, a standard schools often invoke under Tinker. The evidence showed there was no disruption until school officials chose to intervene to punish the parents. The parents “did not stage any pregame demonstrations; did not march, shout, chant, or otherwise disrupt the game;” and did not confront the opposing player. Instead, they “waited until halftime before donning the ‘XX’ wristbands in a passive, silent gesture of protest.”

There was also “no evidence of harassment, given there is no evidence … any player actually saw the wristbands.” That undercut the school district’s claim it had an affirmative duty under Title IX to protect students from the speech, especially given the later-decided Supreme Court case that recently upheld state laws restricting sports participation based on sex assigned at birth.

As the court put it, “The characteristics of the school as a place of learning reinforce that administrators cannot favor one side of a debate involving parental speech on an issue of prominent public concern, and which, in those parents’ views, concerned the safety of their children.”

Because the silent display of the “XX” symbol fell short of disruption or harassment, the appeals court held the district court was wrong to conclude those interests justified restricting the speech. It accordingly returned the case to the trial court to determine whether to grant an injunction or if relief like a declaratory judgment would suffice.

Across the country, school libraries have become a recurring front in political and cultural fights, with controversial books drawing objections from parents, activists, and public officials alike.

Let’s be clear: Parents and community members have every right to criticize what their schools make available and ask officials to reconsider particular books. That’s free speech, too.

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The problem arises when one individual or group’s political views determine which ideas students can explore in their school library. Massachusetts’ Freedom to Read Law offers a promising solution, one that FIRE has long called for: due process for books.

That means fair and clear procedures for reviewing challenged library materials. The Massachusetts law establishes significant procedural safeguards for challenges to books in the state’s public school libraries. It’s consistent with many of our recommendations, such as considering challenged works as a whole, applying legitimate educational criteria rather than political preferences, and keeping challenged books available until the review is complete.

The Freedom to Read Law also limits who may initiate a formal challenge: current students, their parents or guardians, and school staff. That helps ensure the review process is reserved for members of the school community rather than outside groups seeking to dictate what books are available to students.

Before a challenged book can be removed, the law requires notice, a public hearing, and review by a committee of school personnel. The committee must find, based on clear and convincing evidence, that the material as a whole lacks educational, literary, artistic, personal, or social value, or is not age appropriate for any student at the school.

Just as importantly, the challenged book stays on the shelf while that process plays out. Removing a book first and asking questions later can accomplish the censor’s goal before anyone has determined whether the challenge has merit.

Of course, not every decision to remove a school library book is unjustified. Schools necessarily curate their collections for reasons such as educational suitability, quality, or age appropriateness. A book might be damaged or outdated, or removed simply to make room for new volumes. But the power to curate is not a license to censor.

Massachusetts’ law strikes a good balance. It lets schools maintain age-appropriate library collections, while minimizing the risk that books will be removed for illegitimate ideological or partisan reasons.

In Board of Education v. Pico, a plurality of the Supreme Court said school boards cannot remove books simply because they dislike the ideas in them. The justices emphasized that schools must follow “established, regular, and facially unbiased procedures for the review of controversial materials.” While school officials retain significant authority to oversee library collections, that authority remains subject to the First Amendment.

The new law also says that when adding books to a collection, selected material must “be age appropriate,” “serve an educational purpose,” and “be based on the teacher’s or employee’s professional training and not on personal, political, or doctrinal views.”

In other words, the law’s demand for viewpoint neutrality runs both ways. Librarians cannot use their authority to stock shelves according to their own politics any more than school boards can use theirs to purge books because they dislike the ideas inside them.

The Freedom to Read Law also protects school employees from punishment for good-faith decisions about library materials. Those protections can help ensure that fear of political retaliation does not dictate what students can read.

As schools implement the new law, they should also follow FIRE’s recommendation that review committees issue a written decision explaining their reasons for retaining, relocating, or removing challenged material. Written decisions enable public scrutiny, create a record for judicial review, and make it harder to disguise ideological censorship as a judgment about educational value or age appropriateness.

Book challenges are not going away. Clear procedures will not eliminate disagreement over what books belong in school libraries. But Massachusetts’ approach ensures those disagreements are settled through rules designed to keep official decisions focused on legitimate educational considerations rather than politics.

Other states should take note.

When government officials threaten to sue and prosecute their constituents over speech, the public should get to see the evidence.

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Earlier this year, the City of Manton, Michigan, passed a vague resolution condemning what it alleged was “a deliberate, ongoing, and escalating campaign of cyberbullying, online harassment, and personal attacks directed at City Commissioners.” Those so-called attacks included social media posts that allegedly contained “deliberate falsehoods” or threats, or targeted commissioners in “an offensive personal manner.”

The resolution placed “the individual or individuals responsible for this conduct on formal public notice that their behavior has been observed, documented, and reviewed.” It further stated the commission may direct the city attorney to explore legal remedies, including cease-and-desist letters, referring individuals to the county prosecutor for investigation, or bringing civil lawsuits.

What were the social media posts that led commissioners to pass the resolution? We don’t know, because the city refuses to say, even after FIRE filed a public records request.

In some circumstances, online communication can cross the line into true threats or unlawful harassment. But we’re not just going to take city officials’ word for it, especially when the speech at issue criticizes those same officials, giving them a personal incentive to suppress it.

Officials inflating the definition of “threats,” “harassment,” and “bullying” to encompass constitutionally protected speech is nothing new. And the resolution itself raises red flags, making references to “personal attacks” and “false,” “misleading,” and “inflammatory” statements — categories of speech that are not, absent more, outside the First Amendment’s protection.

While the resolution references Michigan’s harassment and cyberbullying statutes and acknowledges First Amendment protection for criticizing government officials, without being able to see the speech that actually led to the resolution, the public cannot independently judge whether the city is accurately applying the First Amendment’s narrow exceptions.

As the Supreme Court has recognized, the First Amendment reflects our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” and it “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Uncomfortable or offensive commentary doesn’t lose constitutional protection simply because elected officials slap a “harassment” label on it.

So, FIRE submitted a public records request for information about the commission’s adoption, discussion, drafting, interpretation, and potential enforcement of the resolution — including copies of the social media posts that prompted it. We’re concerned that the resolution might have been issued in response to protected speech and could have a broad chilling effect on Manton residents who regularly take to social media to criticize their elected representatives. In fact, FIRE had been privately contacted by several individuals who believed the resolution was intended to do just that.

The city refused to disclose records showing what prompted or justified the resolution, citing an exemption under Michigan’s Freedom of Information Act that permits officials to withhold certain kinds of personal information. The city said the withheld records included Facebook posts and other communications containing material that was “personally and emotionally offensive” to a commissioner and that further disclosure would constitute an unwarranted invasion of the commissioner’s privacy.

The city also said it had no records indicating it had pursued any of the legal remedies contemplated by the resolution. That’s good news, but FIRE still thinks the city has some explaining to do.

The Facebook posts may be “personally and emotionally offensive” to a city official, but that doesn’t mean they reveal the sort of intimate or confidential details that Michigan’s FOIA privacy exemption protects.

As we argued in our appeal of the city’s denial of our FOIA request, the city failed to meet its burden of proving that the withheld records are exempt from disclosure under Michigan law. The relevant exemption requires the government to prove both that the requested records are “of a personal nature” and, importantly, that the release of those records would constitute a “clearly unwarranted invasion of privacy.”

Even assuming that the withheld records are “of a personal nature” within the meaning of the law, the city can’t establish that releasing them would be a clearly unwarranted invasion of privacy.

First, to the extent any of the withheld records include publicly available social media posts, it’s hard to see how withholding them serves any privacy interest. The cat’s already out of the bag.

More importantly, those records would contribute significantly to public understanding of the city’s actions — which is the purpose of FOIA — and may be one of the few ways Manton residents can actually learn what sort of speech the city believes warrants legal action.

As we told the city: “The requested information forms the asserted factual basis for an official resolution in which the City makes serious allegations about the speech and conduct of members of the public and announces its intent to pursue legal remedies against them and potentially others.” How is the public supposed to meaningfully evaluate the city’s actions — including whether it is respecting First Amendment limits on its authority — without access to the communications on which they are based?

The city commission invoked particular communications to justify action against its residents. It can’t now hide that information from public scrutiny just because the contents are “personally and emotionally offensive” to a public official.

The city has 10 business days to respond to our appeal.