For the second year in a row, Harvard University is ranked dead last among universities and colleges on the annual survey of free speech on campuses by the Foundation for Individual Rights and Expression (FIRE). Harvard shares a score of 0.00 with Columbia University. They are followed by New York University, University of Pennsylvania and Barnard College.
In my book โThe Indispensable Right: Free Speech in an Age of Rage,โ I discuss free speech on campuses and note that public universities could prove the last line of defense for this right. It is not that faculty members are necessarily any more protective of free speech or intellectual diversity at these schools. However, they are directly subject to the First Amendment as state schools and thus can be taken to court more readily for denials of the right.
Conversely, at schools like Harvard, Columbia, Penn, and NYU, the faculty appears unconcerned about their dismal records on free speech. There is still a growing anti-free speech movement on our campuses. It is notable that these schools also have largely purged conservative and Republican faculty from their ranks. A past survey found that over 75 percent of faculty identify as liberal or very liberal. Another survey found that many departments do not have a single Republican.
I was disappointed that my alma mater University of Chicago has fallen from number 1 to 44, though it still gets a shout out from FIRE as being a consistently strong free speech environment. The concerning fall has occurred under with the presidency of Armand Paul Alivisatos. He replaced one of the greatest advocates of free speech in academia, the late Robert Zimmer.
In the letter, the university declared that โour commitment to academic freedom means that we do not support so-called โtrigger warnings,โ we do not cancel invited speakers because their topics might prove controversial, and we do not condone the creation of intellectual โsafe spacesโ where individuals can retreat from ideas and perspectives at odds with their own.โ
It was a moment of clarity that is missing in todayโs environment of speech codes, microaggressions, and cancel campaigns. When Zimmer stepped down in 2021, there was a virtual panic in the free speech community. He was our champion and placed one of the premier academic institutions in the world on the side of free speech.
Notably, Barnard College (unlike the other schools at the bottom) has joined other schools in adopting the Chicago Principles. It released a statement committing itself to a new course. We will have to wait to see if faculty will honor such a commitment.
George Washington University, where I teach, is 161st out of 251 schools with a below average ranking. What was surprising this year were the schools receiving a โwarningโ about anti-free speech policies.ย They include Pepperdine University, Hillsdale College, and Brigham Young University. FIRE found that all โhave policies that clearly and consistently stateโ that they prioritize โother values over a commitment to freedom of speech.โย The President of Hillsdale responded in this column.
If there will be substantial improvements in the anti-free speech environment in higher education in private colleges, they will only come from donors refusing to support these schools until they change their policies and culture. Administrators and faculty feel little pressure to reverse these trends. However, they will respond if their intolerance begins to threaten their own budgets and departments.
Higher education has alreadyย plunged in trust among citizensย under the current administrators and faculty at our colleges and universities. They are destroying the very institutions that sustain them. In the meantime, public universities can be a strong line of defense for free speech, offering students not just free speech environments but the direct protection of the First Amendment. What is missing is greater diversity of viewpoints on faculties. I have written about how taxpayers and legislators can exercise their own power to demand more diversified and tolerant environments at these schools.
While some professors have argued that free speech and intellectual diversity are not essential to higher education, most of the public disagrees and has a right to expect a diverse and tolerant environment at state-supported schools.
In my book and past congressional testimony, I have also encouraged Congress to adopt ten basic prerequisites for federal funding for colleges and universities on free speech. If these schools want to continue to deny free speech to students and faculty, they should do so with their own funds and contributions from donors who share their anti-free speech agendas. Taxpayers should not be supporting schools which deny a right considered โindispensableโ to our constitution and culture.
I previously wrote how a Harris-Walz Administration would be a nightmare for free speech. Both candidates have shown pronounced anti-free speech values. Now, X owner Elon Musk and former independent presidential candidate Robert F. Kennedy Jr. have posted a Harris interview to show the depths of the hostility of Harris to unfettered free speech. I have long argued that Trump and the third-party candidates should make free speech a central issue in this campaign. That has not happened. Kennedy was the only candidate who was substantially and regularly talking about free speech in this election. Yet, Musk and Kennedy are still trying to raise the chilling potential of a Harris-Walz Administration.
In my book โThe Indispensable Right: Free Speech in an Age of Rage,โ I discuss how the Biden-Harris Administration has proven to be the most anti-free speech administration since John Adams. That includes a massive censorship system described by one federal judge as perfectly โOrwellian.โ
In the CNN interview, Harris displays many of the anti-free speech inclinations discussed earlier. She strongly suggests that X should be shut down if it does not yield to demands for speech regulation.
What is most chilling is how censorship and closure are Harrisโs default positions when faced with unfettered speech. She declares to CNN that such unregulated free speech โhas to stopโ and that there is a danger to the country when people are allowed to โdirectly speak[] to millions and millions of people without any level of oversight and regulation.โ
Harris discussed her view that then-President Trumpโs Twitter account should be shut down because the public had to be protected from harmful viewpoints.
โAnd when youโre talking about Donald Trump, he has 65 million Twitter followers, he has proven himself to be willing to obstruct justice โ just ask Bob Mueller. You can look at the manifesto from the shooter in El Paso to know that what Donald Trump says on Twitter impacts peoplesโ perceptions about what they should and should not do.โ
Harris demanded that Trumpโs account โshould be taken downโ and that there be uniformity in the censorship of American citizens:
โAnd the bottom line is that you canโt say that you have one rule for Facebook and you have a different rule for Twitter. The same rule has to apply, which is that there has to be a responsibility that is placed on these social media sites to understand their powerโฆ They are speaking to millions of people without any level of oversight or regulation. And that has to stop.โ
In other words, free speech should be set to the lowest common denominator of speech regulation to protect citizens from dangerous viewpoints. Harrisโs views have been echoed by many Democratic leaders, including Hillary Clinton who (after Musk purchased Twitter)ย called upon European censorsย to force him to censor American citizens under the infamous Digital Services Act (DSA).
Other Democratic leaders haveย praised Brazilย for banning X after Musk balked at censoring conservatives at the demand of the socialist government. Brazil is where this anti-free speech movement is clearly heading and could prove a critical testing ground for national bans on sites which refuse to engage in comprehensive censorship. As Harris clearly states in the CNN interview, there cannot be โone rule for Facebook and you have a different rule for Twitter.โ Rather, everyone must censor or face imminent government shutdowns.
The โjoyโ being sold by Harris includes the promise of the removal of viewpoints that many on the left feel are intolerable or triggering on social media. Where Biden was viewed as an opportunist in embracing censorship, Harris is a true believer.ย Like Walz, she has long espoused a shockingly narrow view of free speech that is reflective of the wider anti-free speech movement in higher education.
Harris often speaks of free speech as if it is a privilege bestowed by the government like a license and that you can be taken off the road if you are viewed as a reckless driver.
Trump and the third-party candidates are clearly not forcing Harris to address her record on free speech. Yet, polls show that the majority of Americans still oppose censorship and favor free speech.
In my book, I propose various steps to restore free speech in America, including a law that would bar federal funds for censorship, including grants and other funding that target individuals and sites over the content of their views. The government can still speak in its own voice, and it can still prosecute those who commit crimes on the Internet or engage in criminal conspiracies. Harris should be asked if she would oppose such legislation.
For free speech advocates, the 2024 election is looking strikingly similar to the election of 1800. One of the greatest villains in our history discussed in my book was President John Adams, who used the Alien and Sedition Acts to arrest his political opponents โ including journalists, members of Congress and others. Many of those prosecuted by the Adams administration were Jeffersonians. In the election of 1800, Thomas Jefferson ran on the issue and defeated Adams.
It was the only presidential election in our history where free speech was a central issue for voters. It should be again. While democracy is really not on the ballot this election, free speech is.
Brazil has not just banned X (formerly Twitter) from the entire country, but citizens will now beย fined $9000 a dayย (more than the average salary in the country) for using VPNs to access the platform. X is the main source of news for Brazilians, who will now be left with government-approved sources or face financial ruin in seeking unfettered information.
The Guardian is reportingย that the confiscatory fines are part of a comprehensive crackdown on efforts to get news through X, including ordering all Apple stores to remove X from new phones. The move puts Brazil with China in the effort to create a wall of censorship between citizens and unregulated information. For the anti-free speech movement, Brazil is a key testing ground for where the movement is heading next. European censors areย arresting CEOs like Pavel Durovย whileย threatening Elon Musk.
However, it is Brazil that foreshadows the brave new world of censorship where entire nations will block access to sites committed to free speech values or unfettered news. If successful, the Brazilian model is likely to be replicated by other countries.
The reason is that censorship is not working. As discussed in my bookย โThe Indispensable Right: Free Speech in an Age of Rage,โย we have never seen the current alliance of government, corporate, academic, and media interest against free speech. Yet, citizens are not buying it. Despite unrelenting attacks and demonizing media coverage, citizens are still using X and resisting censorship. That was certainly the case in Brazil where citizens preferred X to regulated news sources. The solution is now to threaten citizens with utter ruin if they seek unfettered news.
The question is whether Brazilโs leftist government can get away with this. The conflict began with demands to censor supporters of the conservative former president Jair Bolsonaro. When X refused the sweeping demands for censorship, including the demand to name a legal representative who could be arrested for refusing to censor users, the courts moved toward this national ban.
The man behind the effort is Justice Alexandre de Moraes, who has aggressively used censorship to combat anything that he or the government deems โfake newsโ or disinformation. With Socialist President Luiz Inรกcio Lula da Silva, they are the dream team of the anti-free speech movement.
Justice Alexandre de Moraes
Minnesota Attorney General Keith Ellison responded to the ban with a posting declaring โObrigado Brasil!โ or โThanks, Brazil!โ Ironically, he did so on X.
Ellison previously praised the virulently anti-free speech group Antifa and promised that it would โstrike fear in the heartโ of Donald Trump. This was after Antifa had been involved in numerous acts of violence and its website was banned in Germany. It is at its base a movement at war with free speech, defining the right itself as a tool of oppression. That purpose is evident in what is called the โbibleโ of the Antifa movement: Rutgers Professor Mark Brayโsย Antifa: The Anti-Fascist Handbook.
Bray emphasizes the struggle of the movement against free speech: โAt the heart of the anti-fascist outlook is a rejection of the classical liberal phrase that says, โI disapprove of what you say but I will defend to the death your right to say it.โโ Bray admits that โmost Americans in Antifa have been anarchists or antiauthoritarian communistsโฆ ย From that standpoint, โfree speechโ as such is merely a bourgeois fantasy unworthy of consideration.โ
The question is whether Brazil will become a nightmare for free speech around the world as other nations seek to force citizens to read and hear news from approved, state-monitored sites.
We haveย previouslyย discussed the anti-free speech views of Clintonโs former Labor Secretary, Robert Reich, who has tried to sell citizens on the perfectly Orwellian view thatย more freedom means tyrannyย when it comes to the freedom of expression. He alsoย demandedย that former president Donald Trump be banned from ballots as a โtraitorโ โ all in the name of protecting democracy from itself. Last week, Reichย wroteย a column declaring Elon Musk โout of controlโ in his refusal to censor citizens and appeared to call for his arrest.
Reich has long been a prominent voice in the anti-free speech movement discussed in my recent book, The Indispensable Right: Free Speech in an Age of Rage. Indeed, he has given a voice to the rage in calling for others to be silenced or arrested.
Elon Musk has long been the primary target of Reich and his allies after dismantling the censorship system at Twitter, now X. Reich called Muskโs purchase of Twitter with a pledge to reduce censorship to be โdangerous nonsense.โ
Notably, Reichโs friend, Hillary Clinton, was one of the first to call for a crackdown on Musk after his purchase of Twitter. Hillary Clinton and other Democratic figures turned to Europe and called upon them to use their Digital Services Act to force censorship against Americans.
Reich has always shown a chilling fluidity in how free speech is protected and argued that public interest should be able to trump the right of any citizens in espousing views that he believes are dangerous.
In denouncing Musk, Reich encouraged a campaign to counter his efforts to resist censorship. He wrote that Musk โmay be the richest man in the world. He may own one of the worldโs most influential social media platforms. But that doesnโt mean weโre powerless to stop him.โ
Like Hillary Clinton, Reich is calling on foreign governments and censors to silence American citizens including Musk: โRegulators around the world should threaten Musk with arrest if he doesnโt stop disseminating lies and hate on X.โ
He even appears willing to undermine national security programs to stop unfettered free speech. He called for the U.S. government to cut off contracts with his companies despite their critical role in various national security efforts, including theย possible rescue of the stranded two astronauts currently in space. None of that matters to Reich who appears to view free speech as a greater threat to our nation:ย โWhy is the US government allowing Muskโs satellites and rocket launchers to become crucial to the nationโs security when heโs shown utter disregard for the public interest? Why give Musk more economic power when he repeatedly abuses it and demonstrates contempt for the public good?โ
Reichโs call to regulate speech in the public interest is the Sirenโs Call of every authoritarian regime in history. He will presumably tell us what speech is no longer tolerable for public policy reasons. Our โIndispensable Rightโ will, according to Reich, be safely in the hands of the European censors who can protect us from errant and dangerous thoughts.
As he explainedย earlier, โthe kinds of things that we do about this is, focus less on thinking about free speech, but thinking about how the times have changed.โ In this way, speech regulations can keep us โmoving towards how we recommend content and โฆ how we direct peopleโs attention is leading to a healthy public conversation that is most participatory.โ
The โhealthy public conversationโ with Robert Reich increasingly appears to be his talking and the rest of us listening.
Jonathan Turley is a Fox News Media contributor and the Shapiro Professor of Public Interest Law at George Washington University. He is the author of โThe Indispensable Right: Free Speech in an Age of Rageโ (Simon & Schuster, June 18, 2024).
Effective July 2025, teacher licensing rules passed last year in Minnesota under Democrat Gov. Tim Walz will ban practicing Christians, Jews, and Muslims from teaching in public schools. Walz is now the presidential running mate of current U.S. Vice President Kamala Harris. His resumeย includesย a stint as a high school social studies teacher who sponsored a student queer sex club in 1999.
Starting next July, Minnesota agencies controlled by Walz appointees will require teacher license applicants to affirm transgenderism and race Marxism. Without a teaching license, individuals cannot work in Minnesota public schools, nor in the private schools that require such licenses. Theย latest versionย of theย regulationsย requires teachers to โaffirmโ studentsโ โgender identityโ and โsexual orientationโ to receive a Minnesota teaching license:
The teacher fosters an environment that ensures student identities such as race/ethnicity, national origin, language,ย sex and gender, gender identity, sexual orientation, physical/developmental/emotional ability, socioeconomic class, and religious beliefs are historically and socially contextualized,ย affirmed, and incorporated into a learning environment where students are empowered to learn and contribute as their whole selves (emphasis added).
Last spring, administrative law judges finallyย approvedย these pending changes The Federalistย reportedย one month before they were finalized. Universities are also affected: starting in 2025, they must either train their teaching students to fulfill these anti-Christian requirements or be banned from offering state licensing โ and thus the ticket to the vast majority of teaching jobs โ to their students.
Since 2020 in Minnesota, teachers renewing their licenses, which is usually required every five to seven years, mustย demonstrate โcultural competencyโ similar to the requirements imposed in 2025 on new teaching licensees. Teachers renewing their licensing must โShow[] evidence of self-reflection and discussion ofโ topics that include โGender Identity, Including Transgender Studentsโ and โSexual Orientation.โ They must also show they understand โbiasโ in themselves, and their students related to race, sexual orientation, gender identity, and other cultural Marxist categories.
Queer Totalitarianism Forces Religion into the Closet
Some Christian universities in the state will obey these regulations, said Doug Seaton, founder and president of the nonprofit Upper Midwest Law Center, located in Minneapolis. Some Christian universities will not, but so far, those UMLC has reached out to that plan to disobey these state commands to violate their faith will do so quietly and only sue when the state finds and punishes them, Seaton said.
โSome are not willing to do it [file a lawsuit] until they actually have their college programs tagged for noncompliance, or their graduates actually not licensed as a consequence of not adhering to these standards,โ he said in a phone interview. This comes even though UMLC, as a public interest law firm, would undertake the litigation and pay the vast majority of its expenses thanks to their donors. Three Minnesota Christian Universities The Federalist reached out to did not return inquiries on whether they would enforce the new licensing rules.
Faithful members of the worldโs largest and oldest religions cannot in good conscience โaffirmโ non-heterosexual sexual orientations and gender identities. Christians who do so publicly deny their faith, something Jesus Christย said endangersย a personโs soul and eternal bliss after death: โTherefore whoever confesses Me before men, him I will also confess before My Father who is in heaven. But whoever denies Me before men, him I will also deny before My Father who is in heavenโ (Matthew 10:32, 33).
Minnesotaโs teacher requirements therefore force Christians, Muslims, Jews, and adherents to other religions to violate their faith and endanger their hopes of eternal life in order to work in government-run schools.
Forcing people to testify to beliefs they donโt hold, often called compelled speech, is clearly unconstitutional, he said: โTheyโre essentially requiring people to affirm these ideas that they donโt really believe, in many cases, as a condition of being a public-school teacher or being part of a program to be a licensed public-school teacher. You canโt force that kind of speech; you canโt require adherence to ideas that arenโt believed.โ
The 13-member board that made these changes is appointed by the governor, whom for the last six years has been Walz. So, Walz is poised to make similar bigoted, totalitarian, and unconstitutional policies across the United States should he be elected vice president.
Marinating Kids in Anti-American Propaganda
As Iย reportedย last year, Minnesotaโs new teacher requirements also โrequire teachers to agree that the taxpayers supplying their salaries and the people who created the school system that will employ them are racists and affirm other cultural Marxist beliefs.โ
โFor example, Standard 6C requires that โThe teacher understands the historical foundations of education in Minnesota โฆ that have and continue to create inequitable opportunities, experiences, and outcomes for learners โฆ especially for โฆ students historically denied access, underserved, or underrepresented on the basis of race โฆ gender, sexual orientation.’โ That โstandardโ remains in the latest version of the regulations, under the same number.
Recently in The Wall Street Journal, Katherine Kerstenย examinedย curricular changes Minnesota is making under Walzโs administration in โethnic studiesโ that mirror these changes to teacher licensing requirements.
Mr. Walz signed the law establishing this initiative in 2023. The departmentโsย standards and benchmarks, approved in January, require first-graders toโidentify examples of ethnicity, equality, liberation and systems of powerโ and โuse those examples to construct meanings for those terms.โ
Fourth graders must โidentify the processes and impacts of colonization and examine how discrimination and the oppression of various racial and ethnic groups have produced resistance movements.โ High-school students are told to โdevelop an analysis of racial capitalismโ and โanti-Blacknessโ and are taught to view themselves as members of โracialized hierarchiesโ based on โdominant European beauty standards.โ
The new teacher requirements are also rife with demands to agree with race Marxism, as Child Protection League analyses detail. Below are just a few examples.
Walzโsย firstย executive order as governor was to install a โdiversity, equity, and inclusion,โ or DEI, council. Former Minnesota state legislator Allen Quistย notesย that โThe radical Walz administration Department of Human Rights has also forced school districts to report student discipline by race and require equal outcomes (equity) in discipline. The results have been horrific chaos and violence.โ
During Walzโs governorship, student achievement in Minnesota has gone from among the best in the nation to declining more sharply than anywhere else in the nation, according to the Minneapolis-based Center for the American Experiment. The most recent scores show Minnesota fourth graders dipping below the national average in reading for the first time ever recorded on the well-respected Nationโs Report Card.
Research has found for decades that there is no link between teacher certification and student achievement. People who enter teaching with a degree other than in education tend to have significantly higher personal and student academic performance.
Joy Pullmann is executive editor of The Federalist. Her new book with Regnery is “False Flag: Why Queer Politics Mean the End of America.” A happy wife and the mother of six children, her ebooks include “Classic Books For Young Children,” and “101 Strategies For Living Well Amid Inflation.” An 18-year education and politics reporter, Joy has testified before nearly two dozen legislatures on education policy and appeared on major media including Tucker Carlson, CNN, Fox News, OANN, NewsMax, Ben Shapiro, and Dennis Prager. Joy is a grateful graduate of the Hillsdale College honors and journalism programs who identifies as native American and gender natural. Joy is also the cofounder of a high-performing Christian classical school and the author and coauthor of classical curricula. Her traditionally published books also include “The Education Invasion: How Common Core Fights Parents for Control of American Kids,” from Encounter Books.
Below is my column in the New York Post on the withdrawal of Robert Kennedy, Jr. from the presidential race and his endorsement of former President Donald Trump. Kennedyโs speech resonated with many long-time Democrats who have found themselves estranged from the party. While Kennedy remains an independent, it is a cautionary tale that is being missed in the โjoyโ theme of the Democratic National Convention. The fact is that new Republicans are often not the product of ideology and association but anxiety and exclusion. Democrats make Republicans.
Here is the column:
The withdrawal of Robert F. Kennedy Jr. from the presidential race andย his endorsement of former President Donald Trumpย was yet another extraordinary moment in an election that has been anything but predictable. Only a year ago, it would have been unthinkable that a sitting president would be effectively forced off a ticket and replaced by a candidate who did not secure a single vote for president.
Now, the nephew of John F. Kennedy and son of the Robert F. Kennedy has not just withdrawn from the Democratic Party but endorsed the Republican nominee. Amidst all of the claimed โjoyโ of the Democratic National Convention, there is a sobering reality that is being ignored by the ecstatic press and pundits: this is how Democrats make Republicans.
There is an old expression that โa conservative is a liberal who has been mugged.โ
Irving Kristol explained the neoconservative movement was built by Democrats โmugged by reality.โ
Kennedy has not become a Republican but rather joined the roughly half of Americans now identifying as independents. While this country is solidly under the hold of a duopoly of power in the two main parties, only 25% of the country identify as Democrats, and 25% as Republicans.
Kennedyโs departure from the Democrats has been mocked in the press. However, when he spoke on his withdrawal, many of us who have been lifetime members of the party identified with his remarks.
I come from a politically active liberal Democratic family in Chicago. I spent much of my life working for liberals since I first came to Washington as a Democratic House page in the 1970s. I did stints on the Hill or on campaigns with Democrats ranging from Rep. Sid Yates (Ill.) to Sen. William Proxmire (Wis.) to Mo Udall (Arz.). I even worked on the campaign and ran for delegate for RFK Jr.โs uncle, Sen. Ted Kennedy.
Then the party changed. Where once they defended free speech, Democrats have rallied behind censorship and blacklisting of those with opposing views. They have sought to block dozens of Republicans from ballots, including former President Trump. To make matters worse, they have done so in the supposed name of democracy.
Those actions were raised by Kennedy in his powerful and poignant withdrawal speech. He detailed how the Democratic party moved to stop him from running against President Biden in the primary, including efforts to block him from ballots. It was an ironic moment. After harassing candidates like RFK and Minnesota Rep. Dean Phillips, the Democratic leadership then simply installed their choice at the convention in an unprecedented bait-and-switch.
There could have been a substantive primary that exposed the diminished mental state of Biden and allowed for a democratic choice on the best nominee. Instead, the Democrats prevented such choices from being made and selected a leader with all of the transparency and deliberation of a party Congress in China. Kennedy said that the Democratic Party has virtuallyย shoved him and other voters into the arms of Donald Trumpย and the Republican Party.
Kennedy observed thatย โI began this journey as a Democrat, the party of my father, my uncle, the party which I pledged my own allegiance to long before I was old enough to vote.โ
He said that his party was the one that championed free speech, government transparency, and opposed unjust wars. โTrue to its name, it was the party of democracy.โ
He said that the party has turned its back on all of the values that once defined it. For former Democrats like Kennedy, running on โjoyโ is no substitute for these profound changes in the party.
Indeed, the DNC bordered on the creepy as speaker after speaker sold the idea that, if voters could just swallow the Harris candidacy, they would immediately experience joy like some political prozac commercial.
It is not clear whether the red pill/blue pill pitch will be enough, or whether Kennedyโs endorsement will turn the critical votes in swing states.
However, the DNC showed how Democrats make Republicans. The unrelenting identity politics and claims of defending democracy (while opposing democratic choice) only reaffirmed for many that there is no longer a big tent in the party of Roosevelt and Kennedy. There is a serious question whether John F. Kennedy would recognize or support the current Democratic Party. It now rejects many of his core, mainstream values. His nephew highlighted the irony of how the party not only worked to block the ability of opponents to challenge President Biden but worked to โconceal the cognitive decline of the sitting president.โ
Even the Washington Post recently admitted that โthe 81-year-old had shown signs of slipping for a long time, but his inner circle worked to conceal his decline.โ However, the Post failed to note that Vice President Kamala Harris was part of that inner circle. Indeed, she has been touting her close work with Biden in her campaign.
There is little recognition that, if true, it means that Harris, the White House, and leading Democrats lied to the public about Bidenโs mental decline for their own political interests.
For Kennedy, it was all too much โand, most sadly โฆ in the name of saving Democracy, the Democratic Party set itself to dismantling it, lacking confidence in its candidate, that its candidate could win in a fair election at the voting booth.โ
We have previously discussed the cancel campaigns targeting JK Rowling, the author of the Harry Potter series. Rowling was not only the greatest selling author of all time but a wildly popular writer until she publicly opposed certain transgender policies as inimical to the advances in feminism. Now, she is the target of a lawsuit by Algerian boxer Imane Khelif, the gold-medal winning athlete who had previously failed a gender test to confirm that she is a female fighter. We previously discussed that global debate, but Khelif is now accusing Rowling out of many thousands of critics of being a cyberbully. X owner Elon Musk has also been named in the lawsuit.
Sheย held her groundย after Scotland passed a draconian law, theย Hate Crime and Public Order (Scotland) Act 2021.ย The new crime under the law covers โstirring up hatredโ relating to age, disability, religion, sexual orientation, transgender identity or being intersex. That crime covers insulting comments and anything โthat a reasonable person would consider to be threatening or abusive.โ
Rowling has been the target of a global campaign due to her rejection of transgender laws and policies. Many on the left have unleashed book bans and burnings. I have been critical of that campaign. Even third parties who have supported Rowlingโs right to free speech have been targeted in cancel campaigns.
Rowling previously posted various responses to the controversy on her X account on August 7,ย including: โFor the record, bombarding me with pictures of athletic women to โteachโ me that women donโt all look like Barbie is like spamming me with pics of differently shaped potatoes to prove rocks are edible. I can still see the difference and you look frankly bonkers.โ
She later also posted: โCommentators pretending critics of the IOCโs reliance on documents rather than sex testing think Khelif is trans are straw-manning. I donโt claim Khelif is trans. My objection, and that of many others, is to male violence against women becoming an Olympic sport.โ
She furtherย wrote on Xย how she was concerned over both boxers challenged over their gender at the Olympics: โWhat will it take to end this insanity? A female boxer left with life-altering injuries? A female boxer killed?โ
France has eviscerated free speech protections over the last few decades with speech criminalization laws. There is some question whether the French laws would apply to tweets made outside of the country. These laws criminalize speech under vague standards referring to โincitingโ or โintimidatingโ others based on race or religion. For example, fashion designer John Galliano has been found guilty in a French court on charges of making anti-Semitic comments against at least three people in a Paris bar. At his sentencing, Judge Anne Marie Sauteraud read out a list of the bad words used by Galliano to Geraldine Bloch and Philippe Virgitti, including using โdirty whoreโ in criticism.
In another case, the father of French conservative presidential candidate Marine Le Pen was fined because he had called people from the Roma minority โsmelly.โ A French teenager was charged for criticizing Islam as a โreligion of hate.โ
Rowling has every right to be heard on the Olympic boxing controversy. This debate raises core issues that touch on a wide array of political speech. Khelif has the ability to refute these claims through the exercise of her own free speech. As in the past battles fought by Rowley, her effort to advocate for womenโs rights is also a major test over free speech in Europe.
The crackdown on free speech continues in the United Kingdom as officials use recent rioting to justify a roundup of citizens who they view as โpushing harmful and hateful beliefs.โ The government is ramping up arrests of those with โextremist ideologiesโ in the latest wave of arrests.ย The crackdown includes those accused of misogynist views. In my book,ย โThe Indispensable Right: Free Speech in an Age of Rage,โย I discuss how difficult it is to get a free people to give up freedoms. They have to be afraid, very afraid. For that reason, governments tend to attack free speech during periods of public anger or fear. That pattern is playing out, yet again, in the United Kingdom. The recent anti-immigration riots have given officials a renewed opportunity to use anti-free speech laws to target those with opposing views. For years, I have been writing about the decline of free speech in the United Kingdom and the steady stream of arrests. A man wasย convicted for sending a tweet while drunk referring to dead soldiers. Another was arrested for anย anti-police t-shirt.ย Another was arrested forย calling the Irish boyfriend of his ex-girlfriend a โleprechaun.โย Yet another was arrested forย singing โKung Fu Fighting.โย A teenager was arrested forย protesting outside of a Scientology centerย with a sign calling the religion a โcult.โ Last year, Nicholas Brock, 52, was convicted of a thought crime in Maidenhead, Berkshire. The neo-Nazi was given a four-year sentence for what the court called his โtoxic ideologyโ based on the contents of the home he shared with his mother in Maidenhead, Berkshire.
While most of us find Brockโs views repellent and hateful, they were confined to his head and his room. Yet, Judge Peter Lodder QC dismissed free speech or free thought concerns with a truly Orwellian statement: โI do not sentence you for your political views, but the extremity of those views informs the assessment of dangerousness.โ
Lodder lambasted Brock for holding Nazi and other hateful values:
โ[i]t is clear that you are a right-wing extremist, your enthusiasm for this repulsive and toxic ideology is demonstrated by the graphic and racist iconography which you have studied and appeared to share with othersโฆโ
Even though Lodder agreed that the defendant was older, had limited mobility, and โthere was no evidence of disseminating to others,โ he still sent him to prison for holding extremist views.
After the sentencing Detective Chief Superintendent Kath Barnes, Head of Counter Terrorism Policing South East (CTPSE), warned others that he was going to prison because he โshowed a clear right-wing ideology with the evidence seized from his possessions during the investigationโฆ.We are committed to tackling all forms of toxic ideology which has the potential to threaten public safety and security.โ
โToxic ideologyโ also appears to be the target of Irelandโs proposed Criminal Justice (Incitement to Violence or Hatred and Hate Offences) law. It covers the possession of material deemed hateful. Theย lawย is a free speech nightmare.ย The law makes it a crime to possess โharmful materialโ as well as โcondoning, denying or grossly trivializing genocide, war crimes, crimes against humanity and crimes against peace.โ The law expressly states the intent to combat โforms and expressions of racism and xenophobia by means of criminal law.โ
The Brock case proved, as feared, a harbinger of what was to come. The home secretary, Yvette Cooper, hasย vowedย to crack down on people โpushing harmful and hateful beliefs.โ That includes what she calls extreme misogyny.
Cooper said that the problem revealed by the recent protests was โgaps in the current systemโ and stressed that โitโs not OK any more to ignore the massive growing threat caused by online hatred towards women and for us to ignore it because weโre worried about the line, rather than making sure the line is in the right place as we would do with any other extremist ideology.โ
She added:ย โFor too long governments have failed to address the rise in extremism, both online and on our streets, and weโve seen the number of young people radicalized online grow. Hateful incitement of all kinds fractures and frays the very fabric of our communities and our democracy.โ
For free speech advocates, it is chilling to hear UK officials state that they have been too lax on free speech in the past and must now take censorship and arrests more aggressively. The United Kingdom has a myriad of laws criminalizing speech with vague terms allowing for arbitrary enforcement. For example,ย Public Order Act 1986ย prohibits any expressions of racial hatred, defined as hatred against a group of persons by reason of the groupโs color, race, nationality (including citizenship) or ethnic or national origins.
Section 18 of the Act specifically includes any speech that is โthreatening, abusive, or insulting.โ An arrest does not have to be based on a showing of intent to โstir up racial hatred,โ but can merely be based on a charge that โhaving regard to all the circumstances racial hatred is likely to be stirred up thereby.โ
For those Americans who have remained silent during as this anti-free speech movement grows, you need only to look to the United Kingdom to see what this movement means for our โindispensable right.โ That wave has now reached our shores, and it will require each one of us to defend a right that defines us all.
Below is my column in the New York Post on the complaints of Jewish groups that they were denied permits to march in Chicago during the Democratic National Convention while other groups, including pro-Palestinian groups, were allowed to do so. There is a crushing irony in Chicago given the decision in 1978 to allow Nazis to march in nearby Skokie, but Jews could not march in Chicago in 2024.
Here is the column:
This week, citizens will gather in Chicago during theย Democratic National Conventionย to voice their support for Israel and protest the abuses of Hamas. However, this largely Jewish gathering will not be marching. Instead, they will gather on a small private lot blocks away from the convention as thousands of pro-Palestinian protesters march through the streets. The reason is that Democratic Mayor Brandon Johnson has refused to grant their request for a permit.
While pro-Palestinian protesters have been given an array of accommodations by the city (and receivedย a shoutout from President Joe Bidenย in his convention address), the Jewish protesters are only able to gather due to the donation of a private lot by an owner for their use. Even as pro-Palestinian protesters veered off approved routes andย tore down security fencing, it will be the Jewish protesters who will reportedly remain confined to this private lot under the watchful eye of the Chicago Police Department.
Besides pro-Palestinian protesters, pro-abortion protesters have been allowed to march, and Planned Parenthood is celebrating the nomination of Vice President Kamala Harris with free abortions.
So Jewish protesters get to watch as favored groups parade in abortion pill outfits, but they cannot march with the images of the Hamas hostages in Gaza.
Josh Weiner, co-founder of Chicago Jewish Alliance, confirmed that the groupย was not granted permits, so all they could do is walk around such approved protests to โmake our presence felt.โHeย addedย thatย โpro-Palestine protesters have gotten multiple permits, including a march, which seems to be a little bit weighted on one side.โ
For Chicagoans like myself, the treatment of the pro-Israel protesters at the DNC could not be more ironic or disturbing. Forty-six years ago, Nazis were allowed to march through Skokie, Illinois, despite the presence of thousands of Holocaust survivors in the largely Jewish city. The Skokie case is considered one of the milestone moments for free speech, allowing a small group of anti-Semites and racists to march despite the overwhelming opposition in the public. The Nazis wereย outnumbered 70-1ย by counterprotesters and soon receded into obscurity.
Now roughly five decades later, Jewish marchers are being effectively blocked from marching through the city of Chicago, presumably because they would be โtoo disruptive.โ The cityโs passive aggressive approach is fooling no one.
The Johnson administration has been coordinating plans for the convention with the Democratic leadership. The record in this case shows a transparently hostile response to the Jewish protesters.ย Despite putting in their request in June, the Jewish protesters were denied while pro-Palestinian protesters were granted permission to march. The city slow-walked the permit request. When the permit was not granted, it then said that the Jewish groups failed to apply in time when they renewed their requests multiple times. The groups have accused the city of simply not responding to their repeated efforts to address the permits.
Yet Hatem Abudayyeh, executive director of the Arab American Action Network, said that the mayor had personally reached out to reemphasize his support: โThe mayor has said from the very beginning that he supports the protest movement. The protest movement is what brought him to City Hall. . . . He said, โI understand that struggle. Because I am part of a national liberation struggle as well.โโ
It was equally clear that many Democrats did not want Jews to march. This is unfortunately nothing new for those who support Israel. At Columbia, a professor had his school access cardย deactivatedย and was told not to come on campus because his presence might enrage anti-Israel protesters.
In England, a Jewish man was told that heย could not walk on a streetย because โyou are quite openly Jewishโ and it might trigger pro-Palestinian marchers.
The treatment of the Jewish groups in Chicago outside of the convention stands in sharp contrast to what is being said inside the convention. Speaker after speaker has declared the party to be the champion of the Constitution and free speech. The one thing that organizers cannot abide in a celebration of constitutional freedom is the actual exercise of those freedoms by unpopular groups.
In only five decades, Jewish groups have become too controversial to march. Instead, the Israeli-American Council has given up waiting for a permit to march and will host a Hostage Square display on private property.
The irony is crushing for many of us who lived through the 1978 controversy. While the Nazis could march in Skokie, these Jews will not be marching in Chicago.
Three years ago, weย discussedย the conviction of a British man for โtoxic ideologies,โ under the draconian laws criminalizing inciteful or dangerous speech. The erosion of free speech appears to have only accelerated in the UK. As is often the case, the attacks on free speech increase during periods of unrest, anger or fear. With the recent anti-immigration riots, British authorities have used their laws to round up a large number of citizens expressing anti-immigrant views and some have already been convicted. Those cases include Wayne OโRourke, 35, who has been sentenced to three years in prison for โstirring up racial hatred.โ
As I have previously written, the riots were triggered by false reports spread online about the person responsible for an attack at a Taylor Swift-themed dance event that left three girls dead and others wounded. Despite false claims about his being an asylum seeker, the alleged culprit was an 18-year-old British citizen born to Rwandan parents. The government and news outlets were quick to challenge these accounts, but violent riots have raged across the country, including such despicable acts as burning immigrant housing. There is no question that the government should crack down on such violence and arrest those engaging in criminal conduct. However, the government immediately pursued those who were expressing hateful or inciteful views.
In my book, โThe Indispensable Right: Free Speech in an Age of Rage,โ I discuss the collapse of free speech protections in Europe and the United Kingdom specifically. That discussion includes the case of Nicholas Brock, 52, who was convicted for his collection of racist and extreme right material in his home. Detective Chief Superintendent Kath Barnes, Head of Counter Terrorism Policing South East (CTPSE) acknowledged that others might collect such items for historical or academic purposes but Brock crossed the line because he agreed with the underlying views:
โFrom the overwhelming evidence shown to the jury, it is clear Brock had material which demonstrates he went far beyond the legitimate actions of a military collectorโฆBrock showed a clear right-wing ideology with the evidence seized from his possessions during the investigationโฆ.We are committed to tackling all forms of toxic ideology which has the potential to threaten public safety and security.โ
That โcommitmentโ is evident in a slew of arrests after the recent riots.
The United Kingdom is an example of what I describe as a pattern of โrage rhetoricโ becoming โstate rageโ in these periods of unrest.
Once again, many of these postings are worthy of condemnation as racist and inflammatory. Many of us have done so. Defending free speech is not a defense of the underlying viewpoints but rather the right to express opposing viewpoints. Good speech can then rebut the bad speech.
The United Kingdom is now committed to silencing opposing views through censorship and criminal charges. As discussed in the book, such laws have never succeeded in history. Not once. They have never killed โtoxic ideologiesโ or deterred any movement. What they do is suppress the free speech of everyone in an ill-conceived effort to legislatively ban hate in society.
An example is found in Germany, which has long had some of the harshest censorship and criminalization laws. According to polling, only 18 percent of Germans feel free to express their opinions in public. Fifty-nine percent of Germans do not even feel free expressing themselves in private among friends. Only 17 percent feel free to express themselves on the internet. They have silenced the wrong people, but there is now a massive censorship bureaucracy in Europe and the desire to silence opposing voices has become insatiable.
Recently, Iย wrote aboutย the chilling message of Metropolitan Police Commissioner Sir Mark Rowley that not only will British authorities arrest citizens for anti-immigration postings but may pursue others in countries like the United States for stirring up trouble. Now, they are imprisoning โkeyboard warriors,โ who express inciteful thoughts.
Accordingย to the localย Lincolnshire Free Press, OโRourke encouraged his 90,000 followers to join the protests and told them how to remain anonymous during protests. That is similar to many posts on the left by groups like Antifa. OโRourke wrote such postings as โPeople of Southport where the f**k are you, get out on the street,โ โgive them hell lads,โ and โSunderland, go on lads.โ
Notably, his counsel Lucia Harrington assured the court that her client wants to โre-educateโ himself on these issues. His self-imposed โreeducationโ was not enough for Judge Catarina Sjolin Knight, who denounced OโRourke and โ[t]he flames fanned by keyboard warriors like you.โ
Lincolnshire Chief Superintendent Kate Andersonย promisedย more such cases for those espousing disfavored views: โThis charge demonstrates that we will take fast and decisive action against anyone suspected of sharing harmful content online. We retain a commitment to proactively police and keep people safe across the county.โ
Many others have been similarly charged. That includes first offender William Nelson Morgan, 69, who was seen holding a stick and refusing to disperse at a protest at a library in West Yorkshire. He was sentenced to two years and eight months in prison even though he did not take part in rioting. While there can be legitimate charges and penalties for a failure to disperse, the roughly three-year sentence seems fueled on the content of his viewpoints rather than his specific actions.
Likewise, Billy Thompson, 31, received 12 weeks in jail for posting emojis depicting minorities and a gun with inflammatory language. He did not participate in the rioting. There are many more such cases being reported daily.
As in Germany, years of prosecuting free speech has achieved nothing beyond chilling the speech of all citizens. For years, I have been writing about the decline of free speech in the United Kingdom and the steady stream of arrests.
There is an alternative to criminalizing speech. You can punish criminal conduct including proportionate sentencing for the failure to disperse. You can then allow free speech to combat false or hateful viewpoints. British politicians have acknowledged that a large number of citizens hold anti-immigration views. Cracking down on such viewpoints will change few minds and likely only reaffirm the anger directed against the government. Opposition to these laws has fallen to a dwindling number of free speech advocates in the UK,ย including author J.K. Rowling. Rowling has opposed a Scottish law, theย Hate Crime and Public Order (Scotland) Act 2021,ย that criminalizes speech viewed as โstirring up hatredโ relating to age, disability, religion, sexual orientation, transgender identity or being intersex. That crime covers insulting comments and anything โthat a reasonable person would consider to be threatening or abusive.โ
For those in the United States who have remained silent in the face of our own anti-free speech movement, Europe offers a glimpse into our future if we do not fight to preserve this indispensable right.
Below is my column in The Hill on the move of the European Union to force Elon Musk to censor X users, including political speech leading up to the 2024 election. The column discusses this Rockwell painting, which we often use in discussing free speech controversies.
Here is the column:
Eighty years ago, the U.S. government launched a war bond campaign featuring a painting by artist Norman Rockwell in the struggle against the authoritarian threat from Europe. The picture they chose was Rockwellโs Freedom of Speech depicting a man rising to speak his mind at a local council meeting in Vermont. The image rallied the nation around what Louis Brandeis called our โindispensable right.โ
Now, that very right is again under attack from another European government, which is claiming the right to censor what Americans are allowed to say about politics, science and other subjects. Indeed, the threat from the European Union may succeed in curtailing American freedom to an extent that the Axis powers could not have imagined. They may win, and our leaders have not said a thing yet about it.
In my book โThe Indispensable Right: Free Speech in an Age of Rage,โ I discuss the inspiration for Rockwellโs painting: a young selectman in Vermont named James โBuddyโ Edgerton. The descendent of a Revolutionary War hero, Edgerton stood up as the lone dissenter to a plan to build a new schoolhouse over the lack of funding for such construction.
For Rockwell, the scene was a riveting example of how one man in this country can stand alone and be heard despite overwhelming opposition to his views. It was, for Rockwell (and for many of us), the quintessential American moment. In the 1940s, people like Edgerton had to travel to small board meetings or public spaces to speak their mind. Today, the vast majority of political speech occurs over the Internet and specifically social media. That is why the internet is the single greatest advancement for free speech since the printing press. It is also the reason governments have spent decades seeking to control speech over the internet, to regulate what people can say or read.
One of the greatest threats to free speech today is the European Digital Services Act. The act bars speech that is viewed as โdisinformationโ or โincitement.โ European Commission Executive Vice Presidentย Margrethe Vestagerย celebrated its passage by declaring that it is โnot a slogan anymore, that what is illegal offline should also be seen and dealt with as illegal online. Now it is a real thing. Democracyโs back.โ
In Europe, free speech is in free fall. Germany, France, the United Kingdom and other countries have eviscerated free speech by criminalizing speech deemed inciteful or degrading to individuals or groups. The result had made little difference to the neo-Nazi movement in countries like Germany, which is reaching record numbers. It has, however, silenced the rest of society. According to polling, only 18 percent of Germans feel free to express their opinions in public. Fifty-nine percent of Germans do not even feel free expressing themselves in private among friends. Only 17 percent feel free to express themselves on the internet. They have silenced the wrong people, but there is now a massive censorship bureaucracy in Europe and the desire to silence opposing voices has become insatiable.
Some in this country have the same taste for speech-regulation. After Elon Musk bought Twitter and dismantled most of the companyโs censorship program, many on the left went bonkers. That fury only increased when Musk released the โTwitter files,โ confirming the long-denied coordination and support by the government in targeting and suppressing speech.
In response,ย Hillary Clinton and other Democratic figuresย turned to Europe and called upon them to use their Digital Services Act to force censorship against Americans. The EU immediately responded by threatening Musk with confiscatory penalties against not just his company but himself. He would have to resume massive censorship or else face ruin.
It was a case of the irresistible force meeting the immovable object. The anti-free speech movement had finally found the one man who could not be bullied, coerced or threatened into submission. Muskโs defiance has only magnified the unrelenting attacks against him in the media, academia and government. If Musk can be broken, these figures will once again exercise effective control over a large swath of speech globally.
This campaign recently came to a head when Musk had the audacity to interview former president Donald Trump. In anticipation of the interview, one of the most notorious anti-free speech figures in the world went ballistic. European Commissioner for Internal Markets and Services Thierry Bretonย issued a threatening messageย to Musk, โWe are monitoring the potential risks in the EU associated with the dissemination of content that may incite violence, hate and racism in conjunction with major political โ or societal โ events around the world, including debates and interviews in the context of elections.โ
While offering a passing nod to the freedom of speech, he warned Musk that โall proportionate and effective mitigation measures are put in place regarding the amplification ofย harmful contentย in connection with relevant events.โ In other words, be afraid, be very afraid. Musk responded with โBonjour!โย and then suggested that Breton perform a physically challenging sexual act.
To recap, the EU is now moving to force censorship upon American citizens to meet its own demands of what is false, demeaning or inciting. And that includes censorship even of our leading political candidates for the presidency. The response from the Biden administration was not a presidential statement warning any foreign government from seeking to limit our rights or even Secretary of State Antony Blinken calling the EU ambassador to his office for an expression of displeasure.
Thatโs because Biden and Harris are not displeased with but supportive of letting the EU do what they are barred from doing under our Constitution. This administration is arguably the most anti-free speech government since John Adams signed the Sedition Act. They have supported a massive system of censorship, blacklisting and targeting of opposing voices. Democratic members have given full-throated support for censorship, includingย pushing social media companiesย to expand in areas ranging from climate control to gender identity.
So, after only 80 years, our leaders are silent as a European government threatens to reduce our political speech to the lowest common denominator, which they will set according to their own values. Not a shot will be fired as Biden and Harris simply yield our rights to a global governing system.
But we do not have to go quietly into this night. Free speech remains a human right that is part of our DNA as Americans. We can fight back and protect millions of Edgertons who want to express their views regardless of the judgment of the majority.
Iย previouslyย called for legislationย to get the U.S. government out of the censorship business domestically. We also need new legislation to keep other countries from regulating the speech of our own citizens and companies. While this country has long threatened retaliation in combatting market barriers in other countries, we need to do the same thing for free speech. We need a federal law that opposes the intrusion of the Digital Services Act into the U.S. If free speech is truly the โindispensable rightโ of all Americans, we need to treat this threat as an attack on our very existence. It is not only the rawest form of foreign intervention into an election, but a foreign attack on our very freedoms. This is why we must pass a Digital Freedom Act.
Below is my column in The Hill on my call for a bill that would bar federal funding of any program and grant to censor, blacklist, or target individuals or sites based on their content. It is time to get the U.S. government out of the censorship business. The column discusses the proposal in my new book, โThe Indispensable Right: Free Speech in an Age of Rageโ to block any further funding for the current system of corporate, academic, and government programs targeting opposing or dissenting views.
Here is the column:
It is time to get the United States out of the censorship business for good. In the last three years, the House of Representatives has disclosed a massive censorship system run in part with federal funding and with coordination with federal officials. A federal court described this system as truly โOrwellian.โ
The Biden Administration has made speech regulation a priority in targeting disinformation, misinformation or malinformation. Presidentย Joe Bidenย even said that companies refusing to censor citizens were โkilling people.โ His administration has now created an anti-free speech record that is only rivaled by the Adams Administration, which used the Alien and Sedition Acts to arrest political opponents.
Jen Easterly,ย who heads the Cybersecurity and Infrastructure Security Agency, is an example of how speech controls and censorship have become mainstream.ย Her agency was created to work on our critical infrastructure, but Easterly declared that the mandate would now include policing โour cognitive infrastructure.โ That includes combating โmalinformation,โ or information โbased on fact, but used out of context to mislead, harm, or manipulate.โ
I have testified for years about the censorship system. For much of that time, Democrats insisted that there was no proof of any coordination or funding from the government. Such evidence did indeed exist, but Democrats worked to block any investigation to confirm what we already knew about government officials targeting individuals and groups for throttling, bans, and blacklisting.
Then Elon Musk bought Twitter. The release of the Twitter Files destroyed any plausible deniability of the governmentโs role in this censorship system. Various agencies had employees working with social media companies to target those with opposing or disfavored views. At the same time, we learned of grants from the federal government supporting blacklisting and targeting operations.
That includes efforts to quietly choke off the revenue of disfavored sites by pressuring advertisers and donors.
While companies like Facebook have continued to fight to conceal their coordination with the government, the Twitter Files pulled back the curtain to expose the system. Indeed, Democrats largely abandoned their denials and turned to full-throated defenses of censorship, even calling free speech advocates โPutin-loversโ and โinsurrectionist sympathizers.โ
In 1800,ย Thomas Jefferson defeated John Adamsย in the only election where free speech was a primary issue for voters. It should be again. Vice Presidentย Kamala Harrisย is known as a supporter for these censorship and blacklisting operations. She can now defend that record and convince Americans that they need to have less free speech. This debate should ideally focus on one simple legislative proposal. In my new book, I suggest various measures that can regain the ground that we have lost on free speech. One such measure is a federal law that would ban any federal funding of any offices or programs (government, academic, or corporate) that rate, target, censor, throttle, or seek to take adverse action against individuals or groups based on their viewpoints in public forums or social media.
There can be easy exceptions to this ban for individuals or groups engaging in criminal conduct or unlawful foreign interference with elections. Threatening individuals or trafficking in child pornography constitute conduct, not speech. They are criminal acts under the federal code. Nothing in this law would prevent the government from speaking in its own voice. If Secretary of Homeland Securityย Alejandro Mayorkasย wants to challenge claims made about him or his agency, he can do so on the agency website or make his case to the media. That is the essence of free speech. What he cannot do is create a Disinformation Governance Board to regulate the speech of citizens or groups.
In my prior testimony to Congress, I warned about the use of what I called โcensorship by surrogateโ through which agencies did indirectly what they are barred from doing directly under the First Amendment.
This new law will not put an end to the burgeoning anti-free speech movement. It will not end the new market for groups making millions in seeking to silence or strangle sites with opposing views. However, it will create a wall of separation of the government from censorship systems.
It would also offer a simple and clear line for the 2024 election. Candidates will have to take sides on free speech. If candidates like Harris want to continue to support the government in blacklisting or censoring citizens, they should own it. We spent years of politicians engaging in cynical denials of the governmentโs role in censorship. If these politicians are โall inโ with censorship, then they should be honest about it and let voters make the same choice that was made in 1800.
With billions to play with and enabling allies in Congress to conceal federal operations, speech regulation is an irresistible temptation for the government. We have seen how this temptation quickly becomes an insatiable appetite for government officials seeking to silence rather than answer critics.
Letโs get our government out of the business of rating, throttling blacklisting, and censoring citizens.ย It is time to pass a free speech protection act.
In myย new bookย on free speech, I discuss at length how the mainstream media has joined an alliance with the government and corporations in favor of censorship and blacklisting. The Washington Post, however, appears to be taking its anti-free speech campaign to a new level with open calls for a crackdown. The newspaper offered no objection or even qualification after its reporter, Cleve Wootson Jr., appeared to call upon the White House to censor the interview of Elon Musk with former President Donald Trump. Under the guise of a question, Wootson told White House Press Secretary Karine Jean-Pierre that censoring its leading political opponent is โan America issue.โ
During Mondayโs press briefing, the Washington Postโs Cleve Wootson Jr. flagged the interview andย saidย โI think that misinformation on Twitter is not just a campaign issueโฆitโs an America issue.โ After making that affirmative statement, Wootson then asked
โโฆWhat role does the White House, or the president have in sort of stopping that or stopping the spread of that or sort of intervening in that? Some of that was about campaign misinformation, but, you know, itโs a wider thing, right?โ
Note how his question was really a political statement. Wootson begins by stating as a fact that Musk and X are engaging in disinformation, and it is a threat to the country. He then asks a perfunctory softball question at the end to maintain appearances. Jean-Pierreโs response was equally telling. While noting that this is a private company, she praised the Washington Post for calling for action, saying โ[i]t is incredibly important to call that out, as youโre doing. I just donโt have any specifics on what we have been doing internally.โ
So, letโs recap. The Washington Post used a White House presser to call for censorship of one of the leading candidates for the White House and then demanded to know what the White House would do about it. The censorship was framed as an โAmerica issue.โ
There was a time when a reporter calling for censorship of a political opponent would have been a matter for immediate termination in the media. Instead, the newspaper that prides itself on the slogan โDemocracy dies in Darkness,โ has been entirely silent. No correction. No qualification. The Washington Post has long run columns supporting censorship of information that it deems disinformation or misinformation. For many of us in the free speech community, it has become one of the most hostile newspapers to free speech values.
Now censorship has become โan America issueโ for the Washington Post. The collapse of any semblance of support for free speech is complete.
The call for censorship for disinformation is ironic given the Postโs publication of a series of false stories and conspiracy theories. Whenย confronted about columnists with demonstrably false statements, the Post simply shrugged. One of the most striking examples was after its columnist Philip Bump had aย meltdown in an interviewย when confronted over past false claims. After I wrote a column about the litany of such false claims, the Post surprised many of us byย issuing a statement that they stood by all of Bumpโs reporting, including false columns on the Lafayette Park protests, Hunter Biden laptop and other stories.ย That was long after other media debunked the claims, but the Post stood by the false reporting.
The decline of the Post has followed a familiar pattern. The editors and reporters simply wrote off half of their audience and became a publication for largely liberal and Democratic readers. In these difficult economic times with limited revenue sources, it is a lethal decision.
Robert Lewis, a Britishย media executiveย who joined the Post earlier this year, reportedly got into a โheated exchangeโ with a staffer. Lewis explained that, while reporters were protesting measures to expand readership, the very survival of the paper was now at stake:
โWe are going to turn this thing around, but letโs not sugarcoat it. It needs turning around,โ Lewis said. โWe are losing large amounts of money. Your audience has halved in recent years. People are not reading your stuff. Right. I canโt sugarcoat it anymore.โ
Other staffers could not get beyond the gender and race of those who would be overseeing them. One staffer complained โwe now have four White men running three newsrooms.โย The Post has been buying out staff to avoid mass layoffs, but reporters are up in arms over the effort to turn the newspaper around. Yet, in this case, a reporter openly advocated for censorship and pushed the White House to take action against X and Trump; to use government authority to โinterveneโ to stop Trump from being able to make certain claims on social media.
We haveย previously writtenย how the level of advocacy and bias in the press has created a danger of a de facto state media in the United States. It is possible to have such a system by consent rather than coercion. The Biden White House has become more open in its marching orders to media, includingย a letter drafted by the Biden White House Legal Counselโs Officeย calling for major media to โramp up their scrutinyโ of House Republicans. President Biden has evenย instructedย reporters โ[t]hat is not the judgment of the pressโ when asked tough questions.
To the credit of the Post, it is not killing โdemocracy in the darkness.โ This incident occurred in the light of day for all to see as its reporter pushed the White House for the censoring of political opponents.
In myย new bookย on free speech andย various columns, I write about the European Digital Services Act (DSA) as one of the greatest assaults on free speech in history. One of the most notorious anti-free speech figures in the world is European Commissioner for Internal Markets and Services Thierry Breton. Where some censor’s express reluctance in their work, Breton is chillingly enthusiastic in threatening those with opposing views with charges and financial ruin. The latest is Elon Musk for his decision to interview former President Donald Trump.
After Musk bought Twitter and pledged to dismantle much of the companyโs massive censorship system, Breton went after the companyย at the urging of Hillary Clinton.
For those who criticized the European Union as a dangerous step toward a transnational governance system, Breton is the personification of their worst fears. He has wielded the sweeping powers and vague standards of the DSA to force companies to engage in comprehensive censorship regardless of national laws or their own values.
As I wrote in the book:
โUnder the DSA, users are โempowered to report illegal content online and online platforms will have to act quickly.โ This includes speech that is viewed not only as โdisinformationโ but also โincitement.โ European Commission Executive Vice President Margrethe Vestager has been one of the most prominent voices seeking international censorship. At the passage of the DSA, Vestager was ecstatic in declaring that it is โnot a slogan anymore, that what is illegal offline should also be seen and dealt with as illegal online. Now it is a real thing. Democracyโs back.โโ
This week, Breton was irate that Musk was giving Trump a forum on X, formerly Twitter. He was not the only one. The interview was interrupted by what Musk said was a distributed denial-of-service (DDS) attack by people trying to prevent the interview.
Notably, a DDS attack interrupted a prior interview with Republican Gov. Ron DeSantis. Like Breton, many were working tirelessly to prevent others from hearing opposing views.
Breton threatened Musk that the EU was watching and that the Trump interview could bring crippling sanctions under the DSA: โAs there is a risk of amplification of potentially harmful content in [the EU] in connection with events with major audience around the world, I sent this letter to @elonmusk.โ
As in the past, Breton refused to recognize that he was interfering with elections in another country. Sitting in his EU office, he demanded that whatever is discussed in the interview should satisfy his own content standards: โAs the relevant content is accessible to EU users and being amplified also in our jurisdiction, we cannot exclude potential spillovers in the EU.โ Breton expressly warned that the censors were watching. Breton wrote of the Musk-Trump interview: โTherefore, we are monitoring the potential risks in the EU associated with the dissemination of content that may incite violence, hate and racism in conjunction with major political โ or societal โ events around the world, including debates and interviews in the context of elections.โ Breton added his perfunctory mantra that free expression is fine, but only if he does not consider it โharmful.โ
โThis notably means, on one hand, that freedom of expression and of information, including media freedom and pluralism, are effectively protected and, on the other hand, that all proportionate and effective mitigation measures are put in place regarding the amplification ofย harmful contentย in connection with relevant events, including live streaming, which, if unaddressed, might increase the risk profile of X and generate detrimental effects on civic discourse and public security.”
He then threatened to impose ruinous financial penalties until Musk censored others, including potentially one of two leading presidential candidates in the United States. Musk responded with a defiant message that began with โBonjour!โ Heย addedย a vulgar Tropic Thunder reference.
Breton is one of the key figures in an anti-free speech movement that has swept over Europe. It is now using the DSA, as many of us predicted, to force other countries to censor their citizens and even their leaders. It is free speech regulated to the lowest common denominator, the level set by the EU and Breton.
There is a crushing irony. The left has made โforeign interferenceโ with elections a mantra of claiming to be defending democracy. Yet, it applauds EU censors threatening companies that carry an interview with a targeted American politician. It also supports importing such censorship and blacklisting systems to the United States. When you agree with the censorship, it is not viewed as interference, but an intervention.
If citizens want to see where the anti-free speech movement will take us in the United States, they need only to look at Europe where free speech is in a virtual free fall. As I wrote in โThe Indispensable Right: Free Speech in an Age of Rageโ:
โThe impact of these laws was evident in a poll of German citizens. Only 18 percent of Germans feel free to express their opinions in public. Fifty-nine percent of Germans did not even feel free expressing themselves in private among friends. And just 17 percent felt free to express themselves on the internet. The only true success of censorship has been the forced or compelled silence of those with opposing views. That pretense of social harmony is treated as success even though few minds are changed as fewer voices are heard in society.โ
Musk may be the only individual with sufficient money and commitment to stand up to the EU and the global censors. That is precisely why Musk is being targeted by so many in the media, academia, and government. It is also why many of us support X and its struggle against the EU and Breton.
Below is my column in The Hill on why a Harris-Walz Administration would be a nightmare for free speech. A long-standing advocate for censorship and other speech controls, Vice President Kamala Harris just added an equally menacing candidate to her ticket for 2024.
Here is the column:
The selection of Minnesota Gov.ย Tim Walzย (D) as the running mate for Vice Presidentย Kamala Harrisย has led to intense debates overย crime policy,ย war claims,ย gender identity policiesย and other issues. Some attacks have, in my view, been inaccurate or overwrought. However, the greatest danger from this ticket is neither speculative nor sensational. A Harris-Walz administration would be a nightmare for free speech.
For over three years, the Biden-Harris administration has sustained an unrelenting attack on the freedom of speech, from supporting a massive censorship system (described by a federal court as an โOrwellian Ministry of Truthโ) to funding blacklisting operations targeting groups and individuals with opposing views.
President Biden made censorship a central part of his legacy, even accusing social media companies of โkilling peopleโ for failing to increase levels of censorship. Democrats in Congress pushed that agenda by demanding censorship on subjects ranging from climate change to gender identity โ even to banking policy โ in the name of combatting โdisinformation.โ
The administration also created offices like the Disinformation Governance Board before it was shut down after public outcry. But it quicklyย shifted this censorship workย to other offices and groups.
As vice president, Harris has long supported these anti-free speech policies. The addition of Walz completes a perfect nightmare for free speech advocates. Walz has shown not only a shocking disregard for free speech values but an equally shocking lack of understanding of the First Amendment.
Walzย went on MSNBCย to support censoring disinformation and declared, โThereโs no guarantee to free speech on misinformation or hate speech, and especially around our democracy.โ Ironically, this false claim, repeated by many Democrats, constitutes one of the most dangerous forms of disinformation. It is being used to convince a free people to give up some of their freedom with a โnothing to see hereโ pitch.
In prior testimony before Congress on the censorship system under the Biden administration, I was taken aback when the committeeโs ranking Democrat, Del.ย Stacey Plaskettย (D-Virgin Islands),ย declared, โI hope that [all members] recognize that there is speech that is not constitutionally protected,โ and then referenced hate speech as an example.
That false claim has been echoed by others such as Sen.ย Ben Cardinย (D-Md.), who is a lawyer.ย โIf you espouse hate,โย he said,ย โโฆyouโre not protected under the First Amendment.โ Former Democratic presidential candidate Howard Deanย declaredย the identical position: โHate speech is not protected by the First Amendment.โ
Even someย dictionaries now espouse this false premise, defining โhate speechโ as โSpeech not protected by the First Amendment, because it is intended to foster hatred against individuals or groups based on race, religion, gender, sexual preference, place of national origin, or other improper classification.โ
The Supreme Court has consistently rejected the claim of Gov. Walz. For example, in the 2016ย Matal v. Tamย decision, the court stressed that this precise position โstrikes at the heart of the First Amendment. 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 โthe thought that we hate.โโ
As the new Democratic vice-presidential candidate, Walz is running alongside one of the most enthusiastic supporters of censorship and blacklisting systems. In her failed 2020 presidential bid, Harrisย ran on censorshipย and pledged that her administration โwill hold social media platforms accountable for the hate infiltrating their platforms, because they have a responsibility to help fight against this threat to our democracy.โ
In October 2019, Harris dramatically spoke directly to Facebookโs Mark Zuckerberg,ย insistingย โThis is not a matter of free speechโฆ.This is a matter of holding corporate America and these Big Tech companies responsible and accountable for what they are facilitating.โ She asked voters to join her in the effort.
They didnโt, but Harris ultimately succeeded in the Biden-Harris administration to an unprecedented degree with a comprehensive federal effort to target and silence individuals and groups on social media.
In my new book, โThe Indispensable Right: Free Speech in an Age of Rage,โI detailed how President Biden is the most anti-free speech president since John Adams. Unlike Adams, I have never viewed Biden as the driving force behind the massive censorship and blacklisting operations supported by his subordinates, including Harris. That is not to say that Biden does not share the shame in these measures. He was willing to sacrifice not only free speech but also institutions like the Supreme Court in a desperate effort to rescue his failing nomination.
The substitution of Harris for Biden makes this the second election in which free speech is the key issue for voters. In 1800, Thomas Jefferson defeated Adams, in large part based on his pledge to reverse the anti-free speech policies of the prior administration, including the use of the Alien and Sedition Acts to arrest his opponents.
With the addition of Walz, Democrats now have arguably the most anti-free speech ticket of a major party in more than two centuries. Both candidates are committed to using disinformation, misinformation and malinformation as justifications for speech controls. The third category has been emphasized by the Biden-Harris administration, which explained that it is information โbased on fact, but used out of context to mislead, harm, or manipulate.โ
Walz has the advantage in joining this anti-free speech ticket without the burden of knowledge of what is protected under the First Amendment.
With the Harris-Walz ticket, we have come full circle to the very debate at the start of this republic. The warnings of the Founders to reject the sirenโs call of censorshipย remain tragically relevant today.ย Free speech was and remains our โindispensable right.โ
As Benjamin Franklin warned, โIn those wretched countries where a man cannot call his tongue his own, he can scarce call anything his own. Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speechโฆ.Without freedom of thought there can be no such thing as wisdom, and no such thing as public liberty without freedom of speech, which is the right of every man.โ
With her selection of Walz, Harris has decided to put free speech on the ballot in this election. It is a debate that our nation should welcome, as it did in 1800. The Biden-Harris administration has notably toned down its anti-free speech efforts as the election approaches. Leading censorship advocates have also gone mostly silent. If successful, a Harris-Walz administration is expected to bring back those policies and personalities with a vengeance. That could be radically enhanced if the Democrats take both houses of Congress and once again block investigations into their censorship programs.
The media has worked very hard to present Harris and Walz as the โhappy warriors.โ Indeed, they may be that and much more. The question is what they are happy about in their war against free speech.
We have previously discussed controversial sentences handed down in cases involving rioters on January 6th, including sentencing orders that, in my view, violate First Amendment rights. That included the case of Daniel Goodwyn, who pleaded guilty to a single misdemeanor count of entering and remaining in a restricted building. That crime would ordinarily not involve any jail time for a first offender. However, Judge Reggie B. Walton of the United States District Court for the District of Columbia decided that he would use the case to regulate what Goodwyn was reading and communicating with a chilling probation order. After the case was sent back by the D.C. Circuit, Walton doubled down on his extraordinary order. Now the D.C. Circuit has refused to hear an emergency appeal.
Judge Walton has attracted controversy and criticism over his public comments about former President Donald Trump and the other issues. He caused a stir in Washington after doing anย interview with CNNย in which he rebuked former President Donald Trump for his criticism of judges and their family members. Waltonย previouslyย called Trump a โcharlatan,โ and said that โI donโt think he cares about democracy, only power.โ
Critics charged that Waltonโs public statements ran afoul of Canon 3A(6) of the Code of Conduct for United States Judges, which states: โA judge should not make public comment on the merits of a matter pending or impending in any court.โ
Walton then triggered criticism over his handling of the Goodwin case. The case involved Daniel Goodwyn, 35, of Corinth, Texas, who pleaded guilty on Jan. 31, 2023, to one misdemeanor count of entering and remaining in a restricted building or grounds without lawful authority. That is a relatively minor offense, but Walton imposed a 60-day jail sentence in June 2023 with these ongoing conditions on his online reading and speech.
Waltonย reportedlyย noted that Goodwyn spread โdisinformationโ during a broadcast of โTucker Carlson Tonightโ on March 14, 2023, and ordered that Mr. Goodwynโs computer be subject to โmonitoring and inspectionโ by a probation agent to check if he spread Jan. 6 disinformation during the term of his supervised release.
After accepting the plea to a single misdemeanor, Walton expressed scorn for Goodwyn appearing โgleefulโ on Jan. 6 and his โegging onโ other rioters. He asked his defense counsel โwhy I should feel that he doesnโt pose a risk to our democracy?โ
As a condition for supervised release, DOJ pushed the monitoring conditions and found a judge who seemed eager to impose it.
The order reflects the utter impunity shown by the Justice Department in its pursuit of January 6th defendants.ย Justice Department official Michael Sherwin proudly declared in a television interview that โour office wanted to ensure that there was shock and awe โฆ it worked because we saw through media posts that people were afraid to come back to D.C. because theyโre, like, โIf we go there, weโre gonna get charged.โ โฆ We wanted to take out those individuals that essentially were thumbing their noses at the public for what they did.โ
Sherwin was celebrated for his pledge to use such draconian means to send a message to others in the country. (Sherwin has left the Justice Department and is now a partner at Kobre & Kim).
Walton was rebuked by the United States Court of Appeals for the District of Columbia for a surveillance order of Goodwin to detect any spreading of โdisinformationโ or โmisinformation.โ
In my new book, โThe Indispensable Right: Free Speech in an Age of Rage,โ I discussed concerns over the cases like Goodwynโs and their implications for free speech. I participated in the coverage on January 6th and criticized President Trumpโs speech while he was giving it. I disagreed with the legal claims made to oppose certification. However, the โshock and aweโ campaign of the Justice Department, in my view, has trampled on free speech rights in cases that range from Goodwyn to the prosecutions of Trump himself.
Many of us were relieved when appellate judges (Gregory Katsas, Neomi Rao, and Bradley Garcia) rebuked Walton and held that โ[t]he district court plainly erred in imposing the computer-monitoring condition without considering whether it was โreasonably relatedโ to the relevant sentencing factors and involved โno greater deprivation of liberty than is reasonably necessaryโ to achieve the purposes behind the sentencing.โ
They sent the case back but, to the surprise of few, Judge Walton proceeded to double down on the monitoring while implausibly declaring โI donโt want to chill anyoneโs First Amendment rights.โ
For some reason, Walton believes that barring an individual from reviewing and engaging in political speech does not โchillโ his First Amendment rights.
Most of us were appalled by the riot and the underlying views of figures like Goodwyn, who is a self-proclaimed member of the Proud Boys. He was rightfully arrested and should be punished for his conduct. The question is not the legitimacy of punishment, but the scope of that punishment.
Prosecutor Brian Brady detailed how the Justice Department has in place a new system using artificial intelligence to monitor the reading and statements of citizens like Goodwyn. The Justice Department brushed aside the free speech concerns since Goodwyn remains under court supervision, even though he pleaded guilty to only a single misdemeanor.
Brady described a virtual AI driven thought program. The justification was that Goodwyn refused to abandon his extreme political views:
โThroughout the pendency of Goodwynโs case, he has made untruthful statements regarding his conduct and the events of the day, he has used websites and social media to place targets on police officers who defended the Capitol, and he has used these platforms to publish and view extremist media. Imposing the requested [monitoring] conditions would protect the public from further dissemination of misinformationโฆ [and] provide specific deterrence from him committing similar crimes.โ
So now federal courts can use a single misdemeanor for unlawful entry in a federal building for less than 40 seconds to โprotect the public from โฆ dissemination of misinformationโ on the government.
That was all Walton needed to hear. Relying on a record supplied by the Justice Department, Walton said in the hearing that Goodwyn is still engaging โin the same type of rhetoricโ that fomented the Jan. 6 violence. He added that he was concerned about Goodwyn spreading โfalse narrativesโ when we are โon the heels of another election.โ
Walton merely added the DOJ record to his renewed sentencing conditions.
Defense counsel then returned to the D.C. Circuit to seek an emergency stay butย Judges Florence Pan and Bradley Garcia denied the motion, holding thatย โAppellant has not satisfied the stringent requirements for a stay pending appealโ to prevent further โfalse narratives.โ
That drew a pointed dissent from Judge Gregory Katsas who stated:
Daniel Goodwyn pleaded guilty to one count of knowingly entering or remaining in a restricted building or grounds, in violation of 18 U.S.C. ยง 1752(a)(1). Goodwyn entered the Capitol and remained inside for a total of 36 seconds. He did not use force to enter, did not assault police officers, and neither took nor damaged any government property. When police instructed Goodwyn to leave the building, he did so.
โฆ
On appeal, this Court vacated the condition โฆ We further instructed the district court, if it wished to impose a new computer- monitoring condition on remand, to โexplain its reasoning,โ to โdevelop the record in support of its decision,โ and to ensure that the condition complies with section 3583(d) and with the Constitution.
The district court reimposed the same condition on remand. In an oral hearing, the court said that Goodwyn had made statements on social media that โcan be, it seems to me, construed asโ urging a repeat of January 6, particularly โon the heels of another election.โย In its written order, the court elaborated on what it called Goodwynโs โconcerning online activity.โย This included posting exhortations to โ#StopTheSteal!โ and โ#FightForTrump,โ soliciting donations to fund his travel to Washington, posing for a livestream while inside the Capitol, confirming his presence there by text, and tweeting opinions such as: โThey WANT a revolution. Theyโre proving our point. They donโt represent us. They hate us.โ Id. at 3โ4. In addressing what the court described as Goodwyn pushing โfalse narrativesโ about January 6 after-the-fact, the court, quoting from the governmentโs brief, led with the fact Goodwyn โsat for an interview with Tucker Carlson on Fox News Channel.โ Id. at 4. Finally, in concluding that computer monitoring was reasonably related to Goodwynโs offense, the court reasoned that monitoring would prevent Goodwyn from raising funds to support potential future crimes and would separate him โfrom extremist media, rehabilitating him.โ
Judge Katsas stated that Goodwyn was likely to prevail on the merits and that his colleagues allowed the denial of First Amendment rights to continue in the interim.
The Walton order reflects the erosion of support for the First Amendment, even on our courts. It is reminiscent of our previous discussion of how courts have criminalized โtoxic ideologiesโ as part of the crackdown on free speech in the United Kingdom.
We have been discussing media rating systems being used to target advertisers and revenue sources for certain cites and companies. NewsGuard and the Global Alliance for Responsible Media (GARM) have been criticized as the most sophisticated components of a modern blacklisting system targeting conservative or dissenting voices. I recently had a series of exchanges with NewsGuard after a critical column. Now, the House Judiciary Committee under Chairman Rep. Jim Jordan (R-Ohio) is moving forward in demanding documents and records from leading companies utilizing the GARM system, a company that I have previously criticized. It is a welcomed effort for anyone who is concerned over the use of these blacklisting systems to curtail free speech. However, time is of the essence.
The demand to preserve evidence went to various companies, including Adidas, American Express, Bayer, BP, Carhartt, Chanel, CVS and General Motors.
In my new book, I discuss the rating systems as a new and insidious form of blacklisting. Notably, Elon Musk has now filed a lawsuit against GARM and may be able to get more evidence out in discovery on the operations of this outfit.
It is an effort to strangle the financial life out of sites by targeting their donors and advertisers. This is where the left has excelled beyond anything that has come before in speech crackdowns.
Years ago, I wrote about the Biden administration supporting efforts like the Global Disinformation Index (GDI) to discourage advertisers from supporting certain sites. All of the 10 riskiest sites targeted by the index were popular with conservatives, libertarians and independents. That included Reason.org and a group of libertarian and conservative law professors who simply write about cases and legal controversies. GDI warned advertisers against โfinancially supporting disinformation online.โ At the same time, HuffPost, a far-left media outlet, was included among the 10 sites at lowest risk of spreading disinformation.
Once GDIโs work and bias was disclosed, government officials quickly disavowed the funding. It was a familiar pattern. Within a few years, we found that the work had been shifted instead to groups like the GARM, which is the same thing on steroids. It is the creation of a powerful and largely unknown group called the World Federation of Advertisers (WFA), which has huge sway over the advertising industry and was quickly used by liberal activists to silence opposing views and sites by cutting off their revenue streams.
Notably, Rob Rakowitz, head of GARM, pushed GDI and embraced its work. In an email to GARM members obtained by the committee last month, Rakowitz wrote that he wanted to โensure youโre working with an inclusion and exclusion list that is informed by trusted partners such as NewsGuard and GDI โ both partners to GARM and many of our members.โ
GARM is being used by WFA to achieve what GDI failed to accomplish. The WFA siteย refers to Rakowitzย as โa career change agentโ who will โremove harmful content from ad-supported digital media.โ
Rakowitzโs views on free speech are chilling and his work shows how these systems can be used to conceal bias in targeting the revenue of sites with opposing views.
Rakowitz has denounced the โextreme global interpretation of the US Constitutionโ and how civil libertarians cite โโprinciples for governanceโ and applying them as literal law from 230 years ago (made by white men exclusively).โ
He appears to be referring to free speech. If so, it is deeply troubling. Some of us believe that free speech is a human right, not just an American right. Those โwhite menโ include philosophers from the Enlightenment whose ideas were incorporated in the Framerโs view of inalienable rights like free speech.
The threat against free speech today is being led by private groups seeking to exercise an unprecedented level of control over what people can read and discuss.
Pundits and politicians, including President Joe Biden and former President Barack Obama, have justified their calls for censorship (or โcontent moderationโ for polite company) by stressing that the First Amendment only applies to the government, not private companies. That distinction allows Obama toย declare himselfย to be โpretty close to a First Amendment absolutist.โ He did not call himself a โfree speech absolutistโ because he favors censorship for views that he considers to be โlies,โ โdisinformation,โ or โquackery.โ
The distinction has always been a disingenuous evasion. The First Amendment is not the sole or exclusive definition of free speech. Censorship on social media is equally, if not more, damaging for free speech. Those who value free speech should oppose blacklisting systems, as was the case during the McCarthy period. Now that conservatives and libertarians are being blacklisted, it is suddenly less troubling for many on the left.
Rakowitz now wields massive influence over public discourse in this collaboration with corporations and groups like GDI. As was done to the left during the McCarthy period, blacklisting systems are now being used to control public access to information by choking off the revenue of sites.
The current anti-free speech movement is the most dangerous in history due precisely to this sophistication and the unprecedented alliance of corporate, media, academic, and government interests.
GARM and other media rating systems have been embraced by many who would prefer to silence opposing voices than respond to them. Rakowitz was wildlyย popular at Davosย in calling for a โsaferโ Internet that would target dangerous sites much like GDI: โGARM has been officially recognized as a key project for 2020 within the WEFโs platform onย Shaping the Future of Media Entertainment and Culture.โ
The House committees are pushing forward with a sense of urgency. It is clear that the investigations in government-supported censorship and these blacklisting operations will end if the Democrats retake the house. It is expected that these companies will seek to delay any disclosures in the hope that the House will change hands and this system will again be allowed to recede back into the darkness.
In my new book, The Indispensable Right: Free Speech in an Age of Rage,โ I write about a global anti-free speech movement that is now sweeping over the United States. While not the first, it is in my view the most dangerous movement in our history due to an unprecedented alliance of government, corporate, academic, and media forces. That fear was amplified this week with polling showing that years of attacking free speech as harmful has begun to change the views of citizens.
As discussed in the book, our own anti-free speech movement began in higher education where it continues to rage. It then metastasized throughout our politics and media. It is, therefore, not surprising to see the new Knight Foundation-Ipsos study revealing a further a decline in studentsโ views concerning the state of free speech on college campuses.
The study shows that 70 percent of students โbelieve that speech can be as damaging as physical violence.โ It also shows the impact of speech codes and regulations with two out of three students reporting that they โself-censorโ during classroom discussions.
Not surprisingly, Republican students are the most likely to self-censor given theย purging of conservative faculty and the viewpoint intoleranceย shown on most campuses. Some 49 percent of Republican students report self-censoring on three or more topics. Independents are the second most likely at 40 percent. Some 38 percent of Democrats admit to self-censuring.
Sixty percent of college students strongly or somewhat agree that โ[t]he climate at my school or on my campus prevents some people from saying things they believe, because others might find it offensive.โ
The most alarming finding may be that only 54 percent of students believe that colleges should โallow students to be exposed to all types of speech even if they may find it offensive or biased.โ That figure stood at 78 percent in 2016.
The poll follows similar results in a new poll by the Foundation for Individual Rights and Expression (FIRE) of the population as a whole. It found that 53% of Americans believe that the First Amendment goes too far in protecting rights. So there is now a majority who believe that the First Amendment, including their own rights, should be curtailed.
The most supportive of limiting free speech are Democrats at a shocking 61%. However, a majority (52%) of Republicans also agreed.
Roughly 40% now trust the government to censor speech, agreeing that they trust the government โsomewhat,โ โvery much,โ or โcompletelyโ to make fair decisions about what speech should be disallowed.
It is no small feat to convince a free people to give up their freedoms. They have to be afraid or angry. These polls suggest that they appear both very afraid and very angry.
It is the result of years of indoctrinating students and citizens that free speech is harmful and dangerous. We have created a generation of speech phobics who are willing to turn their backs on centuries of struggle against censorship and speech codes.
Anti-free speech books have been heralded in the media. University of Michigan Law Professor and MSNBC legal analyst Barbara McQuade has written how dangerous free speech is for the nation. Her book, โAttack from Within,โ describes how free speech is what she calls the โAchilles Heelโ of America, portraying this right not as the value that defines this nation but the threat that lurks within it.
McQuade and many on the left are working to convince people that โdisinformationโ is a threat to them and that free speech is the vehicle that makes them vulnerable.
This view has been pushed by President Joe Biden who claims that companies refusing to censor citizens are โkilling people.โ The Biden administration has sought to use disinformation to justify an unprecedented system of censorship.
Recently, the New York Times ran a column by former Biden official and Columbia University law professor Tim Wu describing how the First Amendment was โout of controlโ in protecting too much speech.
Wu insists that theย First Amendmentย is now โbeginning to threaten many of the essential jobs of the state, such as protecting national security and the safety and privacy of its citizens.โ He claims that the First Amendment โnow mostly protects corporate interests.โ
There is even a movement afoot to rewrite the First Amendment through an amendment. George Washington University Law School Professor Mary Anne Franks believes that the First Amendment is โaggressively individualisticโ and needs to be rewritten to โredoโ the work of the Framers.
Her new amendment suggestion replaces the clear statement in favor of a convoluted, ambiguous statement of free speech that will be โsubject to responsibility for abuses.โ It then adds that โall conflicts of such rights shall be resolved in accordance with the principle of equality and dignity of all persons.โ
Franks has also dismissed objections to the censorship on social media and insisted that โthe Internet model of free speech is little more than cacophony, where the loudest, most provocative, or most unlikeable voice dominates . . . If we want to protect free speech, we should not only resist the attempt to remake college campuses in the image of the Internet but consider the benefits of remaking the Internet in the image of the university.โ
Franks is certainly correct that those โunlikeable voicesโ are less likely to be heard in academia today. As discussed in my book, faculties have largely cleansed with the ranks of conservative, Republican, libertarian, and dissenting professors through hiring bias and attrition. In self-identifying surveys, some faculties show no or just a handful of conservative or Republican members.
The discussion on most campuses now runs from the left to far left without that pesky โcacophonyโ of opposing viewpoints.
One of the most dangerous and successful groups in this anti-free speech movement has been Antifa. I testified in the Senate on Antifa and the growing anti-free speech movement in the United States. I specifically disagreed with the statement of House Judiciary Committee Chairman Jerry Nadler that Antifa (and its involvement in violent protests) is a โmyth.โ
Antifa is at its base a movement at war with free speech, defining the right itself as a tool of oppression. It is laid out in Rutgers Professor Mark Brayโs โAntifa: The Anti-Fascist Handbookโ in which he emphasizes the struggle of the movement against free speech: โAt the heart of the anti-fascist outlook is a rejection of the classical liberal phrase that says, โI disapprove of what you say but I will defend to the death your right to say it.โโ
Bray quotes one Antifa member as summing up their approach to free speech as a โnonargument . . . you have the right to speak but you also have the right to be shut up.โ
However, the most chilling statement may have come from arrested Antifa member Jason Charter after an attack on historic statues in Washington, D.C. After his arrest, Charter declared โThe Movement is winning.โ As these polls show, he is right.
Last year,ย we discussed the free speech case of Matthew Garrett,ย formerly a tenured history professor at Bakersfield College who was investigated and disciplined after he questioned the use of grant money to fund social justice initiatives. Bakersfield College has one of the worst records on free speech in higher education and has beenย repeatedly sued by faculty. It will now pay anotherย $2.4 million in a settlement to subsidize the anti-free speech actions of its administration. The question is why California taxpayers continue to allow faculty and administrators to burn through millions in these efforts to punish divergent or dissenting viewpoints. Matthew Garrett will reportedly receive $2,245,480 over the next 20 years as well as an immediate one-time payment of $154,520 as โcompensation for back wages and medical benefits since [his] dismissal.โ Unfortunately, the college got its way in insisting that he resign from the Kern Community College District. So, it achieved greater uniformity and orthodoxy in viewpoints at the cost of millions in damages.
The Foundation for Individual Rights and Expression supported his case and detailed in 2023 how his criticism of DEI programs made him a target of faculty and administrators:
Animosity toward Garrett by some faculty and administrators increased over the past couple years as Garrett and several other faculty members associated with the Renegade Institute for Liberty โ a Bakersfield College think tank Garrett founded โ joined the faculty diversity committee. Other committee members say that the Renegade faculty have made it difficult for the group to get anything done by stalling campus diversity initiatives. But it was Garrettโs comments regarding a proposed racial climate task force during a diversity committee meeting last fall that led Bakersfield to recommend Garrettโs termination.
At the October 2022 meeting of the Bakersfield Equal Opportunity and Diversity Advisory Committee, Garrett criticized a proposal by professor Paula Parks to create a racial climate task force he felt might usurp the jurisdiction of the diversity committee. He also contested the student survey data cited as justification for the proposed task force and questioned the surveyโs objectivity and the lack of evidence connecting the data presented and the proposed solutions. Several other faculty members in the meeting also challenged the veracity of the survey data. But ultimately, the committee voted to approve the creation of the task force.
On Nov. 15, Parks published an op-ed inย Kern Sol Newsย accusing Garrett and other Renegade Institute-affiliated faculty of a โdisturbing pattern of actionsโ that โcreated negativity and division in the name of free speech.โ
Weย previously also discussed the caseย of History Professor Daymon Johnson who was put under investigation after he commented on the extremist comments of another professor. Professor Andrew Bond denounced the United States as a โsh*t nationโ and then invited conservatives to quote him.ย In August 2019, Bond posted a statement on Facebook that:
โMaybe Trumpโs comment about sh*thole countries was a statement of projection because honestly, the US is a f**king piece of sh*t nation. Go ahead and quote me, conservatives. This country has yet to live up to the ideals of its founding documents.โ
[Text changes added to profanity from the original]
Johnson proceeded to do exactly what Bond suggested and quoted him on the Facebook page for the Renegade Institute for Liberty. He asked others โDo you agree with this radical SJW from BCโs English Department? Thoughts?โ He then posted on his own Facebook account the following statement according to his complaint:
โJohnson then used his personal Facebook account to comment on what he had reposted: โMaybe he should move to China, and post this about the PRC in general or the Chinese Communist Party and see how much mileage it gets him. I wonder, do they still send the family the bill for the spent round?โโ
Johnson said that the college would not allow him to read the complaint but subjected him to months of investigation.
After the investigation was finally concluded with no action by the Kern Community College District (which oversees the college), it stated that it would โinvestigate any further complaints of harassment and bullying and, if applicable, [taking] appropriate remedial action including but not limited to any discipline determined to be appropriate.โ
That threat took on a more menacing meaning given the controversy involving John Corkins, vice president of the Board of Trustees of the Kern Community College District Board. Corkinsย declaredย in an open meeting that critics of Critical Race Theory should be โculledโ from the faculty and โtaken to the slaughterhouse.โ
As shown by Corkins, it remains popular in California to pledge to wipe out conservatives and dissenters from faculty. There are comparably few left. Conservatives and libertarians have been gradually purged from many institutions.
A survey conducted by the Harvard Crimson shows that more than three-quarters of Harvard Arts and Sciences and School of Engineering and Applied Sciences faculty respondents identified as โliberalโ or โvery liberal.โ Only 2.5% identified as โconservative,โ and only 0.4% as โvery conservative.โ
Likewise, a study by Georgetown Universityโs Kevin Tobia and MITโs Eric Martinez found that only nine percent of law school professors identify as conservative at the top 50 law schools. Notably, a 2017 study found 15 percent of faculties were conservative. Another study found that 33 out of 65 departments lacked a single conservative faculty member.
Some sites like Above the Law have supported the exclusion of conservative faculty.ย Senior Editor Joe Patrice defended โpredominantly liberal facultiesโ byย arguingย that hiring a conservative law professor is akin to allowing a believer in geocentrism to teach at a university. So, the views of roughly half of the judiciary and half of the country are treated as legitimately excluded as intellectually invalid.
We have also seen administrators and faculty treat public or private funds as a subsidy for radical policies. For example, Oberlin College abused a small family grocery store for years and racked up millions in costs and damages that it expected alumni to cover. There was no blowback for its president or administrators.
These cases continue unabated despite a long litany of losses for universities and colleges over free speech limits and faculty discipline. The reason is that it is still personally and professionally beneficial for these professors and administrators to attack those with dissenting viewpoints. While faith in higher education is at an all-time low and these schools are gushing money in litigation, there are few remaining dissenting voices on faculties and even fewer willing to resist retaliation by speaking up.
Settlements are now just a cost of doing business for the anti-free speech movement in higher education. The costs are born by taxpayers or donors who are expected to foot the bill for intellectual intolerance.
Barbara Butch, the LGBTQ activist who was the center figure in the controversial โLast Supperโ Paris Olympic scene is threatening to sue those criticizing her. Butch played the role (wearing a Christ-like halo) viewed by many as a spoof on Christ in the Last Supper. The creators insist that they were going for a type of โpagan partyโ of Olympic gods and sent a message of tolerance. Art experts have supported the creators and pointed to paintings that inspired the pagan motif. That is not exactly what was seen by millions of Christians who were deeply insulted by the parody.
The question is not the intent of the creators, but the intent of critics in denouncing the display and its participants.
The threat of legal action would not be especially serious in the United States where opinion is given robust protection in both criminal and civil cases. In France, however, free speech is in a free fall with the left pushing for the censorship and criminalization of an ever-expanding range of political and religious speech.
The ceremony itself had some truly powerful and stunning elements. I enjoyed the mix of music and imagery as well as the effort to show the diversity of France. However, other elements were more divisive or excessive. For example, the producers decided to use the ceremony to feature such elements as three young people hooking up for a โmรฉnage ร trois.โ With many families watching with kids, many of us thought the scene was inappropriate for such an event. However, it was the supper scene that led to protests from clerics and critics. While claiming a message of โtolerance,โ the scene was taken as yet another slap at religious elements in society. That is a debate that has continued to rage, particularly on the Internet.
Audrey Msellati, Butchโs attorney, posted a statement on Butchโs Instagram account that the DJ and activist will seek legal action after being โthe target of an extremely violent campaign of cyber-harassment and defamation.โ She is promising to file โseveral complaints against these acts.โ
Clearly, any direct and intentional threats of violence against Butch should be prosecuted, as they can be prosecuted in the United States. However, the French laws sweep far more broadly in criminalizing opinion and what I have called โrage rhetoric.โ
Once the cradle of individual liberty, France long ago became a global leader in the crackdown on free speech.
These laws criminalize speech under vague standards referring to โincitingโ or โintimidatingโ others based on race or religion. For example, fashion designer John Galliano has been found guilty in a French court on charges of making anti-Semitic comments against at least three people in a Paris bar. At his sentencing, Judge Anne Marie Sauteraud read out a list of the bad words used by Galliano to Geraldine Bloch and Philippe Virgitti, including using โdirty whoreโ in criticism.
In another case, the father of French conservative presidential candidate Marine Le Pen was fined because he had called people from the Roma minority โsmelly.โ A French teenager was charged for criticizing Islam as a โreligion of hate.โ
That is why the homage in the Olympics to Libertรฉ rang hollow for many of us in the free speech community. The French leaders have long been hypocritical in claiming to support free speech, such as marching in support of the Charles Hebdo magazine after the massacre after cracking down on its editors and writers.
Thomas Jolly, the artistic director for the opening ceremony of the Olympics, clearly wanted to be provocative in these scenes. He succeeded. Clearly, such provocative elements will spur debate and discussion, including heated opinions. Use of criminal sanctions for those expressing opinion would make a mockery of the display of fealty to French liberties that Jolly features in his ceremony.
JD Vance is a marked man. After accepting the nomination for vice president, Vance has been the subject of endless media attacks. Recently, Vice President Kamala Harris even questioned his โloyaltyโ to the country despite his serving as a Marine in the Iraq War. Yet, one of the most chilling attacks came from Germany where the publishing house Ullstein Buchverlage has stopped printing the sold-out German translation of Hillbilly Elegy, his 2016 autobiography.
As we have discussed previously in this country, it is the modern leftโs equivalent of book burning. After all, why burn books when you can simply prevent their being printed under blacklisting campaigns?
In this country, we have seen the left successfully force book bans for writers and even justices who espouse opposing viewpoints. We have seen actual calls for book burning recently (here and here).
Ullstein is facing a high demand for Vanceโs best-selling book Hillbilly Elegy, but has refused to print more copies due to his political viewpoints (unrelated to the book).
First published in 2016 and made into a movie in 2020, the book returned to the top position on The New York Timesโ bestseller list after Trump chose Vance as his running mate.
Some in the United States are already balking at the selling of any book by Vance. Seven Stories Press wrote, โSeven Stories Press is extremely thrilled to have never published JD Vance.โ
Ullstein published the German translation of Hillbilly Elegy in 2017 and held the rights to reprints.
The company cited Vanceโs allegiance with Trump and his politics as the reason in a statement to German media:
โAt the time of its publication, the book made a valuable contribution to understanding the drifting apart of US societyโฆIn the meantime, he is officially acting alongside him and advocating an aggressively demagogic, exclusionary policy.โ
German author Gerd Buurmann posted a mocking response that we should be happy that Ullstein had just thrown Vanceโs book out of its catalogue and not into the fire โ a reference to the notorious Nazi book burnings of the 1930s.
Other Germans have raised the same objections and referenced the painful history of book bans and burnings in Germany under the Nazis.
German readers want to read the book, which Ullstein acknowledged is one of the most influential works of this generation. However, because the company disagrees with his political viewpoints, it moved to block others from reading the book.
We have seen similar campaigns leading to the banning or burning of books by figures like JK Rowling because of her opposition to some transgender policies. The left now protests any programs on Rowlingโs work and opposes the selling of her enormously popular Harry Potter series or even video games based on the series. When authors have defended her right to be published, they have also been subjected to cancel campaigns.
Yet, Ullsteinโs decision is particularly chilling as a publishing house. Again, we have seen editors at publishing houses sign petitions to bar books by conservative figures like Justice Amy Coney Barrett from being published.
In 1933, thousands of books by Jewish and leftist writers were burned throughout Germany. Publishing houses further banned the printing of these books. The books were announced as corrupting the minds of German citizens. Many books were banned or burned on the basis of the authors being Jewish or known socialists or anarchists.
Now the left has developed a taste for censorship and blacklisting. Editors and publishing houses are blacklisting those with conservative or libertarian views as forms of dangerous viewpoints or disinformation.
Ullstein will, of course, not stop people from reading the work of JD Vance. While it may make it more difficult for Germans to find copies, ideas like water have a way of finding their way out. Blacklisting and censorship have not succeeded in killing a single idea. What it does is reveal the true character and values of those who want to prevent others from hearing opposing viewpoints.
I hope that our readers have read the response of NewsGuardโs Gordon Crovitz to my recent criticism of the companyโs rating system for news sites. He makes important points, including the fact that the company has given high ratings to conservative sites and low ratings to some liberal sites. I have mutual friends of both Gordon and his co-founder Steve Brill, who have always sworn by their integrity and motivations. I do not question Gordonโs account of past ratings for sites.
However, I also welcome the opportunity to further this discussion over media rating systems and to explain why I remain unconvinced by his defense. It is a long overdue debate on the use and potential misuse of such systems.
As a threshold matter, I want to note that I am aware of conservative sites reviewed by NewsGuard that have been given favorable ratings. That is a valid distinction from past rating sites like the Global Disinformation Index (GDI).
Moreover, while I noted that NewsGuard has been accused of bias by conservatives and is being investigated in Congress, my primary objections are to rating systems as a concept for media sites. Before addressing that opposition, I should note that I still have concerns over bias from the email that was sent me, particularly just after a column criticizing the company.
Now to the main concern.
A Shield or a Sword?
In his response to me, Gordon argues that โI would have thought, including based on your recent book, that youโd especially welcome an accountable market alternative to censorship.โ
I disagree with Gordonโs suggested dichotomy. As I argue in the column, rating systems are arguably the most effective means to silence opposing voices or sites. These systems are used to target revenue sources and have been weaponized by the current anti-free speech movement. They are used more as a sword than a shield by those who want to marginalize or demonetize a site.
We have seen such campaigns targeting various sites and individuals, led by political groups opposed to their viewpoints, including figures such as Joe Rogan. This includes Elon Musk and X after the reduction of censorship systems and the release of the โTwitter Files.โ After being targeted by these campaigns for years, rating systems have been denounced by Musk as part of an โonline censorship racket.โ
Moreover, the use of private entities like NewsGuard is precisely what makes the current movement so insidious and dangerous. Whether by design or by default, rating systems are effective components of what I have described as a system of โcensorship by surrogate.โ
What NewsGuard is attempting is potentially far more impactful for the funding and viability of websites. Rather than an alternative, it can be an avenue for censorship.
I have also written about my concerns with the Global Alliance for Responsible Media and its use of rating systems to deter advertisers for targeted sites. The group states that it โunites marketers, media agencies, media platforms, industry associations, and advertising technology solutions providers to safeguard the potential of digital media by reducing the availability and monetization of harmful content online.โ
As the column discusses, NewsGuard seeks to position itself as a type of Standard & Poorโs rating system for media. The role would give the company unprecedented influence over the journalistic and political speech in America. The rating can be used to discourage advertisers and revenue sources for targeted sites. Just as S&P scores can kill a business, a media rating could kill a blog or website.
That is an enormous amount of power to be wielded by any organization, let alone a for-profit enterprise started by two self-appointed monitors of media. That is not meant to disparage Gordon and Steve, but to acknowledge that this is not just a hugely profitable but a hugely powerful enterprise.
It is also not a criticism of the founding principles. We have seen many organizations that began as faithful to principles of neutrality only to see those principles corrupted with time. Indeed, as we have previously discussed, the very principles of objectivity and neutrality are now rejected in many journalism schools.
The Criteria
While NewsGuard insists that its criteria is completely objective and neutral, that does not appear to be the case. The siteโs standards include key determinations on whether some sites run statements that NewsGuard considers โclearly and significantly false or egregiously misleading.โ (That appears part of the most heavily weighted criteria for credibility at 22 points).
The staff will determine if it believes that a site shows a tendency to โegregiously distort or misrepresent information.โ
The staff decides if information is false and, if it is considered false by NewsGuard, whether the site โidentifies errors and publishes clarifications and corrections, transparently acknowledges errors, and does not regularly leave significant false content uncorrected.โ Thus, if you disagree with the claims of falsity or view the statement as opinion, the failure to correct the statement will result in additional penalties.
The site will also determine if it finds the sources used by a site to be โcredibleโ and whether โthey โฆ egregiously distort or misrepresent information to make an argument or report on a subject.โ
If the site decides that there are errors, it will lower ratings if the site does not โtransparently acknowledges errors, and does not regularly leave significant false content uncorrected.โ
The company pledges to combat โmisinformationโ and โfalse narratives.โ
We have seen mainstream media use these very terms to engage in highly biased coverages, including labeling true stories or viewpoints โdisinformation.โ
Given these terms and the history of their use in the media, NewsGuards assurances boil down to โtrust us weโre NewsGuard.โ GDI made the same assurances.
This is not to say that some of these criteria cannot be helpful for sites. However, the overall rating of media sites is different from Standard & Poorโs. Financial ratings are based on hard figures of assets, earnings, and liabilities. โLiquidityโ is far more concrete and objective than โcredibility.โ What NewsGuard does is fraught with subjectivity regardless of the motivations or intentions of individual raters.
The Res Ipsa Review
The inquiry sent to this blog reflects those concerns. The timing of the inquiry was itself chilling. I had just criticized NewsGuard roughly a week earlier. It is not known if this played any role in the sudden notice of a review of Res Ipsa.
One inquiry particularly stood out for me. The reviewer informed me:
โI cannot find any information on the site that would signal to readers that the siteโs content reflects a conservative or libertarian perspective, as is evident in your articles. Why is this perspective not disclosed to give readers a sense of the siteโs point of view?โ
The effort of NewsGuard to label sites can have an impact on its ratings on credibility and transparency. Yet, sites may disagree with the conclusions of NewsGuard on their view of the content. What may seem conservative to a NewsGuard reviewer may be less clearly ideological to the host or blog.
Moreover, despite noting that it asked MSNBC to state its liberal bias, it is not clear if the company has suggested such a notice from many other sites from NPR to the New Republic. For example, is Above the Law supposed to warn readers that it takes a liberal perspective and regularly attacks conservatives? What about other academic blogs like Balkinization?
The point is not to say that they should be required to label their own views (though some sites choose to do so) but to ask whether all sites are asked to do so. If not, when is this demand made for sites? For some reviewers, a liberal perspective may simply seem like stating the obvious or unassailable truth.
Labeling
In fairness to NewsGuard, we all often engage in labeling as part of our discussions โ both labeling ourselves and others. For example, I often acknowledge that I hold many libertarian views. However, I continue to write columns that run across the ideological spectrum and I continue to be attacked from both the right and the left for those columns.
Identifying yourself as a libertarian does not convey much information for readers. Many readers have erroneous views of libertarians as a monolithic group. (The public high school teacher of one of my kids told the class that libertarians were just conservatives who did not want to call themselves Republicans). In actuality, it is a group that runs from liberal to conservative figures who maximize individual rights. Labeling your site as libertarian is about as helpful as saying that it is utilitarian.
The suggestion in the email is that readers should be informed that anything they read is coming from a libertarian or conservative on the site. Yet, most law professor blogs are very liberal, but do not make the same type of warning.
We often discuss these labels in judging the diversity of faculties. Yet, that is based largely on surveys of professors self-identifying or the political registration of academics. It is admittedly a blunt tool, but there is little debate that faculties around the country are overwhelmingly liberal. Indeed, even sites like Above the Law have strived to defend โpredominantly liberal facultiesโ as just reflecting the fact that most conservatives are simply wrong on the law.
There is always an overgeneralization in the use of such labels, but we try to take that into consideration in discussing the overall lack of diversity of viewpoints on campuses today.
Conclusion
Rating media sites is vastly different. You are often relying on the views of the reviewers that may be challenged by the site. Postings that challenge popular narratives are often denounced as false or disinformation by critics.
I am particularly concerned over the reported government contracts given to NewsGuard by the Biden Administration as well as agreements with teacher unions to help filter or rate sites. The Twitter Files have shown an extensive system of funding and coordination between agencies and these companies. The funding of such private rating or targeting operations is precisely what I have warned about in congressional testimony as a type of โcensorship by surrogate.โ The government has been attempting to achieve forms of censorship indirectly that it is barred from achieving directly under the First Amendment.
Consider those bloggers and scientists who were censored and denounced for voicing support for the lab theory on Covid 19 and other subjects from the efficacy of masks to the need to shutdown schools. They spent years having mainstream media figures denouncing them for refusing to admit that they were spreading disinformation or conforming to general views on these issues.
Political and legal commentary are rife with contested opinion over the facts and their implications. Having a company sit in judgment on what is fact and what is opinion is a troubling role, particularly when the rating is used to influence advertisers and financial supporters.
Once again, there are many people on the other side of this debate who have good-faith reasons for wanting a standardized set of criteria for news sources and commentary sites. I simply believe that this is a degree of influence that is dangerously concentrated in a small number of groups like NewsGuard.
N.B.: After this response ran, NewsGuard wrote me that Above The Law actually was marked down for failing to clearly delineate between news and opinion. It further said that the New Republic acknowledges its liberal take, so there is no issue on labeling. What is not clear is whether every site, including academic blogs, are asked to label themselves and who makes that decision on what label should apply.
Below is my column in The Hill on the recent notice that this blog is now being formally โreviewedโ by NewsGuard, a company that I just criticized in a prior Hill column as a threat to free speech. The questions from NewsGuard were revealing and concerning. Today, I have posted the response of NewsGuardโs co-founder Gordon Crovitz as well as my response to his arguments.
Here are is the column:
Recently, I wrote aย Hill columnย criticizing NewsGuard, a rating operation being used to warn users, advertisers, educators and funders away from media outlets based on how it views the outletsโ โcredibility and transparency.โ Roughly a week later, NewsGuard came knocking at my door. My blog,ย Res Ipsaย (jonathanturley.org), is now being reviewed and the questions sent by NewsGuard were alarming, but not surprising.
I do not know whether the sudden interest in my site was prompted by my column. I have previously criticized NewsGuard as one of the most sophisticated operations being used to โwhite listโ and โblack listโ sites. Myย new book, โThe Indispensable Right: Free Speech in an Age of Rage,โย details how such sites fit into a massive censorship system that one federal court called โOrwellian.โ
For any site criticizing the media or the Biden administration, the most chilling words today are โIโm from NewsGuard and I am here to rate you.โ
Conservatives haveย long accusedย the company of targeting conservative and libertarian sites andย carrying out the agendaย of its co-founder Steven Brill. Conversely, many media outlets have heralded his efforts to identify disinformation sites for advertisers and agencies.
Brill and his co-founder, L. Gordon Crovitz, want their company to be the media version of the Standard & Poorโs rating for financial institutions. However, unlike the S&P, which looks at financial reports, NewsGuard rates highly subjective judgments like โcredibilityโ based on whether they publish โclearly and significantly false or egregiously misleadingโ information. They even offer a โNutrition Labelโ for consumers of information.
Of course, what Brill considers nutritious may not be the preferred diet of many in the country. But they might not get a choice since the goal is to allow other companies and carriers to use the ratings to disfavor or censor non-nutritious sites.
The rating of sites is arguably the most effective way of silencing or marginalizing opposing views.ย Iย previouslyย wrote about other sites supported by the Biden administration that performed a similar function, including the Global Disinformation Index (GDI). GDI then released a list of the 10 most dangerous sites, all of which are popular with conservatives, libertarians and independents. GDI warned advertisers that they were accepting โreputational and brand riskโ by โfinancially supporting disinformation online.โ The blacklisted sites includedย Reason, a respected libertarian-oriented source of news and commentary about the government. However, HuffPost, a far left media outlet, was included among the 10 sites atย lowest risk of spreading disinformation.
When NewsGuard came looking for Res Ipsa, the questions sounded like they came directly from CGI. I was first asked for information on the financial or revenue sources used to support my blog, on which I republish my opinion pieces from various newspapers and publish original blog columns.
Given NewsGuardโs reputation, the email would ordinarily trigger panic on many sites. But I pay not to have advertising, and the closest I come to financial support would be my wife, since we live in a community property state. If NewsGuard wants to blacklist me with my wife, it is a bit late. Trust me, she knows.
NewsGuard also claimed that it could not find a single correction on my site. In fact, there is a location for readers marked โcorrectionsโ to register objections and corrections to postings on the site. I also occasionally post corrections,changes and clarifications.
NewsGuard also made bizarre inquiries, including about why I called my blog โRes Ipsa Liquitur [sic] โ the thing itself speaks. Could you explain the reason to this non-lawyer?โ Res ipsa loquitur is defined in the header as โThe thing itself speaks,โ which I think speaks for itself.
But one concern was particularly illuminating:
โI cannot find any information on the site that would signal to readers that the siteโs content reflects a conservative or libertarian perspective, as is evident in your articles.ย Why is this perspective not disclosed to give readers a sense of the siteโs point of view?โ
I have historically been criticized as a liberal, conservative or a libertarian depending on the particular op-eds. I certainly admit to libertarian viewpoints, though I hold many traditional liberal views. For example, I have been outspoken for decades in favor same-sex marriage, environmental protection, free speech and other individual rights. I am a registered Democrat who has defended reporters, activists and academics on the left for years in both courts and columns.
The blog has thousands of postings that cut across the ideological spectrum. What I have not done is suspend my legal judgment when cases touch on the interests of conservatives or Donald Trump. While I have criticized Trump in the past, I have also objected to some of the efforts to impeach or convict him on dubious legal theories.
Yet, NewsGuard appears to believe that I should label myself as conservative or libertarian as a warning or notice to any innocent strays who may wander on to my blog. It does not appear that NewsGuard makes the same objection to HuffPost or the New Republic, which run overwhelmingly liberal posts. Yet, alleged conservative or libertarian sites are expected to post a warning as if they were porn sites.
NewsGuard is not alone in employing this technique. Mainstream media outlets often label me as a โconservative professorโ in reporting my viewpoints. They do not ordinarily label professors with pronounced liberal views or anti-Trump writings as โliberal.โ
Studies show that the vast majority of law professors run from the left to the far left. A study found that only 9 percent of law school professors at the top 50 law schools identify as conservative. A 2017 study found only 15 percent of faculties overall were conservative.
It is rare for the media to identify those professors as โliberal,โ including many professors on the far left who regularly denounce conservatives or Republicans. It is simply treated as not worth mentioning. Yet, anyone libertarian or right of center gets the moniker as a warning that their viewpoint should consideredย in weighing their conclusions. Yet, NewsGuard is in the business of labeling people . . . and warning advertisers. It considers my writings to be conservative or libertarian and wants to know โWhy is this perspective not disclosed to give readers a sense of the siteโs point of view?โ
It does not matter that my views cut across the ideological spectrum or that I do not agree with NewsGuardโs label. Indeed, while I clearly hold libertarian views, libertarians run a spectrum from liberal to conservative. The common article of faith is the maximization of individual rights, while there is considerable disagreement on many policies. Steven Brill is considered a diehard liberal. Would it be fair to add a notice or qualifier of โliberalโ to any of his columns or opinions?
It does not matter. Apparently from where NewsGuard reviewers sit, I am a de facto conservative or libertarian who needs to wear a digital bell to warn others.
It is a system that includes what Elon Musk correctly called โthe advertising boycott racket.โ Musk wasย responding to another such groupย pushing a rating system as an euphemism for blacklisting. For targeted sites, NewsGuard is now the leading racketeer in that system. It makes millions of dollars by rating sites โ a new and profitable enterprise with dozens of other academic and for-profit groups. They have commoditized free speech in blacklisting and potentially silencing others. If you are the Standard & Poorโs of political discourse, you can rate sites out of existence by making them a type of junk bond blog.
Yet, the fact that I have no advertisers or sponsors to scare off does not mean that NewsGuard cannot undermine the site. The company has reportedly received federal contracts, whichย some in Congress have sought to block. It is alsoย allied with organizations like Turnitinย to control what teachers and students will read or use in schools. The powerful American Federation of Teachers, which has been criticized for its far left political alliances with Democratic candidates, has alsoย pushed NewsGuard for schools.
This is why myย bookย calls for a number of reforms, including barring federal funds for groups engaged in censoring, rating or blacklisting sites. NewsGuard shows that such legislation cannot come soon enough.
N.B.: The original version of this column included MSNBC as an example of liberal sites that do not post their own ideological bent or label. I later heard from NewsGuard that they did indeed mark down MSNBC for failing to make such a disclosure, so I removed it from this blog column. I posted a response today on why I continue to oppose rating systems such as NewsGuard.
On the weekend, I ran a column critical of NewsGuard and its recent notification of this blog that it was being โrated.โ NewsGuard co-founder Gordon Crovitz responded to that column the next day. We have previously exchanged emails on my concerns over rating systems generally, including the Global Disinformation Index (which is not related to NewsGuard). I noted the concerns over bias from conservatives and members of Congress, but my primary concern remains with the concept of a rating system for media sites and blogs. While NewsGuard has given high ratings to some conservative sites, I generally oppose media rating systems due to free speech concerns and the use of these systems by the current anti-free speech movement.
I have always found Gordon to be open and frank about these subjects and I wanted readers on the blog to hear the opposing view from him directly. He was kind enough to consent to my posting the following. I will be posting a response to Gordon separately in the hopes that we can use this controversy as a foundation for a much needed discussion of rating systems and their impact on free speech.
Here is his response:
Jonathan:
We welcome the publicity, but your complaints in your July 27 commentary in the Hill about NewsGuard seem based on some misunderstandings.
First, we launched NewsGuard in 2018 as an alternative either to the Silicon Valley platforms secretly putting their thumbs on the scale for news and information sites or for calls to have the government censor social media and other online speech. Digital platforms were (and are) secretly rating news and information websites, with no disclosure about their criteria and no way for the people running the websites even to find out how they were rated. The only other entity rating news and information sites at the time we launched was GDI, which as you have written is a left-wing advocacy groupโwhich like the digital platforms does not disclose its criteria or let publishers know how they are rated (except when information escapes such as the top 10 list of โriskyโ sites, which as you noted are all conservative or libertarian sites).
As I have written as a (libertarian-leaning) conservative former publisher, including in this recent Washington Examiner articleย https://www.washingtonexaminer.com/opinion/3091369/advertisers-fear-supporting-journalism-heres-how-to-fix-that/, I wouldnโt trust the platforms or a left-wing advocacy group either. We launchedย NewsGuardย as the transparent and apolitical alternative, with the goal of giving news consumers basic information about websites they encounter online.
We reach out to the people running news and information websites for several purposes. We want to be sure we correctly assess sites based on our nine criteria. Weโre a journalistic enterprise, so would always reach out for comment before concluding a site fails any of our criteria. We often quote the people running websites to provide more context about their site, whether they fail any criteria or not. More than a quarter of the websites weโve rated have taken steps, usually relating to greater transparency, to get higher ratings.
In your column, you asserted that NewsGuard treats liberal sites preferentially compared with how we treat conservative or libertarian sites. This is false, as the many high scores for conservative and libertarian sitesโand low scores for liberal sitesโmakes clear. Youโll see examples in the Washington Examiner article I linked to above. (There are right-wing sites like OAN that get low ratings such as for its Dominion Voting Systems claims, and there are left-wing sites that get low ratings for false claims such as about Donald Trump.)
In your Hill article, you claimed that โit does not appearโ that we expect left-wing sites to disclose their point of view to readers. You gave the example of MSNBC. I am attaching our publicly available rating for this website. You will see it fails our criterion relating to news/opinion for failing to disclose its orientation. The MSNBC website scores lower than Fox News using our criteria because MSNBC fails to disclose its orientation whereas the website for Fox News does disclose its. (MSNBC also fails our criterion for gathering and presenting responsibly due to claims it made about Trump, Ron DeSantis, Steve Bannon and others.)
We also anticipated even back when we launched that there would be calls for government censorship if secret and partisan ratings were the only ones available in the market. I would have thought, including based on your recent book, that youโd especially welcome an accountable market alternative to censorship.
Finally, I appreciated your obituary for Bob Zimmer and your calls for the Chicago Principles to be widely adopted. (Whether our UChicago fully lives up to them is a topic for another dayโI prefer the more energetic approach of Ed Levi to todayโs more appeasing practices.) More information about websites is an exercise of free speech, and when done with transparent apolitical criteria equally applied seems to me a market solution you should support, not criticize or fear.
We previously discussed the free speech lawsuit of Portland State University Professor Bruce Gilley who was blocked from the Twitter account of the University of Oregonโs Division of Equity and Inclusion after tweeting โAll men are created equal.โ The court just granted a preliminary injunction holding that there was a substantial likelihood that he would prevail on the merits against the University of Oregon.
Portland State University Professor Bruce Gilley was excluded from a Diversity Twitter page by the Communication Manager of the Division of Equity and Inclusion at the University of Oregon. (The manager is identified as โtova stabinโ who the court notes โspells her name with all lowercase letters.โ). Stabin has now left the school.
In Gilley v. Stabin, Judge Hernรกndez previously offered this background:
On or about June 14, 2022, Defendant stabin, in her capacity as Communication Manager, posted a โracism interruptorโ to the Divisionโs Twitter page, @UOEquity. The Tweet read โYou can interrupt racism,โ and the prompt read, โIt sounded like you just said_________. Is that really what you meant?โ
Plaintiff Bruce Gilley, a professor at Portland State University, responded to the Tweet the same day it was posted with the entry โall men are created equal.โ Plaintiff is critical of diversity, equity, and inclusion (โDEIโ) principles, and intended his tweet to promote a colorblindness viewpoint. Plaintiff tagged @uoregon and @UOEquity in his re-tweet. Also on June 14, 2022, Defendant stabin blocked Plaintiff from the @UOEquity account. Once he was blocked, Plaintiff could no longer view, reply to, or retweet any of @UOEquityโs postsโฆ.
Plaintiff later filed a public records request with the University of Oregon to inquire about the policy VPEI uses to block Twitter users. โฆ The University initially responded that there was no written policy and that โthe staff member that administers the VPEI Twitter account and social media has the autonomy to manage the accounts and uses professional judgment when deciding to block users.โ โฆPlaintiff also asked whether other Twitter users had been blocked from @UOEquity, and the University responded that two other users were blocked. โฆ Plaintiff asserts that โ[b]oth of the other users have expressed politically conservative viewpoints, including criticizing posts of the @UOEquity account.โ Am. Compl. ยถ 70.
On June 27, 2022, Defendant stabin responded to an email from University of Oregon employee Kelly Pembleton, who was helping respond to Plaintiffโs public records request. Defendant stabin sent the following in response to Pembletonโs request for a list of the users she had blocked on @UOEquity:
โDoesnโt take real long. Iโve only ever blocked three people. Here is the list. Iโm assuming the issue is this guy Bruce Gilley. He was not just being obnoxious, but bringing obnoxious people to the site some. We donโt have much following and itโs the social I pay least attention to. Hereโs a screenshot of everyone Iโve ever blocked. I hardly do it (and barely know how to).โ
Minutes later, Defendant stabin sent another email to Pembleton about the records request. The email reads, in pertinent part:
โOh, I see. It is Bruce who brought it. Not surprising. He was commenting on one of the โinterrupt racismโ posts, as I recall talking something about the oppression of white men, if I recall. Really, they are just there to trip you up and make trouble. Ugh. Iโm around at home for a quick zoom about it.โ
The court previously denied the universityโs motion to dismiss. The University of Oregon then continued to spend public dollars to try to defend its right to censor academics and students in this arbitrary way. Now it has lost the key fight over the preliminary injunction.
In his decision, Judge Hernรกndez zeroed in on the guidelines allowing for the censorship of offensive or hateful speech:
โPlaintiff has shown that the two provisions of the social media guidelines he challenges create a risk of censoring speech that is protected by the First Amendment. As Plaintiff points out, speech that is โhateful,โ โracist,โ or โotherwise offensiveโ is protected by the Constitution. Pl. Br. 3 (citing Snyder v. Phelps, 562 U.S. 443, 454 (2011); Cohen v. California, 403 U.S. 15, 25 (1971); Am. Freedom Def. Initiative v. King County, 904 F.3d 1126, 1131 (9th Cir. 2018)). The Court held that the @UOEquity account was a limited public forum, meaning that any restrictions on speech must be reasonable and viewpoint-neutral. Op. & Ord. 25.5 Plaintiff is correct that the provisions allowing the Communications Manager to block โhateful,โ โracist,โ and โotherwise offensiveโ speech create a risk of viewpoint discrimination because โ[w]hat is offensive or hateful is often in the eye of the beholder.โ Pl. Br. 4. If Plaintiff was blocked for posting โall men are created equalโ because the post was viewed as hateful, racist, or otherwise offensive, such blocking would violate the Constitution. Deleting or hiding the post for that reason would also violate the Constitution.โ
That is why this decision could have a lasting impact for higher education. The Oregon language is not dissimilar from many schools limiting campus speech under vague guidelines.
Notably, we have discussed how these schools have been losing in federal courts in their effort to maintain censorship systems. Yet, administrators continue undeterred in pursuing these policies with the support of their faculty.
Oregon has long been known for radical viewpoints in academia. I previously criticized the school policy to monitor student speech on social media and off campus as part of its speech regulations.
It is unlikely that the legislature will object to this expensive fight to preserve the right to censor speech. The state itself has moved aggressively against free speech rights of doctors and others in areas like abortion. However, the people of Oregon should consider the use of their tax dollars to seek to limit the โindispensable rightโ of free speech and to give figures like stabin such discretion over what speech to allow on campus.
District Court Judge David Carter delivered a crushing blow against free speech rights in elementary schools in an outrageous case out of Orange County. Principal Jesus Becerra at Viejo Elementary punished a seven-year-old girl named B.B. in the lawsuit for writing โany lifeโ under a โBlack Lives Matterโ picture. Judge Carter issued a sweeping decision that said that she has no free speech rights in the matter due to her age and that the school is allowed to engage in raw censorship. He is now being appealed.
The message from the school seems to be that black lives matter but free speech does not. The school found a kindred spirit in Judge David Carter.
After a lesson on Martin Luther King, B.B. gave her picture to a friend, believing the inclusive image of four shapes of different races and the words would be comforting to a friend. However, when that child showed the picture to a parent, a complaint was filed that B.B.โs picture was insensitive and offensive. Becerra responded by disciplining the child for her inclusive picture.
Becerra should be fired, but his extreme views and lack of judgment is hardly unique in education. The far greater damage was created by Carterโs opinion.
Judge Carter ruled that B.B. has no free speech to protect due to her age, but that โstudents have the right to be free from speech that denigrates their race while at school.โ
Judge Carter added that โan elementary school โฆ is not a marketplace of ideasโฆ Thus, the downside of regulating speech there is not as significant as it is in high schools, where students are approaching voting age and controversial speech could spark conducive conversation.โ
The court leaves a vacuum of protected rights that he fills with what seems unchecked authority for the school: โa parent might second-guess (the principalโs) conclusion, but his decision to discipline B.B. belongs to him, not the federal courts.โ
In my view, Judge Carter is dead wrong, though I expect he will find support among some of the judges on the Ninth Circuit.
The Court applies the famous ruling inย Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), as a license for sweeping censorship and discipline. Yet, the Court held inย Tinkerย that students have free speech rights and that any restrictions requireย evidence of โinterference, actual or nascent, with the schoolsโ work or collision with the rights of other students to be secure and to be let alone.โ It then imposes a high standard that it must โmaterially disrupt[] classwork or involves substantial disorder or invasion of the rights of others.โ This disruption must be โcaused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.โ
However, what is more disturbing is the disconnection of the right from anything but a narrow functionalist view of free speech. In my new book, โThe Indispensable Right: Free Speech in an Age of Rage,โ I criticize the functionalist approaches that tie the protection of free speech to its function in advancing a democracy.
I argue for a return to the view of free speech as a natural or human right โ a view that was popular at the beginning of our Republic but soon lost to functionalist rationales. Those rationales allow for the type of endless trade-offs evident in the Carter decision.
Carterโs functionalist or instrumentalist approach makes it easier to simply discard any free speech rights in elementary students. In my view, they have free speech rights as human beings as do their parents. Under Carterโs approach, schools can engage in a wide array of indoctrination by declaring opposing political and social views to be โdisruptive.โ
Ironically, my book criticizes Judge Carter in another case over his failure to consider free speech concerns. In his decision in the January 6th case involving John Eastman, Carter dismisses his arguments that he had a right to present his novel theory against certification of the election.
While many of us disagreed with Eastman, there was a concern over efforts to strip lawyers of their bar licenses and even use criminal charges against such figures. However, what concerned me the most was sweeping language used by Carter in his decision.
Carterโs narrow view of free speech and his expansive view of state authority is hardly unique. B.B. is devoid of free speech protections even in this outrageously abusive case. The reason is that she is not of an age where her speech is viewed as worthy of protection. It is an example of the distortive and corrosive effect of functionalism in free speech jurisprudence in my view.
We have been following the controversiesย surrounding professors commenting on the attempted assassination of former President Donald Trump. Some of those responses have ranged from celebrations to spreading bizarre conspiracy theories. The latest controversy concerns Rutgers University Writing Program Assistant Teaching Professorย Tracy Budd,ย who posted a Facebook message sayingโ Letโs hope todayโs events inspire others.โ These postings raise difficult questions for universities in balancing free speech rights against statements viewed as endorsing violence.
โWe are living in an age of rage. It permeates every aspect of our society and politics. Rage is liberating, even addictive. It allows us to say and do things that we would ordinarily avoid, even denounce in others. Rage is often found at the farthest extreme of reason. For those who agree with the underlying message, it is righteous and passionate. For those who disagree, it is dangerous and destabilizing.โ
Like many on the left, Budd mocked the assassination attempt and seemed to regret that it was not successful. She added, โThey shot his wig. Sad.โ
For most of us, the comments are shocking, but shock is a relative concept in an age of rage. Budd, like many, does not appear to view Trump as a human being as much as a symbol or object. He is treated as devoid of human components from feelings to family. It is easier to call for the killing of a caricature than a person.
Budd is obviously part of the radical chic in higher education discussed in my book. She has worked at the Rutgers University Writing Program for 22 years.
Conservative sitesย like Campus Reform haveย notedย that her Facebook account featuresย a poster at a protest that reads: โCapitalism will kill us all. Gender is fake. Eat garbage. Be free.โ The posting is an example of the difficult questions that arise on social media. This was a comment made outside of the campus as a private person, not as an academic.
My inclination is always to err on the side of free speech in such circumstances. The university can condemn it, but punishing political speech can place a university on a slippery slope. Moreover, Rutgers is a public university subject to the First Amendment. I do not believe that disciplinary action would be upheld under these circumstances. Rutgers could argue that this is a call for political violence. However, Professor Budd can insist that this is mere hyperbole and bad humor.
My concern is not with allowing Buddโs hateful speech, but the lack of consistency in how universities respond to such controversies.
The most analogous case is that of University of Rhode Island professor Erik Loomis, who defended the murder of a conservative protester and said that he saw โnothing wrongโ with such acts of violence. Yet, those extreme statements from the left are rarely subject to cancel campaigns or university actions.
Faculty and students often have little tolerance for even jokes from conservatives as they do alleged jokes by liberals like Budd.
For example, conservative North Carolina professor Dr. Mike Adams faced calls for termination for years with investigations and cancel campaigns. He repeatedly had to go to court to defend his right to continue to teach. He was then again targeted after an inflammatory tweet. He was done. Under pressure from the university, he agreed to resign with a settlement. Four years ago this month, Adams went home just days before his final day as a professor. He then committed suicide.
What are often portrayed as harmless jokes from the left are treated as threats from the right. That is the long reality of rage rhetoric; it is either righteous or dangerous depending on your perspective.
Below is my column in the New York Post on the ruling against Nina Jankowicz in her defamation case. It turns out that calling opposing views defamation is no better than calling them disinformation.
Here is the column:
For free speech advocates, there are few images more chilling than that ofย Nina Jankowiczย singing her now-infamous tune as โthe Mary Poppins of Disinformation.โ The woman who would become known as the โDisinformation Czarโ sang a cheerful TikTok parody of โSupercalifragilisticexpialidociousโ to rally people to the cause of censorship.
When the press caught wind of President Bidenโsย plan to appoint Jankowiczย as head of the Department of Homeland Securityโs new โdisinformation board,โ Fox News said she โintended to censor Americansโ speech.โ The backlash was swift. Plans for the board were suspended, and Jankowicz resigned in 2022. She then sued Fox News for defamation.
On Monday, the case was dismissed. But Chief Judge Colm Connolly, a Delaware Democrat, didnโt just say it was legally unfounded โ he demolished the claims of figures like Jankowicz that they are really not engaged in censorship.
These figures gleefully worked to silence others with the support of millions in public dollars for years. Yet, when exposed to criticism, they often portrayed themselves as victims with an obliging and supportive media.
They all took a page from Mary Poppins, who โtaught us the most wonderful word!โ In this case, the word is โdisinformationโ, and it is certainly not connected to โcensorship.โ Rather you are supposed to call the barring, blacklisting and throttling of opposing views โcontent moderation.โ
Jankowicz took that not-so-noble lieย to a new level. After losing her job, she launched a campaign soliciting funds to sue those who called her a censor. I was highly critical of these efforts as trying to use defamation as another tool to chill critics and shut down criticism. It was a telling lawsuit, as Jankowicz simply labeled criticism of her as โdefamationโ โ just as she labeled opposing views โdisinformation.โ The objections to her work were called false andย she insisted that she wasย really not seeking to censor people with her work.
Connolly made fast work of that effort. After holding that people are allowed to criticize Jankowicz as protected opinion, the court added:
โI agree that Jankowicz has not pleaded facts from which it could plausibly be inferred that the challenged statements regarding intended censorship by Jankowicz are not substantially true. On the contrary โฆ censorship is commonly understood to encompass efforts to scrutinize and examine speech in order to suppress certain communications.
โThe Disinformation Governance Board was formed precisely to examine citizensโ speech and, in coordination with the private sector, identify โmisinformation,โ โdisinformation,โ and โmalinformation.โ โฆ that objective is fairly characterized as a form of censorship.โ
Of course, in Americaโs burgeoning censorship infrastructure, the entire decision is likely to be viewed as some form of disinformation, misinformation or malinformation. After all, even true facts can be deemed censorable by the Biden-Harris administration.
I testified previously before Congress on how Jen Easterly, who heads the Cybersecurity and Infrastructure Security Agency, extended her agencyโs mandate over critical infrastructure to include โour cognitive infrastructure.โ The resulting censorship efforts included combating โmalinformationโ โ described as information โbased on fact, but used out of context to mislead, harm, or manipulate.โ
Thus, referring toย Jankowicz as engaged in censorshipย on this defunct board may be true, but could still be treated as โmalinformation.โ
As I discuss in myย book, these setbacks are unlikely to deter the corporate, academic and government figures aligned in our current anti-free speech movement. Millions of government and private dollars are flowing to universities andย organizationsย engaged in targeting or blacklisting individuals and groups. It is now a growing industry unto itself.
The new censors have gone corporate and mainstream. Silencing others is now a calling, a profession. They have literally made free speech into a commodity that can be packaged and controlled for profit.
Yet Confucius once said that โthe beginning of wisdom is the ability to call things by their right names.โ This opinion takes a large step toward such wisdom.
If figures like Jankowicz want to continue to make money silencing others, we can at least call them for what we believe they are: censors.
Jonathan Turley is a Fox News Media contributor and the Shapiro professor of public interest law at George Washington University. He is the author of โThe Indispensable Right: Free Speech in an Age of Rage.โ (Turley appears as a legal analyst on Fox, but nothing in this column is written on behalf of Fox Corp.)
Below is my column in the Hill on the recent report of the House Judiciary Committee and the disclosure of yet another effort to silence opposing viewpoints by squeezing the revenue of individuals or groups, including Elon Musk and Joe Rogan.
Here is the column:
Few Americans have ever heard of the Global Alliance for Responsible Media, let alone understand how it shapes what they read and hear in news and commentary. That may soon change.
An alarming new report of the House Judiciary Committee details this organizationโs work to censor conservative and opposing viewpoints in the media by targeting figures such as Joe Rogan and entire social media platforms such as X (formerly Twitter).
It is part of a massive censorship system that a federal court recently described as โOrwellian.โ The sophistication of this system makes authoritarian regimes like Chinaโs and Iranโs look like mere amateurs in censorship and blacklisting.
In my new book, โThe Indispensable Right: Free Speech in the Age of Rage,โ I discuss our history of speech crackdowns and how this is arguably the most dangerous anti-free speech period that we have faced as a nation. The reason is an unprecedented alliance of government, corporate, academic and media institutions supporting censorship and the targeting of largely conservative viewpoints.
As discussed in the book, there is a crushing irony to the current anti-free speech movement. During the Red Scare and the McCarthy period, it was the left that was targeted with blacklisting, censorship and arrests. It is now the left that has constructed a global censorship system that exceeds anything that Joe McCarthy even dreamt of in the control of news and commentary.
Through the years, I have testified repeatedly in Congress on this system supported enthusiastically by President Biden and his administration. It has proven to be a frustrating game of whack-a-mole for civil libertarians. The Democrats in Congress have uniformly opposed any investigation or action on censorship while denying for years that there was a coordinated effort between government and corporations. When we were successful in uncovering components of this system, they were often quickly shut down as the work shifted to other components and assets.
One of the most insidious efforts has been to strangle the financial life out of conservative or libertarian sites by targeting their donors and advertisers.ย This is where the left has excelled beyond anything that has come before in speech crackdowns. Years ago, I wrote about the Biden administration supporting efforts like theย Global Disinformation Indexย to discourageย advertisers from supporting certain sites. All of the 10 riskiest sites targeted by the index were popular with conservatives, libertarians and independents. That included Reason.org and a group of libertarian and conservative law professors who simply write about cases and legal controversies. The Global Disinformation Index warned advertisers against โfinancially supporting disinformation online.โ At the same time, HuffPost, a far-left media outlet, was included among the 10 sites atย lowest risk of spreading disinformation.
Once that indexโs work and bias was disclosed, government officials quickly disavowed the funding. It was a familiar pattern. Within a few years, we found that the work had been shifted instead to groups like the Global Alliance for Responsible Media, which is the same thing on steroids. It is the creation of a powerful and largely unknown group called the World Federation of Advertisers, which has huge sway over the advertising industry and was quickly used by liberal activists to silence opposing views and sites by cutting off their revenue streams.
These censorship groups typically proclaim that they are merely trying to promote โbrand safetyโ when they target for suppression the same sites that challenge the political and media establishment. The group states that it โunites marketers, media agencies, media platforms, industry associations, and advertising technology solutions providers to safeguard the potential of digital media by reducing the availability and monetization of harmful content online.โ
That โharmful contentโ seems to be the very same sites long targeted by the Biden administration and its allies in business, the media and academia.
The internal communications of these censorship groups demonstrate their contributorsโ underlying agenda. In one conversation between Global Alliance for Responsible Media co-founder Rob Rakowitz and individuals with an associated โGroupM,โ two executives explained to Rakowitz how they identified sites that they did not like and simply monitored them until they could find something that crossed the line. An example is the Daily Wire, a site hated by liberals for its conservative viewpoints and critiques of mainstream media.
In describing how they work to bag such sites, John Montgomery, executive vice president of Global Brand Safety, explained: โThere is an interesting parallel here with Breitbart. Before Breitbart crossed the line and started spouting blatant misinformation, we had long discussions about whether we should include them on our exclusion lists. As much as we hated their ideology and bullsโt, we couldnโt really justify blocking them for misguided opinion. We watched them very carefully and it didnโt take long for them to cross the line.โ
In other words, they preselected the sites and then followed their every move like a patrol unit following a car to wait for them to go one mile per hour over the limit. This is called โdeplatforming,โ a favorite term from higher education, whereby liberal groups organize to shout down and block speakers with opposing views. The Global Alliance for Responsible Media is too sophisticated to simply bullhorn groups into silence. Instead, it strangles them financially.
Those who do not yield, fromย Elon Muskโsย X to mega-podcaster Joe Rogan, were quickly added to the list to be deplatformed. Musk is particularly dangerous because he was responsible for blowing the lid off the censorship system by releasing the โTwitter Files,โ detailing coordination between government and social media companies to silence citizens and groups. To this day, companies like Facebook continue to fight efforts to disclose their own censorship files.
Musk hasย threatened to sueย in light of the report. โHaving seen the evidence unearthed today by Congress, X has no choice but to file suit against the perpetrators and collaborators in the advertising boycott racket,โ he said.
A lawsuit would be difficult to maintain. These groups have a right to organize to silence opposing views just as book burners have a right to burn books. However, deplatforming, book burning and blacklisting have long been anathema to free speech values. They are efforts to prevent opposing views from being heard rather than to respond to such views on the merits.
And Musk is right in describing this as a โracket.โ There is now a disinformation cottage industry where a wide array of academic and private groups are raking in a fortune targeting individuals and other groups for blacklisting, banning and censorship.
There are other groups working in tandem in this effort. For example, Newsguard was created by to Chief Executive Officers Steven Brill and Gordon Crovitz to monitor and effectively blacklist media that they deemed misinformative or false. The site uses mainstream journalists to rate news sites, even though many of these sites have challenged the bias of the mainstream media.
Once again, the apparatus serves to shield that bias in targeting disfavored sites. The Biden administration has extended contracts with Newsguard to incorporate the system, and it is even being used in schools, despite complaints that it shows the very same pro-Democrat and left-wing bias.
There is a reason why projects such as the Global Disinformation Index have been largely concealed from public view. There is a reason Facebook and other companies have fought mightily to conceal their own censorship files. The anti-free speech movement is not a popular movement.
A majority of the public continues to oppose censorship. This is a movement that came from higher education and has been pushed by the political and media establishment, not the public.
That is why many of us in the free speech community are hoping that the 2024 election will become a referendum on censorship. Biden has given a full-throated endorsement of these efforts, even to the point of claiming that companies that do not censor American citizens are โkilling people.โ He presides over the most anti-free speech administration since John Adams.
So now, let him defend it with voters.
In 1800, that did not work out well for Adams, who was defeated by Thomas Jefferson. Jefferson had run on restoring freedom of speech. The public can now flip the script. It is time to defund and deplatform Americaโs censors.
Below is my column in Fox.com on renewed attacks on free speech and the apologists for this anti-free speech movement, including most recently comedian Jon Stewart. From moves to amend the First Amendment to mocking those being targeted, the left is pushing back at polls and efforts to restore free speech values.
Here is the column:
โThe First Amendment Is Out of Control.โ That headline in a recent column in the New York Times warned Americans of a menace lurking around them and threatening their livelihoods and very lives. That menace is free speech, and the media and academia are ramping up attacks on a right that once defined us as a people.
In my new book โThe Indispensable Right: Free Speech in an Age of Rage,โ I discuss how we are living in the most dangerous anti-free speech period in our history. An alliance of the government, corporations, academia, and media have assembled to create an unprecedented system of censorship, blacklisting, and speech regulation. This movement is expanding and accelerating in its effort to curtail the right that Supreme Court Justice Louis Brandeis once called โindispensableโ to our constitutional system.
It is, of course, no easy task to convince a free people to give up a core part of identity and liberty. You have to make them afraid. Very afraid.
The current anti-free speech movement in the United States has its origins in higher education, where faculty have long argued that free speech is harmful. Starting in secondary schools, we have raised a generation of speech phobics who believe that opposing views are triggering and dangerous. Anti-free speech books have been heralded in the media. University of Michigan Law Professor and MSNBC legal analystย Barbara McQuadeย has written how dangerous free speech is for the nation. Her book,ย โAttack from Within,โdescribes how free speech is what she calls the โAchilles Heelโ of America, portraying this right not as the value that defines this nation but the threat that lurks within it.
McQuade and many on the left are working to convince people that โdisinformationโ is a threat to them, and that free speech is the vehicle that makes them vulnerable. It is a clarionโs call that has been pushed byย President Joe Bidenย who claims that companies refusing to censor citizens are โkilling people.โ The Biden administration has sought to use disinformation to justify an unprecedented system of censorship.
As I have laid out inย testimony before Congress,ย Jen Easterly, who heads the Cybersecurity and Infrastructure Security Agency, extended her agencyโs mandate over โcritical infrastructureโ to include โour cognitive infrastructure.โ The resulting censorship efforts included combating โmalinformationโ โ described as information โbased on fact, but used out of context to mislead, harm, or manipulate.โ So, you can cite true facts but still be censored for misleading others.
The media has been running an unrelenting line of anti-free speech columns. Recently, the New York Times ran a column by former Biden official and Columbia University law professor Tim Wu describing how the First Amendment was โout of controlโ in protecting too much speech. Wu insists that theย First Amendmentย is now โbeginning to threaten many of the essential jobs of the state, such as protecting national security and the safety and privacy of its citizens.โ He bizarrely claims that the First Amendment โnow mostly protects corporate interests.โ
So free speech not only threatens your life, your job, and your privacy, but serves corporate masters. Ready to sign your rights away?
Wait, there is more.
There is a movement afoot to rewrite the First Amendment through an amendment. George Washington University Law School Professor Mary Anne Franks believes that the First Amendment is โaggressively individualisticโ and needs to be rewritten to โredoโ the work of the Framers.
Her new amendment suggestion replaces the clear statement in favor of a convoluted, ambiguous statement of free speech that will be โsubject to responsibility for abuses.โ It then adds that โall conflicts of such rights shall be resolved in accordance with the principle of equality and dignity of all persons.โ Franks has also dismissed objections to the censorship on social media and insisted that โthe Internet model of free speech is little more than cacophony, where the loudest, most provocative, or most unlikeable voice dominates . . . If we want to protect free speech, we should not only resist the attempt to remake college campuses in the image of the Internet but consider the benefits of remaking the Internet in the image of the university.โ
Franks is certainly correct that those โunlikeable voicesโ are rarely heard in academia today. As discussed in my book, faculties have largely purged conservative, Republican, libertarian, and dissenting professors. The discussion on most campuses now runs from the left to far left without that pesky โcacophonyโ of opposing viewpoints.
Experts at leading universities were fired or stripped of positions for questioning COVID claims. Conservative faculty have been hounded from schools and conservative sites have been targeted by government-funded programs. Thousands have been banned from social media.
What is particularly maddening for many in the free speech community is how the left has responded to opposition to censorship and blacklisting. Some are claiming to be victims by those who criticize their work to target individuals and groups as disinformation.
Others, likeย comedian Jon Stewartย mock those who object to the erosion of free speech by noting that conservatives are making these objections on television or online. So, according to Stewart, how can there be a problem if you are able to still object? The suggestion is that there can be no threat to free speech unless people are completely silenced.
Stewart insists that โwe are surrounded by and inundated with more speech than has ever existed in the history of communication.โ In other words, because people can still speak, the well-documented systems of censorship and blacklisting must not be so bad.
It is not clear what Stewart would accept as sufficient censorship. In universities, polls show both faculty and students afraid to speak openly. The government has funded a host of programs to pressure the source of revenue of conservative sites and to target dissenting voices. Yet, because we are raising objections to these trends, Stewart laughs at the very notion that free speech is under fire. After all, he is doing just fine.
What appears to be a punchline to Stewart is a bit more serious for others who have their livelihoods threatened by the anti-free speech movement. Stewart has the benefit of being a liberal comedian on a liberal network. Try being a conservative comedian today getting air time on most cable outlets or college campuses. Like so many academics, everything seems just fine to them. With the purging of opposition viewpoints, those who remain have little to complain about.
The effort to assure citizens that โthere is nothing to see hereโ is belied by a massive censorship system described by one federal court as โOrwellian.โ Conservatives face cancel campaigns and blacklisting in academic and media forums.
As I discussed in my new book, conservative North Carolina professor Dr. Mike Adams faced calls for termination for years with investigations and cancel campaigns. He repeatedly had to go to court to defend his right to continue to teach. He was then again targeted after an inflammatory tweet. He was done. Under pressure from the university, he agreed to resign with a settlement. Four years ago this month, Adams went home just days before his final day as a professor. He then committed suicide.
Many others have resigned or retired. For them, the anti-speech movement takes away everything that brings meaning to an intellectual life from publications to associations to even employment. It is a chilling message to others not to join the โcacophony of โฆ unlikeable voices.โ
Some citizens seem sufficiently afraid or angry to surrender their free speech rights. They have lost faith in free speech. For the rest of us, their crisis of faith cannot be allowed to become a contagion. We must have a reawakening in this country that, despite our many divisions, we remain united by this indispensable human right.
Jonathan Turley is a Fox News Media contributor and the Shapiro Professor of Public Interest Law at George Washington University. He is the author of โThe Indispensable Right: Free Speech in an Age of Rageโ (Simon & Schuster, June 18, 2024).
I have previously written how President Joe Biden is the most anti-free speech president since John Adams. For his part, Biden has continued to double down on his anti-free speech policies with the appointment of figures who have long supported bans and other speech controls. The latest such appointment is Andy Volosky, who was made deputy director of platforms for the White Houseโs Office of Digital Strategy. Volosky has been outspoken in support of banning former president Donald Trump from social media platforms.
In my new book, The Indispensable Right: Free Speech in an Age of Rage, I lay out the chilling comparisons between the Adams and Biden Administrations in the crackdown of free speech. For Adams, that led to defeat in 1800 when Jefferson ran in part on restoring free speech. To my surprise, Trump and his fellow challengers in this election have not made free speech a central issue to force Biden to defend the massive censorship system supported by his Administration.
The public does not support censorship. This is a movement that originated in higher education and has been pushed by the political and media establishment, not the voters. Volosky will now help direct digital strategies for the White House. He previously praised the banning of Trump, asking โWhat took them so long?โ in a 2021 blog post.
In Voloskyโs blog post, titled โA New, and Hopefully Welcome, Standard,โ he warned that โTwitter still allows the accounts of various world leaders, governments, and spokespeople, who use Twitter for what one can only describe as propaganda as cover for autocracy, to continue to use their platform.โ
He praised how Democrats have โlong advocated for regulating the [social media] platformsโ and emphasized how active social media users like himself and others can โkeep the platforms honest.โ
He added that
โWe can play a role in keeping the platforms honest and improving the positive role of social in peopleโs livesโฆItโs past time for the platforms to take content moderation and user safety seriously; as social media professionals, we should be ready and eager to make that happen, and we hope that [banning Trump] can be a small step in getting that ball rolling.โ
For many years, I have testified and written about Antifa and its growing anti-free speech philosophy. Some Democratic leaders have embraced this violent movement, which continues to gain strength on campuses and its cities across the nation. It is also a global movement. That is reflected in the alarming election of Antifa candidates to theย French National Assemblyย as well as theย European Parliament.ย That is quite an accomplishment for a movement that President Joe Biden dismissed as โjust an idea.โ
โAntifa originated with European anarchist and Marxist groups from the 1920s, particularly Antifaschistische Aktion, a Communist group from the Weimar Republic before World War II. Its name resulted from the shortening of the German word antifaschistisch. In the United States, the modern movement emerged through the Anti- Racist Action (ARA) groups, which were dominated by anarchists and Marxists. It has an association with the anarchist organization Love and Rage, which was founded by former Trotsky and Marxist followers as well as offshoots like Mexicoโs Amor Y Rabia. The oldest U.S. group is likely the Rose City Antifa (RCA) in Portland, Oregon, which would become the center of violent riots during the Trump years. The anarchist roots of the group give it the same organizational profile as such groups in the early twentieth century with uncertain leadership and undefined structures.โ
As I have previously written, it has long beenย the โKeyser Sรถzeโ of the anti-free speech movement, a loosely aligned group that employs measures to avoid easy detection or association.ย Yet, FBI Director Chris Wray has repeatedly pushed back on the denials of Antifaโs work or violence. In one hearing, Wray stated โAnd we have quite a numberโ โ and โAntifa is a real thing. Itโs not a fiction.โ
Some Democrats have played a dangerous game in supporting or excusing the work of Antifa. Former Democratic National Committee deputy chair Keith Ellison, now the Minnesota attorney general, once said Antifa would โstrike fear in the heartโ of Trump. This was after Antifa had been involved in numerous acts of violence and its website was banned in Germany. Ellisonโs son, Minneapolis City Council member Jeremiah Ellison, declared his allegiance to Antifa in the heat of the protests this summer. During aย prior hearing, Democratic senators refused to clearly denounce Antifa and falsely suggested that the far right was the primary cause of recent violence. Likewise, Joe Biden hasย dismissed objectionsย to Antifa as just โan idea.โ
It is at its base a movement at war with free speech, defining the right itself as a tool of oppression. That purpose is evident in what is called the โbibleโ of the Antifa movement: Rutgers Professor Mark Brayโs Antifa: The Anti-Fascist Handbook.
Bray emphasizes the struggle of the movement against free speech: โAt the heart of the anti-fascist outlook is a rejection of the classical liberal phrase that says, โI disapprove of what you say but I will defend to the death your right to say it.โโ
Bray admits that โmost Americans in Antifa have been anarchists or antiauthoritarian communistsโฆ ย From that standpoint, โfree speechโ as such is merely a bourgeois fantasy unworthy of consideration.โ
The movement continues to take hold among parties on the left. An Antifa leader who is on Franceโs national security watchlist was elected to the National Assembly as a member of the New Popular Front leftist bloc. Raphaรซl Arnault will represent Vaucluse in Provence in the French parliament after winning with 54.98 per cent of the vote, according toLe Figaro.
French President Emmanuel Macron and his moderate party worked with the New Popular Front in a power deal to defeat conservatives. Antifa was part of that front.
In Italy, Ilaria Salis, a schoolteacher by trade from Milan, Italy, has been elected to the European Parliament despite being arrested in 2023 in Budapest for allegedly taking part in the organized attack by Antifa on attendees of an event commemorating the anniversary of the siege of the Buda castle by the Soviet forces in 1945. Salisโ far-left green alliance Alleanza Verdi e Sinistra (AVS) succeeded in securing the seat with the backing of far-left Jean-Luc Mรฉlenchonโs La France Insoumise (LFI) party โ a member of the New Popular Front alliance.
These two milestones were secured only with the help of mainstream parties and leaders who continue to delude themselves about Antifa and its true agenda. While convenient allies now to win elections, these same leaders could soon find themselves the next reactionaries denounced by these same radical groups as they gain greater power.
President Joe Biden delivered an address from the White House last night on the presidential immunity decision by the Supreme Court. While pledging that he will defend the rule of law, President Biden misrepresented what that law is in the aftermath of Trump v. United States. While we have often discussed false constitutional claims by the President as well as other false statements, an address of this kind is particularly concerning in misleading citizens on the meaning of one of the most important decisions in history.
As I have previously written, I am not someone who has favored expansive presidential powers. As a Madisonian scholar, I favor Congress in most disputes with presidents. However, I saw good-faith arguments on both sides of this case and the Court adopted a middle road on immunity โ rejecting the extreme positions of both the Trump team and the lower court.
One of the most glaring moments in the address came when President Biden declared that โfor allโฆfor all practical purposes, todayโs decision almost certainly means that there are virtually no limits on what a president can do.โ
That is not true.
The Court found that there was absolute immunity for actions that fall within their โexclusive sphere of constitutional authorityโ while they enjoy presumptive immunity for other official acts. They do not enjoy immunity for unofficial, or private, actions.
The Court has often adopted tiered approaches in balancing the powers of the branches. For example, in his famous concurrence to Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), Justice Robert Jackson broke down the line of authority between Congress and the White House into three groups where the President is acting with express or implied authority from Congress; where Congress is silent (โthe zone of twilightโ area); and where the President is acting in defiance of Congress.
Here the Court separated cases into actions taken in core areas of executive authority, official actions taken outside those core areas, and unofficial actions. Actions deemed personal or unofficial are not protected under this ruling.
It is certainly true that the case affords considerable immunity, including for conversations with subordinates. However, this did not spring suddenly from the head Zeus. As Chief Justice John Roberts lays out in the majority opinion, there has long been robust protections afforded to presidents.
There are also a host of checks and balances on executive authority in our constitutional system. This includes judicial intervention to prevent violations of the law as well as impeachment for high crimes and misdemeanors.
President Bidenโs hyper-ventilated response is crushingly ironic. He was vice president when President Barack Obama killed an American citizen without a trial or a charge. When former Attorney General Eric Holder announcedย the โkill listโ policyย (that included the right to kill any American citizen), he was met with applause, not condemnation.
The Obama-Biden administration then fought every effort by the family to sue the government. President Biden would have been outraged by any attempt of a Republican district attorney to charge him or President Obama with murder. He would also be outraged by prosecutors pursuing criminal charges for the deaths associated with the deluge of undocumented persons over the Southern border.
In his address, President Biden also claimed thatย โthe law would no longerโ define โthe limits of the presidency.โ That is also untrue. This case was remanded for the purpose of defining what of these functions would be deemed private as opposed to official. Even on official actions, former president Donald Trump could be prosecuted if the presumptive immunity is rebutted by prosecutors.
What was most glaring for many civil libertarians was President Bidenโs portrayal of himself as a paragon of constitutional fealty.ย He declared that โI know I will respect the limits of the presidential powers as I have for the last three-and-a-half years.โ That was also untrue. President Biden has racked up an impressive array of losses in federal courts where he was found to have violated the constitution. This includes rulings that his administration has exceeded his authority and engaged inย racial discriminationย in federal programs. Indeed, Biden has often displayed a cavalier attitude toward such violations.
For example, the Biden administration was found to have violated the Constitution in its imposition of a nationwide eviction moratorium through the Centers for Disease Control and Prevention (CDC). Biden admitted that his White House counsel and most legal experts told him the move was unconstitutional. But he ignored their advice and went with that of Harvard University Professor Laurence Tribe, the one person who would tell him what he wanted to hear. It was, of course, then quickly found to be unconstitutional.
Biden showed the same disregard over the unconstitutionality of his effort to unilaterally forgive roughly half a trillion dollars in student debt. Courts have already enjoined that effort as presumptively unconstitutional (though an appellate court in one of those cases relaxed aspects of the injunction).
While some of us have challenged these predictions, the other presidential candidates are missing a far more compelling argument going into this election. While democracy is not on the ballot this election, free speech is.
For many of us in the free speech community, President Biden has become the most anti-free speech president since John Adams. As discussed in my new book, โThe Indispensable Right: Free Speech in an Age of Rage,โ the Biden Administration has helped fund and maintain an unprecedented censorship system in the United States.
That record is hardly supportive for a president claiming to be the defender, if not the savior, of the Constitution.
The debate last night was chilling for many citizens as President Joe Biden clearly struggled to stay focused and responsive. It appeared to put on display what Special Counsel Robert Hur saw in his interview before concluding that Bidenโs loss of mental capacity would make a prosecution difficult. What may be equally troubling for Democrats and the media is a poll that came out just before the debate that shows more swing-state voters see former President Donald Trump rather than President Joe Biden as protecting democracy.
According to a new poll from the Washington Post and the Schar School of Policy and Government at George Mason University, if โdemocracy is on the ballot,โ the majority of the public believes that threat comes from elsewhere, including possibly Biden himself.
Over half of the respondents told the Washington Post that threats to democracy are extremely important to their vote for president. However, 44% said they think Trump would do a better job at handling those threats. Only 33% of respondents said they believe Biden would be better for democracy.
Many citizens are alarmed by prosecutions like the one in Manhattan where the legal system seems to have been weaponized against political opponents.
The poll not only shows the diminishing faith in the President but also in the press. The media has been unrelenting in pushing the narrative that this election is a choice between democracy and tyranny. The public is clearly tuning out the media message. This is only the latest example of that widening gap. Indeed, the whole โLetโs Go Brandonโ chant is as much a criticism of the media as it is President Biden.
I haveย previously writtenย that democracy is not on the ballot, but free speech is. The Biden Administration has chilling analogies to the Adams Administration in the weaponization of the legal system and the crackdown on free speech. What should most concern Biden is the possibility of another aspect of history repeating itself: a defeat like the one in 1800.
The anti-free speech movement has flourished largely in the echo chambers of academia and the media. It is time for the public to render its judgment. Free speech is again on the ballot. It is time for the public to decide.
Free speech may have taken a beating in the U.S. Supreme Courtโs ruling giving Big Government and Big Tech free rein over the First Amendment, but an attorney for the private plaintiffs in the case says the battle is far from over.
NCLA represents the private plaintiffs in the ruling that saw a 6-3 majority in Murthy v. Missouri reverse a lower courtโs injunction that blocked the federal government from partnering with social media giants to silence posts it doesnโt like. As my colleague Shawn Fleetwood wrote, the decision โ based on an absurd standing argument โ effectively frees the Biden administration to continue its censoring operations during the 2024 election.
โThe Supreme Court majority has practically erased the First Amendment and permitted government to co-opt private entities, like social media platforms, to accomplish its censorship aims,โ NCLA said in a press release following the ruling.
In the majority opinion, Justice Amy Coney Barrett wrote that the plaintiffs failed to establish standing because they did not โdemonstrate a substantial risk that, in the near future, they will suffer an injury that is traceable to a Government defendant and redressable by the injunction they seek.โ
โBecause no plaintiff has carried that burden, none has standing to seek a preliminary injunction,โ the decision opines.
โTruth Can Get You Firedโ
But if the past is truly an indicator of the future, itโs difficult to reconcile the standing argument with the speech suppression that occurred, particularly against those who rightly questioned the governmentโs Covid policies and voiced legitimate concerns over Covid vaccines.
NCLAโs clients, Drs. Jayanta Bhattacharya, Martin Kulldorff, Aaron Kheriaty, and Jill Hines, were all censored for daring to challenge the governmentโs โdisinformationโ campaign on the pandemic. It cost Kulldorff his job as a respected professor at Harvard.
โI am no longer a professor of medicine at Harvard. The Harvard motto is Veritas, Latin for truth. But, as I discovered, truth can get you fired. This is my story โ a story of a Harvard biostatistician and infectious-disease epidemiologist, clinging to the truth as the world lost its way during the Covid pandemic,โ he wrote earlier this year in a column for City Journal. Kulldorff had questioned the lockdowns and vaccine mandates.
"Scientific institutions have enjoyed enormous prestige among the public. The COVID-19 pandemic, and the dreadful performance of the experts and institutions, ended this idyll. – @mgurrihttps://t.co/3KcnfTq0Gj
No one was hurt by the government? The majority opinion asserts that while the Big Tech speech suppressors did have content moderation policies and may have been censoring users, the plaintiffs provided no documentation showing the government coerced the social media giants to do so.ย As censor-in-chief Joe Biden would say, thatโs malarkey.ย
Younes said the ruling is rooted in some โfactual errorsโ by the majority. The Louisiana District Court Judge who on July 4, 2023, issued the injunction against the government said the executive branchย โseems to have assumed a role similar to an Orwellian โMinistry of Truth.โโย U.S. District Judge Terry Doughty conducted a thorough review of voluminous records showing dozens of agencies communicating with Big Tech companies, according to Younes.
โ[There were] probably close to 100 federal officials that we know of who were colluding with, coercing, pressuring, influencing the companies to effectuate their censorship desires,โ the attorney said, adding that the justices in the majority appear to have โread the governmentโs brief and just believed everything they said.โ
In his dissent, Justice Samuel Alito warned that the governmentโs conduct was โblatantly unconstitutional, and the country may come to regret the Courtโs failure to say so.โ
โOfficials who read todayโs decision together with Vullo will get the message. If a coercive campaign is carried out with enough sophistication, it may get by. That is not a message this Court should send.โ
Difficult but Not Impossible
While the high court remanded the case to the lower court โfor further proceedings consistent with this opinion,โ Younes said expanded discovery might just stop the overreaching government yet. NCLA plans to go after government and Big Tech communications involving its clients to show the direct harm caused, as demanded in the majorityโs standing argument.
โThe district court has shown that it believes in our case and โฆ said this is arguably the most massive attack on free speech in the history of the United States, which I agree with,โ Younes said. โThe federal government was censoring entire narratives, entire lines of thought. If you questioned the efficacy of the vaccines in 2021, even if you were a vaccine expert like our client, Martin Kulldorff, you would be censored on social media, as he was.โ
The case may also get an assist from a presidential candidate. Robert F. Kennedy Jr., now running as an independent, had sought to intervene in the Supreme Court case but was turned back by the majority. If anyone knows censorship, itโs RFK Jr., who was blocked from social media as part of what the government and corporate media have described as theย โDisinformation Dozenโย for challenging the governmentโs faulty narrative on Covid vaccines.ย Kennedy has lots of emails showing the Biden administration trying to silence his speech.ย
As government water carrier USA Today reported, one email shows the Biden administration pouncing after Kennedy suggested baseball legend Hank Aaronโs death may have been caused by his Covid-19 vaccine.
โWanted to flag the below tweet and am wondering if we can get moving on the process for having it removed ASAP,โ the digital director for the White Houseโs Covid response team wrote in an email to an official at Twitter, the publication reported.
Alito also dissented in the courtโs rejection of Kennedyโs motion to join the lawsuit, suggesting standing could be a problem and RFK Jr. could help take away that argument.
โ[The Supreme Court is] making it very difficult to bring the case, but theyโre not making it impossible,โ Younes said.
If the Supreme Court wonโt stand up to assaults on the First Amendment, Congress must, said plaintiff Jill Hines, NCLA client and co-director of Health Freedom Louisiana.
โAfter reviewing the shocking and incriminating evidence indicating a massive government censorship scheme, the Justices erroneously determined to allow the government access to social media companies for the purpose of undermining free speech,โ she said in the press release. โCongress must act immediately to defund agencies and third parties actively involved in this broadly pervasive and unconstitutional censorship scheme.โ
Matt Kittle is a senior elections correspondent for The Federalist. An award-winning investigative reporter and 30-year veteran of print, broadcast, and online journalism, Kittle previously served as the executive director of Empower Wisconsin.
Below is my column in USA Today on why the opponents of President Joe Biden should make free speech the focus of this election. With the Supreme Court taking an off ramp in Murthy v. Missouri on Internet censorship, the free speech community is left, for now, with the political process to protect free speech. It is a potentially unifying issue for many Americans who are alarmed by the current anti-free speech movement. I have previously written that the Biden Administration has chilling analogies to the Adams Administration in the weaponization of the legal system and the crackdown on free speech. What should most concern Biden is the possibility of another aspect of history repeating itself: a defeat like the one in 1800.
Here is the column:
Since hisย dystopianย speechย outside of Independence Hallย in 2022, President Joe Biden has made โdemocracy is on the ballotโ his campaign theme. Pundits have repeated the mantra, claiming that if Biden is not elected,ย American democracy will perish. While some of us haveย challenged these predictions, the other presidential candidates are missing a far more compelling argument going into this election. While democracy is not on the ballot this election, free speech is.
The 2024 election is looking strikingly similar to the election of 1800 and, if so, it does not bode well for Biden. In my bookย โThe Indispensable Right: Free Speech in an Age of Rage,โ released last week, I discuss our long struggle with free speech as a nation. It is an unvarnished history with powerful stories of our heroes and villains in the struggle to define what Justice Louis Brandeis called our โindispensable right.โ
One of the greatest villains in that history was President John Adams, who used the Alien and Sedition Acts to arrest his political opponents โ including journalists, members of Congress and others. Many of those prosecuted by the Adams administration were Jeffersonians. In the election of 1800, Thomas Jefferson ran on the issue and defeated Adams.
Government efforts to limit free speech are Orwellian
We are now seeing what is arguably the most dangerous anti-free speech movement in our history. President Joe Biden is, in my view, the mostย anti-free speechย president since Adams. Under his administration, we have seen a massive censorship system funded and directed by the government.A federal judge described the system as โOrwellianโ in its scope and impact.
Biden has repeatedly called for greater censorship and accused social media companies ofย โkilling peopleโย by not silencing more dissenting voices. Other Democrats such as Sen. Elizabeth Warren of Massachusetts haveย pushed for restrictionsย on โunacceptableโ speech. The Biden administration seeks to censor even true statements as disinformation.
For example,ย I testified before Congress last yearย on how Jen Easterly, who heads the Cybersecurity and Infrastructure Security Agency, extended her agencyโs mandate over critical infrastructure to include โour cognitive infrastructure.โ The resulting censorship efforts included combating โmalinformationโ โ described as information โbased on fact, but used out of context to mislead, harm, or manipulate.โ
The left has picked up the cudgels of censorship and blacklisting once used against them. During theย McCarthy period, liberals were called โcommunist sympathizers.โ Now,ย conservative justices are calledย โinsurrectionist sympathizers.โ
Candidates should call out Biden on censorship
In this election, Robert F. Kennedy Jr., Jill Stein, Donald Trump and Cornel West should talk about the threats against free speech at every debate and stump speech. They will have to overcome a news media that has been complicit in the attacks on free speech, but these candidates can break through by raising it as a key issue dividing Biden from the rest of the field.
So far, the anti-free speech movement has flourished largely in the echo chambers of academia and the media. It is time for the public to render its judgment.
As discussed in my book, we are hardwired for free speech. It is in our DNA. Despite these periods of crackdowns on free speech, we have always rejected those who wanted to regulate the views of others. Jefferson called the Federalists โthe reign of the witches.โ (Ironically, Jefferson would himself prosecute critics, though not to the same extent as Adams).
Attacks on free speech have returned with a vengeance before another presidential election. After fighting in the courts and in the public to expand censorship, Biden should now have to defend it with the voters. Letโs have at it, as we did in 1800.
Free speech is again on the ballot. It is time for the public to decide.
Below is my column on Fox.com on my book and how our current โage of rageโ may be the most dangerous for free speech, but it is not our first such period in history. Indeed, the current debate is returning this nation to the very debate that erupted at the start of our Republic.
Here is the column:
As the nation heads into the July 4th holiday, we have rarely been more divided as a people. Ironically, we are still debating the core values that define us, particularly the right to free speech. Indeed, โdebateโ hardly captures theย rising anger and animosityย from campuses to Congress. hat is also nothing new.
While I have called this โan age of rage,โ it is not our first. The United States was born in rage.
Roughly 250 years ago, a group calling itself the Sons of Liberty boarded three ships and dumped almost 100,000 pounds of English tea into the Boston harbor. The โBoston Tea Partyโ is still celebrated as an act of defiance that helped spark the American Revolution.
It was also an act of rage, a key moment that is the focus of my book out this week,ย โThe Indispensable Right: Free Speech in an Age of Rage.โ As a nation, we have gone through almost cyclic periods of unhinged rage, including periods of what I call โstate rage.โ The first victim has always been free speech, including in our current age of rage. Indeed, this is arguably the most dangerous anti-free speech period in our history.
โThe Indispensable Rightโ is a reference to the description of Justice Louis Brandeis of core value in our nation. It is also a reference that captures our inherent conflict with free speech. Brandeis and his colleague Oliver Wendell Holmes are enshrined as civil libertarians who became the โgreat dissenters,โ arguing for rights that remained unrealized for decades.
Yet, these two jurists would support some of the most abusive denials of free speech in our history. Holmes would supply the single most regrettable line of any opinion: that free speech protections do not allow citizens to shout fire in a crowded theater. That paraphrasing of his decision in Schenck v. United States continues to be used today as a rationalization for censorship and limits on free speech.
On free speech, Brandeis and Holmes were no heroes. Our true heroes are detailed in this book, a collection of true dissenters โ anarchists, unionists, communists, feminists and others who risked everything to fight for their right to speak.
George Bernard Shaw once said โa reasonable man adjusts himself to the world. An unreasonable man expects the world to adjust itself to him. Therefore, all progress is made by unreasonable people.โ
These are stories of wonderfully unreasonable people like Anita Whitney, a feminist who left a family of privilege to fight for social and political justice. The descendent of a family on the Mayflower and niece of Supreme Court Justice Cyrus W. Field, Whitney defied threats of the police that she would be arrested if she spoke in California in 1919 in Oakland.
With police standing around on stage, she refused to be silent and spoke against the lynchings of Blacks occurring around the country. Her abusive conviction would ultimately go before the court (with Brandeis and Holmes) and they would vote to uphold it.
Time and again, this country has abandoned our free speech values as political dissidents were met with state rage in the form of mass crackdowns and imprisonments. It is an unvarnished story ofย free speech in Americaย and for better or worse, it is our story. Yet, we have much to learn from this history as this pattern now repeats itself. The book explains why we are living in the most dangerous anti-free speech period in our history.
In the past, free speech has found natural allies in academia and the media. That has changed with a type of triumvirate โ the government, corporations, and academia โ in a powerful alliance against free speech values.
Ironically, while these groups refer to the unprecedented threat ofย โfake newsโ and โdisinformation,โย those were the very same rationales used first by the Crown and then the U.S. government to crack down on free speech in the early American republic.
The difference is the magnitude of the current censorship system from campuses to corporations to Congress. Law professors are even calling for changing the First Amendment as advancing an โexcessively individualisticโ view of free speech. The amendment would allow the government to curtail speech to achieve โequityโ and protect โdignity.โ
Others,ย including President Biden, have called for greater censorship while politicians and pundits denounce defenders of free speech as โPutin loversโ and โinsurrectionist sympathizers.โ
Despite watching the alarming rise of this anti-free speech movement and the rapid loss of protections in the West, there is still reason to be hopeful. For those of us who believe that free speech is a human right, there is an inherent and inescapable optimism. We are wired for free speech as humans. We need to speak freely, to project part of ourselves into the world around us. It is essential to being fully human.
In the end, this alliance may reduce our appetite for free speech but we will never truly lose our taste for it. It is in our DNA. That is why this is not our first or our last age of rage. However, it is not the rage that defines us. It is free speech that defines us.
Jonathan Turley is a Fox News Media contributor and the Shapiro Professor of Public Interest Law at George Washington University. He is the author of โThe Indispensable Right: Free Speech in an Age of Rageโ (Simon & Schuster, June 18, 2024).
Will Rogers once said that โif you ever injected truth into politics, youโd have no politics.โ In Wales, it appears that the government is challenging that assessment. However, if the new legislation criminalizing political lies is successful, the Welsh are likely to find themselves with the same abundance of lies but little free speech.
A proposal in the Welsh parliament (or the Senedd) would make it the first country in the world to impose criminal sanctions for lying politicians. Adam Price, the former leader of the liberal Plaid Cymru Party is pushing for the criminalization, citing a โcredibility gapโ in UK politics.
Astonishingly, this uniquely bad idea has received support from a key committee. Once on track for adoption, this is the type of law that can become self-propelling through the legislature. Few politicians want to go on record voting against a law banning political lies. The free speech implications are easily lost in the coverage.
The new law would make it a criminal offense for a member of the Senedd, or a candidate for election to the Senedd, to willfully, or with intent to mislead, make or publish a statement that is known to be false or deceptive. There is a six-month period for challenges to be brought. The law allows a defense that a statement could be โreasonably inferredโ to be a statement of opinion, or if it were retracted with an apology within 14 days. If guilty, the politician would be disqualified from being a Senedd member.
The defense is hardly helpful. It creates an uncertainty as to which statements would be deemed an opinion and which would be treated as a statement of fact. It invites selective and biased prosecutions. After all, what does it mean to accuse a politician of trying to โmisleadโ the public?
Winston Churchill said โa politician needs the ability to foretell what is going to happen tomorrow, next week, next month, and next year. And to have the ability afterwards to explain why it didnโt happen.โ
It is a standard heavily laden with subjectivity and potential selectivity in prosecution. It is more likely to determine not whether lies can be told but which lies can be told. The government and the majority of the public are likely to hold certain โmisleadingโ claims of politicians to be true or opinion while holding a harsher view of the claims of the opposition.
Consider the massive censorship system in our own country. During Covid, you were labeled a liar, conspiracist, or racist for holding views now viewed as credible. For example, academics joined this chorus in marginalizing anyone raising the lab theory.ย One studyย cited the theory as an example of โanti-Chinese racismโ and โtoxic white masculinity.โ As late as May 2021, the New York Timesโ Science and Health reporter Apoorva Mandavilli was calling any mention of the lab theory as โracist.โ Mandavilli and others made clear that reporters covering the theory were Covidโs little Bull Connors. She tweeted wistfully โsomeday we will stop talking about the lab leak theory and maybe even admit its racist roots. But alas, that day is not yet here.โ
Now federal agencies have stated that they believe that the origin of the virus was indeed the Chinese lab. If this law were in place, politicians could have been charged with lying and barred from the legislature โ would have only served to diminish dissenting views further in the government.
Politicians have long been accused of lying to the public. In this country, presidents routinely lie on matters great and small. Many of those lies cost citizens dearly, fromย โkeeping your doctorโ under ObamaCareย toย losing your life in Vietnam. Criminalizing lies in campaigns because of the spread of disinformation or disorder is a slippery slope that vests unprecedented power in the Justice Department.
There is obviously an abundance of statements from politicians that could be deemed as intentionally misleading. Officials can then simply pick and choose which politicians they want to tar with the allegation and potentially bar from office.
Scotland recently passed a new crime law covering โstirring up hatredโ relating to age, disability, religion, sexual orientation, transgender identity or being intersex. That crime covers insulting comments and anything โthat a reasonable person would consider to be threatening or abusive.โ
Free speech is in a free fall after years of criminalization of speech. Generations have been shaped in the educational system to fear free speech. The alliance of government, media, and academic forces have created generations of speech phobics. The anti-free speech movement in the United Kingdom should be a cautionary tale for every American. The tide of this movement has reached our shores and the same alliance is working to reduce the protections for free speech.
As I discuss in my new book, The Indispensable Right: Free Speech in an Age of Rage, this international movement has left free speech in tatters in the West. Now there are law professors calling for the First Amendment to be rewritten to remove its โexcessively individualisticโ protections.
The free speech community in the United Kingdom has fought bravely to preserve this right against all odds. Wales is a reminder that this remains a global struggle that requires free speech advocates to unite against this rising tide.
In my new book, The Indispensable Right: Free Speech in an Age of Rage, and a recent academic work, I discuss a new rationale being used by administrators to punish free speech: threatening academic collegiality or campus tranquility. I was discussing the Fourth Circuit case of Porter v. Board of Trustees of North Carolina State University, which was unfortunately not reviewed by the Supreme Court. Now, as feared, it is being replicated by the Sixth Circuit in Gruber v. Tenn. Tech. Bd. of Trustees. The result is a new and serious threat to free speech in higher education to curtail speech where it would be โlikely to cause disruptionโ or undermine the โfostering [of] a collegial educational environment.โ
The Porter case involved the targeting of a conservative faculty member who opposed diversity views. Given the purging of conservative professors from faculties and the intolerance on our campuses, the use of collegiality to justify disciplinary action is likely to fall more heavily on the dwindling number of conservatives.
However, Gruber involved professors who spoke out against a conservative colleague. As previously addressed by Keith Whittington, the case involved Professor Andrew Donadio, who serves as the faculty advisor for the local chapter of Turning Point USA at Tennessee Tech University.
Donadio was attacked by Professor Julia Gruber and Instructor Andrew Smith who hold strikingly anti-free speech views that are evident in theย flyersย that they put up around campus denouncing the โhate and hypocrisyโ of โProfessor Donadio and Turning Point USA.โ In addition to saying that his views are โnot welcome at Tennessee Tech,โ they declared that there should be โno unity with racistsโ and that โhate speech is not free speech.โ
Gruber and Smith are only the latest examples of academics who reject free speech rights for others, but still demand that their own views be protected. Fortunately for them, the free speech community supports free speech regardless of its inherent merits or the hypocrisy of speakers.
Provost Lori Bruce disciplined Gruber and Smith under Policy 600, requiring faculty members โto conduct themselves fairly, honestly, in good faith, and in accordance with the highest ethical and professional standards.โ
As with Porter, the use of a lack of collegiality has long been used against those with unpopular views. I previously wrote:
โThe lack of collegiality and professionalism has long been shibboleth for those have sought to block minorities and women from appointments. Many objected to the claims of โlack of collegialityโ and bad โtemperamentโ raised against figures like Justice Sotomayor when she was nominated for the Court. Indeed, the American Association of University Professors has stressed that collegiality is often a coded or biased basis for discrimination. It cautioned against this use since, โ[i]n the heat of making important academic decisions regarding hiring, promotion, and tenure, it would be easy to confuse collegiality with the expectation that a faculty member display โenthusiasm,โ or evince โa constructive attitudeโ that โwill foster harmony.โโ Indeed, collegiality is commonly defined as being โcooperative,โ a virtue that is hard to display when you are a dissenting voice on a matter of intense and passionate debate with your colleagues.โ
Nevertheless, Sixth Circuit Judges Richard Griffin, Helene White, and Eric Murphy upheld the lower court decision supporting the university:
When deciding whether the plaintiff engaged in protected activity, we first determine whether the action constitutes speech on a matter of public concern, and if it does, we apply the โPickeringย balancing testโ to determine whether the plaintiffโs interest in commenting outweighs the defendantโs interest as an employer in promoting the efficiency of the public services it performs through its employees. The balancing test considers the manner, time, and place of the expressive action, and the pertinent considerations include whether the action (1) impairs discipline by superiors or harmony among coworkers, (2) negatively affects close working relationships for which personal loyalty and confidence are necessary, (3) impedes performance of the speakerโs duties or interferes with the employerโs regular operations, and (4) undermines the employerโs missionโฆ.
TTU does not dispute that the district court properly concluded that the plaintiffsโ speech was a matter of public concern. Even so, as the district also properly concluded, the plaintiffsโ distribution of the flyers was not protected speech because their speech interest was outweighed by TTUโs interest in preventing a disruption to its pedagogical and collegial environmentโฆ.
At the outset, the โmannerโ of the plaintiffsโ speech decreased its expressive value and increased TTUโs operational interests. Plaintiffs did not speak in the classroom or through scholarship, where professorsโ โrights to academic freedom and freedom of expression are paramount.โ
Nor is this a simple case of one professor raising a race-related issue with another or expressing disagreement with a groupโs ideology, perhaps one-on-one or in a more private setting. Instead, the plaintiffs posted flyers in an academic building at a time they knew students would be on campus for class and posted an additional flyer the next day. Those flyers were highly likely to cause disruption, and they did so in several ways.
Specifically, the flyers identified Donadio as a โracist college professorโ and branded members of Turning Point USA as โracist students.โ They stated in bold text that the professor and groupโs โhate & hypocrisy are not welcome at Tennessee Tech.โ The dissemination of โdisrespectful, demeaning, insulting, and rudeโ messages targeting a colleague and studentsโregardless of whether some accusations may have had basis in factโto the entire university community undoubtably threatened to disrupt TTUโs learning environment and academic mission.
For one, flyers that publicly attack a colleague as racist and threaten that the colleague is on the anonymous authorโs โlistโ certainly โimpairs โฆ harmony among co-workers.โ {Plaintiffs protest that they did not interact with Donadio professionally, so there was no harmony to impair. But even if the professors did not work closely together, they were nonetheless colleagues on TTUโs faculty, and it was not unreasonable for Bruce to conclude that on-campus and public accusations of racismโeven between colleagues who did not work togetherโcould cause disruption of the universityโs operations.}
Perhaps more critically, by attacking students, the flyers threatened the core of TTUโs educational โmissionโ and undermined the plaintiffsโ ability to perform their teaching โduties.โ The flyers insinuated that, like Donadio, all students who were members of Turning Point USA were racist. The accusations harmed these studentsโ educations.
For example, one Turning Point USA member, having been deemed a racist, missed class because of the fallout. In addition, the accusations affected the plaintiffsโ effectiveness in the classroom. Students in the club, or those considering joining the club, who were taking courses with Gruber and Smith might reasonably fear the potential treatment they would receive in class due to differing political views. This case is thus factually distinguishable from cases like Pickering, where a teacher was disciplined for writing a letter to a local newspaper criticizing the school district that was โin no way directed towards any person with whom [the teacher] would normally be in contact in the course of his daily work as a teacher.โ And most basically, TTU has โan interest in fostering a collegial educational environment.โ Permitting professors to circulate flyers with personal attacks on colleagues and students undoubtably undermines that interest.
To be sure, the flyers were quickly collected and affected only a handful of students and professors. But evidence of widespread disruption is not necessary: it was reasonable for Bruce to believe that, had the flyers remained posted, they could have caused far greater disruption.
Lastly, the โplaceโ of the plaintiffsโ speech undermines their interests even further. Even if they did not undertake this speech pursuant to their official duties, they also did not engage in it away from campus as private citizens. Rather than make their claims on their personal Facebook pages or in a local newspaper, they chose to use TTUโs own property as the billboard for their speech. But public employers have greater interest in regulating speech โat the officeโ (or here on campus) than they do away from the public employersโ property. Indeed, the conclusion that the First Amendment protected the plaintiffsโ speech would mean that TTU remained powerless to remove the flyers off of its property. So this case raises no concern that TTU sought to โleverageโ its employment relationship with the plaintiffs to regulate their speech โoutsideโ the context of its university functions.
All told, theย Pickeringย balancing test weighs against the plaintiffsโ speech being protected. The flyers, which attacked a professor and student organization and stated that they were not welcome on campus, created a reasonable threat of disrupting TTUโs academic mission and is the type of speech that a learning institution has a strong interest in preventing. Under theย Pickeringย balancing test, TTUโs interest in preventing a potential disruption to its pedagogical and collegial environment outweighed the plaintiffsโ interest in distributing the flyers. Thus, the plaintiffsโ speech was not protected, foreclosing their First Amendment retaliation claim.
The allowance for censorship and sanctions for speech โlikely to cause disruptionโ would gut free speech protections on campus. The court suggests that the ability of the university to crack down on the speech was magnified by the fact that others might be particularly interested in their views or exposed to them. It is enough that it threatened the tranquility of campus and the collegiality of the faculty.
This week we discussed an analogous position at Harvard where Lawrence Bobo, the Dean of Social Science, rejected views of free speech as a โblank checkโ and said that criticizing university leaders like himself or school policies are now viewed as โoutside the bounds of acceptable professional conduct.โ
The refusal of the Court to take the Porter decision was crushing for many of us in the free speech community and academia. Hopefully, Gruber will receive a more favorable review in light of the expanding threat to free speech to โfoster a collegial educational environment.โ
In my book out this week, The Indispensable Right: Free Speech in an Age of Rage, I write about the anti-free speech movement that has swept over higher education and how administrators and faculty hold a view of free speech as harmful. Now Harvard is again at the heart of a free speech fight after Lawrence Bobo, the Dean of Social Science, rejected views of free speech as a โblank checkโ and said that criticizing university leaders like himself or school policies are now viewed as โoutside the bounds of acceptable professional conduct.โ
Bobo warns that public criticism of the school could โcross a line into sanctionable violations.โ
โA faculty memberโs right to free speech does not amount to a blank check to engage in behaviors that plainly incite external actors โ be it the media, alumni, donors, federal agencies, or the government โ to intervene in Harvardโs affairs. Along with freedom of expression and the protection of tenure comes a responsibility to exercise good professional judgment and to refrain from conscious action that would seriously harm the University and its independence.โ
The column adopts every jingoistic rationale used by anti-free speech critics today, including the invocation of the Holmes โcrowded theaterโ analogy:
โBut many faculty at Harvard enjoy an external stature that also opens to them much broader platforms for potential advocacy. Figures such as Raj Chetty โ00, Henry Louis Gates Jr., Jill Lepore, or Steven A. Pinker have well-earned notoriety that reaches far beyond the academy.
Would it simply be an ordinary act of free speech for those faculty to repeatedly denounce the University, its students, fellow faculty, or leadership? The truth is that free speech has limits โ itโs why you canโt escape sanction for shouting โfireโ in a crowded theater.โ
First and foremost, the ability of faculty to speak out on public disputes should not depend on whether you are more popular or visible. However, it is the theater analogy that is most galling.
I have an entire chapter in The Indispensable Right that addresses the fallacies surrounding this line out of the Holmes opinion. It is arguably the most damaging single line ever written by a Supreme Court justice in the area of free speech.
I have previously written about the irony of liberals adopting the analogy, which was used to crack down on socialists and dissenters on the left.
One of the most telling moments came in a congressional hearing when I warned of the dangers of repeating the abuses of prior periods like the Red Scare, when censorship and blacklisting were the norm. In response, Rep. Dan Goldman, D-New York, invoked Oliver Wendell Holmesโ view that free speech does not give a person the right to yell fire in a crowded theater. In other words, citizens had to be silenced because their views are dangerous to others.
When I attempted to point out that the line came from a case justifying the imprisonment of socialists for their political viewpoints, Goldman cut me off and โreclaimed his time.โ
Other Democrats have used the line as a mantra, despite its origins in one of our most abusive anti-free speech periods during which the government targeted political dissidents on the left.
Dean Bobo is now the latest academic to embrace the theater rationale to justify the silencing of dissent. At Harvard, he is suggesting that the entire university is now a crowded theater and criticizing the university leadership is a cry of โFire.โ It is that easy.
By punishing criticism of the schoolโs leadership and policies, Bobo believes that they can look โforward to calmer timesโ on campus. It is precisely the type of artificial silence that academics have been enforcing against conservatives, libertarians, and dissenters for years. It is the approach that reduced our schools to an academic echo chamber.
The reference to Professor Steven Pinker is particularly ironic. As we have previously discussed, Pinker was targeted for exercising free speech. In past controversies, most Harvard faculty members have been conspicuously silent as colleagues were targeted by cancel campaigns. It was the same at other universities.
As faculties effectively purged their ranks of conservative or Republican members, the silence was deafening. Others either supported such campaigns or justified them. Notably, over 75 percent of the Harvard faculty identify as โliberalโ or โvery liberal.โ
Then the Gaza protests began and some of these same faculty found themselves the targets of mobs. Suddenly, free speech became an urgent matter to address. Fortunately for these liberal professors, the free speech community is used to opportunistic allies. Where โfair weather friendsโ are often ridiculed, free speech relies on โfoul-weather friends,โ those who suddenly see the need to protect a diversity of opinions when they feel threatened.
Boboโs arguments are consistent with years of rationales for silencing or investigating dissenting faculty for years. It violates the very foundation for academia in free speech and academic freedom. The university is free to punish students or faculty for unlawful conduct. However, when it comes to their viewpoints, there should be a bright line of protection.
Of course, this criticism is likely to trigger another common fallacy used to rationalize speech controls: as a private university Harvard is not subject to the First Amendment and thus this is not a true free speech issue.
As discussed previously, free speech values go beyond the First Amendment whether it is a controversy on social media or campuses. For years, anti-free-speech figures have dismissed free speech objections to social media or academic censorship by stressing that the First Amendment applies only to the government, not private companies or institutions. The distinction was always a dishonest effort to evade the implications of speech controls, whether implemented by the government or corporations.
The First Amendment was never the exclusive definition of free speech. Free speech is viewed by many of us as a human right; the First Amendment only deals with one source for limiting it. Free speech can be undermined by private corporations as well as government agencies. This threat is even greater when politicians openly use corporations and universities to achieve indirectly what they cannot achieve directly.
Dean Boboโs desire for โcalmer timesโ would come at too high a price for free speech as well as Harvard.
There is a controversy in Oregon over a proposed change in the ethics rule from the Oregon Medical Board. At issue is the use of โmicroaggressionsโ to discipline doctors and to make reporting such transgressions mandatory for all doctors. It seems before you can give stitches, you have to join snitches under one of the most ambiguous categories of prescribed speech.
I have been a critic of microaggression rules on college campuses and discuss this trend in my book out this week, The Indispensable Right: Free Speech in an Age of Rage. In past debates over this category of offensive speech, I have objected that it is hopelessly vague and highly controversial.
:ย a comment or action that subtly and often unconsciously or unintentionally expresses a prejudiced attitude toward a member of a marginalized group (such as a racial minority)
A digital photo project run by a Fordham University student about “racial microaggressions” features minority students holding up signs with comments like “You’re really pretty โฆ for a dark-skin girl.”โJinnie Spiegler
There is a real and worthy conversation taking place in this country now, particularly among young people, around the idea of microaggressionsโslight, often unintended discriminatory comments or behaviors.โCharles M. Blow
also: behavior or speech that is characterized by such comments or actions
โฆ argues that the power of microaggression lies in its invisibility to the perpetrator, who typically finds it difficult to believe that he or she possesses biased attitudes.โEmily Skop
That ambiguity creates a threat to free speech through a chilling effect on speakers who are unsure of what will be considered microaggressive. Terms ranging from โmelting potโ to phrases like โpulling oneself up by your own bootstrapsโ have been declared racist. Some of those have been identified by Columbia professor Derald Wing Sue, cited by Oregonโs state government as a โmicroaggressions expert.โ
Professor Sue considers statements like โEveryone can succeed if they just work hard enough!โ as an example of a microaggression. Sueโs work on โmicroassaults,โ โmicroinsults,โ and โmicroinvalidationsโ are being effectively adopted by the Board.
Notably, when I have objected to this category, advocates have insisted that they are merely voluntary and instructive, not mandatory. I have long argued that they are used in a mandatory fashion by triggering investigations of professors and would inevitably be made mandatory.
That appears to be happening in Oregon. A couple of conservative sites have covered the controversy.
Under the new ethics rule from the Oregon Medical Board, โunprofessional conductโ (over which a doctor can lose his or her license) will include microaggressions:
โIn the practice of medicine, podiatry, or acupuncture, discrimination through unfair treatment characterized by implicit and explicit bias, including microaggressions, or indirect or subtle behaviors that reflect negative attitudes or beliefs about a non-majority group.โ
The new section โJโ ranks microaggressions with fraud, sexual assault, and ordering unnecessary or harmful surgeries.
Oregon Medical Board states that
โThe proposed rule amendments update the definition of โunprofessional conductโ to include discrimination in the practice of medicine, podiatry, and acupuncture, which would make discrimination a ground for discipline. The proposed rule may favorably impact racial equity by making discrimination a ground for discipline for OMB licensees. It is not known how the other proposed rule amendments will impact racial equity in the state.โ
The incorporation of microaggressions under the new ethic rules is precisely what some of us have been warning about for years. As is often the case, activists begin by insisting that language monitoring is purely instructional and optional before codifying those rules in mandatory terms.
We have seen the same trajectory in other areas like land acknowledgments where the line between the optimal and the mandatory is hard to discern. As discussed in my book:
โWhat began as voluntary statements have become either expressly or implicitly mandatoryโฆGeorge Brown College in Toronto requires faculty and students alike to agree to a land acknowledgment statement to even gain access to virtual classrooms. While such statements are portrayed as optional, they are often enforced as compulsory. The University of Washington encouraged faculty to add a prewritten โIndigenous land acknowledgmentโ statement to their syllabi. The recommended statement states that โThe University of Washington acknowledges the Coast Salish peoples of this land, the land which touches the shared waters of all tribes and bands within the Suquamish, Tulalip and Muckleshoot nations.โ
Computer science professor Stuart Reges decided to write his own statement. He declaredโฆโI acknowledge that by the labor theory of property the Coast Salish people can claim historical ownership of almost none of the land currently occupied by the University of Washington.โ โฆ He was told that, while the university statement is optional, his statement was unacceptable because it questioned the indigenous land claim of the Coast Salish people. Regesโs dissenting statement was removed, and the university emailed his students offering an apology for their professorโs โoffensiveโ opinion and advising them on โthree ways students could file complaints againstโ him.โ
Federal courts have ruled in favor of academics in disputes over microaggression rules, but the movement is expanding beyond campuses, as shown in Oregon.
I have no objection to the sharing of views of others on how certain phrases are received. I have dropped certain terms or phrases even though I did not see why a term or phrase is insulting. When others have a reasoned basis for objecting to language, I err on the side of caution to avoid making others uncomfortable. Yet, this category of speech was created to encompass a broad, ill-defined range of speech that falls below outright discriminatory or harassing language. That makes for a dangerously vague standard for a mandatory reporting rule.
The free speech concern is how such microaggressive terms can be used to curtail or punish speech, including supporting complaints for formal investigations. Disciplinary actions often seem based on how language is received rather than intended. Schools need to be clear as to whether microaggressive language can be the basis for bias complaints and actions.
Consider again the language from the Oregon Medical Board. It would encompass any โindirect or subtle behaviors that reflect negative attitudes or beliefs about a non-majority group.โ The standard is heavily laden with subjectivity. (Notably, it does not include making such comments about any majority group, presumably whites or males).
The board then amplifies the standard by making it mandatory for other doctors to report colleagues. Under the proposed ruled,
โa licensee must report within 10 business days to the Board any information that appears to show that a licensee is or may be medically incompetent or is or may be guilty of unprofessional or dishonorable conduct or is or may be a licensee with a physical incapacity.โ
So, doctors will have to police any โindirect or subtle behaviorsโ that โreflect negative attitudes or beliefsโ . . . or face discipline themselves.
The Hippocratic oath is based on the pledge that doctors will โfirst do no harm.โ Unfortunately, that pledge does not appear to apply to free speech in Oregon. Rather than merely publish opinions on phrases or practices that can be seen as microaggressive, the Oregon Medical Board is about to impose an ambiguous speech regulation that is likely viewed by some doctors as turning them into social-warrior snitches.
The Oregon Medical Board should remove the microaggressive provision. Sometimes the best treatment is the least intrusive.
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American Family Association (AFA), a non-profit 501(c)(3) organization, was founded in 1977 by Donald E. Wildmon, who was the pastor of First United Methodist Church in Southaven, Mississippi, at the time. Since 1977, AFA has been on the frontlines of Ame
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