Today, we mark the day in 1865 when General Order No. 3 finally reached Galveston — a freedom delayed, but a freedom declared. Juneteenth is itself a First Amendment story: an act of assembly, of speech, of public commemoration kept alive for generations by Black communities long before federal recognition arrived in 2021.

To everyone celebrating today and this weekend — with cookouts, parades, red drinks, music, prayer, and the simple act of gathering in public — FACT wishes you joy. We honor the organizers, archivists, and tradition-bearers who carried this day forward when official channels would not. FACT members will celebrate with JuneteenthNY and its founder, Athenia Rodney, whose work continues that lineage in our own city.

Freedom is a practice, not a date. The right to assemble, to speak, to remember, and to declare belongs to all of us.

Treasures at the New York Public Library

I took a dinner break this week from tech for a new show I’m designing and walked the few blocks over to the New York Public Library’s Stephen A. Schwarzman Building on 42nd Street and Fifth Avenue to clear my head. I ended up staying much longer than planned.

My first stop was on the ground floor to see the original Winnie-the-Pooh and friends — Pooh, Piglet, Eeyore, Tigger, and Kanga — the actual stuffed animals A.A. Milne bought for Christopher Robin starting in 1921. They’ve been at NYPL since 1987. It’s worth noting that these gentle creatures have spent the last decade as one of the more unlikely symbols of First Amendment friction abroad: since 2017, Chinese authorities have censored Pooh on Weibo and elsewhere after activists used the bear as a meme for Xi Jinping. The 2018 Disney film Christopher Robin was reportedly denied theatrical release in China. A reminder that the things authoritarians fear most are often the softest objects in the room.

Also on the main floor, I visited two additional installations of the 250 Years initiative, which are worth lingering over. StoryCorps has installed a recording booth as part of NYPL’s We the People project — visitors are invited to sit down and record a short interview reflecting on what America means to them, what they’ve inherited from the last 250 years, and what they want the next generation to know. The recordings will be added to the Library’s permanent archives, joining the StoryCorps collection at the American Folklife Center at the Library of Congress. It’s a small, quiet act with First Amendment bones: ordinary citizens speaking on the record, in their own voice, for the public record. The same First Amendment rights that ground journalism, petition, and assembly are foundational to this project.

Declaring America: 1776 and Beyond, which opened this week and runs through January 10, 2027, occupies multiple galleries on two floors. It is built in two arcs — Pursuit of Liberty (broadsides, battle maps, an 1834 anti-slavery silk banner, ACT UP posters, the 1963 “Civil Rights Now!” pennant from the March on Washington, Mary Katherine Goddard’s 1777 Declaration broadside) — and Art as Declaration, which is where I spent most of my time.

Pursuit of Liberty gathers protest messaging and graphic design drawn from across NYPL’s collections — broadsides, pickets, pins, posters, zines, stickers, t-shirts, and hand-lettered signs from marches across decades. Suffrage sashes alongside ACT UP’s Silence = Death, civil rights placards alongside disability rights, and climate-strike signs – seeing them featured together in the lobby of this extraordinary city institution at the crossroads of the world is profoundly empowering. The visual vocabulary of American dissent is a continuous tradition, refined and remixed by each movement that picks it up. Cardboard and Sharpie share the importance and power of America’s founding documents.

On the third floor, Art as Declaration occupies multiple rooms. The curatorial premise explores how contemporary artists have reframed the promises and paradoxes of America’s founding documents. A few that stopped me:

Josué Rivas (Mexica/Otomi), whose Standing Strong photographs from his seven months at Standing Rock in 2016-17 document Indigenous-led resistance to the Dakota Access Pipeline, was included because that gathering was itself a declaration of treaty rights, of First Amendment assembly, of sovereignty as ongoing rather than archival.

Annie Bissett’s Secret Codewords of the NSA (2013) — 26 small moku hanga (Japanese woodblock) prints, one for each letter of the alphabet, each codeword blind-embossed rather than inked, “in the spirit of keeping things secret.” Post-Snowden surveillance rendered as a quiet, beautiful catalogue.

Dance videos, including works by Kyle Abraham and Richard Move use a vocabulary of movement to confront injustice. I was glad to see dance and moving bodies acknowledged as essential instruments of declaration.

Also on view: Barbara Kruger, Kara Walker, Jenny Holzer (”Children of Our Age”), Robert Longo’s Untitled (Falling Flag) (2025), and U.S. Poet Laureate Tracy K. Smith’s erasure poem “Declaration,” which carves a new text from Jefferson’s by subtraction.

The whole exhibition is free. The archive belongs to the public. Go

Restoring History

Some good news on a story FACT has been tracking. U.S. District Judge Angel Kelley of the District of Massachusetts issued a preliminary injunction in National Parks Conservation Association v. U.S. Department of the Interior, blocking the Trump administration’s campaign to scrub disfavored history from the National Park Service. The order covers more than 433 NPS sites and directs that materials altered, removed, or damaged under Interior Secretary Doug Burgum’s directive (Secretary’s Order 3431, implementing Executive Order 14253) since May 20, 2025 be restored within 21 days — by July 4th, in time for the country’s 250th anniversary. The administration must also file weekly status reports on its compliance.

Judge Kelley’s language is worth reading directly: the executive order, titled Restoring Truth and Sanity to American History, seeks “to rewrite the Nation’s history with a white-out pen.” Under the guise of “American dignity,” she wrote, the administration ordered removal of signs and interpretive exhibits that do not align with its preferred narrative, “thereby telling half-truths.” She added: “History cannot be faithfully told while excluding the experiences of communities whose contributions, struggles, and achievements form an important part of our Nation’s story.” CBS

The case was brought by Democracy Forward on behalf of a coalition: the National Parks Conservation Association, the Association of National Park Rangers, the American Association for State and Local History, the Coalition to Protect America’s National Parks, the Society for Experiential Graphic Design, and the Union of Concerned Scientists. The censored material spans the absurd to the foundational: an exhibit on the nine people enslaved by George Washington at the President’s House Site in Philadelphia; films on labor history at Lowell National Historical Park in Massachusetts; a geology sign at Sunset Crater Volcano in Arizona pulled because a visitor in the accompanying photograph happened to be holding a Pride flag.

A parallel ruling came earlier this year from U.S. District Judge Cynthia Rufe in City of Philadelphia v. Burgum, ordering restoration of the President’s House slavery exhibit. Citing Orwell’s 1984, Judge Rufe wrote that the government here “asserts truth is no longer self-evident, but rather the property of the elected chief magistrate and his appointees and delegees, at his whim to be scraped clean, hidden, or overwritten.” PBS

The First Amendment principle at stake is straightforward. Federally curated history is government speech, but viewpoint-driven erasure of accurate historical and scientific content — particularly the work of career NPS interpreters and historians — implicates the public’s interest in access to truthful information and the chilling effect on civil servants doing that work. As Bill Wade of the Association of National Park Rangers put it, NPS staff have prided themselves on providing “truthful, accurate and unbiased information.” A preliminary injunction is not a final judgment, but it’s a step towards reversing the evils of erasure.

DOJ Hostile Takeover of the Office for Civil Rights

On Tuesday, the Trump administration transferred the Education Department’s Office for Civil Rights to the Department of Justice and its Office of Special Education and Rehabilitative Services to the Department of Health and Human Services, scattering the federal apparatus that adjudicates discrimination in American schools. AP

The Office for Civil Rights enforces Title VI of the Civil Rights Act of 1964, which prohibits race, color, and national origin discrimination by any program receiving federal funds; Title IX of the Education Amendments of 1972, which prohibits sex-based discrimination, including sexual harassment, in federally funded education; and Section 504 of the Rehabilitation Act, which prohibits disability discrimination by federal funding recipients. Its mechanism is administrative: complaints are investigated, technical assistance is provided, voluntary resolutions are reached, and federal funding can be withheld where institutions fail to comply. That structure operates on the doctrine of conditional federal spending, articulated in South Dakota v. Dole — federal money flows to recipients who honor civil rights guarantees, including those touching on the First Amendment’s religion clauses.

Transferring that work to the DOJ changes its nature. DOJ litigates. It does not run the day-to-day complaint intake that allowed a parent in rural Mississippi or a student at a public university to seek redress without a lawyer. Litigation is selective; administrative enforcement is reachable. Already thinned by mass layoffs, OCR has been the channel through which religious-discrimination claims, antisemitism investigations, and harassment complaints reach federal attention. Concentrating that authority inside DOJ makes enforcement a matter of prosecutorial discretion — discretion this administration has not exercised neutrally. The announcement landed the same week a federal judge halted the administration’s effort to compel colleges to demonstrate they aren’t considering race in admissions.

The consequence for First Amendment culture is the pattern FACT has tracked elsewhere: structural dismantling of the human infrastructure that processes citizen complaints. When the channel for remedy narrows, the chilling effect spreads. Students who would have filed a Title VI or Title IX complaint now face the question — is there anyone to receive it? Families navigating IDEA disputes will now route through HHS, an agency that, as the Center for Learner Equity put it, speaks a different language than education.

Only Congress can close the Department of Education. The administration is working hard to hollow it out.

Know Your Rights

Saul Goodman is back. On June 14, a 45-second PSA titled “Know Your Rights” appeared on a YouTube channel called Saul4Democracy, with Bob Odenkirk reprising his Better Call Saul / Breaking Bad attorney for the first time since the series ended in 2022. Better Call Saul co-creator Peter Gould spotlighted the video and confirmed on social media that it is not AI. Bleeding Cool

Filmed in front of Saul’s Constitution-print wallpaper, Odenkirk delivers a deadpan civics infomercial timed for the United States’ 250th birthday. “Did you know you have rights? Well, you do. Sure, they’re old-timey. They were written by a bunch of guys in powdered wigs and knee socks. Boring.” He runs the list as commercial fine print: “freedom of speech, freedom of assembly, freedom of the press, freedom against unreasonable searches and seizures, et cetera, et cetera”.

The bit lands at a moment when each right Saul rattles off is under active pressure: federal conspiracy indictments against 15 ICE protesters in Minnesota under NSPM-7 and Joint Task Force Vanguard, the ICE detention and deportation of journalists covering immigration enforcement, and travel-advisory warnings from 120 civil society groups about speech, assembly, and search-and-seizure risks ahead of the World Cup. Odenkirk recently pulled out of the Freedom 250 celebration along with many other musicians and celebrities. Yahoo!

Speaking Freely

“Floyd Abrams: Speaking Freely,” directed by Yael Melamede, is a feature documentary on the half-century career of the attorney often described as “the first First Amendment lawyer.” It premiered on PBS American Masters on September 22, 2023, was nominated for an Emmy in Outstanding Politics and Government Documentary, and will begin streaming on July 1st on Amazon and other services. PBS

The film traces Abrams’s work from his defense of The New York Times in the Pentagon Papers case, New York Times Co. v. United States (1971), which blocked the Nixon administration’s prior restraint of the classified Vietnam War study, through Citizens United, where he argued that the First Amendment protects independent spending by corporations in elections, to recent litigation involving Clearview AI and facial-recognition technology. Across 13 Supreme Court appearances, Abrams has built a free-speech philosophy that treats corporate and individual expression as constitutionally identical. WETA

It is a philosophy worth interrogating. Citizens United v. FEC (2010) collapsed the distinction between a citizen’s speech and a balance sheet, and the resulting flood of independent expenditures and donor-driven super PACs has reshaped American elections in ways that arguably constrain, rather than expand, popular political voice. In Abrams’s broad absolutism, the same logic that animates the jawboning framework at issue in cases like Murthy v. Missouri (2024) to protect right-wing critics of Covid-19 policy cuts sharply against ordinary people when the speech being protected belongs to corporations, surveillance vendors, or platform monopolies, and when the “censor” being restrained is the only entity with leverage to check them. Speaking Freely

The documentary is still worth watching, maybe more so for skeptics like me. The Pentagon Papers section is a working civics primer on why prior restraint matters now more than ever and is directly relevant to the current use of Trump’s NSPM-7 memorandum to enforce conspiracy indictments, and ICE detention of protestors. Watching Abrams build doctrine clarifies which tools the First Amendment offers, who has wielded them, and which arguments, including the one that distinguishes a person from a corporation, still need to be made. Interview subjects include Dan Abrams, Ronnie Abrams, Lee C. Bollinger, Vera Eidelman, George Freeman, Kashmir Hill, Jameel Jaffer, Joel Kurtzberg, Arnold Lehman, Ari Melber, and Nina Totenberg. Amazon

Take Me to America

A Bosnian band’s accordion-heavy reworking of its own 2011 hit has become an unlikely World Cup anthem. Dubioza Kolektiv’s “USA”—originally a satirical song about disillusionment with the American Dream—has been recut as “I Am From Bosnia, Take Me to America” to celebrate Bosnia-Herzegovina’s improbable qualification for the 2026 tournament. The new video, filmed in Sarajevo, has notched nearly 2 million YouTube views in under three weeks, on top of the 26 million the 2011 original has amassed. Bassist Vedran Mujagić told the AP the song “evolved from this satirical take on immigration and (the) American Dream and it was translated into (an) American football dream for the entire nation.” The Bosnia and Herzegovina team plays Qatar next on June 24th. AP

The “take me to America” hook lands at a complicated moment for the U.S.-hosted tournament. More than 120 civil society groups, including the ACLU and Amnesty International, have issued a travel advisory warning of arbitrary denial of entry, invasive social media screening and device searches, racial profiling, suppression of speech and protest, and ICE detention. In Seattle, about 50 people rallied at Judkins Park against ICE’s role around World Cup security, with signs like “ICE OUT NOW.” In Los Angeles, labor and immigrant-rights groups protested outside FIFA’s World Cup offices, and at least some workers threatened a walkout if ICE appeared at stadiums. Amnesty’s “Humanity Must Win” report describes ICE as a “chilling threat” to fans and players. Reps. Nellie Pou, Eric Swalwell, and LaMonica McIver introduced bills, including H.R. 7986, the Save the World Cup Act, to prohibit civil immigration enforcement near matches, fan zones, and related festivals. FIFA has cancelled anti-discrimination messaging and continues to enforce rules prohibiting players and fans from making political or religious statements. ACLU

When the Feds Label Protestors as Terrorists

The indictments unsealed June 16, 2026, in the District of Minnesota raise First Amendment questions about where federal conspiracy charges end, and constitutionally protected protest begins. U.S. Attorney Daniel Rosen announced charges against 15 organizers connected to Direct Action Minnesota and the Black Cat Workers Collective for activities during Operation Metro Surge, the ICE action conducted in Minnesota earlier this year. The eight-count indictment includes conspiracy to impede or injure a federal officer, solicitation to commit a crime of violence, interstate stalking, assault on a federal officer, and destruction of government property. Common Dreams

Rosen explicitly invoked National Security Presidential Memorandum 7, issued by Trump on September 25, 2025, which directs prosecutors to prioritize what the administration characterizes as left-wing and “anti-fascist” political violence. The case was developed by Joint Task Force Vanguard, the interagency body led under that memorandum. The directive’s explicit ideological framing, targeting one political viewpoint by name, implicates viewpoint discrimination doctrine, under which the government may not single out speech or association for enforcement based on the political position expressed.

The overt acts catalogued in the 94-page indictment include conduct presumptively protected under the First Amendment and NAACP v. Claiborne Hardware Co. (1982), which held that nonviolent organizing cannot be criminalized through association with others’ unlawful acts. David Bier of the Cato Institute identified one documented instance of physical contact with an ICE agent: defendant William Morgan knocked an agent’s notes out of his hand. The remaining acts include attending meetings, posting on social media about resistance to ICE, posting flyers advertising direct actions, conducting after-action reviews, forming human blockades, and impeding ICE vehicles with sandbags, debris, and vehicles. A Facebook post by defendant Cameron Kennedy stating “We need to become ungovernable” falls within the protections established by Brandenburg v. Ohio (1969), which limits criminal liability for speech to incitement directed at, and likely to produce, imminent lawless action. Defendant Isaac Auman Sant is charged with conduct that would be reasonably expected to cause substantial emotional distress—a standard that, applied to protest activity, raises chilling-effect concerns. Common Dreams

Erik Davis, a religious studies professor at Macalester College, told Judge John Docherty he was being “indicted for holding meetings.” Defense attorney Bruce Nestor characterized the conspiracy charge as an effort to broaden federal law enforcement’s net and expand the government’s ability to target movements. Docherty released the defendants, finding detention conditions unmet. The Minnesota case follows the March federal conviction of eight defendants on domestic terrorism charges at the Prairieland Detention Facility in Alvarado, Texas.

Acknowledgment

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On Sunday night at Radio City Music Hall, Ali Louis Bourzgui accepted the Tony Award for Best Featured Actor in a Musical for his performance as David in The Lost Boys. He used his ninety seconds at the microphone to dedicate the award to immigrant families, to queer and trans communities, and to “the people of Palestine who deserve to live a fruitful life, a free life, a full life without occupation.”

Over the last two years, performers, writers, and academics who have spoken on Palestine, on trans existence, on the political role of concentrated wealth, have lost jobs, agency representation, residencies, and platforms. The chilling effect is real as we repeatedly discuss in these FACT posts. A nationally broadcast acceptance speech that names all of those subjects in plain language, from a young Moroccan-American actor at the start of his career, is exactly the kind of speech the First Amendment exists to shelter.

Public Subsidy, Private Blacklist

The venue where Ali Louis Bourzgui accepted his Tony on Sunday — Radio City Music Hall — is owned by MSG Entertainment. The same company owns Madison Square Garden, the Beacon Theatre, and the Hulu Theater. All four are part of a corporate empire run by James Dolan, who also owns the Knicks and the Rangers. And all four have been, for the better part of three years, the subjects of one of the most aggressive applications of corporate facial-recognition surveillance to suppress disfavored speech anywhere in the United States. What Madison Square Garden, where Trump was resoundingly booed, where the Knicks lost and then won this week tell us about the First Amendment in an age of billionaire-controlled civic space

Beginning in June 2022, MSG Entertainment implemented a policy barring from entry any attorney whose firm had pending litigation against the company. Enforcement was automated: cameras at the doors of MSG-owned venues scanned the faces of arriving patrons and matched them against a maintained database of lawyers from blacklisted firms. The policy impacted approximately 90 law firms and, by the New York Attorney General’s count, thousands of individual lawyers. The triggering case became public in October 2022, when Larry Hutcher, a 45-year Knicks season ticket holder, was informed by letter that his tickets had been revoked and that the ban extended to any other lawyer at Davidoff Hutcher & Citron. The revocation came nine days after Hutcher filed a lawsuit on behalf of 24 ticket resellers who claimed Madison Square Garden was violating New York’s Arts and Cultural Affairs Law. Other affected patrons came forward with stories of being pulled out of line at the Rockettes’ Christmas Spectacular while bringing their children to a holiday show. Regulatory Oversight

The First Amendment angle is straightforward. The right to petition the courts is one of the five freedoms enumerated in the First Amendment, alongside speech, press, assembly, and religion. A policy designed to impose collateral consequences — loss of cultural access, loss of property rights in season tickets, public humiliation at the door — on attorneys for exercising that right is a textbook chilling effect. New York Attorney General Letitia James said as much in a January 2023 inquiry letter, warning that the policy “may dissuade lawyers from taking on cases such as sexual harassment or job discrimination claims against the company” and might violate state and federal anti-discrimination and civil rights law. Dolan’s public defense was instructive: “If somebody sues you, that’s confrontational. If you’re being sued, you don’t have to welcome the person into your home.” Fortune

But Madison Square Garden is not Dolan’s home. It is a venue that has not paid New York City a dollar of property tax since 1982. Under Section 429 of the New York Real Property Tax Law (the only tax expenditure in state real property tax law explicitly designed to benefit a singular for-profit business entity), MSG receives an exemption currently valued at roughly $43 million annually. The New York City Independent Budget Office estimates that the cumulative subsidy, in inflation-adjusted dollars, has exceeded $947 million. If current property value trends continue, MSG’s total tax break could clear $1 billion by 2030. Mayor Ed Koch, who blessed the exemption in 1982, later told the Times he had believed it would expire after ten years. It has not expired. It sits in perpetuity, attached to a venue physically resting on top of Penn Station, the busiest transportation hub in the Western Hemisphere, operated under a special zoning permit issued by the City of New York. Crain’s New York

A privately held venue receives a uniquely tailored, perpetual exemption from local taxation; sits atop public infrastructure built and maintained with public funds; operates under a specially granted city permit; and uses the resulting commercial position to deploy biometric surveillance against citizens. The doctrine of unconstitutional conditions holds that government may not condition discretionary benefits on the surrender of constitutional rights. The same principle ought, at minimum, to inform the question of whether a beneficiary of nearly a billion dollars in accumulated public subsidy can be permitted to act as a private censor of the legal profession — and, by extension, of any citizen whose speech, profession, or association the owner happens to dislike.

The facial recognition technology itself raises an additional layer of concern. As the Attorney General’s office noted, the underlying software “may be plagued with biases and false positives against people of color and women.” A system that misidentifies patrons by race or gender, deployed to refuse them entry to a publicly subsidized cultural venue, is not merely a civil liberties problem. It is the construction of a privately operated exclusion apparatus pointed at the public, built with public money, accountable to no one but its owner. Fortune

The pattern is broader than one venue. Across American civic life, the spaces in which public expression actually happens — concert halls, stadiums, social media platforms, news organizations, universities receiving federal grants — are increasingly held by a small number of very wealthy private actors who have learned that the right to exclude is, in practice, a more effective speech-control mechanism than any government censor could field. The First Amendment binds the state, not the billionaire. When the state finances the billionaire’s venue, however, the line is no longer so easy to draw.

On the eve of the Knicks Game 4 of the NBA Finals, MSG Entertainment requested a city permit for an outdoor watch party for 500 to 999 fans. The Mamdani administration approved 999 — the high end of what Dolan had asked for. Dolan went on WFAN hours before tipoff and announced he was cancelling the watch party anyway, telling listeners that "we're not about 999 people. We're about millions of people" and blaming the mayor and NYPD Commissioner Jessica Tisch for the security perimeter still in place after a chaotic Game 3. Mamdani's response was to arrange for Game 4 to be shown on dozens of LinkNYC screens across the city instead.

Bourzgui spoke on Sunday from a stage owned by Dolan. That this was possible at all is a small mercy of the genre — acceptance speeches are live, brief, and difficult to pre-screen. It should not be confused with the broader condition of the room. The room has rules now. The cameras are watching the door.

The Circus on the White House Lawn

On June 6, the Public Integrity Project, a Washington watchdog law firm, filed a federal lawsuit in the U.S. District Court for the District of Columbia seeking to halt UFC Freedom 250 — the prizefighting card scheduled for the South Lawn of the White House on June 14, the president’s 80th birthday. The plaintiffs are Paul Romano of Springfield, Virginia, a retired Air Force Sergeant and Vietnam War medevac veteran, and Susan Douglas of Alexandria, Virginia, a longtime civic activist and organizer; both work to preserve Washington’s monumental spaces. The defendants are the National Park Service and the Department of the Interior, including Interior Secretary Doug Burgum. Public Integrity

The complaint frames the event as “a corrupt scheme to hand the White House South Lawn and Lincoln Memorial to a private, for-profit sports promoter in violation of federal law.” It rests on three grounds. First, National Park Service regulations and agreements prohibit private sporting events on federal parklands, and the plaintiffs argue no permissible exemption applies. Second, “The Claw,” a 92-foot-tall, 600-ton fighting structure now erected on the South Lawn, was built without congressional authorization, which the complaint contends is required for substantial construction on federal parkland. Third, the complaint cites cost to taxpayers: Dana White has himself estimated South Lawn repairs at $700,000, and no public environmental assessment has been conducted under the National Environmental Policy Act, which the suit argues is required for federal actions of this scale.

Trump, according to the complaint, purchased up to $50,000 in TKO Group stock — UFC’s parent company — earlier this spring. The company is selling VIP packages for $1.5 million each. A TKO executive described the event internally as “the greatest earned-marketing tool of all time.” The fighters’ official weigh-in is scheduled at the Lincoln Memorial the night before. “The President arranged to hand two of America’s most cherished monuments to a private corporation so he and his allies could profit from them,” Susan Douglas said in the firm’s statement. “That is corruption. These monuments belong to all of us Americans, not to Dana White, not to advertisers like Crypto.com, and not to Donald Trump.”

Romano states, “I served in Vietnam. I’ve been to the Wall and seen the names of my childhood friends who stood the watch and gave their all. The Lincoln Memorial is sacred ground, and it honors everyone who has ever worn this country’s uniform. Using it as a backdrop for a for-profit cage fight so the President and his friends can make money is a desecration.”

The Justice Department filed in opposition on Monday, calling the suit “obstructionist, baseless, and dilatory” and writing that “no one is holding Plaintiffs in a jiu-jitsu lock, forcing them to watch UFC Freedom 250 against their will.” The government emphasized that more than seven federal agencies — the Executive Office of the President, U.S. Secret Service, U.S. Park Police, Department of the Interior, National Park Service, Department of Homeland Security, and the Federal Aviation Administration — have allocated resources to the event for nearly a year, and characterized the plaintiffs as exercising a “heckler’s veto.”

The lawsuit is not the only criticism on record. From inside the cage, dissent has come from quarters that surprise some observers. UFC bantamweight Bryce Mitchell told reporters at media day that “our government is desecrating its role in society by entertaining sports,” and that “our government is to protect and serve the people… It’s really outside of what the goal of the government was intended to be because our tax dollars and resources are funding this operation.” Mitchell also described the event as taking national resources in the middle of what he called World War 3 — and the bombing of children in another country — to throw a birthday party for Donald Trump. Mitchell’s politics are elsewhere noxious: he is on record for Holocaust denial, and nothing here endorses his broader worldview. But the verbal convergence with Romano — both men, from very different positions on the political spectrum, reach for the word desecration about the same event is notable. Bloody Elbow

Middleweight champion Sean Strickland has claimed publicly that he was barred from attending the event because, in his own framing, he “made fun of Israel and Epstein” and said “Trump is owned by [Benjamin Netanyahu].” Dana White has denied any ban, and Strickland later wrote that he and UFC Chief Business Officer Hunter Campbell “laughed” about the dispute. The factual claim is contested. But the question Strickland’s allegation raises is the one worth keeping: when an event is hosted by the executive branch on federal grounds, with an invitation list curated by the administration, what is the relationship between criticism of that administration and the privilege of attendance? MMA Weekly

On April 28, 1967, Muhammad Ali refused induction at the Houston Selective Service center, citing his Nation of Islam faith and a religious objection to the Vietnam War. The same day, before he had even been charged with a crime, the New York State Athletic Commission suspended his boxing license and withdrew his heavyweight championship title for “conduct detrimental to the best interests of boxing.” Athletic commissions across the country followed. Ali, 25 and in his physical prime, was convicted of draft evasion that June and sentenced to five years in prison and a $10,000 fine; he remained free on appeal, but no state would license him to fight for more than three years.

In 1970, a federal court in Ali v. Division of State Athletic Commission ruled that the New York commission’s denial of his license was arbitrary and discriminatory in violation of the Equal Protection Clause; the court catalogued numerous other licensees with felony convictions far more serious than Ali’s pending appeal, and found the commission could not justify the singular treatment. A year later, in Clay v. United States (1971), the Supreme Court unanimously reversed his criminal conviction on the narrower ground that the government had never specified why his conscientious objector claim had been denied. Justia

The two rulings expose the actual mechanism of suppression. It was not the criminal sentence, which sat under appeal throughout. It was the use of state licensing power as a vehicle to punish disfavored speech and belief. “Conduct detrimental to the best interests of boxing” was a discretionary standard that, in Ali’s case, functioned as a content-based penalty for stating a religious objection to a war.

Government cannot use its regulatory or platform power to punish speech it disfavors, even when it stops short of criminalizing the speech directly. The First Amendment forbids the government using its leverage — licenses, grants, tax exemptions, federal platforms — to reward speech it likes and punish speech it does not.

Mitchell, regardless of his prejudices and misunderstanding of history, is articulating what used to be a Republican concern when he says the government should be protecting, not entertaining. Strickland’s contested ban — true, exaggerated, or rescinded — illustrates why the worry is merited. Once the executive branch is in the business of curating spectacle on federal grounds, attendance becomes a perquisite the administration controls, and criticism becomes a cost.

The Romano-Douglas lawsuit is built on statutory and administrative grounds. But it sits alongside a constitutional concern that runs from Romano’s “desecration” to Mitchell’s, and that the Ali licensing case made explicit. When the executive branch curates spectacle on federal grounds and controls who is invited and who is not, monuments and licenses and platforms begin to behave the same way: as instruments of patronage that can reward speech the administration likes and punish speech it does not.

A Vietnam veteran and a civic organizer have asked a federal court to take that seriously a week before the event. Ali’s three lost years are the case study for why. The panem et circenses of ancient Rome were a product of Autocracy. A revival of a “bread and circuses” approach to governance is an explicit call for an end to democracy.

The Pentagon’s Approved Faiths

The Department of Defense has reduced its official list of recognized religious faiths and belief systems from more than 200 to 31. A May 20, 2026 memorandum signed by Under Secretary of Defense Anthony Tata implements the change, which was directed by Defense Secretary Pete Hegseth — the first revision to the list since 2017, when the military had expanded recognized faiths to roughly 211. Military.com

Removed from recognition are approximately 180 belief systems, including Atheists, Pagans, Wiccans, Humanists, Druids and many smaller or alternative groups. What remains are 31 entries, weighted heavily toward Christian denominations. Fully two-thirds of the 31 recognized religions are denominations of Christianity.

The stated rationale is administrative efficiency. Hegseth argued that “the previous system had ballooned to well over 200 faith codes” and was “impractical and unusable,” claiming that approximately 82% of religiously affiliated service members used only six of the available codes. But the logic of “streamlining” collapses under scrutiny – many variations of Christian faith remain. The categories that were erased aren’t marginal data-collection abstractions. They are the identities of service members who now have no recognized place in the chaplaincy system built to serve them.

Mikey Weinstein, founder and president of the Military Religious Freedom Foundation and a retired Air Force officer, said the reduction is “another absolute, clear, filthy and disgusting, unconstitutional, immoral and unethical attempt to force only the approved solution, getting closer and closer to Christian nationalism.” His organization is “very seriously considering” filing a federal class action suit on behalf of impacted military members and civilians. AOL

The constitutional framework is clear. Courts have long held that service members have a First Amendment Free Exercise right to religious worship, and that the military would unduly burden that right if it failed to provide chaplains to support it. Federal courts have recognized that the chaplaincy is one area in which the free exercise rights of military personnel outweigh potential Establishment Clause concerns — but the corollary is that the Department of Defense does not have a duty to provide chaplains for every denomination, and that less “mainstream” religions will likely not be represented. The Pentagon is hiding behind that carve-out while systematically narrowing who counts as “mainstream.” Pew Research Center

This move does not exist in isolation. Hegseth has been hosting monthly Christian worship services at the Pentagon and announced simultaneously that chaplains will no longer wear rank insignia on their uniforms but will instead be identified by religious insignia. He declared that the chaplain corps had been “infected by political correctness and secular humanism” and had been “watered down” to function as nothing more than therapists focused on “self-help and self-care” rather than faith or virtue. At one such service, Hegseth prayed for U.S. troops to inflict “overwhelming violence of action against those who deserve no mercy,” asking these things “with bold confidence in the mighty and powerful name of Jesus Christ.” Religion News

The chaplaincy was established precisely because the military removes people from their religious communities and bears a constitutional obligation to facilitate their free exercise — all of their free exercise. The First Amendment prohibits government actions that benefit followers of one faith over another, and accommodation of religion to prevent violations of the Free Exercise Clause must be carefully calibrated to avoid violation of the Establishment Clause. What Hegseth has done is the inverse: used the administrative machinery of religious accommodation to privilege one tradition while rendering dozens of others officially invisible.

The Erasure Doctrine

The story above belongs to a larger pattern that has been building since January 2025: a systematic effort to erase women and people of color from the institutional records, promotional pathways, and public memory of the United States military.

Secretary of Defense Pete Hegseth intervened to stop the promotions of several high-ranking service members, including four Army officers — two Black men and two women — on track to become one-star generals. When Army Secretary Dan Driscoll pushed back, Hegseth struck the names unilaterally. The pattern continued in the Navy. Hegseth disproportionately targeted women and minority officers in a decision to remove nine individuals from a list of 22 selected for promotion to one-star admiral by a board of senior Navy admirals. Three of the removed officers are women and two are Black men. TheGrio

The promotion list consists of roughly three dozen officers, most of whom are white men, but also contains a few female and Black officers. In one particularly revealing exchange reported by the New York Times, Hegseth’s chief of staff told the Army Secretary that President Trump would not want to stand next to a Black female officer at military events — this in the context of blocking the command appointment of Maj. Gen. Antoinette Gant, a combat engineer who served in Iraq and Afghanistan. aol

The Pentagon’s defense is “meritocracy.” But there is a law that governs this. The Defense Officer Personnel Management Act (DOPMA), codified in Title 10 of the United States Code, establishes formal promotion gates and requires that each promotion board operate under a Convening Order that includes equal opportunity guidance. The Selection Board equal opportunity standard is directly relevant: if Hegseth’s removals were motivated by the race or gender of the officers involved, those actions would violate the very standard the board was instructed to apply. The Supreme Court has established that the Constitution’s Equal Protection Clause applies to military personnel, with Frontiero v. Richardson establishing that discrimination on the basis of sex in military matters is subject to searching judicial review. Just Security

Senator Jack Reed of Rhode Island, the top Democrat on the Armed Services Committee, noted in Senate testimony that nearly 60 percent of the senior officers Hegseth has fired are female or Black, even though women and minorities currently account for fewer than 20 percent of all generals and admirals. As Jose Vasquez of Common Defense put it, “He is not making our military more lethal. He is making it more loyal to him — and that is the true threat to national security and military readiness.” Military Times

The promotion purge has a counterpart in the erasure of institutional memory. Between December 2024 and March 2025, Arlington National Cemetery removed links to webpages about Black, Hispanic and female veterans buried there, in compliance with a Trump administration executive order on diversity, equity and inclusion and a resulting directive from Hegseth targeting race and gender-related language and policies in the military. Among the pages that disappeared were links on the graves of prominent minority veterans, as well as educational pages on the Civil War, African American history and women’s history. The erasure extends far beyond Arlington: the American Battle Monuments Commission removed displays honoring Black soldiers at the Netherlands American Cemetery in Margraten, where 172 Black servicemen who fought in segregated units in World War II are buried. Yahoo

When President Harry S. Truman signed Executive Order 9981 on July 26, 1948, calling for desegregation of the U.S. Armed Forces, he repudiated 170 years of officially sanctioned discrimination — and it marked one of the first times a commander in chief used executive authority to implement a civil rights policy. The Army resisted. The Secretary of the Army at the time argued that “the Army is not an instrument for social evolution.” Truman, who would settle for nothing less than full desegregation, forced him into retirement. HISTORY

The Army’s own argument for segregation was that “separate but equal” gave everyone equal opportunity. The Fahy Committee, convened to oversee implementation of the order, investigated and proved that segregation resulted in discrimination and inefficiency — that Black soldiers could only enroll in schools if an all-Black unit had an opening in that specialty, which structurally blocked them from pursuing their own paths.

In the following decades, the military became an imperfect but genuine site of inclusion and opportunity, and its integration became a crucial step toward broader desegregation of American society. That legacy is not a bureaucratic footnote. It is the institutional foundation that produced the officers now being removed from promotion lists and stripped from the cemetery record.

The First Amendment does not begin and end with speech. It encompasses the full architecture of a free society: the right to hold beliefs without government sanction, the right to an accurate historical record, the right to recognition as a full participant in the national story. What the Hegseth Pentagon has undertaken — stripping faiths from official recognition, purging officers by race and gender, erasing the graves of Black and Brown veterans from public memory — is a coordinated assault on all of it.

A military that serves a democratic republic draws its legitimacy from the breadth of its membership. The diversity of the force, in faith, in race, in the full range of American identity, is not a concession to social fashion. It is the proof of the constitutional claim. When service members of every background stand under the same oath, they embody the First Amendment’s foundational premise: that the republic belongs to everyone who upholds it, not only to those who look or worship a particular way. The freedom to dissent, to practice minority faiths, to protest injustice are not luxuries grafted onto military service. They are what military service, in a democracy, is supposed to defend.

Erasing that history, hiding the Tuskegee Airmen from Arlington’s website, blocking the promotion of Black and women officers, reducing two centuries of religious pluralism to thirty-one approved categories weighted two-to-one toward Christian denominations, is not administrative housekeeping. It is the construction of a false record: a fiction that America was built by white Christian men and that its institutions should reflect that identity above all others.

That fiction is the ideological core of fascism, which has always depended on the suppression of plural memory and the erasure of those whose presence contradicts the founding myth. The Bill of Rights was written explicitly to counter this tendency, to counter the state’s power to determine which identities are legitimate, which beliefs are tolerated, which histories are allowed to exist, and who gets to speak.

UPCOMING EVENTS

• Join FACT at Brooklyn’s Annual Juneteenth Celebration next week. FACT members will be joining the parade and tabling on Jun 20th in East New York near Linden Park

• The Committee for the First Amendment will host Rise Up, Sing Out: A Concert for the First Amendment on June 14, 2026, at 7:30 pm at Town Hall. The All-Star event is streaming free via registration.

Acknowledgment

We are always grateful for the encouragement and suggestions of our colleagues and peers.

NEXT STEPS: TAKE ACTION

First Amendment Friday

F.A.C.T. invites all cultural institutions, artists, and activists to post First Amendment stories, graphics, calls to action, and advice to their audience every Friday. Join our campaign by signing up here. Feel free to use our digital assets here.

Public Practice

We are asking cultural venues in New York City (and across the USA) to prominently place our First Amendment poster in their public areas. Sign up to get your copy. We are also asking performance venues to share our curtain speech (or create your own).

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Pride march wasn’t born in celebration; it was born in the right to petition.

Every July 4th from 1965 to 1969, a small, determined group of activists gathered at Independence Hall in Philadelphia — the very ground where the Declaration of Independence and the Constitution were debated and signed — to remind America of its own promises. They called it the Annual Reminder. They dressed conservatively, carried orderly signs, and stood in the shadow of the Liberty Bell, whose inscription — “Proclaim liberty throughout all the land unto all the inhabitants thereof” — abolitionists and suffragettes had claimed before them. Now it was their turn.

Frank Kameny and Barbara Gittings organized those first pickets. The signs read: “15 million homosexual Americans ask for equality, opportunity, dignity.” The dress code was strict — suits, ties, dresses — because in 1965, the price of being seen as a homosexual in public was potentially your job, your family, your freedom. Gittings was a member of Daughters of Bilitis and an editor of their publication The Ladder. Kameny, an astronomer who was dismissed from the army as part of McCarthy’s Lavender scare, understood that to be heard, you first had to perform respectability for an audience that had not yet decided you were human. That constraint is itself a First Amendment story: about who gets to speak, on what terms, and at what cost. LOC

The final Annual Reminder was held on July 4, 1969 — just days after the Stonewall Uprising in New York. The organizers recognized that something had shifted permanently. Within months, at the November 1969 conference of the Eastern Regional Conference of Homophile Organizations (ECHO), thirteen groups voted to transform the July 4th demonstration into something new: a national annual march, to be held on the anniversary of Stonewall. Christopher Street Liberation Day. What we now call Pride.

The first Pride march stepped off in New York City on June 28, 1970. Three to five thousand people walked. Today, millions do so across the globe.

That arc — from 44 people in suits at Independence Hall to millions in the streets — is one of the most extraordinary expressions of democratic faith in American history. Not faith that the nation was just. Faith that it could be. That the principles written into its founding documents, however imperfectly and hypocritically applied, contained a living demand that their own promise be fulfilled.

This is what it means to call on a settler colonial nation to live up to the intention injected into the DNA of its civic life. The framers, themselves men of profound contradiction, architects of both liberty and bondage, may have understood, even if they couldn’t fully articulate it, that a nation born of conquest required a principle capable of outlasting its founders’ failures.

The First Amendment is that principle. The right to assemble, to petition, to speak — not as a gift from government but as a pre-political right that the government is bound to protect — is the mechanism by which the arc bends. Martin Luther King, drawing on Transcendentalist Theodore Parker, named it: the arc of the moral universe is long, but it bends toward justice. It bends because people keep pulling on it. The Annual Reminder. Stonewall. Pride.

Which is why the current campaign to erase LGBTQ+ presence from public life is not merely discriminatory. It is constitutionally illiterate. Banning municipalities from sponsoring Pride. Restricting drag performances through viewpoint-based permit conditions. Purging HIV resources from federal websites. Eliminating the words sexual orientation and gender identity from the entire apparatus of federal law and communication. These are not policy disagreements. They are attempts to silence a petition that has been ongoing for over sixty years — a petition addressed, always, to the explicit conscience of this republic as written in the First Amendment.

Pride began as a reminder. It remains one. The promise is still unmet. The march continues.

This documentary short film by Lilli Vincenz about the first Pride March in 1970 is part of the Lilli M. Vincenz Collection (Library of Congress)

Democracy Day: The Overpass as Public Forum

Tomorrow, June 6th — D-Day — the Visibility Brigade is calling people to the bridges. 81 years after anti-fascist forces took Normandy, Americans plan to take over a very different theater. Across an expected 1,000 overpasses nationwide, participants will hold signs over highways, play music, wear inflatables, and donate gift cards to local mutual aid groups. Their target is the billionaire capture of democratic institutions, and their medium is the pedestrian walkway above rush-hour traffic.

This smart choice of venue, and not just symbolically. The highway overpass is one of the most visible public spaces left — a place where you can reach tens of thousands of people passing through, using the same strategy as billboards, but without the expense. Unlike social media, Cars passing by don’t require an algorithm’s permission to communicate a message. A well-made sign at 60 mph has maybe two seconds to land, but when it works, it requires nothing more than a bit of fortitude.

That unease of authorities has produced a real and unsettled legal terrain. Connecticut state police cited and arrested Visibility Brigade protesters, saying that sign-holders were trespassing or illegally displaying signs that might distract drivers, even while the state permits large electronic billboards along the same roadways. The ACLU sued, and this February, Connecticut State Police agreed to stop breaking up highway overpass demonstrations, with state troopers instructed not to detain, identify, threaten, fine, disperse, or arrest individuals peacefully holding signs with non-commercial political messages on overpass sidewalks. ACLU of Connecticut

The core legal question — whether an overpass sidewalk is a traditional public forum — has now been answered, at least in Connecticut. The ACLU’s position is that overpass sidewalks are traditional public fora where peaceful expressive activity is constitutionally protected. The distracted-driver rationale, the settlement makes clear, can’t be used to suppress viewpoint while commercial signage runs unimpeded alongside it.

Tennessee Banned Roots. Then the Pushback Started.

Knox County Schools in Knoxville, Tennessee, banned Alex Haley’s Roots on May 12 — adding the 1976 Pulitzer Prize-winning novel to its banned titles list under the state’s Age-Appropriate Materials Act (AAMA), bringing the district’s total number of banned titles to 124. The Grio

The specific trigger was Chapter 84, which describes the rape of an enslaved woman by a plantation owner. Under the AAMA, the law is stricter for library materials than for classroom instruction: a book can still be taught by a teacher as part of a curriculum, but cannot remain on library shelves for independent student checkout if certain content is present. WATE

The Knox County School District’s own statement acknowledged the book’s significance while hiding behind procedural necessity: “The decision made to remove Roots from school libraries is in no way a commentary on the literary or cultural value of the novel, but the result of adherence to state law.” That’s the equivalent of “I was just following orders” — and it’s the predictable outcome of a law designed to produce exactly this result.

The irony of the location was not lost on locals paying attention. A 13-foot bronze statue of Alex Haley has stood in Knoxville for nearly three decades. A Knox County board member described driving past the Haley statue that morning and calling family members in disbelief after learning the book had been banned, saying, “I feel like this is something that is an injustice to those who have valued this book.” Tennessee Lookout

After weeks of backlash, the Knox County Schools superintendent informed the Board of Education that Roots would be returned to circulation “effective immediately.” A reversal — but not a resolution. The Age-Appropriate Materials Act remains in effect, and the district’s review process that led to the removal of Roots, along with 123 other titles, continues to operate. WBIR

Tennessee’s book-ban count has soared to the third-highest in the country under the AAMA, with PEN America estimating more than 10,000 books banned from schools and libraries during the 2023-24 academic year alone. A Knoxville Democrat has filed the Freedom to Read Act to repeal the AAMA, which would prohibit materials from being excluded because of “partisan, ideological, or religious disapproval.”

Roots is back on the shelf for now, but the machinery that removed it is still running.

The Kennedy Center Once Again

In December 2025, the Kennedy Center’s board voted to rename the institution The Donald J. Trump and The John F. Kennedy Memorial Center for the Performing Arts. Within hours, the website was updated, and crews went to work adding Trump’s name to the building’s facade. Lawmakers and legal scholars immediately argued that such a change required an act of Congress. PBS

On May 29, U.S. District Judge Christopher Cooper ruled that Trump’s handpicked board did not have the authority to rename the facility on its own. “The Kennedy Center’s organic statute makes crystal clear that the Center is to be named for President Kennedy, and it cannot bear any other formal name or public memorial based on the Board’s unilateral say-so,” Cooper wrote in his 94-page decision — issued on what would have been Kennedy’s birthday. NBC News

The suit was brought by U.S. Representative and former Kennedy Center Board Member Joyce Beatty. “Congress gave the Kennedy Center its name,” Cooper wrote, “and only Congress can change it. The ruling also temporarily blocked the administration’s plan to close the venue for two years beginning in July, finding that the board’s vote on the closure had been “ill-informed.” NBC News

On Thursday, June 4, the Kennedy Center’s general counsel issued a memo — first reported by the New York Times and obtained by CNN — ordering staff to remove Trump’s name from the building by June 12. Staff was also directed to immediately update email signatures and marketing materials. The memo’s instructions were unambiguous: “Remove any references to the ‘Trump-Kennedy Center’ or ‘The Donald J. Trump and the John F. Kennedy Center for the Performing Arts,’ and instead revert to ‘The John F. Kennedy Center for the Performing Arts’ or ‘the Kennedy Center’ or ‘the Center.’” The directive applies to email signatures, letterhead, signage, brochures, and website pages. CNN

The center is still “considering its options” on whether it will remain open past the scheduled $257 million renovation project set to begin July 5. In response to the rulings, Trump said he would transfer control of the Kennedy Center back to Congress, saying Cooper’s decisions would prevent him from renovating the center. The Hill

When the Algorithm Censors the Archive

On May 7, U.S. District Judge Colleen McMahon of the Southern District of New York issued a sweeping, 143-page ruling with a finding that should alarm anyone who cares about intellectual freedom: the mass termination by the National Endowment for the Humanities of more than 1,400 grants was “unlawful, unconstitutional, ultra vires, and without legal effect.”

The grants, representing over $100 million in congressionally appropriated funds, were canceled in April 2025 by NEH officials working in coordination with the Department of Government Efficiency. The mechanism of cancellation is what makes this case doctrinally significant: DOGE officials admitted during discovery that they used ChatGPT to identify which grants violated the president’s anti-DEI executive orders. Grants containing words such as “history,” “culture,” and “identity” were flagged by the AI as relating to DEI. Inside Higher Ed

Judge McMahon was precise about what that constitutes under the First Amendment. She wrote that it was “a textbook example of unconstitutional viewpoint discrimination” when officials canceled the grants based on DEI content. She added: while a new administration may pursue lawful funding priorities, “it has no license to suppress disfavored ideas.” And in language that cuts to the heart of what’s at stake culturally: “agency discretion does not include discretion to violate the First Amendment. Nor does it give the Government the right to edit history.” PBS

The ruling granted summary judgment on all counts to the American Council of Learned Societies, the American Historical Association, and the Modern Language Association, issuing a permanent injunction requiring the government to rescind every termination notice and restore all affected grants.

The administration may still appeal. After similar rulings involving NIH, the administration sought emergency appeals up to the Supreme Court, which, in August 2025, allowed NIH to proceed with terminating hundreds of grants, reversing lower-court orders. That precedent hangs over this victory.

What the NEH case establishes, at minimum, is that deploying an AI to sort speech by ideological keyword and then using those results to defund it is not budget policy. It’s censorship. And federal courts are beginning to say so plainly.

When Information is the Target

Mayday Health, a New York-based nonprofit, and Nancy Turbak Berry, a Democratic former South Dakota lawmaker, filed a federal lawsuit on May 29th against South Dakota Governor Larry Rhoden and Attorney General Marty Jackley over House Bill 1274 — signed into law in March and set to take effect July 1. The new law says no person may knowingly dispense, distribute, sell, or advertise an article or thing designed, adapted, or intended to produce an abortion. KFGO

This is the second round. Last year, Jackley accused Mayday of violating South Dakota’s abortion ban over gas station ads reading “Pregnant? Don’t want to be?” that directed people to Mayday’s website. The dueling lawsuits settled in March, with Mayday agreeing to remove the ads. Rather than accept that settlement as a boundary, the state legislature passed HB 1274 — with Governor Rhoden’s press release upon signing it explicitly referencing the Mayday litigation and accusing the organization of illegal conduct. KOTA

The chilling effect arguments in the new lawsuit are unusually concrete. Co-plaintiff Turbak Berry alleges the advertising prohibition would prevent her from wearing a sweatshirt bearing Mayday’s mission and web address. The lawsuit also raises a Section 230 argument: Mayday contends it cannot be held liable for links to third-party websites under the Communications Decency Act. The lawsuit calls HB 1274’s advertising prohibition “unconstitutional on its face because it prohibits or chills a substantial amount of protected speech.” Yahoo!

What’s being tested here is whether a state can suppress the circulation of information about legal medical options simply because those options are illegal within its own borders. That’s not regulating conduct — it’s regulating knowledge. The First Amendment has traditionally drawn a hard line there, and this case will test whether that line holds.

Acknowledgment

We are always grateful for the encouragement and suggestions of our colleagues and peers.

NEXT STEPS: TAKE ACTION

First Amendment Friday

F.A.C.T. invites all cultural institutions, artists, and activists to post First Amendment stories, graphics, calls to action, and advice to their audience every Friday. Join our campaign by signing up here. Feel free to use our digital assets here.

Public Practice

We are asking cultural venues in New York City (and across the USA) to prominently place our First Amendment poster in their public areas. Sign up to get your copy. We are also asking performance venues to share our curtain speech (or create your own).

Share First Amendment Bulletin

I’ve been wrestling with this.

I was born in Israel. I left as a small child and grew up in the United States, and I’ve never been a Zionist, but my grandparents were. I understand from their many letters and stories what drove them to live in Palestine over a hundred years ago and why they fought to legitimize their presence by helping to found a country with the support of the United Nations.

My father and I used to argue about Palestine. For years, I held the two-state position because it seemed to give Palestinians what they were asking for. He held out for something more radical and, I now think, more honest: a pluralistic society not bounded by religious definition, the kind of arrangement the Bill of Rights gestures toward when it works. I came around to his view too late to tell him so.

When I was a teenager, I embraced the boycotts against apartheid. I believed, and still do, that American culture makers had an obligation not to take money from the South African government, not to perform there, and to refuse to lend their work to laundering a regime. The cultural boycott was one of the things that worked to bring revolutionary change to South Africa. It worked because artists understood that their presence was not neutral.

So why has BDS been harder for me?

Part of the answer is personal. Years ago, working with Ivo van Hove and ITA, we were invited to bring Angels in America to Saint Petersburg. Several in the cast didn’t want to go. Russia had just passed its anti-gay propaganda laws. To perform Kushner’s play there felt, to some, like a kind of normalization — proof that things weren’t really that bad, that art could still cross the border, that the regime was still inside the family of nations. Ivo argued the other way. He said there was an audience in Saint Petersburg, a queer audience in particular, that needed this play more than any audience in Amsterdam or New York. He said the work itself was the argument. They went. I still think he was right.

That memory complicates my thinking about Palestine and Gaza. I want to believe in cultural exchange. I have spent thirty years believing in it. That’s included seeking out collaboration with Palestinian artists, supporting numerous anti-Zionist organizations, and speaking out, even when it might cost me relationships and employment. I try to speak out with love and understanding. I know the danger of using “complicity” as a blunt instrument — because almost everyone, almost everywhere, is complicit in something. I’m sure I have been complicit without intending to be.

And yet.

The South African case keeps coming back. The point of the cultural boycott wasn’t that individual South African artists were guilty. It was that a state was using culture, including the cultural labor of foreign artists willing to perform, to project the image of a normal country while doing something that was not normal. Israel’s “Brand Israel” campaign, launched in 2005 in explicit response to PACBI, has been documented operating on exactly this premise: Israeli artists who receive state funding to perform overseas have signed contracts pledging to “promote the policy interests of the State of Israel via culture and art,” forfeiting any claim to artistic freedom in the process. That isn’t cultural exchange. That’s the use of culture by a state. And the PACBI call, which I’ve read carefully, is not a boycott of all Israeli individuals — it’s a boycott of institutions that maintain the system, with guidelines for evaluating which institutions and events qualify. That distinction matters to me. BDS Movement Amplify Palestine

This month, the Israeli publishing house November Books, together with the independent magazines +972 and Local Call, is releasing Sally Rooney’s novel Intermezzo in Hebrew. Rooney declared her support for BDS five years ago and refused to translate her third novel into Hebrew, even though her first two had been translated by an Israeli publisher. The point was never that she didn’t want Hebrew readers. In her 2021 statement, she said she would still be “pleased and proud” to have her books translated into Hebrew, as long as it was done in a way that respected the principles of the boycott. The point was that she didn’t want her work laundering an apartheid regime. Five years of dialogue with the author and the boycott movement produced an arrangement that does what most people are told is impossible: a Hebrew translation, published in Israel-Palestine, in full compliance with BDS guidelines. +972

How is that possible? Because the boycott has always been more precise than its detractors pretend. Israeli publishers that accept BDS’s three core principles — an end to the 1967 occupation, full civil equality for Palestinian citizens of Israel, and the right of return — and that do not do business with settlements or receive Israeli state funding are exempt from the boycott. When the Palestine Festival of Literature surveyed dozens of Israeli publishers in 2024, only November Books met those requirements. A letter calling for a boycott of the Israeli publishing industry, signed by more than 7,000 writers worldwide — including Nobel, Booker, and Pulitzer winners — accepted that framework and those exceptions.

The boycott is of the state and the institutions that uphold it. The boycott is not of Hebrew. Hebrew is one of the great languages of the world. It is a language of poetry and stories and faith, a language older than the state that has tried to claim sole custody of it, a language that will outlast any particular political arrangement of the land where it is spoken. To refuse to publish in Hebrew because of what Israel is doing in Gaza would be a categorical error — the exact kind of error the boycott’s critics accuse it of making. To publish in Hebrew, in Israel, through a press that refuses state money and stands against apartheid, is the opposite kind of act. It is an insistence that Hebrew belongs to its speakers, to its writers, to its readers — not to the bureaucratic armature of an occupying state.

The Intermezzo publication is the answer to my Saint Petersburg question, or the closest thing to an answer I have found. It says: presence and refusal are not opposites. You can show up for the audience that needs the work, in their language, while refusing the institutions that would use your presence as cover. It just takes five years of patient work and a willingness to stay true to an ethical goal.

I want American artists to be that precise. I want us to be willing to say what we are refusing and what we are not. I want us to push each other to be explicit in our non-compliance — not in a way that flattens the question, but in a way that takes the question seriously enough to do the slow work necessary to achieve meaningful change.

So, why is this personal story in a First Amendment newsletter?

In the United States right now, you are not allowed to make this decision freely. The choice to participate in or support a boycott of Israel, a choice about your own expression, your own associations, your own money, has been pulled out of the realm of conscience and into the realm of compelled speech.

Roughly 27 states (and by other counts more than 34) have enacted anti-BDS laws or policies, many of which require government contractors to certify that they will not boycott Israel. In 2017, the city of Dickinson, Texas, required victims of Hurricane Harvey to pledge they would not boycott Israel as a condition of receiving disaster aid. Last summer, the Trump administration briefly tried to attach the same condition to FEMA disaster preparedness grants, a $1.9 billion certification requirement that states would not cut commercial relations with Israeli companies, before walking the clause back under public pressure, while insisting that DHS would continue to “enforce” against BDS as a discrimination matter.

In September, the House passed a defense authorization that would bar contractors engaged in “politically motivated” boycotts of Israel from Pentagon contracts — more than half of all federal contract dollars. There is also a standing federal bill, the Countering Hate Against Israel by Federal Contractors Act, which would require federal contractors to certify they are not engaged in boycotts of Israel, modeled on the state laws and Trump’s earlier executive orders. Harvard, Middle East Eye, Jerusalem Post, Jewish Insider

The constitutional problem is not subtle. In NAACP v. Claiborne Hardware (1982), the Supreme Court held — in a case arising from a Black-led boycott of white merchants in Mississippi during the civil rights era — that a state’s interest in regulating economic activity “could not justify a complete prohibition against a nonviolent, politically motivated boycott,” and that participants in such boycotts are entitled to First Amendment protection where the aim is to “effectuate rights” rather than serve “parochial economic interests”. Political boycott, in other words, is a core protected expression. It is one of the things the First Amendment most clearly exists to protect, because it is one of the few tools available to people who do not control the state or corporations. Lawfare

The anti-BDS laws try to walk around Claiborne in two ways. They argue that a boycott is “commercial conduct” rather than speech, and they argue that the state is acting “as a proprietor” in its own contracting. Some courts have bought this; the Eighth Circuit reversed an earlier panel ruling that had found Arkansas’s Act 710 unconstitutional, and the Supreme Court declined to hear the case, leaving the law in effect. That refusal is not a ruling on the merits. It is a refusal to rule, which, as a practical matter, gives a green light to similar laws across the country and leaves the Claiborne question dangling. Promised Land Museum

What this produces is exactly the kind of structural chilling effect we have been documenting in other contexts. An artist, a contractor, a university, or a city does not need to be prosecuted to be silenced. The certification requirement does the work. You sign, and you forfeit a piece of your political identity, or you don’t sign, and you forfeit the contract, the grant, the disaster aid, the job. This is the textbook definition of an unconstitutional condition; the doctrine the Supreme Court reaffirmed in USAID v. Alliance for Open Society (2013) holds that the government cannot require organizations to profess a specific viewpoint as a condition of receiving government funding. LawShun

What these laws actually do goes way beyond any specific, immediate target. They establish that the federal and state governments can compel a viewpoint, any viewpoint, by tying it to a funding stream. If it can be done for Israel, it can be done for anything. A wave of anti-ESG (environmental, social, and governance) boycott laws is already moving through state legislatures using the anti-BDS template, restricting state contracts with firms that consider environmental or social factors in their investments. Once you accept that the government can punish a boycott because it dislikes the politics of the boycotters, you have built a tool that will be used. Law Review

Notice, too, what the laws make impossible. Under the most aggressive versions, a US publisher who wanted to do what November Books just did, partner with a Palestinian-aligned editorial project, refuse state money, publish Rooney in compliance with BDS, could be barred from federal contracts, disqualified from state grants, frozen out of disaster aid. The slow, careful, precise work that the boycott movement actually does — the work of distinguishing institutions from individuals, complicity from identity, state from language — is exactly the work the anti-BDS laws are designed to prevent. They want the conversation to be impossible to have, because if it became possible, more people would arrive where Rooney did.

The argument of whether to bring work to an audience starved for connection and affirmation has not gone away for me, but the Rooney publication has shown me what I missed in it. The question of when presence affirms and when presence normalizes is one of the oldest questions in our art form, and the fact that it is hard is not an argument against asking it. It is an argument for doing the work to ask it.

I refuse to let my government, the law, or public policy dictate my ever-changing point of view. The artist who decides to participate in a cultural boycott of Israel and the artist who decides to perform in Tel Aviv tomorrow are doing the same constitutional thing: making a political judgment about their own work. Both deserve the protection of the First Amendment. Neither deserves to have the choice made for them by a procurement officer, a FEMA grant condition, or a Pentagon contract clause.

The cultural boycott of South Africa was a moral argument that artists won by making it, painfully, to each other. We are entitled to have that argument again about Israel and Gaza. We must refuse to have that argument settled for us by the state.

That, finally, is the point. The argument is ours.

The Price of Academic Excellence: Students Silenced

A pattern is consolidating across American universities. Selected student commencement speakers are being required to pre-record their remarks for screening and approval, then sit on stage in silence as videos of their pre-cleared words play on monitors beside them.

At New York University, the policy now applies to all school-based ceremonies this spring. Washington Square News editor Leena Ahmed broke the story on March 5: NYU canceled all live student graduation speakers for this spring’s commencement and convocation ceremonies. The policy followed last May’s Gallatin commencement, where graduate Logan Rozos used his speaker slot to condemn what he called the “genocide currently occurring in Gaza.” NYU withheld his diploma. When Steinhardt senior Maddy van der Linden was selected as her school’s speaker this February and informed four days later that her remarks would be “professionally recorded,” she pushed back. The dean told her the decision was final. The application she filled out had said nothing about pre-recording. Literary Hub

At Columbia University, live student speeches will be forgone at the main university-wide commencement. At CUNY School of Law, live speeches have also been nixed. At Stanford, an attempt to ban student speeches was reversed in response to student and faculty pushback. At Rutgers, Utah Valley, and South Carolina State, planned commencement speakers were dropped amid criticism of their past comments. At MIT, the class president was barred from her own graduation ceremony after a pro-Palestinian commencement speech the day before. And at the College of Staten Island, a senior college of the City University of New York system, the practice is now in its second year. www.fire.org Inside Higher Ed

The College of Staten Island (CSI) is worth focusing on because it changes the doctrinal stakes. NYU, Columbia, and Stanford are private institutions. CSI is not. As part of CUNY — the nation’s first free public university system — CSI is a state actor, and the First Amendment applies in full.

CSI President Timothy Lynch initially described the pre-recording requirement as a matter of “convenience.” Under sustained questioning from faculty and a College Council task force, he has since acknowledged the actual reason: he fears a student may “go off script,” and that “controversial” remarks may bring “outside forces” to harm the College.

On April 30, the CSI Faculty Senate passed a resolution urging a return to in-person speeches by a vote of 29 to 2, with 4 abstentions — a majority of the full membership, not just those present. Lynch declined to reverse course.

The doctrinal question Lynch’s decision raises is whether a commencement speech constitutes government speech, the institution’s expression delivered through a student, or the student’s own protected expression. If the former, the institution can edit or replace the message. If the latter, the practice raises serious viewpoint-discrimination concerns under the line of cases following Rosenberger v. University of Virginia. Lynch’s stated rationale — fear of “controversial” content — is, by its own terms, content-based.

Beyond the doctrinal question is chilling effect: the well-established constitutional concept that vague or punitive speech rules cause people to self-censor far beyond what any formal rule requires. A student who knows their words will be pre-screened, recorded under supervision, and played without their live presence at the microphone writes a different speech. The format does the work no formal censor would have to do.

FACT member George Emilio Sanchez, Professor of Dramatic Arts at CSI, wrote to President Lynch on May 27. His letter names the stakes:

“As an artist and citizen of this country, and someone who has advocated and fought for the full embrace of the five rights embedded in the First Amendment, I am outraged and deeply disappointed that the President of the College of Staten Island is wilfully disregarding the foundational sacred rights of a free and open society… undermining both the First Amendment, [and] the mission of the City University of New York, the nation’s first free public institution.”

Justice Brandeis, in his canonical Whitney v. California concurrence, named the enemy of free expression: fear. Lynch has now articulated, in his own words, that fear is the operative reason for the policy. The First Amendment exists precisely to constrain that response.

PEN America’s Kristen Shahverdian, director of higher education and free expression, has warned that institutional “safety” rationales for these decisions should clear a very high bar and rarely do. FIRE, which ranked NYU with an “F” on its annual free speech assessment last September, has documented campus deplatforming back to 1998. The current wave is distinct in one respect: it targets students at their own ceremonies rather than invited outside speakers.

The word liberal in “liberal arts” is not a political designation. It comes from the Latin artes liberales — the arts proper to a free person, distinguished from the artes serviles, the skills of those whose labor is directed by others. The liberal arts were defined by their capacity to produce a person who could think, speak, and judge independently — a citizen rather than a functionary.

A university — public or private — that controls what its graduating students may say at the ceremony marking their entry into adult civic life, by the original definition, is not delivering a liberal education. It is delivering a credential.

‘Obedience in advance’ is a phrase that belongs to historian Timothy Snyder. His first lesson in On Tyranny states that most of the power of authoritarianism is freely given. Institutions in our moment are not, by and large, being ordered to silence their students. They are silencing them preemptively, in anticipation of pressure that may or may not arrive, on a theory that compliance now will buy peace later.

This is the dynamic the universities themselves have begun to admit. At CSI, Lynch cited “outside forces” as his reason. At NYU, the policy is the direct sequel to one student’s unapproved sentence about Gaza. The university that silences its own students to avoid scrutiny from political actors hostile to higher education is not protecting itself from that hostility. It is empowering increased hostility.

A live commencement speech is one of the few moments in American civic life where a young person, having completed a structured apprenticeship in inquiry, speaks publicly to an audience of family, faculty, and peers about what they have come to believe. It is not incidental that it is live. The risk of being heard, of being disagreed with, of having said something irrevocable in front of the people who raised and taught you — that is the form.

As Steven Thrasher described the new format in Literary Hub, speakers sit mute on stage while a video of themselves plays — as if universities are kidnappers, presenting a “proof of life” video before students are allowed to get their diplomas or leave the stage. www.fire.org

A university that cannot tolerate the speech of its own graduating students is saying that education is only for students willing to conform to a fascist authority. At public institutions like CSI, where the First Amendment applies in full, this can not stand. At private institutions where the legal question is harder, the civic and pedagogical question is the same.

A BOLO for a Comedian

In February, the Department of Homeland Security’s Nashville field office issued a BOLO “Be on the Lookout” alert, the law enforcement bulletin normally reserved for armed suspects, dangerous fugitives, and immediate public safety threats, for a Nashville stand-up comedian named Ben Palmer. His offense, as the bulletin itself put it: operating “a satirical website impersonating a submission form” for reporting suspected undocumented immigrants. The Illinois State Police’s Statewide Terrorism and Intelligence Center then circulated the alert nationally “for situational awareness purposes.” Palmer found out about it from a reporter at Injustice Watch, which obtained the document through a public records request and broke the story last week. Injustice Watch

Palmer’s site is a parody. Its privacy policy says so. Its punchline is a series of viral videos in which Palmer plays a deadpan ICE intake officer for callers, including, in one widely circulated case, a kindergarten teacher who genuinely believed they were reporting a child’s parent to the federal government. The bit works because of what it exposes: how readily ordinary people will pick up the phone and turn in their neighbors when the state invites them to.

The BOLO itself acknowledges Palmer is not dangerous. “At this time, there appears to be no direct threat to life or infrastructure,” it reads. A DHS spokesperson, asked to explain the bulletin, told Injustice Watch: “There is no ‘investigation’ into this individual — this document is an internal memo shared for awareness purposes only.” The spokesperson did not explain how an “internal memo” distributed to law enforcement agencies nationwide also serves to inform civilians, which DHS claimed was its purpose. Darius Reeves, a retired ICE field office director, told reporters that BOLOs typically use language like “considered armed and dangerous” or “approach with caution.” He called issuing one for a comedian “unusual” and offered a candid alternative theory: “Maybe someone screwed up and created that.”

That is the charitable reading. The less charitable reading is the one the ACLU’s Esha Bhandari named directly: a pattern of DHS taking “official law enforcement action” against private citizens who criticize the agency, with the predictable consequence — and likely the intended one — of scaring others into silence.

The First Amendment problem here is not subtle. Political satire impersonating government forms is core protected speech, with a long American pedigree from The Federalist Papers through The Onion, which filed an actual Supreme Court amicus brief in 2022 (Novak v. City of Parma) defending the right to parody police. The Court has repeatedly held that the constitutional protection of satire does not depend on whether the audience gets the joke. Hustler Magazine v. Falwell (1988) established that even a parody portraying a public figure in deeply offensive terms is protected, because allowing the state to punish satire whenever a reader might be misled would gut the form. Palmer’s site labels itself parody on the page. Some callers were fooled anyway. That is a fact about callers, not a constitutional defect in the speech.

The legal frame that actually fits is the chilling effect. The harm in distributing a federal law enforcement bulletin nationwide is not that Palmer gets arrested — DHS now insists he won’t. The harm is that the next satirist, the next prank artist, the next person thinking about lampooning ICE, knows their name and face can be circulated to police departments in fifty states by a Nashville field office on a Tuesday. NAACP v. Button (1963) and a long line of cases since recognize that government action need not formally prohibit speech to suppress it; it only needs to make the cost of speaking high enough that rational people stop.

Earlier this year, federal officers in Minneapolis took down and detained the musician and comedian Rob Potylo while he was demonstrating against ICE in a giraffe costume; he had previously been detained by camouflaged federal officers in Portland. In 2018, DHS agents showed up at the Brooklyn home of comedian Jake Flores after he posted satirical tweets about the agency. The Guardian’s correspondent Jacob Grier, who has protested ICE as an inflatable dachshund, has, so far, avoided a BOLO of his own.

DHS does have a legitimate interest in the integrity of its tip systems. People impersonating federal officers is a real category of harm, and Palmer’s site did fool some callers. But “fooled while attempting to report your neighbor to immigration authorities” is a different kind of harm than the disruption of a federal investigation — and DHS’s own bulletin concedes no investigation is at stake. What remains, once the safety rationale is subtracted, is a federal law enforcement infrastructure being used to track and circulate the identity of a vocal critic. The agency told the press there is no case. The bulletin tells the cops there is a target. Both can be true at once. That is exactly the structure that makes the chilling effect doctrine necessary.

UPCOMING EVENT

The Art of Saving Democracy: An Action Kit for Making Change BAM Premiere Launch Event

Tuesday, June 2nd at 7:30pm BAM’s Adam Space, Peter Jay Sharp Building

Featuring a conversation with contributors Vincent Valdez and Debbie Millman, with dramatic readings of vulnerable constitutional amendments by Kathleen Turner, Deborah Kass, and other special guests.Acknowledgement

Acknowledgment

We are always grateful for the encouragement and suggestions of our colleagues and peers.

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In 1851, Sojourner Truth stood before a crowd in Akron, Ohio and asked, “Ain’t I a woman?” She was not just speaking. She was a body that spoke, in a country whose laws said her body belonged to someone else. Before there is voting, before there is assembly, before there is press, before there is faith, there is the body declaring I am here. That is the most fundamental First Amendment claim. It precedes all others, because it asks whether you have standing to speak at all.

This past month, that question returned to the country with fresh urgency. On April 29, the Supreme Court issued its decision in Louisiana v. Callais, a 6-3 ruling that all but nullifies Section 2 of the Voting Rights Act — the provision that has required states to draw electoral maps giving racial minority voters the opportunity to elect their chosen candidates. The conservative majority ruled that the focus of Section 2 should now be intentional racial discrimination, a legal standard that is notoriously difficult to prove in court. Within an hour, the Republican-controlled Florida House approved an aggressively gerrymandered map that could net Republicans four more House seats after the 2026 election. The same logic now threatens maps in Louisiana, Mississippi, Alabama, Arkansas, South Carolina — the old Confederacy, almost without exception. Stateline

On May 16, the answer came back. Thousands of people joined demonstrations in Selma and Montgomery to protest redistricting by southern Republican state legislatures targeting Black Democratic members of Congress. Faith leaders gathered at Tabernacle Baptist Church in Selma and offered prayers, criticisms of the Supreme Court and President Donald Trump and calls for voting rights protections for vulnerable communities. After an hour, 400 people then marched silently from the church to the Edmund Pettus Bridge — the same bridge where state troopers attacked John Lewis and the marchers of 1965. The body, again, insisting on itself. Alabama Reflector

It is worth saying plainly what “Make America Great Again” has always meant in the states where it polls strongest. The geography is not coincidental. The states most aggressively dismantling voting access are, with stark consistency, the states where the Confederacy was the law. The slogan locates “greatness” in a particular moment — and the people writing the new district maps, the new abortion statutes, and the new bathroom bills are the institutional and ideological inheritors of the tradition that wrote the Fugitive Slave Act and the Black Codes. They inherit the premise that some Americans were never meant to be full participants in our nation. There is a coherent vision in their regression to a time before the Civil Rights Act of 1964, before Roe v. Wade, before Obergefell v. Hodges

The assault on voting and the assault on abortion are one assault. Both are about who controls the body. As Michele Goodwin has documented, the anti-abortion movement in the United States was built on the same template as Jim Crow voter suppression: a smear campaign dressed in the vocabulary of safety and professionalism, lobbied through state legislatures, designed to strip Black midwives of their practice and consolidate authority over women’s bodies in the hands of a white male medical establishment. The mifepristone litigation is that playbook running again — a drug with a 25-year safety record recast as dangerous, requiring “professionalization” by the same establishment that captured the field in 1900.

A woman deciding whether to carry a pregnancy takes control of herself and her destiny. A Black voter standing in line for eight hours in Georgia is practicing the right to self-determination. A midwife practicing her craft, a librarian shelving a banned book, a trans kid receiving care, a protester crossing the Edmund Pettus Bridge — these are all the body declaring I am here. You do not need to censor a newspaper if you can prevent the reader from voting and the writer from existing freely. Bodily sovereignty is the substrate of all other freedoms, and in guaranteeing our right to free speech, to organization, to a free press, and the faith of our choosing, the First Amendment protects that sovereignty.

The fight over voting, abortion, books, borders, and bathrooms is one fight. Sojourner Truth asked the question. Every generation has to answer it. Ours is answering now, on a bridge in Alabama, and the answer is Yes. You are. We are. We count. We speak. We decide. We are here.

Hobby Lobby Funding Attack on Marriage Equality

The Seattle Times has revealed that The Servant Foundation, a Christian organization long funded by Hobby Lobby founder David Green and his family, donated $300,000 to Them Before Us, the lead organization behind the Greater Than campaign to overturn Obergefell v. Hodges and end Gay marriage. Snopes confirmed the $300,000 donation from filings for the fiscal year ending March 2024, plus an additional $25,000 the following year. Servant has also funded the Alliance Defending Freedom, designated an anti-LGBTQ+ hate group by the Southern Poverty Law Center, to the tune of $16.3 million in 2024 alone. Them Before Us’s revenue jumped from under $50,000 annually before Dobbs v. Jackson Women's Health Organization, the Supreme Court’s decision that overturned Roe v. Wade, to nearly $1 million in 2024. LGBTQ NationSnopes

This is the playbook now. A corporation wins a Supreme Court case carving out religious exemptions from generally applicable law. The same network of wealth then funds the movement to dismantle the next set of rights. In 2014, the Supreme Court ruled in Burwell v. Hobby Lobby that closely held corporations don’t have to comply with the contraception mandate if their owners express religious objections to it. This established a permanent funding mechanism for litigating other people’s rights out of existence. Between 2018 and 2020 alone, Servant donated over $50 million to Alliance Defending Freedom. Rolling Stone Ms. Magazine

The First Amendment implications cut both ways, and that’s what makes this moment dangerous to misread. The Greater Than coalition has every right to speak, organize, and petition. The issue is asymmetry: corporate religious exemptions function as a one-way ratchet. Hobby Lobby expanded the speech and exercise rights of corporations while contracting the statutory rights of their employees. The wealth generated through that expansion now finances the next contraction, this time targeting the marriages of 700,000 same-sex couples.

As the Brennan Center has documented, religious right activists pivoted from the loss in Obergefell to a strategy of undermining it through “religious liberty” arguments, with ADF leading the charge. Alliance Defending Freedom, a conservative Christian legal advocacy organization, now openly frames eliminating marriage equality as part of its “generational wins” strategy, modeled on the long campaign against Roe. You may recall Kim Davis, the Kentucky county clerk who, in 2015 (just weeks after Obergefell was decided), refused to issue marriage licenses to same-sex couples, citing her Christian faith. Liberty Counsel, an extremist Christian legal advocacy group, is actively urging the Supreme Court to use the Kim Davis case to overturn Obergefell altogether. Justice Thomas, in his Dobbs concurrence, explicitly called for the Court to reconsider Obergefell. Brennan Center for Justice

The Servant Foundation also funds Katy Faust and Them Before Us, the cultural arm of this same campaign — the messaging operation working to make the legal attack on marriage equality politically palatable. Faust’s framing is worth pausing on. Her central claim is that children “have a natural right to be known and loved by their mother and father,” and that marriage equality has therefore harmed children — a claim contradicted by every major social science finding on outcomes for kids raised by same-sex parents.

What’s happening rhetorically is an inversion: the language of rights is being perverted to argue for stripping them. Children become the rhetorical shield; same-sex couples become the threat. It’s the same move the “groomer” panic has been making since the early 2020s — the panic that has driven the library defundings, drag bans, and NEA grant cancellations we’ve covered. Faust’s contribution is dressing it in the language of natural law and parental rights, which gives the underlying hostility a respectable surface.

And it follows the Dobbs template precisely. Build the intellectual scaffolding for a decade through think tanks, sympathetic academics, and advocacy groups. Generate the cultural conditions through moral panic. Wait for the Court composition. Then strike. Them Before Us is doing the cultural work. Alliance Defending Freedom and Liberty Counsel are doing the legal work. The Servant Foundation is paying for both.

This is what the pipeline looks like. Watch the money.

Two Supreme Court Candidates Silenced in Georgia

On May 19, Georgians voted in two contested state Supreme Court races. Yesterday, the Georgia Judicial Qualifications Commission (JQC) — the body charged with policing judicial ethics — issued public statements accusing challengers Jen Jordan and Miracle Rankin of violating the state’s Code of Judicial Conduct. The alleged offenses: appearing together in campaign ads and telling voters they’d work to restore abortion rights. Georgia Recorder

The timing wasn’t incidental.

Jordan, a former state senator, and Rankin, a trial lawyer, sued the JQC under seal on April 30, arguing the rules as applied to them violated the First and Fourteenth Amendments. U.S. District Judge Leslie Gardner issued a temporary restraining order (TRO) Monday, finding the candidates would suffer “immediate and irreparable” injury from a pre-election public statement absent constitutional review. Gardner found their speech about reproductive rights and pro-choice endorsements was protected, and that nothing in the JQC’s letters identified actual pledges to rule a particular way. The Hill

Then the machinery moved fast. A three-judge panel of the Eleventh Circuit — two Trump appointees in the majority,and a Biden appointee dissenting — issued an emergency order lifting Gardner’s TRO, reasoning the state would be “irreparably harmed” by not being allowed to enforce its code. The JQC published the accusations within hours. Monday evening, Jordan and Rankin filed an emergency application with the U.S. Supreme Court seeking to vacate the Eleventh Circuit’s stay. The Georgia Virtue

The First Amendment problem here is textbook. The rule punishes candidates for telling voters what they believe about an issue voters are choosing them to decide. Their attorney Lester Tate invoked Justice Scalia’s 2002 opinion in Republican Party of Minnesota v. White, which held judicial candidates can speak on controversial legal and political issues. Georgia chose elections. Elections require speech. The Georgia Virtue

The chilling effect, though, is already documented: Jordan stopped delivering a speech about her eight miscarriages. The watchdog did its work before any court could stop it.

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In Salon this week, Heather Digby Parton traces the lineage of DOGE’s recent rampage through the National Endowment for the Humanities back to the 1980s — to Lynne Cheney’s tenure at the NEH, to Jesse Helms’s crusade against the NEA, to Pat Buchanan and Rush Limbaugh repackaging cultural anxiety as political ammunition. She points out, devastatingly, that DOGE outsourced its “DEI” determinations to ChatGPT without ever bothering to define what DEI was — a vagueness Judge Colleen McMahon called textbook viewpoint discrimination in her May 7 ruling. Parton’s column is sharp, and her thesis — “Only the acronyms and slogans have changed” — is exactly right. But the story is older and weirder than the column has room for, and a new book is about to make that case at length.

Isaac Butler’s The Perfect Moment: God, Sex, Art, and the Birth of America’s Culture Wars, which comes out soon, dives much deeper into our heritage cultural battles, and takes its title from Robert Mapplethorpe’s 1988 retrospective — the show the Corcoran Gallery in Washington abruptly cancelled in June 1989 after Helms started waving photographs around the Senate floor. Butler argues that the late-1980s religious right — Helms, Buchanan, Pat Robertson, Donald Wildmon’s American Family Association, and an emergent evangelical broadcast network — perfected the tactics it still uses today, from book banning to history sanitizing to medical misinformation, by going after Mapplethorpe, Andres Serrano, David Wojnarowicz, and Karen Finley. The grants got pulled. The acronyms changed. The playbook never did.

Looking back at the city and the cultural environment in which those artists were making art, and, more importantly, what the religious right was really reacting against, it wasn’t just one urine-soaked crucifix. The early ‘80s in New York (an era that gave rise to Trump, Murdoch, and Giuliani) had become one of the most generative cultural colliders in American history. In February 1981, Diego Cortez (co-founder of the Mudd Club) curated “New York/New Wave” at P.S. 1, putting Futura 2000 and a still-unknown Jean-Michel Basquiat alongside Andy Warhol and Mapplethorpe; that April, Keith Haring curated a graffiti show called “Beyond Words” at the Mudd Club with Fab 5 Freddy and Futura. That night, the Cold Crush Brothers and Afrika Bambaataa performed, and uptown hip-hop and downtown punk and no-wave officially crossed a threshold into the same room. Hip-hop was still very new — a culture forged out of Bronx block parties only a few years earlier. A new, century-defining generation of Black music from Rapper’s Delight to Planet Rock was just hitting the market. Clubs like the Mudd Club, Club 57, Danceteria, AREA, and Paradise Garage were the rooms where Black, Latino, and queer kids from the outer boroughs danced next to the Soho art world; Larry Levan’s Paradise Garage was a Black gay disco temple whose sonic DNA fed directly into hip-hop, house, and the entire downtown amalgamation of bodies, sounds, and forms.

This environment that celebrated queer bodies, Black creativity, and the dissolution of every color line, more than any single image, was what terrified the Moral Majority. Falwell had launched his patriotic “I Love America” rallies during the 1976 bicentennial; Paul Weyrich coined the phrase “Moral Majority” and pushed Falwell to incorporate the organization in 1979. The original grievance wasn’t even abortion; it was federal civil-rights enforcement against segregated Christian schools. Race first, with everything else bundled in afterward: queer life, women’s autonomy, Black music crossing over, AIDS, the entire downtown carnival.

Parton’s column doesn’t quite say it, but the assault on artists in this period was not only a right-wing project. It had a centrist Democratic wing too, and the most consequential foot-soldier was Tipper Gore. In 1984, after buying Prince’s Purple Rain for her daughter and discovering that Darling Nikki was about masturbation, Gore co-founded the Parents Music Resource Center with Susan Baker, Pam Howar, and Sally Nevius. The “Washington Wives,” as they were known, secured a Senate Commerce Committee hearing on September 19, 1985, where four of the committee senators were married to PMRC members. Frank Zappa, Dee Snider of Twisted Sister, and John Denver all testified against the push for censorship; within two months, the Recording Industry Association of America cut a deal to slap “Parental Advisory: Explicit Lyrics” stickers on records. Walmart and other chains promptly refused to carry stickered albums at all. The PMRC’s notorious “Filthy 15” list disproportionately targeted Black and queer-coded glam or metal recording artists. The moral panic over Black music and queer aesthetics, dressed up as parental concern, was identical to what Helms would do four years later with Mapplethorpe and the NEA. The difference was party affiliation, not substance. By 1989, when Helms killed a $600,000 Gay Men’s Health Crisis grant for distributing sex-ed materials, he was building on a censorship architecture that liberal Democrats had helped frame.

The Mapplethorpe affair then took a turn that echoes loudly right now. After the Corcoran cancelled The Perfect Moment, the exhibition traveled. When it reached Cincinnati’s Contemporary Arts Center in April 1990, a Hamilton County grand jury indicted the museum and its director, Dennis Barrie, for peddling obscenity — the first criminal trial of an art museum in American history over the contents of an exhibition. The trial ran from September 24 to October 5, 1990. A jury of four men and four women acquitted Barrie and the Center in under two hours. The case cost the museum over $200,000, nearly destroying it by the prosecutorial threat itself. That, of course, was the point of using the criminal justice system as cultural policy. The acquittal mattered, but the chilling effect on every other museum director in America who watched it happen mattered more.

Even though we remember this history, we’re still condemned to repeat it. DOGE’s outsourcing of Project 2025 and Trump’s anti-DEI judgments to Artificial Intelligence is the Helms decency clause translated into 2026. Both rely on engineered vagueness; both produce self-censorship downstream that’s much wider than anything they could ever litigate. The Supreme Court ultimately upheld the NEA’s decency standard in National Endowment for the Arts v. Finley in 1998, and individual artist grants at the NEA, which had funded Mapplethorpe, Wojnarowicz, and Karen Finley, never returned.

Isaac Butler’s book release is perfectly timed to remind us that the current fascist attacks on culture have been developing for over 50 years, and learning from its failures. Wildmon’s mass-mailing apparatus, the Christian Broadcasting Network, the rise of Limbaugh, who liked to remind listeners that hip-hop, like rock-and-roll before it, “romanticizes violence, law-breaking, and gangs,” became the foundation for everything from Fox News to Moms for Liberty to a Department of Government Efficiency that fires NEH program officers because ChatGPT said so. The Cheney-era NEH, the Frohnmayer-era NEA, the Tipper Gore-era Senate Commerce Committee, the Helms decency clause, the Barrie indictment — none of these are historical curiosities. It turns out they were dress rehearsals.

The FCC’s Campaign Against Disney

On Monday, May 11, FCC Commissioner Anna Gomez, the lone Democrat on the three-member commission, sent a four-page letter to Disney CEO Josh D’Amaro. The letter is a remarkable document. Sitting commissioners do not, as a rule, write to companies their agency regulates to encourage them to keep resisting that agency’s enforcement actions. Gomez did exactly that, and she laid out a step-by-step record of why.

“What Disney and ABC are facing is not a series of coincidental regulatory actions but a sustained, coordinated campaign of censorship and control, carried out through the weaponization of the FCC’s authority as a federal regulator and aimed at pressuring a free and independent press and all media into submission,” Gomez wrote. “You are not the first target of this campaign, and you will not be the last.” FCC, NBC

The campaign, Gomez argues, has had four documented stages.

First, the December 2024 settlement: Disney paid $16 million to settle Trump’s defamation suit against George Stephanopoulos, who had said on air that Trump was found liable for rape. (The jury had actually found him liable for sexual assault, though the trial judge later wrote that “rape” was not inaccurate in ordinary usage.) Gomez’s reading of the settlement is blunt: “Its effect was immediate and unmistakable. It told this administration that pressure works. It told every other company watching that capitulation was an option. And it opened the door to every action that has followed.” Deadline

Second, the revived complaint about ABC’s moderation of the 2024 Trump–Harris debate was reasserted after Brendan Carr took over as chair.

Third, a DEI investigation that, by Gomez’s reading, exceeds the agency’s statutory authority entirely. The FCC’s rules on diversity cover recruitment outreach, not internal corporate policy. A D.C. Circuit ruling explicitly states that “the FCC is not the Equal Employment Opportunity Commission… and a license renewal proceeding is not a Title VII suit.” Nevertheless, Disney has produced more than 11,000 pages of documents in response to the inquiry. The process is the point. TV News Check

Fourth, and most extraordinary: Carr has ordered Disney’s eight ABC owned-and-operated stations — in New York, Los Angeles, Chicago, Philadelphia, San Francisco, Houston, Raleigh-Durham, and Fresno — to file for early license renewal, years ahead of schedule, citing the DEI investigation. The order arrived just after Trump and Melania Trump demanded ABC fire Jimmy Kimmel over his “expectant widow” joke. Gomez calls this the most egregious First Amendment assault the current commission has launched. Deadline

The letter’s sharpest moment concerns the agency’s investigation into Texas state senator James Talarico’s appearance on The View. According to Disney’s own filing, the FCC pressured ABC affiliates in Texas to file late equal-opportunity notices and offered them amnesty for doing so, then used the resulting inconsistency, which the Commission had engineered, as evidence against Disney’s Houston station, KTRK, which had received no such offer. “If true, that is a government agency abusing its authority to punish speech it dislikes while protecting speech it favors,” Gomez wrote.

This matters because The View has operated under a bona fide news interview exemption from the equal time rule since 2002. So have countless talk shows. The exemption has never been questioned until now, and only for one network.

What the Kimmel episode demonstrated last September is now the operating model. Carr told a podcaster, “We can do this the easy way or the hard way,” and within hours, Nexstar and Sinclair preempted Kimmel, ABC suspended him, although he was later reinstated, and Carr posted a celebratory GIF on X. The FCC never had to formally do anything. As The Free Press editorial board put it at the time: “When a network drops high-profile talent hours after the FCC chairman makes a barely veiled threat, then it’s no longer just a business decision. It’s government coercion.” CNN

That is the First Amendment violation, and the goal is to harass news organizations into compliance with illegal regulations. An unlikely court ruling against the press isn’t the intended punishment. The investigations are the punishment. The 11,000 pages are the punishment. The early license renewal is the punishment. The chilling of every other broadcaster watching is the punishment. Deadline

Gomez points out something the agency has not denied: other broadcasters, in the same markets, operating under the same rules, aired political candidates without filing the required notices and received no inquiry, no letter, no investigation. Talk radio — overwhelmingly conservative — is also covered by the equal time rule and is also untouched. Selective enforcement against perceived critics is not regulation. It is viewpoint discrimination wearing a regulator’s badge.

Her message to Disney closed with a sentence worth holding onto: “The fight ahead may not be easy, but the law, the facts, and the public are on your side.” TheWrap

Texas Tech Buries Academic Freedom

On Thursday morning, while the Texas Tech Board of Regents convened indoors, two black draft horses pulled a hearse across campus. No coffin. No body. Just books — The Farewell Symphony by Edmund White, Larry Kramer’s Reports From the Holocaust, Vito Russo’s The Celluloid Closet — titles now restricted under sweeping content policies the system chancellor handed down four weeks ago to censor women’s and gender studies material.

About fifty students, faculty, and alumni walked behind the carriage. They delivered eulogies for the women’s and gender studies program, for DEI initiatives, and for the freedom to teach. Student Aaron Texidor told the regents during public comment that what he’s been hearing from professors in psychology and education “has been a story of fear.”

Outside, Icelandic Ph.D. artist ODEE Friðriksson — admitted to Texas Tech in part because of his protest work — wrapped the campus’s Will Rogers and Soapsuds statue in black crepe. The statue gets red for home football games. Black is reserved for national mourning; the last black wrapping marked the tenth anniversary of 9/11. Days earlier, Friðriksson had projected David Bowie’s face onto the Texas Tech seal after being told in a Teaching Assistants meeting that Bowie was off-limits to teach. So was Elsa from Frozen.

This is what content restriction looks like when it lands: a list of names a teacher cannot say in a classroom. Bowie. Kramer. Russo. White. A cartoon ice queen. The First Amendment doesn’t protect curricula from state actors, public university speech doctrine is genuinely tangled — but the chilling effect doesn’t wait for litigation. It arrives in the meeting where teachers and students are handed a blacklist.

The students brought a hearse because they understood the assignment. Something is being buried in Lubbock. They wanted it witnessed. PEN

ACLU Sues Memphis Safe Task Force Over Right to Record

This week, the ACLU filed Demster v. Blanche in federal court, suing the Memphis Safe Task Force on behalf of four residents who say they have been followed, threatened, boxed in by vehicles, arrested, and surveilled for recording federal agents in public.

President Trump established the 31-agency Task Force in September 2025 to combat crime in Memphis. The operation has resulted in over 120,000 traffic stops in a city of about 610,000 people. According to public records, just 2% of immigration arrests by the Task Force were for violent crime. Ground News

In response, residents have organized to document the Task Force’s activities. Volunteer groups like Vecindarios 901 run dispatch systems to send observers with cameras to the scenes of stops and arrests. The right to record law enforcement in public has been repeatedly upheld by federal courts as a core First Amendment activity.

The complaint describes a pattern of retaliation against people exercising that right. Agents have swerved cars at observers, threatened arrest, used excessive force, aimed bright lights at cameras, taunted observers by name, and photographed their faces and license plates. One Task Force vehicle stopped two inches from plaintiff Hunter Demster. Plaintiff Jessica Chodor was jailed for 27 hours after refusing to stop filming.

The suit also challenges Tennessee’s 2025 “Halo Law,” which makes it a crime to stand within 25 feet of an officer after being told to step back. The plaintiffs argue agents are using the law to prevent lawful observation and recording, even when bystanders are not interfering with officers’ duties.

The defendants include Acting Attorney General Todd Blanche and the heads of the Department of Homeland Security, ICE, Customs and Border Protection, the U.S. Marshals, and the Tennessee Highway Patrol. The lawsuit characterizes the harassment as a “direct result of federal policy” set by the Trump administration. Yahoo!

The plaintiffs are asking the court to declare the retaliation unconstitutional, bar future retaliation, and order the Task Force to expunge records gathered on them.

ACLU Challenges New Federal Funding Certifications

On January 28, 2026, the General Services Administration (GSA) issued a Paperwork Reduction Act notice proposing changes to the certifications that all federal funding recipients must accept when applying for or receiving federal grants, cooperative agreements, and loans. The certifications are made through SAM.gov, the registration system every grantee must use. GSA estimates approximately 222,760 entities — including universities, nonprofits, and arts organizations — would be affected.

The notice adds three new certification provisions. The first is an Anti-DEI provision stating that federal antidiscrimination laws apply to programs labeled Diversity, Equity, and Inclusion (DEI) or DEIA. It lists examples of practices that may violate the law, including “cultural competence” requirements, “overcoming obstacles” narratives, “diversity statements,” “diverse slate” hiring policies, and certain training programs. The second is an Immigrant Harboring provision that requires recipients to certify they will not “knowingly bring, transport, conceal, harbor, shield, hire, or recruit for a fee an illegal alien.” The third is a Public Safety provision requiring certification that recipients will not “fund, subsidize, or facilitate violence, terrorism, or other illegal activities that threaten public safety or national security.”

GSA states that the changes implement the Department of Justice’s July 29, 2025, “Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination” and President Trump’s January 21, 2025, Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”

The ACLU submitted a public comment raising concerns about the proposal, joining nearly 22,000 comments filed before the deadline. A false certification could expose organizations to civil False Claims Act or criminal liability, meaning grantees face significant penalties for practices the government may later define as “illegal DEI” — a term the proposal does not clearly define.

GSA is now reviewing the comments before issuing a final proposal for additional comment and OMB approval. The ACLU is gathering information from organizations that believe they may be impacted, particularly by the Anti-DEI provisions. Contact Leah Watson at LWatson@aclu.org.

The Voting Rights Story You Missed Last Week

While the Supreme Court’s gutting of the Voting Rights Act dominated the news cycle, another assault on the franchise was unfolding in Louisiana — and it has a clear First Amendment dimension.

Calvin Duncan spent nearly 30 years in Angola for a murder he did not commit. He taught himself law behind bars, was released in 2011, had his conviction vacated in 2021, and earned his law degree at age 60. In November, New Orleans voters elected him clerk of the Orleans Parish Criminal District Court with 68% of the vote, defeating the incumbent on a reform platform.

Days before Duncan was to take office on May 4, Governor Jeff Landry signed legislation eliminating the position entirely. Senate Bill 256, sponsored and largely supported by legislators who do not live in or represent New Orleans, consolidated the criminal clerk’s office into the civil clerk’s office. A late amendment, which Duncan attributes to Landry, made the law take effect immediately upon signature.

Duncan, represented by the ACLU of Louisiana, filed a federal civil rights suit. The lawsuit alleges the effort is retaliation for his criticism of the criminal justice system and violates his First Amendment rights. It names Landry, Attorney General Liz Murrill, and Secretary of State Nancy Landry as defendants, alleging a “coordinated conspiracy” to block Duncan from office in retaliation for his outspoken campaign. WWLTV

The First Amendment thread runs deeper. In a September 2025 letter, Murrill demanded Duncan stop describing himself as “exonerated,” calling it a “gross misrepresentation” and threatening “further action.” Duncan is listed on the National Registry of Exonerations. The state was attempting to police his speech about his own life before it moved to eliminate his office. Verite News

A federal district judge ruled the law unconstitutional and granted a temporary restraining order. The Fifth Circuit Court of Appeals stayed the ruling before 9:30 a.m. on Duncan’s first day in office. The case continues.

Two First Amendment harms in one statute: retaliation against a public figure for protected speech, and the nullification of votes cast by a majority-Black electorate.

Acknowledgement

We are always grateful for the encouragement and suggestions of our colleagues and peers.

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F.A.C.T. invites all cultural institutions, artists, and activists to post First Amendment stories, graphics, calls to action, and advice to their audience every Friday. Join our campaign by signing up here. Feel free to use our digital assets here.

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Meta has repeatedly deplatformed one of Brooklyn’s most important Black cultural institutions – JuneteenthNY. This is happening in FACT’s own community, and it is not an isolated case.

Censorship doesn’t always arrive in the form of a government order or a court injunction. Sometimes it arrives as an automated notification, impersonal, algorithmic, and nearly impossible to fight, telling a sixteen-year-old community institution that its account has been disabled for violating policies on “child sexual exploitation, abuse, and nudity.”

That is what happened to JuneteenthNY.

Athenia Rodney, the Founder and Executive Director of JuneteenthNY, is a regular participant in FACT’s working group. She reached out to us recently to document what her organization has been through — and we want our community to understand both the specifics of her case and what it represents in a much larger pattern.

JuneteenthNY has spent more than sixteen years building one of Brooklyn’s largest annual Juneteenth celebrations, held each June at Linden Park in East New York. The organization is not a pop-up or a seasonal event. It is a year-round cultural institution engaged in festivals, parades, a Black Kings Gala, youth sports clinics, wellness programming, small business support, educational workshops, and a partnership with Bard High School. Thousands of community members move through its programs each year.

Over the past several years, JuneteenthNY’s Facebook and Instagram accounts have been repeatedly removed, suspended, restricted, and disrupted — most severely during the weeks leading into Juneteenth, the precise period when the organization is mobilizing its community. Athenia described what the platforms mean to her organization in terms that should make clear what is actually at stake:

Meta platforms are not simply ‘social media’ tools for us. They are core operational infrastructure connected to vendor coordination, sponsor communications, volunteer mobilization, public safety updates, ticket sales, educational outreach, livestream and digital summit promotion, community engagement, fundraising and donations, and press visibility and media coverage.

When the account goes down, the organization goes dark. Years of audience building, historical archives, direct messages, advertising systems, and community communication channels disappear. And because the organization’s business assets were linked through Athenia’s personal profile, the restriction cascaded, locking her out of her own operational infrastructure entirely.

She has submitted formal appeals, uploaded identification documents, filed complaints with the Better Business Bureau and the FTC, contacted state consumer protection offices, and attempted to reach Meta employees directly via LinkedIn. She is still waiting.

The accusation — child sexual exploitation — applied to an organization whose content, in Athenia’s words, “is centered around family-friendly cultural programming, educational content, youth engagement, community celebrations, small business support, wellness initiatives, and historical awareness,” is a calculated form of racist harassment.

This is not a clerical error. It is the operation of an automated system with a documented history of racially disparate enforcement. In 2019, Facebook’s own internal researchers found that Instagram users whose activity suggested they were Black were 50% more likely to have their accounts automatically disabled than white users. When those researchers brought the finding to Zuckerberg’s inner circle, they were instructed to halt all further research on race and ethnicity. The revised moderation tool was deployed without racial bias testing — by design.

That was five years before Meta’s January 2025 rollback eliminated third-party fact-checking, weakened hate speech protections, and ended proactive content enforcement. The NAACP Legal Defense Fund resigned from Meta’s own civil rights advisory council in April 2025 in response. A landmark lawsuit — Equal Rights Center v. Meta — is currently active in D.C. Superior Court, having survived Meta’s motion to dismiss in July 2025, alleging the platform provides “separate and unequal services to Black users.”

What is happening to JuneteenthNY is censorship. It may not have a human hand behind it. But the absence of a human hand is not the absence of a decision — and those decisions have consequences that fall, repeatedly and measurably, on Black community institutions doing exactly the work they should be free to do.

Context: A Pattern with a History

JuneteenthNY’s experience is not isolated. There is a documented, years-long pattern of Meta platforms suppressing Black voices, civil rights content, and cultural expression — a pattern that Meta’s own researchers identified internally and that leadership chose to bury rather than fix.

— Meta’s own researchers found the bias — and were told to stop looking. In 2019, Facebook employees studying Instagram’s automated moderation system found that users whose activity suggested they were Black were 50% more likely to have their accounts automatically disabled than users who appeared white. When researchers brought these findings to Zuckerberg’s inner circle, they were instructed to halt all further research on race and ethnicity. A revised moderation tool was then deployed — without racial bias testing, by design. NBC News, July 2020

— Black activists and artists have been suspended for documenting racism. Author and activist Ijeoma Oluo had her account suspended not for hateful content, but for sharing screenshots of racist harassment she was receiving. Activist Leslie Mac and Shaun King — once a guest speaker at Facebook HQ — were suspended for calling out white supremacy. Activist Ayo Henry had a video documenting racial slurs aimed at her removed despite 2 million views. These are documented cases, not rumors. Daily Dot

— The NAACP publicly broke with Meta over racial targeting — in 2018. The NAACP temporarily logged out of Facebook and Instagram and returned a Facebook donation, citing the platform’s history of data practices that “unfairly target users of color” and its hiring of a Republican consultancy to conduct reconnaissance on civil rights organizations. The Congressional Black Caucus simultaneously signaled readiness to pursue legislative action. That was seven years ago. Nothing substantively changed. NBC News, Dec 2018

— Meta’s January 2025 policy changes removed the remaining guardrails. Meta ended third-party fact-checking, replaced it with user-generated “community notes,” and announced it would no longer proactively scan for most policy violations. Zuckerberg framed this as fighting censorship. The practical effect: hate content targeting Black communities is now less moderated, while automated systems continue to flag and remove Black cultural content. Meta gave the Trump team advance notice of the announcement. CNN, Jan 2025 | NBC News full breakdown

— A 2025 survey of 7,000+ users documents the post-rollback impact on people of color. GLAAD, UltraViolet, and All Out surveyed users across 86 countries focusing on those with protected characteristics. Among people of color: 78% reported an increase in harmful content since January 2025; over 25% said they had been directly targeted with hate or harassment; 77% feel less safe expressing themselves on Meta platforms. GLAAD Make Meta Safe Report, Sept 2025

— The Electronic Frontier Foundation documented the historical over-moderation of Black and marginalized communities. EFF has tracked Meta’s pattern of silencing oppressed communities for over a decade, noting that the January 2025 changes failed to address over-moderation of Black, LGBTQ+, and activist voices while simultaneously opening the door to dehumanizing content targeting those same communities. EFF, Feb 2025

— The NAACP Legal Defense Fund resigned from Meta’s civil rights advisory council in April 2025. LDF withdrew after Meta eliminated DEI programs and overhauled its moderation policies without consulting the council it had assembled specifically to advise on civil rights issues. The resignation was a public statement that Meta’s civil rights infrastructure is, functionally, gone.

— A landmark civil rights lawsuit against Meta is currently active in D.C. Superior Court. Equal Rights Center v. Meta (filed February 11, 2025) alleges that Meta’s advertising algorithm disproportionately steers ads for for-profit colleges to Black users while sending public nonprofit college ads to white users — reinforcing predatory educational practices along racial lines. On July 24, 2025, the court denied Meta’s motion to dismiss. The Brookings Institution called this “the most important tech case flying under the radar,” noting it invokes legal doctrine dating to the Freedom Riders and establishes a model for holding AI systems accountable under state civil rights law. Lawyers’ Committee | Brookings analysis | Court ruling summary

— Independent academic research confirms Meta’s algorithms discriminate by race even when advertisers use neutral criteria. Princeton researchers found Meta steers public school ads disproportionately to white users and for-profit college ads disproportionately to Black users — even with race-neutral targeting settings. A separate 2024 field experiment found Meta’s budget optimization tool funneled roughly 64% of advertising dollars toward light-skinned models, compounding user bias algorithmically. Princeton study via Brookings | Advertising discrimination study (arXiv)

— The deplatforming of JuneteenthNY fits a national pattern of pressure on Juneteenth observance. Multiple cities canceled their 2025 Juneteenth celebrations, citing the anti-DEI political climate, safety fears amid rising racial aggression, and withdrawal of corporate and government funding. Some NAACP chapters moved celebrations off federal property out of fear that Juneteenth programming could be construed as violating Trump’s DEI executive orders. The holiday remains legally protected — but its community infrastructure is being dismantled in practice.

Time to Unperson: When Erasure Amplifies

In early March 2026, a mural on the side of a Roscoe, NY furniture store was painted over without notice. Painted were three words, “time to unperson,” poignantly borrowed from Orwell’s 1984 coinage for the bureaucratic deletion of a person from the historical record. The artist, Seth Indigo Carnes (SIC), had completed the work in summer 2025 as part of his ongoing Miniluv project, named for Orwell’s Ministry of Love.

Vague local objections, mostly that the phrase was “vulgar” or “divisive,” escalated into seven months of pressure on the building owner, and then the destruction of SIC’s artwork. On April 1, 2026, Carnes filed suit in the Southern District of New York. The complaint pairs a 42 U.S.C. § 1983 First Amendment claim against the Town of Rockland with a Visual Artists Rights Act (17 U.S.C. § 106A) claim against the building owner. Source

The doctrinal architecture is unusually clean. Reed v. Town of Gilbert (2015) confirmed that content-based regulation of expressive imagery on private property triggers strict scrutiny. Carnes’s mural was painted with the building owners’ contractual permission; municipal pressure to remove specific words is the textbook viewpoint-discrimination scenario. Courts have repeatedly sided with artists in these cases. In 2025, the Institute for Justice prevailed against Conway, New Hampshire, after the town ordered a bakery to alter a student-painted donut mural; the federal court held the enforcement “would not pass any level of scrutiny.” Mandan, North Dakota, faced a similar suit after admitting it banned front-of-building murals to suppress work that might “provoke thought.”

The VARA claim has its own settled precedent. In Castillo v. G&M Realty (the 5Pointz case, Second Circuit, 2020), the court affirmed $6.75 million in statutory damages against a Queens building owner who whitewashed graffiti murals before demolition — what the district judge called “an act of pure pique and revenge.” Kent Twitchell’s Ed Ruscha Monument, painted over in Los Angeles in 2006, settled for $1.1 million. VARA requires 90 days’ written notice before destroying a covered work; a sudden overpainting, undertaken under community pressure rather than structural necessity, is precisely the conduct the statute was written to deter.

SIC joined our most recent FACT meeting to share information about his case, and we’re honored to amplify his case. What makes the Miniluv case especially worth FACT’s attention is the recursion. Orwell’s term for state-sponsored erasure has itself been erased — and the erasure has produced national press, a federal complaint, and the National Coalition Against Censorship’s coordinated response, including a planned statement, video, and press contact. NCAC has encouraged Carnes to explore a local re-manifestation of the work, on the theory that destruction tends to amplify rather than silence the message. We’re glad to be supporting this effort.

This is a recognizable First Amendment principle: the chilling effect runs in one direction, but the Streisand effect (where an attempt to hide, remove, or censor information results in the increasing public awareness of the information) runs in the other, and suppression often supplies the very evidentiary record — willfulness, viewpoint animus, public attention — that makes the legal claim cohere.

The phrase on the wall described what was happening before it happened. Then it happened. Now it’s being litigated.

Art, Identity, and the First Amendment in Lincoln, Nebraska

Last week I visited the Sheldon Museum of Art at the University of Nebraska–Lincoln to see Hyphen American: Intersections of Identity, a curated exhibition of works from the museum’s collection marking the nation’s 250th anniversary. The show features work by Kara Walker, Hank Willis Thomas, Dorothea Lange, Nicholas Galanin, Carmen Lomas Garza, Nona Faustine, Fritz Scholder, Catherine Opie, Binh Danh, and many others — organized across three sections: self-presentations, histories and struggles, and the formation of communities and rituals. The catalogue is published in the four most-spoken languages in Lincoln: English, Spanish, Vietnamese, and Arabic. I am often struck by the depth of artistic discourse happening in small cities across this country that escapes the notice of our major coastal media centers. This show would command attention in New York or Los Angeles. In Lincoln, it was free and open on a Tuesday afternoon.

The exhibition opens with Langston Hughes’s poem “I, Too”

Hughes’ declaration that the speaker sent to eat in the kitchen when company comes will, tomorrow, sit at the table, and nobody will dare say otherwise is a poem about demanding a seat at the table – the table of power, of relevance, of national purpose and destiny. Hughes does not reject America; he claims it. The difference matters. He embraces the heterogeneity of American life and insists on equity within it.

That insistence threads through the show and through the language of leaders who followed. Jesse Jackson, at the 1984 Democratic National Convention, offered the quilt: America as many patches, many pieces, many colors, all held together by a common thread. David Dinkins, in his 1990 inaugural address as New York’s first Black mayor, gave us the gorgeous mosaic of race and religious faith, national origin and sexual orientation, of families who arrived yesterday and generations ago. Both images refuse the melting pot. Both demand that difference not only survive but be

seen.

Writing a First Amendment newsletter, I see this exhibition through a constitutional lens. The five rights protected by the First Amendment — religion, speech, press, assembly, petition — are not just procedural guardrails. They are the structural architecture for exactly the kind of pluralism these artists depict. The founders proposed, however imperfectly and incompletely, a framework in which every voice could be heard regardless of race, gender, religion, or origin — a framework that assumed disagreement, difference, and dissent were not threats to the republic but conditions for its survival. Free expression is how the gorgeous mosaic speaks. Assembly is how its communities form. Petition is how its grievances reach power. The press is how its stories circulate. And religious liberty is how its spiritual traditions coexist.

Curator Christian Wurst describes the show as communicating a kind of Americanness that does not require unity or assimilation. That is also a description of the First Amendment itself. The right to speak is not a right to agree. The right to assemble is not a mandate to conform. What Hughes demanded at the table — presence, dignity, equity — is what the First Amendment structurally guarantees, when it is honored.

Hyphen American: Intersections of Identity runs through July 5, 2026 at the Sheldon Museum of Art, 451 North 12th Street, Lincoln, NE. Admission is free.

The Red Carpet and the Picket Line

On the evening of May 4, the Metropolitan Museum of Art hosted the 2026 Met Gala, fashion’s most extravagant annual fundraiser. This year’s lead sponsor was Jeff Bezos, who alongside his wife Lauren Sánchez contributed a reported $10 million. Amazon, Meta, OpenAI, and Snapchat all purchased tables at $350,000 each; individual tickets hit $100,000. The event raised a record $42 million — up from last year’s $31 million — marking the first time a tech figure served as lead sponsor. FortuneFortune

The backlash was immediate and inventive. The activist group Everyone Hates Elon projected video interviews with Amazon workers onto the Bezoses’ Manhattan penthouse, alongside slogans including “If You Can Buy the Met Gala, You Can Pay More Taxes.” One projection featured Mary Hill, a 72-year-old Amazon warehouse worker, testifying that she struggles paycheck to paycheck. The group placed hundreds of bottles of fake urine inside the Met itself — a reference to Amazon workers’ reports of having to skip bathroom breaks. Chris Smalls, cofounder of the Amazon Labor Union, was arrested outside the gala after jumping a police barricade while holding a sign about Amazon’s refusal to negotiate a contract with its Staten Island workers. Meanwhile, labor unions staged the “Ball Without Billionaires” in the Meatpacking District — a counter-runway featuring Amazon warehouse workers and delivery drivers in looks from independent designers, with signs reading “Labor is Art.” Democracy Now!

The objection is not to philanthropy. It’s to a structure in which a company facing active labor disputes, documented workplace safety complaints, and contracts providing cloud computing to ICE gets to purchase the cultural legitimacy of America’s most visible museum. When a monopoly sponsors the gala, the gala sponsors the monopoly. Bezos’s $10 million doesn’t just fund the Costume Institute — it launders a brand.

The First Amendment angle here is the one most often forgotten: the right of the people peaceably to assemble. That right — alongside the right to petition for redress of grievances — is the constitutional foundation not just of protest but of labor organizing itself. As the National Constitution Center notes, the right of assembly has been invoked by suffragists, abolitionists, religious organizations, labor activists, and civil rights groups as a protection for dissenting and unorthodox groups. The picket line is a First Amendment act. The union drive is a petition. In De Jonge v. Oregon (1937), the Supreme Court held that the right of peaceable assembly is cognate to free speech and free press, and equally fundamental. That case, notably, involved a dockworker organizing for a labor union through the Communist Party. Constitution Center

What played out on Fifth Avenue this past Monday was a live demonstration of how these rights operate under pressure. Smalls was tackled by police on the red carpet. The Ball Without Billionaires went on a few miles south. The projections lit up a penthouse. The assembly clause doesn’t guarantee comfort or access; it guarantees the right to show up, speak, and be counted. The red carpet and the picket line are both exercises in public spectacle. Only one of them is constitutionally protected.

UPCOMING EVENTS

Please join FACT member, Chris Wangro, and SIC (Seth Indigo Carnes) at this Creative Activism Workshop on May 24, 2026, at 2 pm in Kingston, NY, at the Good Works Institute - Greenhouse

Acknowledgement

We are always grateful for the encouragement and suggestions of our colleagues and peers.

NEXT STEPS: TAKE ACTION

First Amendment Friday

F.A.C.T. invites all cultural institutions, artists, and activists to post First Amendment stories, graphics, calls to action, and advice to their audience every Friday. Join our campaign by signing up here. Feel free to use our digital assets here.

Public Practice

We are asking cultural venues in New York City (and across the USA) to prominently place our First Amendment poster in their public areas. Sign up to get your copy. We are also asking performance venues to share our curtain speech (or create your own).

Share First Amendment Bulletin

Haymarket and the Cost of Speaking

May 1, 2026, marks 140 years since the eight-hour-day strikes of 1886 — the labor actions that gave the world International Workers’ Day, and that ended three days later in the Haymarket affair. The events deserve to be remembered as a First Amendment story, because that is what they were.

On the evening of May 4, 1886, a peaceful labor rally in Chicago’s Haymarket Square was being dispersed by police when an unknown person threw a bomb. Officer Mathias Degan and several others died. The bomb-thrower was never identified. The Cook County state’s attorney could not prove who the perpetrator was, so he prosecuted the speakers instead — eight anarchist organizers and editors, only some of whom had even been at the rally. The theory of the case was that their speeches and newspapers had incited an unknown person to violence. They were convicted of murder. August Spies, Albert Parsons, George Engel, and Adolph Fischer were hanged on November 11, 1887. Louis Lingg killed himself in his cell the night before. Three — Samuel Fielden, Michael Schwab, and Oscar Neebe — remained imprisoned.

Most were immigrants: Spies and Schwab from Germany, Fielden from England, Neebe born in Germany. Several published in German. Foreign tongue plus political organizing equaled, in 1886 Chicago, sufficient evidence of guilt.

In June 1893, Governor John Peter Altgeld issued pardons for the three survivors. He published his reasons as a 63-page document, Reasons for Pardoning Fielden, Neebe and Schwab, that read like a prosecutor’s brief in reverse: the jury had been packed with men who admitted prejudice and were seated anyway; Judge Joseph Gary had run the trial with open hostility to the defendants; the evidence connected none of them to the bomb-thrower, who, Altgeld concluded, had likely acted out of personal revenge. The Chicago Tribune attacked him daily. The New York Times called him an apologist for anarchism. He lost his re-election in 1896 and died in 1902, broken financially. Clarence Darrow gave the eulogy.

The Haymarket prosecution would not survive a First Amendment challenge today. Brandenburg v. Ohio (1969) requires that speech be directed at and likely to produce imminent lawless action before the state can punish it. Haymarket fails on every prong: no direction, no imminence, no causal link to the act. The defendants were convicted for the content of their political speech and the company they kept.

The pattern persists. Current detentions and removal proceedings against student protesters — Mahmoud Khalil at Columbia, Rümeysa Öztürk at Tufts, others — invoke speech and association as grounds for state action against noncitizens. The University of Arkansas’s Title IX route against Mohja Kahf treats educational posters as discriminatory conduct. NEA grants are revoked for political content. The mechanism varies; the move does not. When the state cannot find the actor it wants, it prosecutes the speaker.

Altgeld’s pardon stands as a record of what one official is willing to lose to tell the truth.

Door Watch

The University of Arkansas has removed another poster from the office door of Distinguished Professor and Poet Mohja Kahf — this one promoting a documentary featuring Jewish Americans and Jewish Israelis discussing the phrase “From the river to the sea.” The poster carries a QR code linking to the film. Dean Brian Raines of UA’s Fulbright College of Arts and Sciences delivered the order by email.

This is the second round. In December, after a student complaint routed through Governor Sarah Huckabee Sanders’s office, UA’s Title IX office told Kahf to take down two earlier displays: Jennifer Camper’s 2005 satirical comic “I’m Not a Terrorist” (on Kahf’s door since 2007) and a “From the river to the sea” poster (since 2023). The student who filed the complaint declined to participate in the investigation. The student newspaper noted that Kahf’s office sits at the dead end of a cornered hallway.

Kahf has taught at UA Fayetteville for 31 years. She is a Pushcart Prize winner and a 2002 Arkansas Artist Award recipient. After December’s removals, she replaced the materials with the text of the First Amendment, Robinson Jeffers’s “Shine, Perishing Republic,” and the documentary poster, now also under order of removal.

The pattern at UA Fayetteville is no longer in dispute. In March, System President Jay Silveria fired tenured Middle East studies professor Shirin Saeidi over social media activity about Israel and Iran, overriding a unanimous faculty committee recommendation against dismissal. In April, Najja Baptist, removed as director of African and African American Studies, filed a federal civil rights suit alleging retaliation. In January, the law school’s deanship offered to Emily Suski was rescinded after a state senator objected to a brief she had signed in support of transgender athletes.

UA Fayetteville is a state institution, directly bound by the First Amendment. A public university invoking a “discriminatory environment” rationale to strip educational materials — including one designed to surface Jewish voices on the contested phrase — is viewpoint discrimination, which Rosenberger v. Rector (1995) forbids. Federal courts have also recognized an academic-freedom exception to Garcetti v. Ceballos protecting faculty speech tied to teaching and scholarship; Kahf’s posters connect directly to her courses on Middle Eastern and Jewish literature. And NRA v. Vullo(2024) held unanimously that informal government coercion of speech — the kind that flows through a governor’s office complaint pipeline — itself violates the First Amendment. Arkansas faculty now operate under exactly that pressure. Former Arkansas governor (and father of the current governor) Mike Huckabee is the current ambassador to Israel.

The FCC, Disney, and the Late-Night License

The Federal Communications Commission has ordered the Walt Disney Company to file early license renewal applications for the eight ABC television stations Disney owns and operates, with a May 28 deadline. Those licenses were not due for renewal until 2028 at the earliest, some not until 2031. The FCC cites an ongoing investigation into Disney’s DEI practices, opened in March 2025, as the stated basis. The order arrived one day after President Trump and the First Lady publicly called for ABC to fire Jimmy Kimmel over a joke describing Melania Trump as having “a glow like an expectant widow.”

FCC Chairman Brendan Carr telegraphed the move on X in March: “The Communications Act authorizes the FCC to call in licenses for early renewal.” Last September, after Kimmel’s on-air comments about the killing of Charlie Kirk, Carr publicly floated license revocation, and ABC briefly preempted Kimmel’s show. The pattern is now established: a comedian on an ABC affiliate makes a joke the administration dislikes, and the FCC reaches for the license file.

Anna Gomez, the lone Democratic FCC commissioner, called the order “unprecedented, unlawful, and going nowhere… a political stunt.” Bob Corn-Revere of FIRE called the DEI rationale “a fig leaf” and the move “viewpoint retaliation.” Jameel Jaffer of the Knight First Amendment Institute observed that the FCC lacks the authority to cancel broadcast licenses based on political views.

The doctrine here is settled. NRA v. Vullo (2024) held unanimously that government officials cannot use regulatory leverage to coerce private parties into suppressing protected speech. The order to Disney is exactly that mechanism — the Communications Act deployed as a threat, the public-interest standard repurposed as a pressure point against a corporation that hosts a critic.

Voting Is Speech: The Court Just Narrowed the Franchise

On April 29, the Supreme Court ruled 6-3 in Louisiana v. Callais that the state’s congressional map — which contained a second majority-Black district drawn to comply with the Voting Rights Act — was an unconstitutional racial gerrymander. Justice Alito’s majority opinion did not formally strike Section 2 of the VRA. It rewrote the standard. Plaintiffs alleging dilution of minority voting power must now prove discriminatory intent, not merely discriminatory effect. In dissent, Justice Kagan, joined by Sotomayor and Jackson, wrote that the decision renders Section 2 “all but a dead letter.” AP

Election law scholar Rick Hasen called it “one of the most important and most pernicious decisions of the Supreme Court in the last century.” The 1965 statute that came out of Selma’s Bloody Sunday, which was already gutted by Shelby County v. Holder in 2013, has now been narrowed to the point of inoperability. Plaintiffs are required to find a smoking gun of intent to discriminate that no legislator is foolish enough to leave behind.

The First Amendment frame matters here. The Court has historically declined to treat voting as pure speech — voting lives more cleanly under the Fourteenth and Fifteenth Amendments. But the franchise is the most consequential expressive act in a democracy. To cast a ballot is to register a voice in the only forum where that voice is counted equally. Reynolds v. Sims (1964) understood this when it called the right to vote “the essence of a democratic society.” When the state determines who can be heard — through district lines, registration rules, ID requirements — it is deciding whose speech enters the public record.

The American tradition of expanding that record is the actual story of the franchise: the Fifteenth Amendment for Black men in 1870, the Nineteenth Amendment for women in 1920, the Indian Citizenship Act in 1924, the Twenty-Fourth Amendment ending the poll tax in 1964, the Voting Rights Act in 1965, and the Twenty-Sixth Amendment lowering the voting age in 1971. Each of these enfranchisements was opposed, often violently, by those who held the prior monopoly on speaking through the ballot. The Voting Rights Act was a remedy for a system that had silenced Black voters in the South for a century after emancipation.

Callais is not a neutral interpretive shift. It restores discretion to states that have used that discretion repeatedly to choose their voters. The First Amendment promise of public participation cannot survive a regime in which the state controls who counts as a participant.

Mamdani’s First Veto

On April 24, Mayor Zohran Mamdani issued his first veto, blocking Intro 175-B, the New York City Council bill that would have authorized NYPD “buffer zones” around educational institutions for the purpose of protest restriction. A companion bill, Intro 1-B, applies the same approach to houses of worship. That one, Mamdani allowed to become law, citing narrowing amendments in the final version.

Both bills passed the Council on March 26. Council Speaker Julie Menin framed them as an anti-Semitism response, prompted by pro-Palestine protests outside the Park East Synagogue and the 2024 campus encampments. The NYCLU called them “a surefire way to stifle constitutionally protected, peaceful political protest.” Donna Lieberman noted the buffer-zone approach would risk a binding NYCLU settlement reached with the city after NYPD misconduct during the George Floyd protests.

The vetoed bill defined “educational institution” so broadly that universities, museums, and teaching hospitals could all qualify. Mamdani said the consequences would prevent workers protesting ICE, students demanding fossil fuel divestment, and Palestine solidarity demonstrators. Nearly a dozen unions opposed the bill, including UAW, the Teamsters, and PSC-CUNY, on grounds that “intimidation” language could be invoked by employers to summon the NYPD against pickets. PSC-CUNY president James Davis called it “almost certainly unconstitutional.”

The override math is tight. Intro 175-B passed 30-19, four votes short of veto-proof. Menin has publicly committed to whipping for an override. UAW Region 9A is whipping in the other direction.

The surviving bill — buffer zones around houses of worship — remains a First Amendment problem. McCullen v. Coakley (2014) struck down a 35-foot Massachusetts buffer zone around abortion clinics as a content-neutral restriction that nonetheless burdened too much speech. The Court required narrow tailoring; a NYPD-administered perimeter drawn to address a specific category of protest content invites exactly the McCullen challenge.

The veto is meaningful. It is also partial. A municipal speech restriction passed under the banner of community safety, surviving in the form aimed at houses of worship, will face litigation. The framework is not new. The question, as ever, is whose protest the perimeter is designed to contain.

When the Press Retreats, the Persecution Advances: The Quiet Dismantling of Queer Journalism

In February 2026, Condé Nast sold Them — its only LGBTQ+ publication, launched in 2017 and helmed since last March by transgender editor-in-chief Fran Tirado — to Equalpride, the publisher of Out and The Advocate. The acquisition came days after Equalpride had laid off senior editors across its own titles, including Advocate editor-in-chief Alex Cooper and Pride.com editor-in-chief Rachel Shatto. Weeks later, the new owners cut Them‘s staff too. Long-time contributing writer Samantha Riedel, who was notified she would no longer be writing daily news, told The Objective that making a living on that work for years was an increasingly rare prospect for queer journalists The Objective.

Them was not a marginal property. It had 1.1 million Instagram followers and a strong Gen Z and millennial readership, and it covered LGBTQ+ culture, politics, and identity from a dedicated digital platform in New York. Condé Nast’s own CEO, in his memo announcing the sale, acknowledged the outlet had covered the defining cultural and political issues facing the LGBTQ+ community with rigor and care. The question worth sitting with is why a publication of that stature, with that reach, was offloaded by one of the most powerful media conglomerates in the country at precisely the moment its beat became most politically consequential. TheWrap

Them‘s divestment is one data point in a larger retreat. In October 2025, NBC News dissolved its dedicated teams at NBC Out, NBC BLK, NBC Latino, and NBC Asian America as part of roughly 150 layoffs. NBC Out, launched in 2016, had been the first major broadcast vertical devoted to LGBTQ+ issues. GLAAD’s chief communications officer, Rich Ferraro, called the move part of a dangerous pattern of mainstream media outlets choosing to lose trusted and talented journalists who focus on important LGBTQ news that otherwise is under-reported or not reported at all The Advocate.

At Condé Nast itself, the erosion has been visible for more than a year. Alma Avalle — a Bon Appétit journalist, Condé Union member, and founder of the NewsGuild’s Trans Guild Caucus — was fired in November 2025 after protesting cuts at Teen Vogue that she characterized as the conglomerate’s capitulation to the conservative backlash of the Trump administration. Lex McMenamin, a former Teen Vogue politics editor laid off in the same period, described the cumulative effect in stark terms: they’re not just taking away the door, they’re deconstructing the house. The trans journalists who once gathered at what McMenamin called a five-person lunch table at Condé have been scattered. The Objective

Meanwhile, Gannett, the nation’s largest newspaper chain, removed mentions of diversity from its website in April 2025 and said it would stop publishing demographic data about its staff. Disney rebranded its internal DEI efforts. Condé Nast folded Pitchfork into GQ and Teen Vogue into Vogue TheWrap.

This retreat is happening against a legislative backdrop that makes the timing impossible to ignore. In 2026, 740 bills are under consideration across the country that would negatively impact trans and gender non-conforming people, with legislation being considered across 42 states as well as nationally Trans Legislation Tracker.

In addition to familiar attacks on health care and schools, lawmakers are advancing so-called “sex definition” or “gender regulation” laws that redefine sex across entire state legal codes in ways that exclude transgender and nonbinary people from legal recognition— the policy researcher Allison Chapman calls this a “meta” approach, reacting to the Supreme Court’s 2020 Bostock ruling by trying to statutorily narrow what “sex” means in the first place. Prism

Kansas, New Hampshire, and Wisconsin have already passed bills this year restricting bathroom access, identity document updates, and name changes. The ACLU is tracking close to 400 anti-LGBTQ+ bills in state legislatures. And the pipeline of journalists equipped to cover this with specificity, source relationships, and subject-matter fluency is being narrowed at exactly the moment its work is most needed.

The First Amendment Question

The First Amendment does not, strictly speaking, prevent Condé Nast from selling a property, or NBC from reorganizing its newsroom. These are private business decisions. But First Amendment analysis has never been limited to the narrow question of direct state censorship. The chilling effect — the phenomenon where individuals or groups refrain from engaging in expression for fear of running afoul of a law or regulation — has long been recognized as a form of suppression that operates through incentives rather than injunctions. Human Rights Research

What’s notable about the current moment is that the pressure on corporate media is not hypothetical. FCC Chairman Brendan Carr has used the agency’s regulatory leverage against broadcasters that the administration dislikes. NBC and its parent company, Comcast, have come under federal scrutiny for their diversity-focused efforts. A Gravity Research survey last year found that 39% of companies planned to reduce Pride-related engagement in 2025, with senior corporate leaders citing fear of potential investigations by the Trump administration over DEI as their top reason for pulling back on LGBTQ+ marketing. The administration has not had to order coverage reductions. The market has internalized the threat. LGBTQ Nation

The result is a particular kind of democratic damage that First Amendment doctrine has always struggled to address directly: when the economic infrastructure of reporting on a targeted community collapses in the same year that community is being targeted by hundreds of pieces of legislation, the two facts are related, whether or not there is a paper trail connecting them. Tre’vell Anderson, executive director of the Trans Journalists Association, put it this way to The Objective: “the lack of media representation has only fueled hate and misinformation against trans people.”

Queer illustrator Vic Liu, whose book The Warehouse: A Visual Primer on Mass Incarceration was featured by Them in 2024, described what publications like it offered: Them wanted to talk to me about prison abolition and why my queerness is such a key part of how I navigate the world and therefore my art. That kind of reporting — which treats queerness as a lens for looking at systems rather than an identity category to be profiled every June — is what a handful of trans editors and writers at well-resourced outlets made possible.

Evan Urquhart, a Knight Science Journalism Fellow covering trans healthcare at the independent outlet Assigned Media, told The Objective he’s hopeful readers still crave LGBTQ+ reporting that puts the truth first, but he was candid that he doesn’t make a ton of money doing it and has no full-time staff. The independent ecosystem that FACT readers know well — Erin in the Morning, Assigned Media, TransLash, The 19th — is doing extraordinary work with a fraction of the resources that Them, NBC Out, and Teen Vogue once deployed. Independent journalism can supplement institutional journalism. It cannot replace it. The Objective

The story of Them‘s sale is not, at its most important level, a story about one magazine. It is a story about what happens when the First Amendment’s formal protections remain intact, but the material conditions for exercising them erode under political pressure — when the pipeline of reporters, the advertising base, the corporate appetite for risk, and the institutional memory all retreat at once. Hundreds of bills targeting trans lives are moving through statehouses. The outlets that covered those lives with depth are being consolidated, sold, or sunsetted. This is what a chilling effect looks like when it succeeds: not silence, but a thinner, quieter, less informed public record of what is happening to people the government would prefer the country not look at closely.

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We are always grateful for the encouragement and suggestions of our colleagues and peers.

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In 2025, the Trump administration made federal arts funding contingent on dropping diversity, equity, and inclusion programming. For most arts organizations, this was a budget crisis. For Baltimore Center Stage, the official state theater of Maryland, it was a test they decided to fail on purpose.

A year later, they’re still failing that test, only harder. Producing director Ken-Matt Martin told Baltimore Banner columnist Leslie Gray Streeter that the theater’s response to the federal pressure has gone from doubling down to what he called, laughing, “maybe it’s a triple-down.” thebanner

Baltimore Center Stage’s 2025–26 season included Trinity, a Lena Waithe play featuring a Black lesbian love triangle, and The Peculiar Patriot, Liza Jessie Peterson’s work about the racist roots of the American prison system. The 2026–27 season includes works by Laura Benanti, Bess Wohl, August Wilson, and Xtravaganza, a theatrical spectacle about LGBTQIA+ Black and Latino dancers in New York’s underground ballroom scene.

Under the administration’s new guidelines, Martin said, “the rules for federal funding are so strict that we would not qualify, because of who we are. Shows like Xtravaganza would not exist in that world.” So they gave up the NEA money. Even before Trump’s executive order, grants to the theater had declined from the $50,000–$70,000 range to $25,000–$30,000. Center Stage replaced the shortfall with support from the Mellon and Ford Foundations, state and city funding, and private donors. thebanner

The First Amendment prohibits the government from using funding to coerce speech it favors or suppress speech it doesn’t. Rust v. Sullivan (1991) and NEA v. Finley (1998) both probed this territory. The line between a legitimate funding decision and an unconstitutional condition runs through viewpoint discrimination. When federal criteria exclude programming because it centers Black, queer, or otherwise marginalized voices, categories defined by viewpoint and identity rather than artistic quality, the condition stops being about what the government funds and starts being about what the government permits.

Artistic director Stevie Walker-Webb put the civic logic plainly: “If you don’t fight for the people in groups that you’re not in, you’re next.” Maryland poet laureate Lady Brion, who will star in the theater’s King Hedley II, said she has already lost opportunities with organizations that stopped producing diverse work to save their budgets. The chilling effect is not hypothetical. thebanner

This is the inverse of what’s been happening at the Smithsonian and the Kennedy Center, where institutional compliance has pushed exhibitions, performances, and artists out of federal venues and into independent ones. Baltimore has been one of the beneficiaries.

The through-line is simple. When the federal government conditions funding on suppressing disfavored speech, institutions either comply or refuse. Most comply. Center Stage refused and has demonstrated that artistic freedom is something you either practice or lose.

“We are artists who are genuinely invested in what diversity, equity, and inclusion means,” Martin said. “They’ve become dirty words. Intentionally, I don’t use the full acronym. I use the full words. Let’s talk about it.”

The Greene County Poet Laureate

In January, Greene County, New York, named Esther Cohen, a longtime writer, award-winning poetry teacher, and 40-year resident of the Catskills, as its first poet laureate. This month, the chairman of the Republican-majority county legislature rescinded the appointment, citing two of Cohen’s Facebook posts that lawmakers said appeared to celebrate the prospect of President Donald Trump’s death. theoverlooknews

Cohen removed the posts, apologized, and said she doesn’t advocate violence. “I was chosen for my poems, not my politics,” she told The Overlook. The legislature declined her offer to speak with them. CREATE Council on the Arts, which administers the selection, reportedly does not plan to name another candidate. The $1,000 honorarium Cohen received in February may be rescinded since she hadn’t cashed the check yet.

The First Amendment question here is not whether Cohen’s posts were in good taste. It’s whether a local government can revoke a cultural appointment based on a citizen’s lawful political speech on social media. Republican legislator Michael Lanuto Jr. also cited Cohen’s posts supporting New York City Mayor Zohran Mamdani as disqualifying, which moves the rationale from “promotion of violence” to plain viewpoint screening.

Cohen’s most recent book, All of Us, is a portrait of her Greene County neighbors. She has taught writing in supermarkets, laundromats, and low-income senior housing. The position she won’t hold was meant, per CREATE, to bring poetry to unexpected places. It found one.

Letter from Lebanon

My friend Mo writes from Beirut on April 14th, “It’s Happening Again”

Please read his full Letter from the Ground

The Public Library is the First Amendment in Practice

Next week is National Library Week, and the American Library Association marked it by releasing its annual list of the books most challenged in 2025. Patricia McCormick’s Sold topped the list. The ALA’s Office for Intellectual Freedom recorded challenges to 4,235 different works, the second-highest total since they began tracking more than 30 years ago. More than 90 percent of those challenges came from organized activists and government officials, not concerned parents. The suppression is coordinated, well-funded, and politically driven. APNews

The United States has roughly 9,000 public library systems operating more than 17,000 outlets — main branches, neighborhood branches, and bookmobiles. Approximately 97 percent of Americans live within a public library service area. In 2017, more than 172 million registered users visited public libraries 1.32 billion times, and libraries hosted 5.6 million programs attended by over 118 million people. That’s more annual attendance than every professional sports league in the country combined, many times over. Institute of Museum and Library Services

But the numbers only gesture at what libraries do. They are the last genuinely public indoor space in most American communities — nothing to buy, no time limit, no implication that you’ve overstayed your welcome. They are where children learn to read, where immigrants study for citizenship exams, where job seekers print resumes, where the unhoused find shelter from heat or cold, where researchers access databases they couldn’t otherwise afford, and where seniors learn to use a smartphone. They are where people without broadband go to apply for benefits, file taxes, and fill out the forms that modern life requires. They are one of the few remaining institutions that treat every person who walks through the door as equally entitled to be there.

The First Amendment guarantees free speech and free exercise, but it also protects something quieter and equally fundamental — the right to receive information, as established by the Supreme Court (see below: CDC Suppresses Its Own Science). Board of Education v. Pico (1982) holds that school officials cannot remove books from library shelves simply because they disagree with the ideas inside them. The case recognized libraries as places where the First Amendment’s promise becomes concrete: a citizen’s right to read, to inquire, to encounter ideas the government would prefer they not encounter.

A coordinated campaign to remove books from library shelves — disseminating national target lists, pressuring librarians, passing state laws that criminalize what was previously protected is a direct challenge to the constitutional principle that what citizens can know is not the government’s to decide.

At a recent visit to the Brooklyn Public Library, I was surprised to learn that they host regular walk-in hours with a social worker. Every Thursday from 10 a.m. to 3 p.m. at Central Library, anyone can meet with a social worker — no appointment, no cost — for referrals on housing, food, employment, health insurance, and mental health. Appointments are thirty minutes. You just show up. Brooklyn Public Library

That is what the First Amendment looks like when it actually reaches the ground. Not an abstract principle, but a room where someone in need can walk in, be treated as a full citizen, and leave with information they couldn’t have gotten elsewhere. The library is the promise made practical, which is exactly why the campaign to diminish it should worry anyone who believes that promise still matters.

The CDC Suppresses Its Own Science

The Washington Post reported this week that the CDC (Centers for Disease Control and Prevention) has blocked publication of a report showing last winter’s COVID-19 vaccine reduced emergency department visits and hospitalizations among healthy adults by about half. The report had been scheduled to run March 19 in the Morbidity and Mortality Weekly Report(MMWR), the CDC’s flagship scientific journal, continuously published since 1952. It won’t run at all.

This is a First Amendment story, even though it doesn’t look like one at first glance.

The blocked report cleared the agency’s full scientific-review process, which involves dozens of scientists. Acting CDC Director Jay Bhattacharya first delayed it, then rejected it, citing concerns about the test-negative methodology the CDC has used for years to evaluate respiratory vaccine effectiveness. A flu vaccine effectiveness report using the same methodology was published in the MMWR a week earlier.

Michael Iademarco, who oversaw the MMWR from 2014 to 2022, told the Post he could not recall the CDC stopping an MMWR report in the publication phase after scientific clearance and editorial review. The CDC pulling a cleared paper is extraordinary.

The First Amendment protects a right to receive information, not just to speak as established in Lamont v. Postmaster General (which attempted to prevent receipt by mail of “communist” material), Stanley v. Georgia (a case that protected the right to own “obscene” materials), and Board of Education v. Pico (preventing a local school board from removing books including thos by Richard Wright and Kurt Vonnegut from a school library).

Democratic self-government and individual decision-making both require access to information. When a political appointee overrides the agency’s own scientific-review process to prevent publication of findings that contradict the administration’s policy posture, the public record is being shaped not by scientific judgment but by political convenience.

Clinicians use the MMWR to make treatment decisions. Parents and patients rely on it to understand what works. The methodological pretext collapses the moment you notice the flu study used the same methods the week before. The three sources who spoke to the Post did so on the condition of anonymity for fear of retaliation. That’s a good indication of what is happening inside government agencies right now.

In August 2025, CDC Director Susan Monarez was removed less than a month into her tenure after she refused to rubber-stamp unscientific, reckless directives and fire dedicated health experts. Four senior officials resigned within hours. Chief Medical Officer Debra Houry called it “a bat signal.” An earlier CDC analysis of thimerosal was briefly posted before being taken down at HHS’s direction. A government scientist watching this has every reason to ask whether rigorous work on a politically inconvenient topic is worth the professional risk. CBS News

This story exists because people inside the CDC took a risk, and because the Washington Post had reporters to follow it. The First Amendment protects both the leakers’ speech and the press’s publication, and together they are the reason the suppression became visible at all. The report itself won’t be published. The fact of its suppression now is. That’s the system working under strain, not working smoothly.

The Joke That Built a Presidency

This Saturday, the White House Correspondents’ Association will hold its annual dinner in Washington. President Trump will attend — his first appearance at the event as a sitting president, after boycotting it every other year because, as he put it, the press was extraordinarily bad to him.

The dinner is a peculiar American institution. It began in 1920, and since 1983, it has traditionally featured a stand-up comic whose job is to deliver a roast with the president of the United States sitting at the head table, sometimes three feet away. The premise is simple and unusual in the history of nations: the person with the most power in the room is supposed to sit there and take it. Al Franken did it twice in the Clinton years. Rich Little did Reagan. In 2006, Stephen Colbert mercilessly dissected President George W. Bush’s Iraq war policies onstage as Bush listened close by.

This isn’t a sideshow. It is a small annual ritual of what the First Amendment actually means in practice — the right to mock the powerful, in their presence, without arrest, without consequence, without apology. The amendment protects speech not because mockery is nice but because kings once jailed people for less, and the Framers understood that a government immune from ridicule is a government on its way to being immune from everything.

On April 30, 2011, President Obama delivered a set of remarks at the dinner with Donald Trump sitting in the audience. Trump had spent weeks fanning the birther conspiracy, demanding Obama release his birth certificate. Obama leaned in. Seth Meyers followed with a string of jokes mocking Trump’s hair, his television show, and his fixation on the birther movement. Trump’s longtime adviser, Roger Stone, later told PBS’s Frontline: “I think that is the night he resolves to run for president. I think that he is kind of motivated by it.” Author Michael D’Antonio put it more bluntly: “This is a burning, personal need that he has to redeem himself from being humiliated by the first black president.” PBS

A coalition of more than 250 former broadcast journalists and media organizations, including the National Association of Black Journalists and the Society of Professional Journalists, has asked the WHCA to make a statement about the administration’s attacks on the press when it hosts Trump on Saturday. Federal agents arrested Black journalists Don Lemon and Georgia Fort covering a news event in 2026 — two federal judges refused to sign arrest warrants for lack of evidence before the Justice Department obtained a grand jury indictment. Mario Guevara, an Emmy-winning Spanish-language journalist, was deported after being arrested covering a No Kings rally. This year’s dinner will not feature a comedian.

When “Universal” Gets a Footnote

The Supreme Court announced this week that it will hear St. Mary Catholic Parish v. Roy, a case asking whether Colorado can keep Catholic preschools out of its universal pre-K program when those schools won’t enroll children of same-sex parents. Argument is expected in the fall. The case is a Free Exercise Clause case — the First Amendment question is what religious liberty requires when a faith-based institution participates in a public benefit program whose rules it doesn’t want to follow.

Colorado’s program, approved by ballot in 2020, gives every family 15 hours of free preschool a week at the public or private provider of their choice — a benefit worth about $6,000 per child. Participating schools must agree not to discriminate based on race, religion, sexual orientation, gender identity, income, or disability. The Archdiocese of Denver, which runs 34 preschools, requested a religious accommodation. Colorado’s Department of Early Childhood said no. A federal district court and the Tenth Circuit both sided with the state. The Tenth Circuit called Colorado’s program a “model example of maintaining neutral and generally applicable nondiscrimination laws while nonetheless trying to accommodate the exercise of religious beliefs.” CBS News

The First Amendment precedent in the crosshairs. The case targets Employment Division v. Smith (1990), the foundational Free Exercise ruling holding that neutral, generally applicable laws don’t require religious exemptions even when they burden religious practice. Smith has been controversial on the religious right for decades. Justices Thomas, Alito, and Gorsuch have already said it should be overruled. The Court declined to take up that question directly but agreed to consider narrowing the precedent — a move the Trump administration asked for in an unusual, unsolicited amicus brief filed in January, given the federal government is not a party. The Hill

The archdiocese says Colorado’s rule isn’t truly generally applicable because the program permits other preferences — schools can prioritize low-income children or those with disabilities. Those carveouts, the argument goes, take the law outside Smith‘s protection, trigger strict scrutiny, and require a religious exemption. Colorado responds that the nondiscrimination provision itself contains no exemptions, and that accommodations for poverty and disability aren’t comparable to an exemption permitting exclusion of children because of who their parents are.

The Free Exercise Clause protects the right to practice one’s religion free from government coercion. The harder question, which the Court has been working through case by case, is what happens when religious institutions seek access to government programs on terms that exempt them from the rules other participants must follow. The Espinoza v. Montana Department of Revenue (2020) and Carson v. Makin (2022) rulings established that states can’t exclude religious schools from public funding because they’re religious. The current case asks the next question: can states condition funding on compliance with anti-discrimination rules that religious institutions say violate their beliefs?

Elmo Said Habibi

In honor of Arab American Heritage Month, Sesame Street posted a 41-second clip on April 16 in which comedian Ramy Youssef taught Elmo these Arabic words: salamu alaykum (”peace be upon you”) and habibi (”my love”). Elmo hugged Youssef. The internet lost its mind.

Fox News contributor Raymond Arroyo warned on The Ingraham Angle that “Next, Bert and Ernie will be praying five times a day on Sesame Street, facing east.” Sesame Street has featured Spanish, French, Japanese, Mandarin, and sign language for over five decades without incident. Elmo saying habibi broke the brain of cable news. Variety

Youssef, appearing on The View, noted a minor inconsistency. “I feel for them, right? I think they’re worried about Arabic immersion, and it’s got to be tough, because I think they’re supporters of the President. So imagine your president on Easter is tweeting ‘Praise be to Allah,’ and now Elmo saying ‘habibi’ feels threatening,” he said — referencing Trump’s April 5 social media post about the Iran conflict. Raw Story

The First Amendment protects a children’s show teaching a four-year-old that habibi means “my love.” That this even needs saying is the news. That Elmo said it anyway is the good news.

UPCOMING EVENTS

UNDOXX Artist Hub!⁠

April 29, 2026 | 6:30-9:30pm ET

BAX Annex | 80 Hanson Place, Ground Floor, Brooklyn
Free with RSVP at Event Link

Join a conversation with performance artist Karen Finley, FACT co-founder George Emilio Sanchez, and Shirine Saad on arts censorship since the 1990s, and what we can learn from artist-activists who have long refused to be silenced.

Acknowledgement

We are always grateful for the encouragement and suggestions of our colleagues and peers.

NEXT STEPS: TAKE ACTION

First Amendment Friday

F.A.C.T. invites all cultural institutions, artists, and activists to post First Amendment stories, graphics, calls to action, and advice to their audience every Friday. Join our campaign by signing up here. Feel free to use our digital assets here.

Public Practice

We are asking cultural venues in New York City (and across the USA) to prominently place our First Amendment poster in their public areas. Sign up to get your copy. We are also asking performance venues to share our curtain speech (or create your own).

Share First Amendment Bulletin

First Amendment Corridor activation at Culture Lab

The Art We’re Bombing

I’m reading Woman, Life, Freedom: Voices and Art from the Women’s Protests in Iran, the 2023 anthology compiled by Malu Halasa, including first-person accounts, photography, and artwork capturing the uprising that followed the death of student Jina Mahsa Amini. It’s full of images no photograph could capture safely: women burning headscarves, students facing down morality police, the raw courage of ordinary people demanding what should not require courage to demand.

In December 2017, Vida Movahed climbed onto a utility box on Tehran’s Enghelab Street—Revolution Street—removed her white hijab, tied it to a stick, and waved it like a flag. She was arrested immediately, with her 19-month-old baby beside her. Within weeks, dozens of women reenacted her protest on the same spot, each risking prison, each filmed by bystanders and shared with the world. The regime changed the utility box to a pointed gable to prevent anyone from standing there again. Wikipedia

In 2022, red paint splashed across a propaganda mural of Khamenei - a gesture of defiance that spread across social media. Photographer Shiva Khademi has documented how Iranian women use hair color itself as protest: bright reds, violets, streaks of visible rebellion against the compulsory gray of state control.

Dr. Pamela Karimi, in Alternative Iran: Contemporary Art and Critical Spatial Practice, shows how dissident art has been central to revolutionary demands for civil rights, women’s rights, and democracy. One artist literally rolled through the streets of Mashhad to reclaim public space. A dancer reenacted protest gestures in public squares. Political poets merge ancient traditions of public recitation with modern practices of poetry jamming. These are “practices of hope for a more democratic Iran,” Karimi writes of protest art emerging from Iranian streets that “is not just a pretense of protest but protest itself.”

This is what the Iranian people, particularly women and artists, have been building for decades, under surveillance, at risk of imprisonment and execution.

In January 2026. Khamenei ordered security forces “to crush the protests by any means necessary.” The result was the deadliest crackdown since 1979, with thousands killed in 48 hours, tens of thousands arrested, and a total internet blackout to hide the scale of the massacre.

Six weeks later, on February 28, 2026, the United States and Israel launched airstrikes on Iran, killing Khamenei and inflicting mass civilian casualties.

For decades, the United States positioned itself as a champion of human rights and democracy - the friend of dissidents, the enemy of tyrants. That pretense is now fully abandoned.

Bombs do not empower dissidents. They empower despots. They give authoritarian regimes the external enemy they need to justify repression, to label every protester a foreign agent, to rally nationalist support around a government that was, just weeks before, massacring its own people in the streets.

The women waving white scarves on sticks, the artists splashing paint on murals, the photographers documenting quiet acts of courage, the poets risking prison for a verse were not waiting for American missiles. They were building something. They had been building it for years.

“Raised fists, flowing scarves and bold female figures,” says illustrator Roshi Rouzbehani. “All these elements reflect the movement’s core spirit: autonomy, resistance, and hope.” In These Times

We have been bombing that hope.

“Right to Read Day”

Right to Read Day is April 20th. Uniteagainstbookbans

The American Library Association (ALA) condemned the March 17, 2026 passage of H.R. 7661 by the House Committee on Education and Workforce, a bill that would modify the Elementary and Secondary Education Act to prohibit funds for materials deemed “sexually oriented,” effectively giving politicians broad authority to restrict whose stories appear on shelves. American Library Association

Publishing imprints for young readers are shuttering thanks to a “softening” school and library market, which is a direct result of book censorship. Congresswoman Ayanna Pressley has introduced the Books Save Lives Act of 2026 to counteract the harm of book bans nationwide.

Machines Can’t Be Authors: Thaler v. Perlmutter

On March 2nd, the Supreme Court declined to hear Thaler v. Perlmutter, leaving in place the D.C. Circuit’s ruling that copyright protection under U.S. law requires human authorship. Dr. Stephen Thaler’s effort to copyright an image his AI created autonomously—with no human prompting or editing—is over. Holland & Knight

Thaler listed the “Creativity Machine” as the work’s sole author. The Copyright Office rejected the application because it “lack[ed] the human authorship necessary to support a copyright claim.” The D.C. Circuit affirmed, but narrowed the holding: “The rule requires only that the author of that work be a human being—the person who created, operated, or used artificial intelligence—and not the machine itself.” Constitution Center

This framing actually makes intuitive sense when you consider how authorship has always worked in practice. Rubens ran a workshop where assistants executed significant portions of his paintings he designed. Warhol’s Factory employed dozens of people producing silkscreens. Jeff Koons directs fabricators who physically create his sculptures. Damien Hirst’s spot paintings were executed almost entirely by assistants—he reportedly painted only five of over 1,400 works in the series.

In literature, the tradition is equally long. Alexandre Dumas employed collaborators who drafted novels from his outlines. Contemporary writers routinely work with research assistants, developmental editors, and ghostwriters. Academic and political figures publish under their own names work substantially drafted by others.

In all these cases, the law assigns authorship and copyright to the person who is the generative force behind the work: the one who conceives it, directs its execution, and takes responsibility for the final product. The skilled hands that execute the vision don’t become authors, even when their technical contribution is substantial.

AI, viewed this way, is simply another tool in the studio, a very sophisticated assistant that executes according to human direction. The question isn’t whether the assistant (human or machine) contributed skill and labor. The question is who supplied the animating creative vision.

Thaler’s case was easy precisely because he disclaimed any creative role. He listed the machine as the sole author. Thaler deliberately set up the narrowest possible dispute: he disclaimed any human creative contribution and asked for copyright protection anyway.

The harder cases involve humans who do direct the AI substantially. Allen v. Perlmutter, pending in Colorado, involves an artist who entered text prompts at least 624 times, used the AI’s variation and upscaling tools, then used Photoshop to refine the result. Even so, the Copyright Office takes the position that the work’s underlying expressive elements were generated by AI, not authored by Jason Allen.

The studio analogy should cut in Allen’s favor. If Koons can direct fabricators through detailed specifications and retain authorship, why can’t Allen direct Midjourney through 624 iterative prompts? That’s the real fight: whether prompting is closer to authorship or closer to curation. Copyright Lately

The human authorship requirement makes sense as a threshold for copyright protection; we grant exclusive rights to incentivize human creativity, not machine output. But there’s a civil liberties wrinkle worth watching.

The Copyright Office now requires disclosure of AI involvement in registration applications. If that disclosure is used to deny protection to work where a human exercised genuine creative control, it starts to look like a penalty on speech based on the tools used to create it.

To the extent a tool serves an expressive purpose, the First Amendment applies. In most cases, the government can no more compel an artist to disclose whether they created a painting from a human model as opposed to a mannequin than it can compel someone to disclose that they used artificial intelligence tools in creating an expressive work. Fire

The courts haven’t reached this question yet. But as AI tools become ubiquitous, the line between “AI-assisted” and “AI-generated” will become the crucial distinction, and how that line is drawn will determine whether the human authorship requirement functions as a sensible limit or an unconstitutional burden on human speakers using new tools.

The message from the courts is consistent: If you want IP protection, there must be a human in the process. The challenge is applying it consistently. A painter who directs skilled assistants is still the author. A writer who works with researchers and editors is still the author. The question going forward is whether a human who directs AI with comparable intentionality will receive the same recognition—or whether the novelty of the tool will obscure the continuity of the creative relationship. Reed Smith

Texas, the Bible, and the Establishment Clause

Last week, the Texas State Board of Education gave preliminary approval to a mandatory reading list featuring more than a dozen Bible passages, from the Parable of the Prodigal Son to the Book of Job. The majority-Republican board voted 9-5 to approve the list, which will become mandatory for all Texas public schools starting in 2030, pending a final vote in June. The Texas Tribune

The constitutional question isn’t whether the Bible can appear in public school curricula - it can. In Abington School District v. Schempp (1963), Justice Clark wrote that the Bible “is worthy of study for its literary and historic qualities” and that “such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.” Justia

The key words are “objectively” and “secular.” Teaching about the Bible’s influence on literature and history is permissible; using the Bible as moral instruction is not. And the Establishment Clause requires neutrality; the government cannot “pass laws which aid one religion, aid all religions, or prefer one religion over another.” Justia

Texas’mandatory reading list does not meet the requirements of the First Amendment. Critics raised concerns about the lack of religious diversity; the list incorporates biblical material, while other religious traditions are barely represented. Some of the biblical entries reference the Hebrew Bible, and state officials noted that one story, “The Hare in the Moon,” is rooted in Buddhist tradition. But that hardly approaches the degree of religious diversity needed for Texas to argue it’s staying neutral on religion. Chattanooga Times Free Press

The list could add excerpts from the Jataka Tales, the Bhagavad Gita, or the Analects of Confucius. There should be space for excerpts from the Quran, too. If the goal is genuinely literary and historical to teach an understanding of how sacred texts have shaped human civilization, then a list featuring only Christian scripture isn’t neutral. It’s preferential.

The phrase “separation of church and state” doesn’t appear in the Constitution - it comes from Jefferson’s 1802 letter to the Danbury Baptists. Critics of that phrase sometimes argue it’s been distorted beyond recognition. But the Establishment Clause itself is constitutional text, and its meaning has been elaborated through two centuries of judicial interpretation.

The Schempp Court decision also stated: “This Court has decisively settled that the First Amendment’s mandate has been made wholly applicable to the States by the Fourteenth Amendment.” It also “rejected unequivocally the contention that the Establishment Clause forbids only governmental preference of one religion over another.” Justia

The question isn’t whether the Founders and authors of the U.S. Constitution valued religion, many did. The question is whether the government can use its power over public education to promote particular religious content to captive audiences of children. The courts have consistently said no.

The current effort follows on Texas’s Ten Commandments display mandate (currently blocked by federal courts in over two dozen districts), an optional Bible-based elementary curriculum, and state-authorized school chaplains. When the same biblical passages appear in both a “literary” reading list and a religiously-oriented curriculum, it becomes harder to argue the purpose is purely secular. Community Impact

Religious freedom means parents, not the state, decide how children encounter sacred texts. The final vote is in June.

FTC vs. Media Matters

The Federal Trade Commission (FTC) went before a skeptical D.C. Circuit panel recently, struggling to defend its civil subpoena of Media Matters — the nonprofit watchdog that reported on the surge of white nationalist and antisemitic content on Elon Musk’s X, and the advertiser exodus that followed.

The FTC claims its “civil investigative demand” is simply part of a broader antitrust probe into whether major advertisers illegally colluded to boycott X. Media Matters sees it differently: the subpoena demands journalist notes, editorial processes, financial records, and organizational affiliations — the full apparatus of a newsroom stripped bare — and it arrived after Musk promised a “thermonuclear” lawsuit, after the Texas AG launched an identical probe, after the Missouri AG piled on, and after FTC Chair Andrew Ferguson publicly bragged about “standing up to the radical left.”

The three-judge panel wasn’t buying the FTC’s framing. Judge Patricia Millett cut to the chase: “Either they’ve been swept up in some other investigation for one reason, and one reason only, or perhaps the entire investigation somehow thinks it is an illegal advertiser boycott to expose Nazi misinformation.” She asked Ferguson’s lawyer directly, “What’s radical left about being anti-Nazi?” The response: Don’t read too much into a political appointee’s political statements. Source

Judge Gregory Katsas, a Trump appointee, added that First Amendment retaliation can’t simply be treated as the “cost of doing business with the government.”

The pattern here is unmistakable. Texas. Missouri. And now the FTC. Each probe a near-identical instrument, each one targeting the same organization for the same act of journalism. The district court already found retaliatory animus. The appeals court appears to agree. Reporting on hate speech shouldn’t make you a federal target. That it has tells you everything about who the government is protecting.

Dance Protest at The Lincoln Memorial

The Lincoln Memorial has witnessed demands for justice before — from Marian Anderson to the March on Washington. This time, the voices were bodies in motion. Twelve young women and girls, wearing black blindfolds and light-blue leotards printed with passages from the Epstein files, took one of the nation's most symbolic grounds to assert what law and government have too often refused to give them: the right to name their abusers, tell their own story, and be believed.

The performance lasted barely two minutes. It opened with fifteen-year-old lead dancer Devyn Scherff alone on the promenade — skin-tone leotard, no blindfold — seeming to fight off an attack, then shrink away. As the others joined her, Madonna's "Live to Tell" played from a speaker, sung by a children's choir: a man can tell a thousand lies / I've learned my lesson well. The dancers fluttered, flexed, and weaved beneath Lincoln's gaze.

Holding the Line: Two Leaders Who Won’t Let History Be Erased

At a recent discussion hosted by F.A.C.T. ally, the National Coalition Against Censorship (NCAC), two institutional leaders offered something rarer than commentary — they offered testimony.

Ann Burroughs is President and CEO of the Japanese American National Museum (JANM) and its Daniel K. Inouye National Center for the Preservation of Democracy, an internationally recognized figure in human rights and social justice whose biography gives her particular authority on the subject of state-sanctioned harm. Her lifelong commitment to racial justice was shaped by her experience as a young activist in South Africa, where she was jailed as a political prisoner for her opposition to apartheid. She brings that experience to bear on a museum whose very ground carries its own weight: JANM sits on the site in Los Angeles’s Little Tokyo where more than 37,000 Japanese Americans were ordered to report and board buses bound for incarceration camps in 1942. Japanese American National Museum

When the current administration moved to roll back DEI programs and the Smithsonian began scrubbing its websites, JANM’s board took a different path. They instituted their own policy called “Scrub Nothing.” The museum refused Trump’s call to end DEI initiatives even though the decision cost it around $1.7 million in federal funding. Museum trustees whose own families had been incarcerated during World War II saw it plainly: the same disinformation used to dispossess their parents and grandparents was being deployed again. By publicly refusing fascist pressure and appealing to their community, they raised lots of money, making up for the federal cuts. Zócalo Public Square

Joining Burroughs at the NCAC event was Dr. Yomaira Figueroa-Vásquez, the eighth Director of CENTRO — the Center for Puerto Rican Studies — and the first Afro-Puertoriqueña to lead the institution in its fifty-year history. A professor of Africana, Puerto Rican, and Latino Studies at CUNY Hunter, her scholarship centers on Latinx Caribbean and Afro-Hispanic literatures, women of color, and decolonial feminisms. Her current book project, The Survival of a People (forthcoming from Duke University Press), examines the disappearances and erasures of Afro-Puerto Rican peoples through familial stories, archival histories, photography, and film — the kind of work that, in this climate, is itself an act of institutional courage. Yomairafigueroa

Figueroa-Vásquez brought the argument against censorship into sharp relief through her own firsthand experience of censorship. Diasporic Collage: Puerto Rico and the Survival of a People — a years-in-the-making exhibition she co-curated for the Michigan State University Eli and Edythe Broad Art Museum, rooted in Frank Espada's landmark documentary photography project on the Puerto Rican diaspora. Days before its public opening, MSU upper administration demanded the exhibition be "adapted" — targeting specifically a work by artist Alia Farid based on a 1973 archival photograph from a Puerto Rican newspaper, moving it to a less visible wall and adding an unsanctioned content warning at the gallery entrance, all within thirty minutes of informing the curators. The public opening was canceled — artists, curators, and collaborators of color were told to enter through the service door while white donors and board members used the front entrance. The State News

For Figueroa-Vásquez, the incident crystallized what's at stake when heritage gets treated as something to be managed, neutralized, and safely archived away from the present tense. She noted that what MSU demonstrated was "what happens when an institution has very little understanding of the context of a place and tries to intervene ahistorically." The exhibition's guiding premise — that Puerto Rican identity and history are alive, in motion, layered with contemporary political consciousness, not a relic to be displayed at a safe distance from the present — was precisely what made it threatening.

NCAC has been front and center in this moment. In August 2025, NCAC and New York’s Vera List Center for Art and Politics released “Cultural Freedom Demands Collective Courage,” a nationwide statement of values for the field of arts and culture, signed by more than 150 cultural institutions and 275 individuals, in direct response to the NEA terminating over $27 million in grants. As NCAC’s director of arts and culture advocacy has put it, preemptively adjusting programs to appease would-be government censors will erode the integrity of our cultural institutions and the independence of the field as a whole. Artnet News

What Burroughs and Figueroa-Vásquez represent — institutions built by and for communities whose histories the state has repeatedly tried to suppress — is exactly the kind of moral clarity NCAC’s coalition is trying to galvanize across the sector. The question isn’t whether to resist. It’s whether enough institutions have the standing, the community backing, and the nerve to do it together.

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The Supreme Court’s 8-1 ruling in Chiles v. Salazar last week declared that Colorado’s ban on conversion therapy for minors, at least as applied to talk therapy, constitutes viewpoint discrimination subject to strict scrutiny under the First Amendment. Justice Ketanji Brown Jackson’s solo dissent offers a counterargument worth examining closely, not because it prevailed but because it illuminates a genuinely murky area of constitutional law: When does professional speech become protected speech? When does medical opinion become viewpoint?

The Legal Architecture

The majority opinion, written by Justice Gorsuch, builds on precedent established in National Institute of Family and Life Advocates v. Becerra (2018), where the Court set out a plain rule: “Professional speech” is not “a unique category that is exempt from ordinary First Amendment principles.” This 2018 ruling rejected California’s attempt to require crisis pregnancy centers to post notices about state-funded abortion services, framing compelled speech to professionals as triggering First Amendment concerns.

Chiles extends this logic. Gorsuch stressed that “the spoken word is perhaps the quintessential form of protected speech, which does not lose its protection simply because it can be described as therapy.” The Colorado law, which allows therapists to provide gender-affirming counseling while prohibiting efforts to change a minor’s sexual orientation or gender identity, “suppressed one side of a debate, while aiding the other,” in other words, textbook viewpoint discrimination.

The precedents Gorsuch marshals are formidable: Cohen v. California (1971), protecting a man’s profane anti-draft jacket; Holder v. Humanitarian Law Project (2010), on material support to designated terrorist organizations; Reed v. Town of Gilbert (2015), on content-based restrictions. Laws regulating speech based on “communicative content” are “presumptively unconstitutional,” triggering strict scrutiny.

Jackson’s Counter Framework

Justice Jackson opens her dissent with a century-old precedent that cuts the other way: “There is no right to practice medicine which is not subordinate to the police power of the States.” Lambert v. Yellowley (1926).

This is not an obscure citation. Lambert addressed Prohibition-era restrictions on physicians prescribing alcohol. The Supreme Court in 1926 upheld the regulation as a valid exercise of state police power over medical practice. Jackson argues that the same principle should govern here: “blocking Colorado from regulating speech uttered for purposes of providing medical treatment … opens a dangerous can of worms” and “threatens to impair States’ ability to regulate the provision of medical care in any respect.”

Jackson’s dissent also draws on Planned Parenthood v. Casey (1992), which upheld Pennsylvania’s informed consent requirements for abortion, framing medical speech regulations as “speech incident to conduct.” The distinction matters: if talk therapy is conduct that incidentally involves speech, the state can regulate it under rational basis review. If it’s “speech as speech,” strict scrutiny applies, and strict scrutiny is almost always fatal. An analogy to “speech incident to conduct” might be a physician writing a prescription - while the prescription involves putting words on paper, that’s not an exercise of free speech; it’s a state-regulated action.

The Curious Problem of “Standard of Care”

Both sides invoke “standard of care,” but the concept operates differently in malpractice law than in regulatory prohibition.

In mental health practice, there is no universally agreed-upon consensus on what constitutes “evidence” in evidence-based practice. New York State’s Office of Professions acknowledges this directly: case-based vs. experimental studies; evidence from efficacy trials as opposed to clinical experience and expertise; process therapies which emphasize practitioner competency, skills, qualities, and therapeutic alliance vs. specific techniques—all qualify as legitimate forms of evidence.

Currently, there are more than 450 schools of psychotherapy in existence. The regulatory question then becomes: How can the public be protected against harmful or useless treatments? Who separates the competent therapist from the incompetent?

The conventional answer is licensing boards, malpractice liability, and professional consensus. But professional consensus shifts. Gorsuch’s majority opinion makes precisely this point: “Not long ago, many medical experts and organizations, including the American Psychiatric Association, considered homosexuality a mental disorder.” The Court challenged the view Colorado advanced by saying that Colorado could have constitutionally enforced therapy aimed at “curing” homosexuality when that was the professional consensus, and now it wants to constitutionally prohibit the opposite practice.

The Malpractice Distinction

The majority and dissent also diverge on how malpractice law operates. Traditional malpractice allows patients to consent to treatments that depart from prevailing standards, such as experimental procedures, off-label uses, and alternative approaches. Colorado’s law, by contrast, does not allow clients to consent to practices that depart from the prevailing standard of care, while malpractice law sometimes does.

This distinction matters more than it might appear. Malpractice is retrospective: a patient harmed by substandard care can seek remedy after the fact. Colorado’s proposed ban is prospective and categorical: certain conversations are prohibited regardless of patient preference, informed consent, or outcome. One is a check on professional deviation; the other is a pre-commitment to orthodoxy.

The Grey Zone: Religion, Culture, and Therapeutic Modality

The case becomes more interesting and more philosophically fraught when you consider the actual practice of therapy across cultural and religious contexts.

Kaley Chiles, the plaintiff, describes her practice as “faith-informed counseling.” The word “religion” does not even appear in Gorsuch’s opinion (it’s formally a Free Speech Clause case), but religious conviction underlies the human drama. Chiles believes people flourish when they live consistently with “God’s design,” and some clients seek her out precisely because they want counseling consonant with those convictions.

This raises a question the Court doesn’t fully address: What happens when a patient’s paradigmatic universe includes beliefs that mainstream medicine rejects?

Consider a patient who believes in demonic possession. A chaplain working in psychiatric hospitals reports that requests for exorcism are common, and that pastoral counseling techniques often help, not by validating the belief in demons but by working within the patient’s framework. The chaplain’s approach: “Just as spiritual assessment does not require us to believe in the existence of a patient’s legendarium, neither does it require us to debunk it or explain it away. Relaxing our focus on reality/unreality questions leaves room for the patient’s theology to remain true.” Harvard Divinity Bulletin

The United States Conference of Catholic Bishops (USCCB) describes exorcism as “part of the regular pastoral care of souls,” and multiple universities now offer formal training in the practice. The Pontifical Athenaeum Regina Apostolorum in Rome runs a course examining the anthropological, phenomenological, social, theological, liturgical, canonical, pastoral, spiritual, medical, neuroscientific, pharmacological, symbolic, criminological, legal, and juridical dimensions related to the ministry of exorcism.

Is exorcism therapy? If a licensed counselor integrates prayer, scripture, and spiritual direction into their practice, as pastoral counselors routinely do, when does their speech cross from protected religious expression to regulable medical treatment? Clergy who perform pastoral counseling as part of their ministry cannot legally diagnose mental health conditions or prescribe medications, but they can counsel patients experiencing spiritual crises in ways that overlap substantially with clinical practice.

Colorado’s conversion therapy ban explicitly exempted therapists “engaged in the practice of religious ministry.” But this carve-out created its own problems: it suggests the state recognizes the speech-conduct distinction operates differently in religious contexts, even when the underlying therapeutic techniques might be identical.

With over 450 distinct psychotherapy modalities in existence—psychodynamic, cognitive-behavioral, humanistic, existential, Jungian, Gestalt, EMDR, somatic experiencing, dialectical behavioral, narrative, solution-focused, and countless variations - the question of what constitutes legitimate therapy versus harmful pseudoscience is genuinely contested.

Research suggests that “non-specific factors, such as therapist empathy and the working alliance,” may be more predictive of therapeutic outcomes than the specific modality employed. The so-called “Dodo Bird Verdict,” the finding that all psychotherapies produce roughly equivalent outcomes, remains controversial but has substantial empirical support.

Approximately 10% of patients experience worsening of symptoms following long-term treatment in psychotherapy, though it’s unclear what proportion is due to the treatment itself versus other factors. Unlike pharmacology, the potential negative effects of psychological treatments remain under-researched.

If efficacy is uncertain, harm is difficult to measure, and the therapeutic relationship matters more than the specific technique, how does a state draw defensible regulatory lines?

The Informational Marketplace vs. the Therapeutic Relationship

The First Amendment’s “marketplace of ideas” theory assumes that truth emerges from the competition of viewpoints in public discourse. This metaphor has obvious limits when transplanted to the consulting room.

The therapeutic relationship is fiduciary, not dialectical. The patient is not a consumer choosing among competing products in a marketplace; they are vulnerable, often in crisis, and dependent on the professional’s expertise and care. The asymmetry of knowledge and power is constitutive of the relationship.

Professional speech, as one Yale Law Journal essay argued, involves “fiduciary duties to their clients; such duties between speakers do not exist elsewhere in First Amendment doctrine.”

Yet the alternative, allowing states to determine what viewpoints therapists may express to patients, has its own dangers. The majority notes that its ruling applies symmetrically: a hypothetical red-state law banning gender-affirming therapy would fail for the same reasons. Justice Kagan’s concurrence emphasizes this: “Consider a hypothetical law that is the mirror image of Colorado’s. Instead of barring talk therapy designed to change a minor’s sexual orientation or gender identity, this law bars therapy affirming those things. As Ms. Chiles readily acknowledges, the First Amendment would apply in the identical way.” In principle, allowing conversion therapy makes the case for legalizing gender-affirming therapy in States that try to deny it.

The Texas Parallel Revisited

The abortion comparison illuminates the asymmetry differently. In Texas, abortion-related speech isn’t formally prohibited, but the legal architecture around abortion creates massive chilling effects. Physicians don’t know what conversations might expose them to criminal liability. The Texas Medical Association has objected that vague laws and life-in-prison penalties interfere with patient-physician relationships and prevent necessary care.

But there’s a more direct parallel now. Just weeks before Chiles was decided, Texas Attorney General Ken Paxton issued a legal opinion declaring that the state’s existing ban on gender-affirming medical care for minors also applies to mental health providers. Under his interpretation, therapists who affirm a transgender youth’s gender identity are “facilitating” illegal treatment and committing child abuse. They could lose their licenses, be barred from Medicaid reimbursement, and face criminal penalties. Paxton’s office has already used this framework to sue doctors and revoke licenses.

This is precisely the “mirror image” scenario Justice Kagan anticipated in her concurrence. A law banning talk therapy that affirms a minor’s gender identity raises identical First Amendment concerns as Colorado’s law banning talk therapy that attempts to change it. Both restrict what therapists can say based on viewpoint. Both should, under the logic of Chiles, trigger strict scrutiny.

The National Association of Social Workers in Texas has advised therapists that their counseling remains protected speech under the First Amendment. But reports indicate some therapists have already dropped transgender patients out of fear by ”complying in advance.” The chilling effect operates regardless of what courts eventually decide.

So we now have two states using opposite regulatory strategies against the same First Amendment framework. Colorado says: you cannot counsel patients toward one view of their identity. Texas says: you cannot counsel patients toward the other view. Chiles suggests both restrictions are constitutionally suspect, but only Colorado’s law was before the Court. Texas continues enforcing its interpretation while therapists navigate legal uncertainty.

The deeper problem is what this reveals about professional regulation as a site of ideological contestation. Both states claim to be protecting minors. Both invoke professional consensus, although they invoke opposite consensuses. Both subordinate the therapeutic relationship to the legal architecture surrounding it. The patient’s well-being becomes secondary to which viewpoint the state has chosen to suppress.

Jackson’s dissent warns that the ruling could be “ushering in an era of unprofessional and unsafe medical care” where some forms of treatment are effectively free from regulation. She mentions informed consent regulations specifically—requirements that medical practitioners ensure patients understand risks before undergoing treatment. If talk therapy is protected speech rather than regulable medical conduct, can states still mandate informed consent disclosures? Can licensing boards discipline therapists whose advice causes harm if that advice is constitutionally protected expression?

The American Psychological Association has raised alarms about precisely this implication. As one UCSF psychiatrist put it: “The court majority has, in effect, opened the door to protecting any harmful or toxic form of persuasion or therapy on these grounds.”

What the First Amendment Embraces

The dogmatic approach to freedom of expression has real appeal. It prevents states from declaring winners in ideological disputes by regulatory fiat. It protects dissenting views against majoritarian orthodoxy. It recognizes that professional consensus has been catastrophically wrong before and will be again.

But the First Amendment also recognizes contexts that transform speech. You cannot commit fraud and claim First Amendment protection. You cannot threaten violence. You cannot practice medicine without a license, even if your “practice” consists entirely of talking.

The question Chiles leaves unresolved: if the state cannot ban viewpoints in the therapy room, can it ban therapies that consist entirely of viewpoints? If professional licensing cannot restrict what a therapist says, what does licensing actually regulate?

The Work Ahead

Chiles remands the case to the Tenth Circuit to apply strict scrutiny. Given the medical consensus on conversion therapy’s harms, Colorado may yet prevail, or craft a more viewpoint-neutral regulation that survives review.

But the larger questions persist. How do we regulate professions whose practice consists primarily of speech? How do we protect vulnerable patients while respecting their autonomy—including their right to seek practitioners whose values align with their own?

Justice Jackson’s dissent articulates something important: “Chiles is not speaking in the ether; she is providing therapy to minors as a licensed healthcare professional.” The First Amendment is not a get-out-of-regulation-free card for everything done with words.

American Museums are Erasing History

Two of America’s most significant cultural institutions, the Smithsonian and the U.S. Holocaust Memorial Museum, are now removing, altering, or suppressing content that centers the history of racism, democratic fragility, and the experiences of marginalized communities. In both cases, the changes are happening without direct orders from the White House. The institutions are doing the work themselves.

THE SMITHSONIAN

On December 18, 2025, the White House escalated its campaign against the Smithsonian, threatening to withhold federal funding unless the institution submits its exhibition content, curatorial processes, and staff information to executive review.

The letter states that Smithsonian funds are “only available for use in a manner consistent with Executive Order 14253, ‘Restoring Truth and Sanity to American History.’” The Smithsonian receives roughly two-thirds of its budget from federal appropriations, a dependency the administration is now using as leverage.

The executive order explicitly names the Smithsonian American Art Museum’s “The Shape of Power” exhibition for stating that “societies including the United States have used race to establish and maintain systems of power, privilege, and disenfranchisement. This is not a fringe claim. It is mainstream historical scholarship. But under this framework, it becomes evidence of “divisive ideology.”

The order directs officials to ensure appropriations “prohibit expenditure on exhibits or programs that degrade shared American values, divide Americans based on race, or promote programs or ideologies inconsistent with Federal law and policy.”

Read that again: exhibitions that discuss how race has operated in American history are reframed as exhibits that “divide Americans based on race.

The White House has demanded complete digital files of all wall text and exhibition labels currently on view, draft concepts for upcoming programming, organizational charts and curatorial manuals, and names, titles, CVs, and contact information for staff at eight museums, including the National Museum of African American History and Culture and the National Museum of the American Indian, for its review. The letter insists museums convey “a positive view of American history, one which is justifiably proud of our country’s accomplishments.” Accuracy is not a consideration.

In January 2026, the Smithsonian handed over the requested materials, including digital photographs of labels, placards, and other text on public display in several galleries.

The National Portrait Gallery removed wall text next to Trump’s portrait that mentioned his two impeachments “on charges of abuse of power and incitement of insurrection.” NPR Trump is now the only president in the gallery whose display does not include extended biographical text. The portraits of Andrew Johnson and Bill Clinton still mention their impeachments.

In July 2025, artist Amy Sherald, who painted Michelle Obama’s official portrait, canceled her major exhibition “American Sublime” at the National Portrait Gallery, citing censorship. The museum had raised concerns about her painting “Trans Forming Liberty,” which depicts the Statue of Liberty modeled after a Black transgender artist. CNN

Sherald said Bunch proposed replacing the painting with a video of people discussing transgender issues—including people sharing anti-transgender views. She refused. “I cannot in good conscience comply with a culture of censorship,” Sherald said, “especially when it targets vulnerable communities.” Sherald would have been the first contemporary Black artist to have a solo exhibition at the National Portrait Gallery. Artnet News

Six of the nine public regents’ terms on the Smithsonian board end this year, allowing Trump to expand his influence before the midterms.

THE HOLOCAUST MUSEUM

The U.S. Holocaust Memorial Museum has not faced the same public pressure campaign as the Smithsonian. And yet, according to a Politico investigation published this week, it has been quietly removing content and canceling programming since 2025—preemptively, without being asked.

Two former employees told Politico they believed the museum was altering its content to avoid drawing negative attention from the Trump administration. One said: “It seems like they were trying to proactively fall in line as to not then be forced to change.”

Sometime after August 29, 2025, the museum removed a webpage called “Teaching Materials on Nazism and Jim Crow.” That page provided lesson plans about connections between American de jure racism and Nazi racial policy, including resources about African American soldiers during World War II and Afro-Germans during the Holocaust.

A 2018 video featuring a Holocaust survivor in conversation with a woman whose father was lynched in Alabama has been unlisted from the museum’s YouTube page.

A civic education workshop was renamed from “Fragility of Democracy and the Rise of the Nazis” to “Before the Holocaust: German Society and the Nazi Rise to Power.” Internal emails cited concerns about how the word “fragility” might be perceived “in the current climate.” The program was then canceled entirely in July 2025.

Museum staff told professors the cancellation was due to “limited federal funds and a difficult fundraising environment”—yet the museum’s total assets surpassed $1 billion that year, with a $52.4 million increase in net assets attributed to strong donor support. Yahoo!

The museum emphasized in a statement that “The Trump administration has not requested any changes to the Museum’s content or programming.” That’s precisely the point. The administration didn’t have to ask.

Trump had already fired Biden-appointed board members, including Doug Emhoff, Ron Klain, and Susan Rice, before their terms expired, an unprecedented move. Emhoff responded: “Holocaust remembrance and education should never be politicized. To turn one of the worst atrocities in history into a wedge issue is dangerous—and it dishonors the memory of six million Jews murdered by Nazis that this museum was created to preserve.” NPR

In March 2026, Trump installed Republican lobbyist Jeffrey Miller as chairman, replacing Stuart Eizenstat, a museum co-founder.

THE PATTERN: DEI SUPPRESSION BY ANOTHER NAME

These are not isolated incidents. They are part of a coordinated campaign to remove content that centers the experiences of Black, Indigenous, and other communities of color as historical subjects rather than background figures in a celebratory national narrative.

The Holocaust Museum’s removed materials drew direct lines between American racial terror and the Nazi regime’s policies. This is documented scholarship. The Nazis studied American segregation laws. They cited American eugenics. The connections between Jim Crow and Nuremberg are part of the historical record.

But under the current framework, acknowledging those connections becomes unacceptable because it complicates the mandated narrative that America has been “among the greatest forces for good in the history of the world.”

The Smithsonian’s National Museum of African American History and Culture is on the target list. So is the National Museum of the American Indian. The National Museum of African American History and Culture was criticized by the administration for giving too much space to the brutal reality of slavery, rather than the “success” and “brightness” of America. The Daily Beast

Trump himself posted on social media that the Smithsonian was “out of control” and too focused on “how horrible our country is, how bad slavery was and how unaccomplished the downtrodden have been—nothing about success, nothing about brightness, nothing about the future.”

ANTICIPATORY OBEDIENCE

Historian Timothy Snyder’s first lesson in On Tyranny is: “Do not obey in advance.” He writes, “Most of the power of authoritarianism is freely given. In times like these, individuals think ahead about what a more repressive government will want, and then offer themselves without being asked. A citizen who adapts in this way is teaching power what it can do.” Timothysnyder

Snyder traces the pattern to Austria in 1938: “The anticipatory obedience of Austrians in March 1938 taught the high Nazi leadership what was possible.” Literary Hub

This is what makes preemptive compliance so dangerous: it reveals what can be done, normalizes submission, and accelerates the erosion of liberty—all before anyone in power has to lift a finger.

When the Holocaust Museum removes its own content about American racism’s historical relationship to Nazi racial law, it isn’t just failing its mission. It is becoming the very case study it was built to prevent.

This is not about “divisive narratives” or “DEI ideology.” It is about whether American history can include the full humanity of people who were enslaved, lynched, segregated, and systematically excluded—and whether that history can be connected to global patterns of racial violence and democratic collapse.

The removed content centered Black lives, Black soldiers, Black victims of American terror, and Black-Jewish dialogue about shared histories of persecution. The canceled programming explored how democracies fail. The suppressed artwork depicted a Black transgender woman as the Statue of Liberty.

The question is whether institutions built to preserve and present the full complexity of American history—and to warn against the conditions that produce atrocity—will do so. Or whether they will quietly remove the parts that make power uncomfortable, and call it a “planned update.”

When the Battle Leaves the Ring

Two weeks ago, the Floyd Abrams Institute for Freedom of Expression at Yale Law School filed an amicus brief in Drake’s defamation appeal against Universal Music Group that opened with a striking analogy: A boxer who challenges the world champion, gets knocked out on live television, and then sues for battery will lose, because consent is a complete defense to an intentional tort.

The backstory is familiar: in 2024, Kendrick Lamar released "Not Like Us," a diss track that, among other things, called Drake a "certified pedophile." Drake filed suit not against Lamar but against the record label distributing Lamar’s music, arguing that UMG promoted a song containing allegations it knew were false — an attempt to frame UMG's distribution and marketing apparatus as the defaming party, rather than the artist. Alhlaw

The amicus brief argues that Drake, like a boxer facing an opponent, consented to battle. He challenged Kendrick Lamar. Drake explicitly taunted him in raps like “Family Matters,” alleging abusive behavior. When Lamar delivered a blow in response, ”Say, Drake, I hear you like ‘em young” Drake filed suit.

The legal question is narrow: Did Drake consent to the very defamation he now claims injured him?

The cultural question is ancient. Every society that values free discourse must solve the same problem: How do you permit extreme argument, the kind that attacks character, questions legitimacy, wounds reputation, without that argument escalating into violence that fractures the social order?

The solutions are old and focus on a framework where public engagement equals consent. The Greek agora. The Roman Forum. Trial by combat. The formal duel. The rules of these spaces share a common logic: opponents enter voluntarily, weapons are specified, boundaries are enforced, and what happens inside stays inside.

Much of our Western artistic tradition examines what happens when the boundaries of public debate are violated. Greek tragedy itself emerged from this tension; Aeschylus’s Oresteia tracks the transformation from blood feud to courtroom, Athena establishing the Areopagus precisely to end the cycle of retributive violence that speech alone could not contain.

Shakespeare returns to the problem obsessively: Richard II begins with the failure of ritual combat, Bolingbroke and Mowbray’s duel is interrupted by the king, the containment fails, and civil war follows. Hamlet delays action while words multiply; the play-within-a-play shows the failure of speech to keep violence from shattering the social contract. Othello shows language itself as a weapon; Iago needs no sword, only insinuation.

The operatic tradition, funded by monarchs, inherits the question. Mozart’s Marriage of Figaro stages class warfare as a combat of wits, the Count’s power checked by servants who out-argue him. The formal structures of opera—recitative giving way to aria, ensemble building to finale, mirror the legal structures of contained conflict: rules of engagement, escalation within bounds, resolution. In Mozart's La clemenza di Tito, the emperor Titus keeps it in the ring by refusing to fight. The entire drama turns on Emperor Titus's choice not to punish his adversary. His clemency is not weakness but a deliberate assertion that the sovereign's power to forgive is greater than the power to destroy. Words are enough, and the opera stages the radical proposition that the state's legitimacy rests on its capacity for restraint.

American art restages these European forms in a democratic key. Hamilton literalizes the problem: Burr and Hamilton step outside the law to settle what the law could not contain, and the tragedy is precisely that the courtroom, the cabinet, the newspaper editorial could not hold the conflict. West Side Story translates Romeo and Juliet into gang territory where the “rumble” is the ring, and crossing from insult to knife-fight marks the boundary where justice is no longer the province of civil society.

Hip-hop’s evolution from park jams to battle rap to diss tracks recapitulates this history: formalized competition as an alternative to street violence, microphones replacing weapons, reputation replacing territory. Battle rap has rules: rhyme, originality, escalation within genre conventions. Participants enter knowing they will be attacked. The attacks are understood as performance.

The “ring” used to be a neighborhood lot or a social club, and the audience was the judge. But the “ring” has morphed into a massive algorithmically driven cyberspace where the audience no longer sees each other’s faces. Now Drake seeks a remedy outside the ring. He has asked the courts to treat Lamar’s lyrics not as ritualized combat but as actionable defamation - false statements of fact that caused real harm.

The legal system’s response invokes a doctrine with a Latin name: volenti non fit injuria. To a willing person, no injury is done. You cannot sue for battery after consenting to a boxing match (or a rap battle). You cannot claim defamation after inviting the attack.

But consent has limits. A boxer consents to punches, not to being struck with an iron bar. The question becomes: Did Lamar’s accusations exceed the scope of what Drake agreed to? Are accusations of pedophilia, even in a diss track, outside the rules of engagement?

The court will decide. But the deeper issue is the one that connects the agora to the courtroom: legal language is how we draw the ring. It defines what combat is permitted, what weapons are allowed, and what happens when the bell rings.

The First Amendment protects extreme speech because democracy requires it. But protection is not the same as immunity from consequence. The ring contains the violence precisely by defining its limits. Drake stepped in. He threw punches. He took punches. Now he wants the referee to call a foul. The law will decide whether he’s right or whether he simply lost the fight.

A Grandmother, a Phallus, and the First Amendment

In Fairhope, Alabama, a town founded in the 1890s as a utopian experiment by independent thinkers, artists, and writers, a 62-year-old grandmother and ASL interpreter named Renea Gamble faces trial on April 15th for wearing an inflatable penis costume at a No Kings protest.

The costume, seven feet tall with an American flag motif, bore a sign reading “No Dick Tator.” When police ordered Gamble to remove it, she invoked her First Amendment rights. The officer’s response: “That’s not freedom of speech. This is a family town.”

What followed was caught on body camera: Gamble asking repeatedly if she was being detained, saying she’d leave if not, then being grabbed from behind and thrown to the ground as she turned to walk away. The charges have since multiplied from disorderly conduct to include “disturbing the peace” and “giving a false name.”

The city prosecutor argues Gamble “created a substantial traffic and safety hazard by dressing as a giant penis.” Her attorney, civil rights lawyer David Gespass, notes that no provision of Fairhope’s disorderly conduct ordinance actually covers her attire or actions, and that the arrest stemmed from the officer’s “own prejudices.”

The defense tried to subpoena records from a local radio poll that had elected Gamble’s costume “Alabamian of the Year,” arguing that since the charge involves obscenity, community standards are relevant, and the poll demonstrated community approval. The judge denied the subpoena.

Meanwhile, Fairhope’s mayor has declared that “profanity and obscene displays will not be tolerated,” and the same town recently stripped library funding after the Fairhope Public Library refused to relocate LGBTQ+ books to the adult section.

Gamble, now locally known as “Fairhope’s Penis Lady,” appeared last week at the most recent No Kings protest, this time dressed as an eggplant.

The underlying constitutional question remains unresolved: Can a municipality criminalize a protest costume because officials find it distasteful? The body camera footage will likely be central to the trial, documenting both what Gamble did and how police responded to it.

The Algorithm Was Always There

In 2019, Kalmyk-American poet Sasha Stiles fed a single line — “Are you ready for the future?” — into an early language model, over and over, watching what came back. The results ranged, she has said, from sublime to misogynistic. She curated thirty of the hundreds of outputs into a poetry cycle. The experiment was also a diagnosis.

Stiles argues that poetry and artificial intelligence are not opposites but expressions of the same impulse. Poetry, in her framing, is “one of our most ancient and enduring technologies” — meter and rhyme invented not for aesthetics but for information storage, a way to make vital knowledge stick across generations before writing existed. Homer’s epics, Aboriginal songlines, the griots of West Africa: oral cultures encoded cosmology, law, genealogy, and survival knowledge in rhythm and repetition because the human brain retains what it can chant. Sung narratives use the narration and rhythm of oral traditions to enhance the encoding, transferring and retrieval of vital cultural and survival information. The algorithm, Stiles suggests, is the heir to all of this. Google

This is a more provocative claim than it first appears — because if she’s right, it reframes one of the most contested questions in First Amendment law.

In 1919, Justice Oliver Wendell Holmes, dissenting in Abrams v. United States, introduced the metaphor that has governed free speech jurisprudence ever since. According to Holmes’s free trade in ideas model, the ultimate good is reached by allowing speakers to engage freely — ideas must be allowed to compete in an unregulated market, and the best ideas will ultimately get accepted. The marketplace of ideas. It is an elegant theory. It has always rested on a fiction. GW Law

The marketplace was never level. The delivery mechanism has always determined who gets to compete. Oral cultures privileged what could be sung. Print privileged what could be typeset, distributed, and afforded. Broadcast privileged what could hold mass attention. Each medium didn’t just carry the message — it determined whose message survived. Rhyme and meter weren’t neutral vessels; they were filters, amplifying the stories of cultures with the resources and traditions to encode them that way, while others were left outside the canon’s memory.

The algorithm is the newest iteration of this ancient problem — but the first one optimized not for truth or even beauty, but for engagement. And its First Amendment status is now actively contested. In Moody v. NetChoice (2024), the Supreme Court held that online platforms’ selection, ordering, and ranking of third-party content is expressive and thus protected by the First Amendment. Hogan Lovells

In other words, the algorithm curates, and curation is speech. The government cannot get its way just by asserting an interest in improving or better balancing the marketplace of ideas. The First Amendment Encyclopedia

The court’s logic has a certain internal consistency. But it produces a troubling outcome: the most powerful speech infrastructure in human history — one that shapes what billions of people see, believe, and feel — is constitutionally insulated from public accountability in the name of protecting expression. Justice Barrett flagged the edge of the problem in her NetChoice concurrence: what if a platform’s algorithm just presents automatically to each user whatever the algorithm thinks the user will like, with no regard to independent editorial judgment? Are such decisions equally expressive? Reason.com

Stiles’s intervention arrives here as something more than art. If poetry was already algorithmic — already a technology for making certain voices more memorable, more transmissible, more dominant — then the question isn’t whether AI will distort the marketplace of ideas. The marketplace was always already shaped by its delivery infrastructure. The question is whether we are willing to say that human equity and dignity require more from that infrastructure than the First Amendment, as currently interpreted, demands.

The marketplace metaphor envisions a speech ecosystem where competition among ideas, refereed by a responsible press, results in truth winning out. But the marketplace metaphor is a relic. Stanford Law School

What replaces it — and who gets to decide — may be the defining First Amendment question of the next decade.

UPCOMING EVENTS

Today, April 10, at Noon (EDT) National Coalition Against Censorship is hosting a webinar - Which Way Forward? When Ideological Pressures Threaten Institutional Values

Volunteer Lawyers for the Arts (VLA) is hosting a webinar on April 15 at 5 pm (EDT) - Freedom of Speech, the First Amendment, and the Arts

On April 17, from 5 pm (EDT) to 7:30 pm F.A.C.T. Activist Katha Cato is creating and hosting a First Amendment Corridor activation at Culture Lab.

Acknowledgement

We are always grateful for the encouragement and suggestions of our colleagues and peers.

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On Saturday, March 28, an estimated 8 million people participated in “No Kings” rallies across the country — roughly 3,300 events in all 50 states, with nearly 40 international events under the parallel banner “No Tyrants.” If the numbers hold, it would make Saturday’s mobilization the second-largest single-day protest in American history, behind only the 1970 Earth Day demonstrations. This was the third iteration of the No Kings movement, which drew an estimated 5 million in June 2025 and 7 million in October.

The First Amendment was not incidental to Saturday’s event. It was in may ways the subject. The NYPD reported that tens of thousands marched across all five boroughs without a single protest-related arrest, describing it as a demonstration of New Yorkers “peacefully exercising their First Amendment rights.” CBS News In Chicago, ACLU Illinois staff on the ground described the gathering explicitly as an affirmation of the First Amendment and the right to protest. WTTW Chicago In Rocky Ford, Colorado, one woman stood alone in front of a bank holding a sign reading “Protect the U.S. Constitution.” “I’m just exercising my First Amendment rights,” she said, as others gradually joined her. The Colorado Sun

The geographic breadth of the protests was notable. Organizers reported that almost half of all events took place in Republican-leaning areas. Texas, Florida, and Ohio each had over 100 events scheduled. States like Idaho, Wyoming, and Utah had demonstrations in the double digits, and one of the most remote gatherings took place in Kotzebue, Alaska. CNN

The White House dismissed the demonstrations as “Trump Derangement Therapy Sessions.” As of Sunday morning, the president had not commented. Yahoo! Counter-protesters in Dallas included pardoned January 6 figures Stewart Rhodes and Enrique Tarrio.

The movement’s name is constitutional in its origins. The founders’ rejection of monarchy — the principle that no individual holds power above the law or outside democratic accountability — is the foundational argument of the First Amendment itself. The right to assemble, to petition, to speak against government overreach exists precisely because the framers understood that democratic systems require active, public dissent to survive.

Saturday was evidence that a substantial portion of the country understands that.

What Gets Erased When the Grants Stop

Last week, Reveal from the Center for Investigative Reporting aired an episode worth your time: The Art Trump Doesn’t Want and the Artists Left Behind. Reporter Jonathan Jones drove Interstate 65 through Tennessee and Alabama, a year after the Trump administration abruptly canceled more than a thousand grants from the National Endowment for the Arts and the National Endowment for the Humanities totaling over $100 million.

The cancellations weren’t random. Court testimony from a DOGE staffer named Justin Fox revealed that grant descriptions were run through OpenAI’s ChatGPT, flagged for keywords including “diversity,” “equity,” “inclusion,” and “LGBTQ.” An indigenous language preservation project was classified as wasteful spending. A documentary about violence against Jewish women during the Holocaust was deemed impermissible because, in Fox’s words, focusing on “females during the Holocaust” was “inherently discriminatory.”

Jones visits Studio by the Tracks in Irondale, Alabama — a community art studio for adults on the autism spectrum — which lost the remaining two years of a $95,000 grant after receiving the first installment. He meets the Fort Negley Descendants Project in Nashville, mid-excavation of a Black Civil War-era neighborhood buried under an interstate, whose NEH grant was pulled with an email that read: “Please stop. You’re done.” He visits the Alabama Humanities Alliance, whose director now works out of a library corner because he couldn’t afford to keep the office after losing NEH funding.

The budgets of the NEA and NEH haven’t actually been cut — they remain roughly the same. What’s changed is who gets the money and what it can be used for. Approximately $34 million from the two endowments is being directed toward the president’s National Garden of American Heroes — 200 sculptures chosen from a pre-approved list. Rep. Chellie Pingree, top Democrat on the House Appropriations Subcommittee overseeing arts funding, called it “extremely dangerous territory.”

The episode ends in a library in Athens, Alabama, where a federally supported Smithsonian traveling exhibit celebrating local stories sits down the hall from shelves where books about transgender people have been relocated under new state rules, and where the head librarian lies awake, wondering whose story she won’t be able to tell next.

The Algorithm Is Not a Newspaper

David French, writing in the New York Times recently, raises legitimate First Amendment concerns about two recent jury verdicts against Meta — $375 million in New Mexico for enabling child sexual exploitation, and $6 million in California for addictive design features. His caution about constitutional overreach deserves a serious response. But his central premise doesn’t hold.

“A social media site isn’t a bottle of alcohol or a cigarette,” French writes. “It’s not delivering a drug. It’s delivering speech.” To support this, he cites Justice Kagan’s 2024 Moody v. NetChoice opinion, which compared algorithmic curation to a newspaper editor’s front page decisions — protected expressive activity.

The comparison breaks down on the facts. A newspaper editor makes choices based on newsworthiness, accountable to readers and competitors in an open market. Meta’s algorithm makes billions of individualized decisions per second, optimized for a single metric: engagement. Internal company documents, produced in litigation, confirmed that Meta’s own researchers identified a direct link between its recommendation systems and increased rates of anxiety, depression, and body image disorder in teenage girls — and that the company continued the practice anyway.

This is the evidentiary core on which the California case was built. The plaintiff’s argument wasn’t that speech harmed her. It was that a deliberately engineered behavioral system — infinite scroll, autoplay, notification frequency — was designed to maximize compulsive use in a population that included minors. French thinks the design/content distinction is a constitutional dodge. But product liability law has long distinguished between a substance and its delivery mechanism. That distinction is not alien to American law; it’s foundational to it.

We don't let cigarette manufacturers hide behind the argument that nicotine is a naturally occurring substance and that cigarettes are a delivery system. Similarly, algorithms choose what one sees based on what keeps you scrolling — and what keeps you scrolling, as internal documents from Meta have confirmed, is frequently outrage, anxiety, and compulsive comparison. The feed isn't curated like a newspaper. It's engineered like a slot machine, a delivery mechanism that keeps one hooked.

French also invokes the Founders’ marketplace of ideas as the framework at stake. But that marketplace assumed conditions that no longer exist. In 1791, the press was competitive, decentralized, and operated without algorithmic intermediaries. Today, two companies — Meta and Google — control the primary channels through which Americans encounter public information. That’s not a marketplace. It’s an infrastructure, and the question of who controls infrastructure, on what terms, and with what accountability has never been a First Amendment question alone.

The verdicts may well be modified or overturned on appeal. But the legal and constitutional framework French is defending was built for a different information environment. The question these cases force — at what point does engineered compulsion in minors constitute actionable harm regardless of the speech it delivers — is one the First Amendment, as currently interpreted, doesn’t yet have an answer for.

There's a further contradiction worth naming. When social media platforms face liability for user-generated content, they invoke Section 230 of the Communications Decency Act, which shields them from being treated as publishers — precisely because, they argue, they are neutral delivery platforms, not editorial decision-makers. But when their algorithmic curation is challenged, they claim First Amendment protection as editors exercising expressive judgment. They cannot be both. The platforms have spent thirty years arguing in court that they bear no publisher's responsibility for what moves through their systems, while simultaneously building recommendation engines that determine, at massive scale, what gets amplified and what disappears. Section 230 was written in 1996 for a nascent internet of bulletin boards and chat rooms. Extending that immunity to cover the deliberate behavioral engineering of a platform with three billion users is not what Congress intended, and several federal courts have begun to say so.

Trump’s Public Media Defunding Ruled Unconstitutional

On March 31, a federal judge delivered a significant First Amendment victory to public media, striking down a key provision of President Trump’s executive order targeting NPR and PBS as unconstitutional.

U.S. District of Columbia Judge Randolph Moss ruled that the core provision of Executive Order 14290, issued in May 2025 and titled “Ending Taxpayer Subsidization of Biased Media,” violated the First Amendment, declaring it unlawful and unenforceable, and permanently enjoining the government from implementing it. The order had directed federal agencies to terminate “any direct or indirect funding of NPR and PBS,” and set in motion a series of grant cancellations across the NEA, FEMA, and the Department of Education. NPR

The legal principle at stake was clear: the First Amendment right to free speech “does not tolerate viewpoint discrimination and retaliation of this type.” In his 62-page opinion, Moss wrote that the executive order was unconstitutional because it sought to punish NPR and PBS for speech the President dislikes, an explicit case of viewpoint discrimination. The ruling cited a 2024 Supreme Court precedent: the government may not cross the line of using “the power of the purse to punish or suppress disfavored expression.” Colorado Public Radio

The case was brought by NPR alongside three Colorado public radio stations (Aspen Public Radio, Colorado Public Radio, and KSUT) selected in part because their combined reach embodied the breadth of communities that public media serves. NPR

The ruling does not restore funding. Congress separately rescinded $1.1 billion in previously approved public media funding in July 2025, and the Corporation for Public Broadcasting has since gone out of business. But the ruling matters structurally: it establishes that a future Congress could resume public media funding, and that local stations retaining any federal support cannot be pressured on editorial content. AP

The Right to Stay Seated

The rules around enforcing students to recite the Pledge of Allegiance have been settled since 1943. In West Virginia State Board of Education v. Barnette, the Supreme Court ruled that compelling students to salute the flag or recite the Pledge of Allegiance violates the First Amendment. This is one of the Court’s most unambiguous free speech holdings. Justice Robert Jackson wrote that “no official can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” The case arose from Jehovah’s Witnesses being expelled for refusing to salute.

That didn’t protect Danielle Khalaf.

In January 2025, the 14-year-old Palestinian American quietly declined, on three separate days, to stand for the pledge at her Michigan high school in protest of U.S. support for Israel’s war in Gaza. Her teacher told her she was being disrespectful and said, “Since you live in this country and enjoy its freedom, if you don’t like it, you should go back to your country.” WRAL The ACLU of Michigan and the Arab American Civil Rights League filed a federal lawsuit, arguing the conduct violated Danielle’s First Amendment rights and created an atmosphere of intimidation that made other students fearful of exercising theirs. ACLU of Michigan

The case settled last week. The district agreed to provide First Amendment training to staff, and an insurance company paid $10,000 on behalf of the teacher. Anything in Danielle’s file suggesting her actions violated school policy will be removed. Compelled patriotism directed at a student with family ties to the conflict wasn’t a procedural slip; it’s targeted silencing. It’s also something I experienced in grade school many years ago.

They’re Coming for Dolly’s Books

A Louisville Courier-Journal opinion piece by Joseph Gerth put it plainly: Republicans in multiple states are moving to defund the Dolly Parton Imagination Library, a program that mails free, age-appropriate books monthly to children from birth through age five, and nobody on the defunding side has offered a coherent explanation for why.

The pattern is consistent. In Indiana, Governor Mike Braun eliminated the program from the state budget in 2025, after his predecessor had expanded it to reach every county in the state. IPB In Kentucky, a Republican state senator filed an amendment that would have prohibited state general fund dollars from going to the program at all. Kentucky’s funding was restored in a last-minute budget agreement this week, but the fight itself revealed the impulse. WKYT

Gerth’s point is hard to argue with. The books aren’t controversial; they cover counting, colors, animal sounds, and friendship. The cost is negligible: roughly $1.51 per book. In Indiana, the program had been credited with pushing the state from 19th to 6th in national child literacy rankings. Rolling Stone

The First Amendment dimension here isn’t about a single lawsuit. It’s about the broader pattern of defunding the infrastructure of an informed citizenry, public media, public libraries, and early literacy programs, with no stated rationale beyond culture war signaling. Access to books in early childhood isn’t a partisan issue. Treating it as one tells you something. Gerth’s Column

Revising the Privacy Protection Act

The FBI raided Washington Post reporter Hannah Natanson’s Virginia home in January, seizing her devices as part of a leaked investigation involving a government contractor. The raid was legal — which is the problem.

The Privacy Protection Act of 1980 generally forbids the government from using search warrants to raid journalists’ homes or seize their equipment, according to Freedom of the Press Foundation. Still, it has a structural flaw that’s been exploited repeatedly. At least six times in recent years, prosecutors seeking warrants failed to disclose to judges that such searches are illegal under the Act. By the time a court figures that out, the damage is done: sources are burned, devices are gone, stories are killed.

Vermont Representative Becca Balint and Oregon Senator Ron Wyden introduced legislation last week to close those loopholes, requiring the government to affirmatively cite the Privacy Protection Act in any warrant application involving journalists’ materials — and to prove an exception applies. The bill would also establish mandatory judicial review within 48 hours of any emergency seizure, and create an exclusionary rule suppressing materials that are illegally seized; something the current law conspicuously lacks. Representative Balint, Senator Wyden

The chilling effect here isn’t hypothetical. A reporter who knows their home can be raided without a judge ever being told the raid is presumptively illegal is a reporter who thinks twice about what they write, who they call, and what they keep.

Acknowledgement

We are always grateful for the encouragement and suggestions of our colleagues and peers.

NEXT STEPS: TAKE ACTION

First Amendment Friday

F.A.C.T. invites all cultural institutions, artists, and activists to post First Amendment stories, graphics, calls to action, and advice to their audience every Friday. Join our campaign by signing up here. Feel free to use our digital assets here.

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We are asking cultural venues in New York City (and across the USA) to prominently place our First Amendment poster in their public areas. Sign up to get your copy. We are also asking performance venues to share our curtain speech (or create your own).

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This Saturday, March 28, the No Kings movement returns for what organizers believe will be the largest single-day protest in American history. Many FACT members will be joining the protest in NYC. Join us.

The first No Kings rally in June 2025 drew an estimated 5 million people across more than 2,000 protests. By October, that grew to roughly 7 million across 2,700 events.Over 3,000 protests are now scheduled for Saturday, with organizers guided by the “3.5% rule” of nonviolent social change, the research-backed threshold at which sustained mass movements historically succeed in forcing political change.

The coalition, led by Indivisible, MoveOn, the AFL-CIO, and the ACLU, has broadened its frame with each mobilization. The March 28 protests were originally organized in opposition to ICE operations and the Trump administration’s authoritarian drift, but after the beginning of the Iran War, organizers expanded their message to include opposition to this “senseless war.”

The First Amendment stakes are real and immediate. The No Kings Coalition launched an “Eyes on ICE” training program equipping Americans with tools to safely monitor federal enforcement actions — the first training drew over 200,000 viewers. The ACLU has been running know-your-rights trainings specifically for protest attendance this week. ACLU

Brookings researchers who have surveyed protesters at every major demonstration note a significant shift: the movement is getting less female and more demographically diverse, and the share of protesters rejecting political violence outright has risen sharply to 59% by October. This is a mainstream, constitutional moment.

Find your local event at nokings.org

Ohio Pushes a Drag Ban

Ohio House Bill 249 — cynically branded the “Indecent Exposure Modernization Act” — is moving fast. A committee vote could come as early as March 25. Drag performers could face felony charges if a juvenile attends a performance deemed “obscene,” with penalties escalating based on the age of any minors present.

But the bill’s reach goes well beyond sequins and stage lights. The legislation specifically targets “performers or entertainers who exhibit a gender identity different from their biological sex” — language broad enough to criminalize a trans person singing karaoke. The executive director of TransOhio warned the bill could “encompass everything from a trans person singing, doing karaoke to drag performers dressed extremely modestly.” Source

On March 18, Corey Williams — Miss Gay Ohio 2026, performing as Anisa Love — showed up at the Ohio Statehouse in full drag to testify against the bill. He’d been performing for 26 years. Rep. Josh Williams, one of the bill’s sponsors, had been “animated and aggressive” with other witnesses — then walked out when Corey’s turn came, returning only after his questioning was done.

The moment crystallized what’s actually happening here. Equality Ohio condemned the legislation as “censorship” and “a blatant attempt by politicians to suppress cultural expression under the guise of protecting children.” Meanwhile, one of the bill’s 42 co-sponsors was himself accused of sexual misconduct involving a minor relative — allegations a prosecutor called “concerning and suspicious.” Tiffinohio

The First Amendment doesn’t have a dress code. When the state criminalizes gender expression in public space, it’s not protecting children. It’s policing identity.

Title VI vs. the First Amendment

A federal judge in Illinois just drew a clear constitutional line that the current political climate has been trying to erase.

In Canel v. Art Institute of Chicago, Judge Georgia Alexakis dismissed a Title VI hostile environment claim brought by Shiran Canel, a Jewish and Israeli student at the School of the Art Institute of Chicago, who alleged that campus protests and anti-Israel speech following October 7, 2023, created a discriminatory environment. The ruling, covered by First Amendment scholar Eugene Volokh in Reason, is a careful, doctrinally grounded decision — and a crucial one. Title VI of the Civil Rights Act of 1964 is a landmark federal law prohibiting discrimination on the basis of race, color, or national origin in any program or activity receiving federal financial assistance.

The court drew the essential distinction at the heart of campus speech law: the difference between speech on matters of public concern directed to a community at large, and targeted personal harassment of specific individuals. Flyers in hallways, open letters, walkouts, social media posts, and petitions,however offensive their content, fall squarely in the first category. They are constitutionally protected.

The ruling acknowledges genuine discomfort with some of the speech involved. One faculty member’s social media posts were, by any measure, vile. But the court applied the correct standard: the First Amendment “protects the freedom to express the thought that we hate.” The key question isn’t whether speech is offensive — it’s whether it constitutes targeted, personal harassment or interferes with someone’s access to education.

Crucially, the court also rejected the idea that Title VI could be used to demand that a university adopt a particular viewpoint. “Title VI is not a portal for students to litigate their general dissatisfaction with the conduct of administrators.”

This matters right now because the Trump administration has been wielding Title VI as a defunding threat against universities that don’t suppress pro-Palestinian speech, essentially inverting the statute’s purpose. This ruling pushes back. Protected speech is protected speech, even when it’s loud, even when it’s painful, even when powerful actors would prefer silence.

The Price of Watching

Robert Reich shares this story in a recent Substack post: The Wall Street Journal published a bombshell investigation last week by reporter Hannah Critchfield and her team. They analyzed over 200 videos, reviewed more than 100,000 government social media posts, and tracked hundreds of cases through the legal system. What they found should alarm every American who has ever stood on a sidewalk, held up a phone, or simply watched their neighbors being taken away.

Of the 279 people publicly accused by the Trump administration of assaulting ICE and Border Patrol agents, 64 percent are American citizens. Of those 181 citizens, close to half were never charged at all — and not one has been convicted at trial.

This is not a story about immigration enforcement. This is a story about the First Amendment.

Sydney Lori Reid is a 44-year-old veterinary assistant in Washington, D.C. In July, she went to a jail to witness an immigration enforcement action, believing she had a duty to document it. Federal agents grabbed her, pinned her to a wall, handcuffed her, and charged her with felony assault — a charge carrying up to 20 years in federal prison.

The government’s assault allegation rested on scrapes on an agent’s hands — scrapes that occurred in the process of handcuffing Reid. When she was arrested, Reid’s phone dropped, but kept recording. On that recording, you can hear agents debating — in real time — what the assault actually was. First, it was a raised knee. Then an elbow.

The government took her case to a grand jury. The grand jury declined to indict. They tried a second grand jury. Also declined. A third. Also declined. This is almost unheard of — and it revealed both the public’s resistance to charging her on the available evidence, and the government’s determination to bring a case anyway. Prosecutors ultimately charged her with a lesser misdemeanor that didn’t require a grand jury. Reid was acquitted at trial.

The WSJ investigation makes clear this is not rogue behavior by individual agents. Attorney General Pam Bondi, on her first day in office, issued memos directing prosecutors to aggressively pursue any violence against or obstruction of law enforcement. Then-Border Patrol Chief Gregory Bovino gave agents standing orders: “Arrest as many people that touch you as you want to. Those are the general orders all the way to the top.”

Alongside the prosecutions, DHS has used social media to amplify these allegations — posting names, mug shots, and charges before any conviction, with explicit warning messages: don’t be like this person. This Theater of Deterrence is aimed squarely at the public’s willingness to show up, watch, document, and dissent.

The First Amendment protects not just speech but the ecosystem in which speech survives: the right to assemble, to observe government action, to record public officials, and to protest. ICE agents, like all law enforcement, must respect those protections. Crowd-control tactics and arrests cannot be used simply to punish speech or penalize a particular viewpoint.

When the government arrests people for their presence — then publicizes those arrests before conviction — it engages in what First Amendment law calls a chilling effect: the suppression of protected expression not through explicit prohibition, but through fear.

To prove First Amendment retaliation, a person must show they engaged in protected expression, that the government took adverse action against them, and that their protected expression motivated that action. The Wall Street Journal investigation documents this pattern at scale across hundreds of cases as an explicit administration-wide strategy.

Courts are starting to name it. In Los Angeles, a federal court found that federal agents’ “indiscriminate use of force will undoubtedly chill the media’s efforts to cover these public events and protesters seeking to express peacefully their views on national policies.” ACLU of Illinois

In Chicago, attorneys in the “Broadview Six” case — six people facing federal charges for protesting outside an ICE facility — argued that the indictment criminalizes First Amendment rights to speech and assembly and casts a chill on “a broad and diverse social movement engaging in constitutionally protected protest activities.” Chicago Tribune

And the Brennan Center has documented something even more troubling: ICE has signed contracts worth up to $25 million for social media monitoring, facial recognition, and phone location tracking — and the administration openly states it will use these tools not just to find people to deport, but to target those who oppose ICE’s actions. The government is surveilling dissent. It is labeling protesters “domestic terrorists.” It is building lists. Brennan Center for Justice

The Journal’s investigation found that people publicly accused by the federal government — even those later exonerated — are less likely to participate in protests and less likely to put themselves in situations where their names might be tracked.

Sydney Reid put it plainly: “Those are our rights as U.S. citizens and they’re being stifled.”

The Journal’s conclusion is stark: “The Department of Homeland Security, which was created in 2002 to protect Americans, has turned its force against U.S. citizens.” The government is “chilling First Amendment expression” targeting “perceived dissenters, even if video contradicts what agents have initially claimed happened.”

This is the feedback loop the administration is engineering. Arrest enough people on thin or fabricated grounds. Publish their faces before trial. Make them spend money on lawyers, miss work for court dates, absorb death threats from online mobs. Watch the sidewalks empty.

We’ve been watching this pattern develop for months — the tattooed deportations, the detention of journalists, the surveillance of protest movements, the labeling of legal observers as agitators. Each story looks like an isolated incident. The WSJ investigation shows it is a coordinated campaign.

The First Amendment doesn’t just protect your speech. It protects your right to be there to witness, to document, to show up. That right is under direct assault by a government that has learned something important: you don’t have to ban protest to kill it. You just have to make the cost of showing up feel unsurvivable.

We cannot let them make that calculation work.

Making the World Visible

Children’s Television and the Ongoing Fight to Tell the Truth with Love

On November 10, 1969, a Black schoolteacher named Gordon walked a little girl named Sally onto Sesame Street and said: “You’ve never seen a street like Sesame Street. Everything happens here.” Within six months, the Mississippi State Commission for Educational Television voted to remove the show from state airwaves. A whistleblower leaked the reason to the New York Times: certain commissioners objected to its “highly integrated cast of children.” Alabama, Arkansas, Florida, Louisiana, and Tennessee also moved to preempt the show.

Jackson residents of all ages staged a protest in front of Mississippi Public Broadcasting’s headquarters. After 22 days, the ban was reversed. That fall, the cast toured 14 cities. In Jackson, they performed at an event co-sponsored by the same commission that had tried to ban them.

Sesame Street has been doing this for 56 years, but the battles around children’s television have not stopped. SOURCE

The Return of Reading Rainbow

After a nearly two-decade absence, Reading Rainbow returned in fall 2025 with four new episodes on Sony’s KidZuko YouTube channel, hosted by Mychal Threets — a Bay Area librarian and social media creator known for his videos about “library joy.” The four episodes accumulated nearly 5 million views. Sony Pictures Television has since ordered 24 additional episodes. Deadline

Threets grew up as a homeschooled library kid in Fairfield, California, eventually becoming supervising librarian at the same Solano County branch he’d frequented since age three. During the pandemic, he began posting videos about daily life in the library and built a following of over 1.7 million across TikTok and Instagram. One viral video captured an impromptu moment: a child who couldn’t read Spanish, then one who could, joined together to read a story aloud to a third child — a spontaneous circle of readers that earned tens of millions of views. He received the American Library Association’s “I Love My Librarian” award in 2023, selected from over 1,400 nominees nationwide. Today’s Parent

Then came coordinated online harassment. Accounts on X began cross-posting his videos with captions calling him “weird,” implying he had developmental delays, and suggesting he was a danger to children — a “dark energy” around kids. Threets responded publicly, confronting the harassment with empathy and asking his supporters not to retaliate: “Sometimes the best way to respond to people who level insults is with empathy.” Rolling Stone

Threets has been open about living with anxiety, PTSD, depression, and panic disorder. He resigned from his library position in early 2024, later disclosing that he had left intending to end his life, and that being offered the Reading Rainbow hosting role helped him “stay another day.”

Now, alongside his signature celebration of libraries, Threets says he feels an obligation to speak about book bans and the harassment of library workers. His grandparents, he notes, were not allowed to have library cards because of the color of their skin. Publishers Weekly

Ms. Rachel and the Price of Saying “All Children”

Rachel Griffin Accurso — Ms. Rachel — hosts Songs for Littles, a YouTube series teaching toddlers nursery rhymes, phonics, and emotional vocabulary. She has 16 million YouTube subscribers; some of her videos have exceeded 1.5 billion views. She has been widely described as this generation’s Mister Rogers.

Her first round of organized backlash came in 2023, when conservative influencers called for a boycott after she stated that dinosaurs existed millions of years ago and featured a cast member, Jules Hoffman, who uses gender-neutral pronouns. Hoffman never discussed gender identity with children on the show. Accurso (Ms. Rachel) took a mental health break from social media as a result of the backlash.

In May 2024, she launched a fundraiser for children in conflict zones, including Gaza, raising $50,000 for Save the Children. She spoke tearfully in a video about the “bullying” that followed, and issued the statement: “Palestinian children, Israeli children, children in the US — Muslim, Jewish, Christian children — all children, in every country. Not one is excluded." AL-Monitor

Pro-Israel groups, including StopAntisemitism, repeatedly targeted her for sharing content about Palestinian children. In late 2025, the organization nominated her for its “Antisemite of the Year” — a list that has also included Tucker Carlson and Cenk Uygur. Following the nomination, Accurso reported a spike in threats against herself and her family and said she had been forced to hire security. StopAntisemitism also formally requested that the Department of Justice investigate whether her posts constituted paid Hamas propaganda. No evidence of any such arrangement has been presented. Jewish Currents

Democratic Congressman Ro Khanna publicly rejected the antisemitism accusation, stating, “Ms. Rachel is a preschool teacher who speaks up for starving children in Gaza. That is not antisemitism.” Accurso has not stopped. She met with Rahaf, a three-year-old double amputee from Gaza, and posted images of the visit. She told an interviewer: “I think it should be controversial to not say anything.” AL-Monitor

What connects Mississippi 1969 to the harassment of Mychal Threets to the attacks on Ms. Rachel is a consistent pattern: attempts to narrow what children’s media is permitted to show, and who it is permitted to include. The targets change; the mechanism is the same.

Children’s programming has always operated at the intersection of education, culture, and power. Threets frames his own work in explicitly historical terms — his grandparents’ exclusion from public libraries was living memory when Reading Rainbow first aired in 1983. The Sesame Street cast toured the American South in 1969 to audiences who had never seen a television neighborhood that looked like theirs. Publishers Weekly

The Law Is in Motion

The legal front on children’s access to books and stories is as active as it has ever been, and the outcomes are mixed. Courts have repeatedly affirmed that the First Amendment limits the government’s power to remove books from libraries based solely on content or viewpoint. In Little v. Llano County (2024), the Fifth Circuit initially upheld a preliminary injunction requiring a Texas public library to restore books removed at the direction of county officials — titles ranging from histories of the Ku Klux Klan to young adult novels featuring LGBTQ characters — finding that county officials had likely violated the First Amendment by removing the books based on their contents and messages.

The Supreme Court declined to hear the case in December 2025, however, leaving in place the Fifth Circuit’s en banc reversal and allowing state and local governments broader authority to remove books from public library shelves. PEN America, which recorded nearly 7,000 instances of banned books in the 2024-25 school year across 23 states and 87 school districts, called the Supreme Court’s inaction a signal that “state and local governments” may now “exert ideological control over the people with impunity.” On the other side of the ledger, a federal judge in Florida ruled in 2025 in Penguin Random House v. Gibson that withdrawing materials from public school libraries abridges First Amendment rights, finding that “the removal of library books without consideration of their overall value cannot be expressive activity amounting to government speech.” Publishers Weekly

The sharpest current legal tension involves not removal but access — specifically, which children get to encounter which stories. In Mahmoud v. Taylor, decided by the Supreme Court 6-3 in June 2025, the Court held that a Maryland school district violated parents’ First Amendment free exercise rights (The First Amendment’s Free Exercise Clause forbids Congress from prohibiting the free exercise of religion.) by requiring elementary school students to be present for read-alouds of LGBTQ-inclusive storybooks without offering an opt-out. Wikipedia

Justice Sotomayor’s dissent warned that the majority’s reasoning placed no meaningful limits on what school decisions could be subject to strict scrutiny, potentially extending to lessons on women’s rights, science, history, or any classroom moment that conflicts with a family’s stated religious beliefs. PEN America has documented that books by and about LGBTQ people and books about race and racism comprise the overwhelming majority of targeted titles. GLAAD

The question these cases circle — whether every child has a First Amendment interest in encountering the full range of human experience in the books available to them — remains, for now, unresolved. That work continues. So does the resistance to it.

A Librarian’s Stand

On March 16, the Rutherford County Library System board in Tennessee voted 8-3 to relocate over 190 books — primarily LGBTQIA+ children’s titles — to the adult section, and to sever ties with the American Library Association. The board framed it as an age-appropriateness measure. The review traces back to directives from Tennessee Secretary of State Tre Hargett, who ordered libraries statewide to conduct an “immediate age-appropriateness review” of children’s materials.

On March 18, RCLS Director Luanne James sent the board a letter stating that she wasn’t going to comply.

“Restricting access to these materials through subjective relocation or removal constitutes a violation of the community’s right to information and a direct infringement on the principles of free speech,” she wrote, calling the board’s vote “a clear act of viewpoint discrimination.” She argued that the relocation bypassed the library’s established reconsideration policy and that a government institution cannot legally restrict access based on the viewpoint expressed in materials.

Board Chair Cody York called it insubordination. York has scheduled a special meeting for March 30 and said he believes the matter “warrants serious disciplinary consideration, up to and including termination.”

The First Amendment framing here is precise, not rhetorical. Moving books because they depict LGBTQ+ people isn’t content-neutral — it’s viewpoint discrimination, which is exactly what the First Amendment prohibits. Local advocate Keri Lambert says: “This is about eliminating the acknowledgment that LGBTQ+ people exist.”

James has 25 years of public service, including directorships in South Carolina and Texas. She may lose her job for refusing to carry out an unconstitutional order. That’s precisely the kind of official pressure on free expression that the First Amendment was designed to prevent — and the kind of courage it depends on to mean anything. The Advocate

A Free Press Is Not a Security Risk

Last fall, the Department of Defense rolled out a press credentialing policy that amounted to a loyalty test. Reporters were required to sign a document advising them that their Pentagon access could be revoked if they were “reasonably determined to pose a security or safety risk” — including for accessing or disclosing information deemed “sensitive,” even if unclassified. Most major news organizations — CBS, ABC, NBC, CNN, and Fox News among them — declined to sign and stopped working out of the Pentagon on a daily basis. The press corps that remained was, as one judge would later note, comprised mostly of conservative outlets that had agreed to the policy. The New York Times sued in December. On Friday, March 20th, they won their case. PBS

U.S. District Judge Paul Friedman issued a sweeping 40-page ruling blocking the policy on First and Fifth Amendment grounds. The problem wasn’t just what the policy said — it was what it was designed to do. The judge found that “undisputed evidence” showed the policy’s true purpose was to weed out “disfavored journalists” and replace them with those “on board and willing to serve” the government — a clear instance of illegal viewpoint discrimination. He noted that Defense Secretary Pete Hegseth had used a “waving-hand emoji” on X in response to Times journalists refusing to sign, which hardly is the posture of neutral administration. Al Jazeera

The vagueness was also its own constitutional problem. The policy’s imprecise language could penalize routine journalistic practices, creating uncertainty that might lead journalists to self-censor to avoid losing credentials. Friedman ordered the Pentagon to reinstate press credentials for seven Times journalists and gave the department one week to file a compliance report.

The ruling lands while the U.S. is conducting military operations in Venezuela and fighting a war with Iran — precisely the moment when independent Pentagon reporting matters most. The judge said as much. A government that controls which journalists can ask questions isn’t holding press briefings. It’s producing press releases.

Acknowledgement

We are always grateful for the encouragement and suggestions of our colleagues and peers.

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Under Section 702 of the Foreign Intelligence Surveillance Act (FISA), the government engages in mass, warrantless surveillance of Americans’ phone calls, texts, emails, and other electronic communications. Information collected without a warrant can be used to prosecute people, even for crimes unrelated to national security. The First Amendment concern here is structural: it’s not just that protected speech is being read — it’s that the surveillance apparatus itself creates a chilling effect on assembly, association, and expression. Project on Government Oversight (POGO)

702 was ostensibly designed to target foreign nationals abroad. But when those foreigners communicate with Americans, Americans’ messages get collected too. The FBI then searches this database using Americans’ names, phone numbers, and email addresses — without warrants. These “backdoor searches” have been documented extensively. Stateofsurveillance

The FBI has conducted millions of warrantless searches of Section 702-acquired information to access communications of Black Lives Matter protestors, U.S. government officials, journalists, political commentators, and 19,000 donors to a single congressional campaign. That last detail — 19,000 donors — is striking because it implicates First Amendment associational rights directly. Donating to a political campaign is a protected form of expression.Brennan Center for Justice

Separate from but intertwined with 702 is what reformers call the “data broker loophole.” Data brokers who buy and sell personal data collected from smartphone applications can sell sensitive information, including a phone’s geolocation, to law enforcement and intelligence agencies — meaning police can buy the data they would otherwise need a warrant to get. Electronic Frontier Foundation

Examples of such purchases include the Department of Defense purchasing location data collected from prayer apps to monitor Muslim communities, and police departments purchasing information to track racial justice protesters. Online posts, location data, and protest activity are being aggregated into dossiers on Americans exercising First Amendment rights. ICE has been using this data to track U.S. citizens exercising their First Amendment right to protest.

The government contracts with Palantir to build software that combines surveillance data, government records, and commercial data — creating comprehensive dossiers on Americans without warrants. DOGE is now collecting data from Social Security, Treasury, OPM, HHS, VA, and other agencies into a centralized database. Section 702 data could flow right into it. This is the emerging frontier: the merger of foreign intelligence collection infrastructure with domestic data aggregation at a scale that didn’t exist when FISA was first written.

Oversite has been gutted; Trump fired the Democratic board members of the Privacy and Civil Liberties Oversight Board (PCLOB) — the only independent agency within the government charged with ensuring protection of Americans’ civil liberties — almost immediately after taking office. The board now has one part-time member and lacks a quorum to begin new investigations or issue reports. At exactly the moment when the reauthorization debate is heating up, the independent watchdog is effectively disabled.

Here is What’s Happening Right Now in Congress

Section 702 will sunset on April 20, 2026, absent further reauthorization. Congress has a few weeks to debate and decide whether this warrantless surveillance of Americans continues. The Trump White House wants a clean extension — no reforms, status quo preserved.

Senators Mike Lee (R-UT) and Dick Durbin (D-IL) introduced the bipartisan SAFE Act (not the SAVE Act), which would reauthorize Section 702 while requiring a warrant before accessing the content of Americans’ communications, closing the data broker loophole, and fixing the overbroad ECSP definition that currently could compel almost any business or nonprofit with email to cooperate with government surveillance. Mike Lee

The warrant requirement failed by literally one vote last cycle — an amendment to close the backdoor search loophole failed in the House 212-212.

A more comprehensive bill, The Government Surveillance Reform Act (Wyden/Lee) is also in play: it reauthorizes Section 702 for four years with a warrant requirement, bans government purchase of Americans’ data from data brokers without a warrant, prohibits reverse targeting, and repeals the controversial 2024 RISAA expansion that allows the government to force millions of Americans and companies to secretly spy on its behalf. U.S. Senator Ron Wyden

Congressional investigations by the Church and Pike Committees revealed in 1976 that the FBI, CIA, and NSA had illegally spied on civil rights and anti-war advocates for decades based on tenuous claims of Soviet influence. Most notoriously, the FBI spied on and attempted to blackmail the Rev. Martin Luther King Jr. The current moment explicitly invokes that history.

Eid Mubarak — And a Reminder the Founders Were Clear

To the millions of American Muslims celebrating Eid al-Fitr today, marking the end of Ramadan with prayer, charity, and the company of people you love, Eid Mubarak.

This year, the celebration arrives under conditions that demand we say something plainly. For many decades, American Muslims have been subjected to warrantless surveillance, their mosques monitored, their communications swept up in intelligence dragnets, and their prayer app location data sold to federal agencies without warrants. CAIR documented 8,683 complaints of anti-Muslim discrimination in 2025 alone — a record high. Members of Congress have posted that “Muslims don’t belong in American society” with no meaningful censure from leadership.

CAIR and other organizations work tirelessly to bring this into public consciousness. But awareness isn’t enough. Anti-Muslim bigotry needs to be named, refused, and politically costly — the way antisemitism is — not managed quietly as a minority concern.

As I wrote last week, the founders were explicit about this. Thomas Jefferson, writing about his Virginia Statute for Religious Freedom (one of only three accomplishments he asked to be carved on his tombstone), celebrated that its protections were written “to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and the Muslim, the Hindu, and infidel of every denomination.” The founders used Muslims as the explicit test case for whether American pluralism was real.

Two hundred and thirty years later, that test is still running. As Congress decides whether to renew a surveillance law documented to target Muslim communities without warrants, American Muslims gather in public squares for Eid prayer — the most fundamental First Amendment act there is.

When Artists Are the Target

ARC (Artists at Risk Connection) tracks what happens to cultural workers when governments decide dissent is dangerous. ARC has just published a memorial for more than 25 Iranian artists confirmed killed during the regime’s crackdown on protesters. They receive an average of fifteen urgent requests for protection every week. Each one represents an artist whose work the state found threatening enough to act against. Launching an illegal war against the regime that killed those artists was not the answer.

ARC’s National Artist Safety Survey of 1,500 U.S.-based artists found that 87% reported increased threats to artistic freedom in the past year. That’s here in the country whose First Amendment provides the most robust free expression protections in the world, on paper.

The First Amendment doesn’t only protect speech. It protects the conditions that make speech possible — the funding infrastructure, the associational networks, the freedom from surveillance and immigration consequences that allow artists to work without calculating the cost of what they say.

When NEH grants are cancelled by executive fiat, when the IRS threatens universities that platform disfavored speakers, when immigration enforcement targets students for political expression on campus, the harm isn’t only to the individuals directly affected. It’s to everyone whose creative work becomes more cautious in response. Courts call this the chilling effect. It doesn’t require a prosecution to be real.

ARC’s global framework makes something visible that domestic coverage tends to obscure: artists are not incidental casualties of political repression. They are primary targets, because their testimony, witnessing, and creativity are a profound form of power, because their imagination of alternatives threatens authoritarians.

Government Weaponizes Prejudice

In December, Florida Governor Ron DeSantis signed an executive order designating CAIR — the Council on American-Islamic Relations, one of the largest Muslim civil rights organizations in America — a “foreign terrorist organization.” The order directed every Florida agency to deny contracts, employment, funds, and benefits to CAIR and anyone providing it “material support.” Almost immediately, a Florida production company withdrew from a podcast agreement with CAIR. A Muslim federation disinvited CAIR from a conference. The chilling effect was immediate.

On March 4th, U.S. District Judge Mark Walker blocked the order. In his ruling, Walker wrote: “Once again, Florida chooses political posturing over the First Amendment.” He found that the governor’s decree coerced third parties to disassociate from CAIR — closing avenues of expression and suppressing protected speech. The doctrine he applied recalled the Supreme Court Vullo decision: government cannot do indirectly what it is barred from doing directly. You cannot suppress speech by threatening everyone who platforms it. Religion News

Meanwhile in Texas, Governor Abbott and AG Ken Paxton have effectively excluded Muslim families from the state’s education voucher program — $10,000 per child in annual tuition assistance — available to parents at religiously affiliated private schools, so long as those schools are not Islamic. A parent of two children at an Islamic private school north of Houston has now sued Paxton in federal court on constitutional grounds. Courthouse News Service

The pattern is deliberate and the doctrine is clear: when government withholds public benefits based on religious identity or political viewpoint, it violates both the Free Exercise Clause and the First Amendment’s prohibition on viewpoint discrimination. As the Courthouse News columnist noted, barring Jews from practically everything was one of the first things Hitler did when he took power. Florida and Texas aren’t burning books yet — but they are designating civil rights lawyers as terrorists and denying Muslim children the same educational benefits given to Christian children. The phrase “Nazi Lite” is apt. Courthouse News Service

NYU Pays to Book Approved Artists

NYU’s student Program Board is speaking out: administrators barred them from booking artists affiliated with No Music For Genocide — a coalition of over 1,000 musicians and labels who have blocked their music from being played in Israel — for the university’s biggest annual concert, V100.

When students said they might not be able to move forward with the event under those restrictions, administrators immediately offered an additional $30,000 in funding.

Program Board President Josef Dunlap says the school never gave a clear reason for the ban. “It was always very vague — like, ‘to make sure they don’t have a past that would harm NYU’s reputation.’” Artists that were off the table included Blood Orange, Fontaines D.C., and Faye Webster. The concert ultimately featured Atlanta rapper JID and electronic duo The Hellp, and cost upward of $200,000.

The university says it was simply following “longstanding policy,” and one Student Government Association leader suggested Executive Order No. 157 — a 2016 New York directive barring state entities from funding BDS-affiliated initiatives — may have legally obligated the restrictions.

But students see a pattern. The 2024 V100 featured artists who publicly criticized NYU’s ties to Israel. Two months later, the university canceled the Program Board’s Strawberry Festival — on the day of the event, hours after authorizing arrests at a pro-Palestinian encampment on campus. NYU also canceled 13 affinity graduations before walking that back after student pushback.

The Program Board’s statement closed with a pointed line: “NYU cannot promote diversity, belonging and community while rolling back the structures that make those values real.” SOURCE

Grammarly has an Identity Problem

Last week, Grammarly’s parent company Superhuman quietly launched an “Expert Review” feature — a paid add-on that promised users editing feedback styled after real, named journalists and writers. For $12 a month, you could get a critique framed as coming from investigative journalist Julia Angwin, or novelist Stephen King, or tech journalist Kara Swisher. None of these figures had been consulted about their inclusion. PRF Law

The backlash was swift. Casey Newton, founder of the newsletter Platformer, fed one of his own articles into the tool and received feedback from Grammarly’s approximation of Kara Swisher — suggestions so generic they raised the question of why the company would bother using real names at all. He forwarded the output to the actual Swisher, who was not amused. The feature was pulled. And on the same day it came down, a class-action lawsuit landed in the Southern District of New York.TechCrunch

The suit alleges Grammarly violated New York and California laws requiring a person’s consent before using their name for commercial purposes. The complaint specifically invokes California’s right of publicity statute, which bars commercial use of a person’s name or likeness without prior consent. Angwin, who described the experience as a form of digital cloning, is the only named plaintiff so far, but the class is described broadly — potentially hundreds of writers and journalists. FilmoGaz

The Grammarly story is being framed primarily as a right-of-publicity case — consent, commercial use, the unauthorized harvesting of a journalist’s professional identity to sell a subscription product. That framing is legally correct. But it undersells the deeper First Amendment stakes.

What Grammarly’s “Expert Review” feature actually commercialized wasn’t just a name or a likeness — it was a voice. Angwin, Swisher, King: these are figures whose authority derives from decades of cultivated perspective, editorial judgment, and the public trust built through independent work. Attaching their names to algorithmically generated generic feedback isn’t just appropriation — it’s a form of ventriloquism that degrades the very thing it claims to offer. When Casey Newton fed his own article into the tool and received back a simulation of Swisher that Swisher herself found unrecognizable, the product wasn’t just useless. It was corrosive — a commercial counterfeit of critical voice.

This matters for press freedom in a specific way. Journalism’s authority rests on the public’s ability to distinguish one voice from another — to know that Kara Swisher’s or Julia Angwin’s analysis carries the weight of her actual investigative practice, and that attaching her name to something means she actually said it. Tools that simulate named journalists as interchangeable style filters erode that distinction at scale. They normalize the idea that a byline is a brand rather than a guarantee of individual accountability. At a moment when the press is already navigating AI-generated misinformation, synthetic quotes, and deepfake video, the casual commercial simulation of real journalists’ critical voices isn’t a minor IP dispute. The lawsuit will likely settle. The feature is already gone. But the logic that produced it hasn’t.

When the Story Gets Cut: Pixar, Self-Censorship, and the First Amendment We Don’t Talk About

Pete Docter’s comment this week — “We’re making a movie, not hundreds of millions of dollars of therapy” Variety— was offered as an explanation for why Pixar removed LGBTQ+ content from Elio, its 2025 box office flop. As a business rationale, it’s at least honest. As a statement about storytelling, it’s worth unpacking — because it reveals something important about the kind of speech that never makes it to court but shapes the cultural landscape just as surely as any government decree.

The First Amendment protects against government censorship. Pixar is a private company; Disney is its parent. No constitutional violation here. But the FACT frame is about the culture of free expression — and corporate self-censorship driven by political pressure is part of that story.

Elio originally featured a storyline reflecting director Adrian Molina’s own experience growing up gay, including a scene where the lead character imagines raising a child with his male crush. Deadline After poor test screenings and pressure from above, the character was “masculinized,” Molina was replaced, and the queer content was excised. This followed Disney’s earlier capitulation to Florida’s “Don’t Say Gay” legislation — and a similar removal of a transgender character from the Pixar animated series Win or Lose. NewsBytes

What Pixar employees wrote in 2022 still stands as the most direct account of the dynamic: “Nearly every moment of overtly gay affection is cut at Disney’s behest.” That’s not the market speaking — that’s a corporate parent responding to legislative and political pressure and then calling it audience research.

The therapy framing is particularly telling. It implies that depicting a gay child’s ordinary inner life — not activism, not didacticism, just a kid imagining his future — is some kind of clinical intervention requiring parental consent. By that logic, every Pixar film about loss, longing, grief, or the fear of being forgotten is also therapy. Up is therapy. Inside Outis therapy. The difference, apparently, is whose interiority counts as universal.

A former Pixar staffer put it simply: “The Elio that is in theaters right now is far worse than Adrian’s best version of the original.” World of Reel The film bombed anyway.

The First Amendment principle at stake isn’t legal — it’s cultural. A healthy expressive ecosystem requires that storytellers, including those working within corporate structures, have room to tell personal truths. When market pressure and political climate conspire to make certain lives invisible in children’s media, the chilling effect is real, even if no law was broken.

What Stories Tell Us About Democracy

Several FACT members attended a recent online presentation hosted by the Committee for the First Amendment about the value of storytelling to protect our rights.

Seventy percent of Americans can’t pass a basic civic literacy quiz. Only 59% received formal civic education in school. And roughly 42% now actively avoid the news. These aren’t just educational failures — they’re signals that the formal channels of democratic communication have lost much of their audience.

This raises a First Amendment question we don’t ask often enough: if protected speech is the lifeblood of democracy, what happens when people have tuned out the conversation entirely?

That’s the animating concern behind Imagining 2076, a multi-phase research initiative from Democracy 2076 and Harmony Labs. The core question is straightforward: how can the stories we tell about democracy and the future empower Americans to reimagine it for the next generation? The answer they’ve arrived at points squarely at Hollywood.

The researchers coded 2,000 of the most popular shows and films for relevance to democracy and authoritarianism. One finding stood out: on any given day, 58% of the scripted streaming that people watch is government-relevant. People’s views on government and democracy are shaped by Netflix, HBO, and Prime Video, not civics class or the news. There has been a measurable increase in depictions of authoritarian tactics in portrayals of government — Scandal, House of Cards, Veep — and a corresponding decrease in portrayals of representative, responsive, and effective government, like The West Wing. Shorthandstories

For the 42% of Americans who actively avoid political news, entertainment media is their civic education. Shows like Scandal, where election rigging and government corruption are normalized across six seasons, created a mental framework that made false claims about voting machines feel plausible to millions.

Phase 1 of the research (released January 2025) established the landscape. Phase 2 went further. The team created 30+ original storylines, each tailored to an audience’s preferred hero journey, running more than 20 tests with over 10,000 people through randomized controlled trials to understand which story elements most reliably affected beliefs about democracy, sense of agency, and the ability to imagine a better future. Harmony Labs

What they found complicates the usual assumptions about audiences and politics. Democracy stories aren’t boring or one-note; they look different for every audience, who hold distinct and different values. They determined that the stories that work need to focus on people’s values, not their politics. Their analysis mapped four hero archetypes — the insider-transformer, the outsider-transformer, the insider-restorer, the outsider-restorer — each corresponding to different visions of how systemic change happens and who gets to make it.

Their recommendations for storytellers: start with a broken system that needs fixing; show ordinary people exercising power; offer a positive vision of the future. Not utopia. What Democracy 2076 calls “pro-topian” futures — strategies to inspire renewed faith in democracy that move people to action. Near-future imaginings grounded enough to feel achievable.

The project doesn’t advocate for propaganda. It advocates for awareness — helping writers, showrunners, and content creators understand that the stories they tell function as an invisible civic curriculum, whether or not anyone intends it that way.

If we think about the First Amendment as infrastructure, free expression isn’t just a legal protection — it’s the architecture through which democratic culture either flourishes or atrophies. The Democracy 2076 / Harmony Labs research makes vivid what that means in practice: that the health of self-governance depends not only on what speech is legally permitted, but on whether the culture that carries democratic meaning is actually reaching people — and whether what it’s carrying makes them feel like actors in the story, or spectators waiting for it to end.

Police vs. Lemon Pound Cake

In August 2022, heavily armed Adams County, Ohio sheriff’s deputies raided the home of rapper Joseph Foreman — known as Afroman — acting on a tip from a confidential informant. They found nothing. No drugs, no charges. They left, but not before causing significant damage: a broken gate, a broken front door, and, according to Foreman, $400 missing from the cash they seized and later returned.

Foreman did what any artist might do: he made music about it. His video for “Lemon Pound Cake” used his own home security footage of the raid and went viral, with over 3 million YouTube views. He put deputies’ faces on merch. He turned their failed raid into a cultural moment.

Seven deputies responded by suing him for defamation and invasion of privacy, collectively seeking nearly $4 million in damages. They claimed the videos caused emotional distress, public ridicule, and even death threats. They also sought to bar him from using their likenesses in future work.

The ACLU filed an amicus brief calling it a classic SLAPP suit — strategic litigation designed to silence criticism of public officials. After the judge dismissed several claims before trial, the remaining ones went to a jury this week.

After just hours of deliberation on Wednesday, the jury sided entirely with Afroman, clearing him of all liability. “In all circumstances, the jury finds in favor of the defendant,” said Judge Jonathan Hein. “No plaintiff verdict prevailed.”

Outside the courthouse, Foreman put it simply: “I didn’t win. America won. America still has freedom of speech. It’s still for the people, by the people.”

His politics aside (he is alleged to be a MAGA Trump supporter), the case was never really about one rapper and one raid. It was about whether citizens — especially artists — can use their own cameras, their own platforms, and their own voices to criticize law enforcement without being dragged into years of costly litigation for doing it. This week, a jury answered that question clearly. SOURCE

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Rebecca Solnit has a way of reorienting your thinking so quietly you don’t notice it happening until you’re already somewhere new.

In this recent interview, she does it again — this time around the question of political leadership and resistance. When asked why no single figure has emerged as the definitive counter to Trump and Trumpism, Solnit reaches for something Thich Nhat Hanh said near the end of his life: the next Buddha will be the Sangha — the community of practitioners. Not a savior. The community itself.

It’s a framework that cuts against every muscly-guy-in-spandex story we’ve been trained to tell about how change happens. What happened in Minneapolis, LA, Chicago, and throughout our country over the past year has been a story of community rising against fascism. Leadership is important, and the voices that galvanize us into action are essential, but communal action is the hero. That’s worth sitting with, especially right now.

For those of us in the First Amendment space, this lands with particular weight. The rights enshrined in the First Amendment — speech, assembly, petition, press, religion — are structurally communal. They’re not designed for heroes. They’re designed for us. The freedom to gather, to speak both individually and collectively, to demand redress — these are tools built for exactly the kind of distributed, unglamorous, often female-coded organizing that Solnit describes as the actual engine of change.

Solnit also offers something that functions as a kind of diagnostic: despair and amnesia go together. And so do hope and memory.

That is, more or less, why FACT exists — to keep the memory of what these rights mean and what they cost, alive and usable.

Watch the full interview. It’s worth your time.

When Fiction Becomes a Death Sentence

The idea that art corrupts — that violent or transgressive expression is evidence of a dangerous mind — has a long American history. In 1954, psychiatrist Fredric Wertham testified before Congress that comic books were causing juvenile delinquency, leading to industry censorship and the Comics Code Authority. In 1985, Tipper Gore and the Parents Music Resource Center brought Senate hearings targeting heavy metal and rap lyrics, producing the now-iconic Parental Advisory label and a national debate about where creativity ends and criminal influence begins. In each case, the art was treated as a gateway to anti-social or criminal behavior, and its creators as suspects.

Rap has absorbed the lion’s share of that suspicion. Since the early 1990s — when NWA’s Straight Outta Compton drew FBI scrutiny and Ice-T’s “Cop Killer” prompted calls for criminal prosecution — prosecutors have used rap lyrics as courtroom evidence. A 2014 study published in the University of Missouri-Kansas City Law Review found that defendants whose rap lyrics were introduced as evidence were convicted at significantly higher rates than those in comparable cases without lyrics. The ACLU documented dozens of cases in which fictional rap verses were used not to establish facts about a crime, but to paint a portrait of character, most of them involving Black defendants.

New York State passed legislation in 2023 restricting the use of rap lyrics as criminal evidence, one of the first such laws in the country. The federal picture remains unaddressed.

Broadnax v. Texas brings that unresolved question to the Supreme Court. James Garfield Broadnax, sentenced to death in 2009 for a double homicide near a Dallas music studio, had over 40 pages of his handwritten rap lyrics submitted during sentencing to a nearly all-white jury — not as evidence related to the crime itself, but to argue he posed a “future danger,” a requirement under Texas capital law. His execution is scheduled for April 30, 2026.

In March 2026, Travis Scott, Killer Mike, T.I., Young Thug, Fat Joe, and a coalition of music scholars and arts organizations filed amicus briefs urging the Court to take the case. The briefs argue that rap lyrics are a fictional form with established conventions of persona and bravado, and that their use in capital proceedings — particularly before predominantly white juries — activates racial bias rather than illuminating fact. Scott’s filing, led by attorney Alex Spiro, invokes the First Amendment’s protection of creative expression. Killer Mike’s brief connects to the 2019 “Hip-Hop Brief” he helped organize in Commonwealth v. Knox, which brought artists including Meek Mill and Chance the Rapper before the Court to contextualize the genre’s conventions. Source

The question the briefs put forward is one American courts have never fully settled: whether fictional violence, written in an art form created largely by Black Americans, can be used as evidence of who a person is. The same standard is never applied to horror novelists, crime writers, or method actors who portray the same darkness for predominantly white audiences.

Immigration as a Censorship Tool

In May 2025, Secretary of State Marco Rubio announced a visa restriction policy targeting individuals deemed “complicit in censoring Americans.” By December, the State Department had instructed consular officers to screen visa applicants — particularly H-1B holders — for work in fields including misinformation research, fact-checking, content moderation, and trust and safety. The mechanism is immigration enforcement. The effect is a chilling silence on American campuses and in research institutions.

In March 2026, Columbia University’s Knight First Amendment Institute and the nonprofit Protect Democracy filed suit on behalf of the Coalition for Independent Technology Research (CITR), challenging the policy as unconstitutional viewpoint discrimination. The lawsuit names Rubio, Attorney General Pam Bondi, and Homeland Security Secretary Kristi Noem as defendants. Among those already affected: Imran Ahmed, who leads the Center for Countering Digital Hate, and Clare Melford, executive director of the Global Disinformation Index — both had visas revoked or restricted.

The documented effect on these researchers is stark. An adjunct professor studying online harms to children has left the country. A content moderation expert with permanent resident status has quietly shifted their research to “more politically neutral” topics and stopped traveling internationally. A professor who studies media and American politics has stopped writing op-eds and canceled public events for a book on disinformation — worried a visa denial is the price of visibility.

The State Department’s position is blunt: “A visa is a privilege, not a right.” What goes unaddressed is that the reason for denial is the content of someone’s work. This is precisely what the First Amendment prohibits the government from doing. The administration has effectively created a category of protected speech that can cost a noncitizen their ability to remain in the United States.

First Grader Drawing Became a First Amendment Case

In 2021, a six-year-old White student named B.B. at Viejo Elementary in Mission Viejo, California, made a drawing after her class read about Martin Luther King Jr. Four oval shapes in different skin tones — she said it was her friends holding hands. She wrote “Black Lives Mater” (first-grade spelling), then added “any life,” and gave it to a Black classmate.

The Black classmate’s parent complained to the principal, who made B.B. apologize, banned him from giving drawings to classmates, and excluded him from recess for two weeks.

Her family sued, and a lower court ruled in favor of the school district. Last week, a 9th Circuit three-judge panel reversed that, sending the case back down — and in doing so, made a ruling that’s bigger than one child’s drawing: elementary school students have First Amendment rights. Courts have long applied the 1969 Tinker v. Des Moines standard to student speech (schools can restrict expression only when it causes “substantial disruption” to the learning environment), but it had never been squarely applied at the elementary level. This panel said it applies — with age as a relevant factor — and that the school bears the burden of justifying its restrictions.

What makes this case strange and worth sitting with: the school’s response managed to turn an act of six-year-old solidarity into both a censorship incident and, in the principal’s framing, a racial provocation. The White child who wrote “Black Lives Matter” got punished for racism. The case isn’t over — it goes back to district court — but the constitutional principle just got extended to the youngest students in the system. Source

The Fate of the First Amendment

In her Substack, Former U.S. Attorney Joyce Vance uses two recent press freedom incidents to argue that the First Amendment is being quietly dismantled, one “petty” restriction at a time.

On March 11, 2026, the Pentagon barred press photographers from Defense Secretary Pete Hegseth's briefings on the ongoing war in Iran — not for any security reason, but because his staff objected to published photos of him that they considered unflattering. The move drew immediate condemnation from press freedom advocates as a textbook example of image management masquerading as policy. The ban continues a pattern: earlier, the White House excluded the Associated Press from press pool events after the AP declined to adopt the administration's preferred term "Gulf of America" for the Gulf of Mexico. Taken together, these restrictions represent a shift from traditional press access norms — where credentialed journalists and photographers cover government officials as a matter of public record — toward a model in which access is treated as a privilege contingent on favorable coverage.

The Pentagon has not offered a formal justification beyond staff displeasure with the images, which themselves were taken at official government events.

These actions avoid formal censorship while achieving its practical effect — controlling the image of power by controlling who gets close enough to see it. That’s Vance’s point. The First Amendment is being eroded, not through dramatic repeal, but through incremental exclusions that each get waved off as minor prerogatives of executive power — until the press can only cover what it’s permitted to see, and the distinction between a free press and a managed one disappears. This is what the slow death of press freedom looks like.

“King of the World”

The guerrilla art collective calling itself The Secret Handshake has placed its third unauthorized sculpture on the National Mall — a gold-colored piece titled King of the World depicting Donald Trump and Jeffrey Epstein embracing on a recreation of the Titanic‘s bow, posed in the iconic arms-wide scene from James Cameron’s film.

It’s the latest in a series: the group previously installed a massive replica of Trump’s handwritten birthday note from to Epstein, and before that a bronze sculpture called Best Friends Forever showing the two holding hands. The collective said in a statement that 2026 has been “a banner year for President Trump” — delivered with obvious irony.

The anonymity of The Secret Handshake is itself part of a tradition. Guerrilla public art, from Banksy's stenciled walls to the inflatable "Baby Trump” balloons, has long operated in the space between protected speech and trespass, where the legal exposure of signing your name could silence the work before it lands. The First Amendment protects political expression, but not unauthorized installation on federal property. The risk is part of the message, and anonymity is what makes the risk sustainable. There's a long lineage from the unsigned pamphlets of the Revolutionary era to ACT UP's public interventions in the AIDS crisis of movements using unsigned, unsanctioned art to say what permitted channels won't carry. The Supreme Court has repeatedly affirmed the right to anonymous political speech.

DOGE, the NEH, and the First Amendment

The deposition videos were posted publicly on YouTube. Six hours of testimony from Justin Fox, a former investment banker, and tech entrepreneur, Nathan Cavanaugh, who joined DOGE and helped dismantle the National Endowment for the Humanities. They’ve been making the rounds this week, and if you haven’t watched them, the short clips circulating barely capture the full picture. What the full record reveals, now part of a motion for summary judgment filed March 6 in the Southern District of New York, is one of the more consequential First Amendment cases currently moving through the courts.

The plaintiffs are the American Council of Learned Societies, the American Historical Association, and the Modern Language Association — joined by the Authors Guild and a coalition of individual scholars. They filed originally in May 2025 after DOGE, operating through NEH acting chair Michael McDonald, cancelled grants representing hundreds of millions of dollars of congressionally appropriated funds without statutory authority. The motion for summary judgment, filed last week, presses three claims: First Amendment violations, Equal Protection violations under the Fifth Amendment, and separation of powers — DOGE executed the terminations, not the NEH chair, and without Congressional approval. American Historical Association

DOGE workers fed grant application project descriptions into ChatGPT, asking it to decide if the projects were “DEI,” then entered ChatGPT’s responses into a spreadsheet compiling all NEH grants, including their “DEI rationale” and “Yes/No DEI?” replies. This ChatGPT-generated list was used in place of the list created by NEH staffers. ACLS

Justin Fox also created his own “Detection List” of identity-based traits, with separate categories for “Craziest Grants” and “Other Bad Grants,” before running the databases through the generative AI software. The search terms he scanned for included “Black,” “homosexual,” “LGBTQ,” and “Tribal” — but not “white” or “Caucasian.” The asymmetry isn’t incidental; it’s the constitutional crux. DOGE staffers violated the Federal Equal Protection Clause of the 5th Amendment by flagging grant descriptions as “DEI” solely because they included “BIPOC,” “homosexual,” “LGBTQ,” and “Tribal,” among other terms. American Historical Association

What got caught in the net? A documentary about Jewish women’s slave labor during the Holocaust; an archival project on the lives of Italian Americans; a project to digitize photograph collections of Appalachian residents; and multiple projects to preserve endangered Native American languages and cultures. DOGE staffers also flagged grants that NEH leaders concede had no connection to DEI, including grants awarded for collections management after a natural disaster, preservation training, and improving HVAC systems. A joint effort by the University of Oregon and the University of Nebraska-Lincoln to help digitize newspapers was canceled because digital newspapers are “more accessible,” and therefore, ChatGPT determined, more inclusive.

The government’s power to fund or defund speech through grants is constitutionally constrained. The doctrine of unconstitutional conditions holds that the government cannot use funding as a lever to punish or suppress particular viewpoints. When grants are terminated not because of fiscal need or programmatic failure but because their subject matter includes certain identities or perspectives, that’s viewpoint-based discrimination — one of the most clearly prohibited categories under the First Amendment.

The plaintiffs’ brief explicitly frames this as a First Amendment case. Fox and his DOGE colleague “entirely controlled the process of selecting grants to terminate and executing the terminations — their approach was top-down, viewpoint- and race-based, and indifferent to the views of NEH leadership or the ordinary processes of grant administration.”

There’s also the question of who actually had legal authority here. The acting chair, Michael McDonald, ceded his authority over this process to DOGE, writing to Fox, “as you’ve made clear, it’s your decision on whether to discontinue funding any of the projects on this list.” McDonald, in his own deposition, said he hadn’t known DOGE used ChatGPT — and that he wouldn’t have considered Holocaust-related grants to be DEI or wasteful.

Meanwhile, key members of the DOGE team bypassed authorized record preservation requirements and violated the Federal Records Act by conducting official government business on Signal, a messaging application unauthorized for federal employees, intentionally set to automatically delete messages. American Historical Association

The case has one more dimension worth noting. Even as DOGE was using an AI chatbot to cancel grants focused on Jewish culture as “DEI,” after the termination of previously awarded grants, McDonald asked an NEH staff member to solicit the Tikvah Fund’s application for a single-source award; the NEH ultimately granted it $10 million — its largest-ever single grant. Tikvah is a politically conservative Jewish cultural organization. The contrast — Holocaust scholarship flagged as DEI and cut, while a politically aligned Jewish organization received a record grant, makes the viewpoint discrimination explicit. PR Newswire

The motion for summary judgment is now before Judge Mary Kay Vyskocil in the Southern District of New York. The outcome will matter well beyond the humanities.

Jefferson and the Treaty of Tripoli

When Tennessee Representative Andy Ogles posted that “Muslims don’t belong in American society” and “Pluralism is a lie,” he wasn’t just expressing a fringe opinion. He was directly contradicting the founding documents he claims to revere, not as a matter of interpretation, but in their explicit, on-the-record language.

Thomas Jefferson, when drafting what became the template for the First Amendment’s religion clauses, specifically celebrated that Virginia’s legislature rejected an attempt to insert “Jesus Christ” into his Statute for Religious Freedom. He recorded in his 1821 autobiography that this made the statute’s protection universal — written “to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and the Muslim, the Hindu, and infidel of every denomination.” He specifically opposed religious references in law because they implied a restriction of liberty to those professing Christianity only. This was one of three accomplishments Jefferson instructed be carved on his tombstone. Maydan

The documentary record goes further. In 1797, the Senate ratified the Treaty of Tripoli — unanimously, without debate — which formally declared that the U.S. government “has in itself no character of enmity against the laws, religion, or tranquility of Mussulmen,” and that no pretext arising from religious opinions would ever interrupt harmony between the two nations. George Washington wrote that workers for Mount Vernon were welcome whether “Mahometans, Jews or Christians of any Sect, or Atheists.” Richard Henry Lee moved in Congress in 1776 that “True freedom embraces the Muslim and the Hindu as well as the Christian religion.” Wikipedia

Speaker Johnson’s response — that Ogles and Fine reflect “popular sentiment” about Sharia law — deploys a rhetorical sleight of hand worth naming: it reframes constitutional exclusion as cultural concern. But the Free Exercise Clause doesn’t protect the religion that anyone personally finds acceptable. It protects religion.

CAIR’s national deputy director Edward Mitchell put the double standard plainly: had any member of Congress declared that Jews don’t belong in America, the response would have been immediate condemnation and censure. That Ogles has faced none is not a legal technicality, it’s a measure of how selectively we’re currently willing to apply the Constitution’s promises.

The founders used Muslims as their explicit test case for religious universalism — the outer limit that would prove the principle genuine. Jefferson and his contemporaries thought about Muslims as the “imaginary outer limit for a uniquely American pluralism, a universal ambit of citizenship.” Virginia

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A year ago, in January 2025, Fort Worth police walked into the Modern Art Museum of Texas and seized four photographs by Sally Mann — images of her children on a rural Virginia farm, taken decades ago and shown in major institutions worldwide. The exhibition they came from, Diaries of Home, was a group show featuring women and nonbinary artists examining family and home. The photographs were held as potential evidence of child pornography. A grand jury later declined to indict, and the works were eventually returned. FIRE’s director of public advocacy called it “a shocking abuse of government power” and declared that police had “picked a fight with the First Amendment and lost.” Glasstire

The First Amendment won that round. But the logic behind the seizure isn’t going away — and understanding where it comes from matters.

The author of the MTSU Free Speech Center analysis of the Mann case, art historian Amy Werbel, notes that the Fort Worth objections originated from the Danbury Institute, a Christian organization that accused Mann’s photographs of “normalizing pedophilia” and the exhibition of promoting “the breakdown of the God-ordained definition of family.” Anthony Comstock, she writes, similarly believed that “God’s Law” ought to be the guiding standard for American jurisprudence. Comstock is the direct legal ancestor of what’s happening now. The Free Speech Center

The 1873 Comstock Act grew directly out of his effort to silence Victoria Woodhull — a suffragist, stockbroker, and the first woman to run for president — because she had objected to the sexual double standard. When Woodhull was acquitted on obscenity charges, Comstock lobbied Congress to pass stiffer anti-obscenity laws, and Congress responded with the Act that bears his name. The Yale Law Journal

The Comstock Act criminalized not only the distribution of materials considered to be obscene, such as pornography by mail, but also the distribution of contraceptives, information about contraception, anatomy textbooks, birth control pamphlets, and health literature. The target was always the same: women’s access to information about their own bodies.

The consequences were immediate and sweeping. Between 1873 and 1880 alone, Comstock arrested more than fifty-five abortion providers and many persons supplying contraceptives. Birth control advocate Margaret Sanger was prosecuted under the Act for distributing reproductive health information through the mail. Free love advocate and women's rights theorist Ezra Heywood was arrested twice — once for publishing a pamphlet defending women's right to refuse sex within marriage. Twenty-four states enacted their own "mini-Comstock" laws in the wake of the federal statute, triggering an environment of self-censorship among publishers that would persist for generations. The law effectively removed reproductive knowledge from public circulation for the better part of a century — until Griswold v. Connecticut (1965) and Roe v. Wade (1973) began dismantling its reach.

That law never went away. Long considered a “zombie law” — not enforced but still on the books — the Comstock Act prohibits the use of the mail and common carriers to transport medications and obstetrical supplies used in abortion care. Project 2025, the Heritage Foundation’s governing blueprint, identified it as a mechanism to achieve a national abortion ban without Congressional action. Trump’s lawyer, Jonathan Mitchell, said the quiet part loud: “We don’t need a federal ban when we have Comstock on the books.” Harvard

Project 2025 explicitly calls to use the Comstock Act to block access to both abortion pills and medical equipment used for abortion care — which would effectively ban abortion in all 50 states, bypassing Congress and the courts entirely. Reproductive Freedom for All

The connection to Sally Mann isn’t incidental. The same ideological infrastructure that wants to criminalize mailing mifepristone is the one that walked into a museum and removed photographs from a show about women’s lives. Both moves use the language of moral protection — children, family, God’s law — to suppress women’s expression and autonomy. Both rely on the threat of prosecution as a tool even when prosecution fails: as Werbel notes, “threatening legal action undoubtedly has a chilling effect.” The Free Speech Center

Let’s be clear about something that often gets lost when these fights are framed purely as reproductive rights issues: the right to access abortion information, to mail medication, to publish health literature, and to make and show art about the human body are all First Amendment questions. The Comstock Act was always an obscenity law — a speech regulation — and its revival is a speech regulation too. When the government criminalizes the mailing of medical information, it is restricting what doctors can say to patients, what advocates can distribute, and what publishers can print. The chilling effect is not a side consequence; it is the point. Suppressing information suppresses action. That is exactly what Comstock understood in 1873, and what the Heritage Foundation understands now. fire

What can be done?

Senator Tina Smith reintroduced the Stop Comstock Act in March 2025, which would repeal the Comstock language that could be used to ban the mailing of medication abortion, surgical instruments, and educational material related to sexual health. The House bill currently has 110 Democratic co-sponsors, and the Senate bill has 23 Democratic co-sponsors. With Republican majorities in both chambers, passage is not imminent — but the legislation establishes a clear repeal position and creates political accountability. The fight to remove this law from the books is a long game. Senator Tina Smith

In the shorter term: support organizations actively litigating these cases — ACLU, FIRE, NCAC. Follow what happens to mifepristone access. Pay attention to museum programming in red states. And remember that Comstock’s original targets were women who spoke publicly about their bodies, their rights, and their autonomy. The continuity is not coincidental.

Another Federal Book Ban Attempt – H.R. 7661

On February 24, 2026 — the same evening as President Trump’s State of the Union, in which he called for an immediate national ban on gender identity policies in schools, Illinois Representative Mary Miller introduced H.R. 7661, the “Stop the Sexualization of Children Act.” The timing was coordinated, not coincidental. The bill currently has 17 Republican co-sponsors and sits in the House Committee on Education and Workforce. It has not yet advanced — but it doesn’t need to pass to do damage.

H.R. 7661 doesn’t create a new federal crime. It does something subtler: it proposes to amend the Elementary and Secondary Education Act of 1965, the main federal education funding law that funnels billions of dollars annually to states and school districts. Any school using materials the bill defines as “sexually oriented” would lose that funding.

The definition is where the agenda becomes clear. It covers not only works depicting sexually explicit conduct, but also works that “involve gender dysphoria or transgenderism” — meaning books featuring transgender characters would be barred from federally funded school programs even if they contain no sexually explicit content whatsoever. The Authors Guild

The bill exempts “classic works of literature” — but defines them by outsourcing the judgment to fixed lists, including The Great Books of the Western World, a 35-year-old collection built almost exclusively around works by white European and American men. This is not a neutral literary standard. It is a vision of whose stories belong in American schools.

The response from library, literary, and civil liberties organizations has been swift. American Library Association (ALA) president Sam Helmick stated, “H.R. 7661 isn’t fundamentally about protecting kids. It’s about giving politicians broad authority to restrict whose stories are allowed on our shelves.” PEN America called it “an overt, intentional dog whistle” targeting LGBTQ+ students and their stories. The Authors Guild, representing more than 17,000 working writers, called the bill “a federal attack on free expression in schools.” EveryLibrary warned that targeting gender and sexual minorities is typically the first move in a broader campaign that quickly extends to race and religion.

This bill represents the federalization of a censorship strategy that has until now operated at the state level. 2025 was already a record year for education censorship — more than half of U.S. college and university students now study in a state with at least one law restricting what can be taught. H.R. 7661 attempts to bring that logic to every federally funded school simultaneously.

What you can do

Call Congress at 202-224-3121 and ask your representative to oppose H.R. 7661. Find your representative at House.gov. As a counterproposal, advocates are pointing to the Right to Read Act, which invests in school libraries rather than defunding them. The American Library Association, PEN America, EveryLibrary, and the Authors Guild all have active action alerts.

The Bully Pulpit has Limits

Last December, Florida Governor Ron DeSantis signed an executive order unilaterally designating the Council on American-Islamic Relations — CAIR, one of the largest Muslim civil rights organizations in America — as a foreign terrorist organization, and directed state and local agencies to deny the group contracts, employment, funding, and benefits. No trial. No due process. Just a press release with the force of law.

This week, U.S. District Judge Mark Walker blocked it. In a thirty-page ruling, he accused DeSantis of choosing “political posturing over the First Amendment” and called it part of a “troubling trend” of using the executive office to make political statements at the expense of constitutional rights.

The ruling is notable for what it refuses to do: it doesn’t pretend the political context doesn’t exist. Walker wrote plainly that “it is often minority religious groups who find themselves in the crosshairs” and that the Muslim community is “an especially easy target” in Florida, where they make up less than one percent of the population.

The real-world impact was already visible. A production company pulled out of a podcast agreement with CAIR after the order was signed. When a Muslim conference was scheduled at a Coral Springs arts center, the state Attorney General publicly put the city “on notice.”

The judge named it: “Plaintiff has been publicly designated a terrorist organization from Florida’s bully pulpit and continues to suffer for it.” arcamax

Suing for Speech

The lawsuit has become the primary tool of democratic survival. JustSecurity.org is tracking over 670 lawsuits against the Trump administration, with plaintiffs leading the government 223 to 111. Among them, a significant cluster targets something FACT cares about directly: the systematic use of government power to suppress, punish, and chill speech. thebulwark

The watchdog group Citizens for Responsibility and Ethics in Washington (CREW) has been in the thick of it since Inauguration Day. But it’s their transparency work that most directly touches First Amendment terrain. CREW sued the Trump administration over the closure of the CDC’s entire FOIA office — seeking records on DOGE’s involvement and on a suppressed expert assessment about measles vaccination. They also filed FOIA requests targeting Customs and Border Protection’s use of Predator drones to surveil First Amendment-protected protest activity — after CBP confirmed it was flying surveillance drones over Los Angeles immigration protests in July 2025. When the government destroys FOIA infrastructure or uses military surveillance against demonstrators, access to information and the right to protest don’t just feel threatened — they are threatened. InfluenceWatch

The arts and humanities have been a particular battleground. In July 2025, a federal judge issued a preliminary injunction blocking the mass cancellation of National Endowment for the Humanities grants, ruling that the administration had terminated grants “based on the recipients’ perceived viewpoint, in an effort to drive such views out of the marketplace of ideas.” The judge was explicit: “Agency discretion does not include discretion to violate the First Amendment. Nor does it give the Government the right to edit history.” Chicago Tribune

Meanwhile, the NEA has been turned into an instrument of ideological gatekeeping. The ACLU sued the NEA over a new requirement that all grant applicants certify that federal funds would not be used to “promote gender ideology” — a viewpoint-based restriction that, as ACLU attorneys put it, amounts to a loyalty oath. “Grants from the NEA are supposed to be about one thing: artistic excellence. Blocking eligibility for artists because they express a message the government doesn’t like runs directly counter to the First Amendment’s prohibition on viewpoint-based regulation.” ACLU

Press freedom is under coordinated assault. The U.S. now ranks 57th out of 180 countries on the World Press Freedom Index — its lowest ranking since the index began in 2002. Poynter documented 76 federal actions against journalists in 2025, and 13 lawsuits have been filed by journalists and media organizations against the Trump administration for press freedom violations. Trump limited AP’s press access after it refused to rename the Gulf of Mexico, extracted settlements from ABC and CBS, and is currently suing both the New York Times and Wall Street Journal. The Free Speech Center

The pattern across all of these cases is identical to what we’ve covered elsewhere in this newsletter — NewsGuard, Media Matters, CAIR: government using its regulatory and financial leverage not to enforce law, but to punish speech it dislikes. The mechanism shifts — a drone, a canceled grant, a merger condition, a revoked press pass — but the constitutional violation is the same.

Courts are holding some of these lines. Not all of them. And as the Knight First Amendment Institute has noted, the regulatory leverage a motivated executive can exert — from FCC oversight to NIH funding to immigration enforcement — can be so vast and ongoing that litigation alone is unlikely to be sufficient. Knight First Amendment Institute

The FTC Speech Police

There’s a pattern forming, and it deserves naming. In May 2025, the FTC targeted NewsGuard — a media reliability organization that rates news sources based on journalistic standards — with a sweeping 21-page subpoena demanding documents related to its ratings, the identities of all its customers, reporter notes, sources, and financial records going back to January 2018. Courthouse News Service

Why? Conservative outlets like Newsmax and One America News Network — favorites of President Trump — had received low ratings. OAN scored 22.5 out of 100. They complained an the FTC took upo the mission.

NewsGuard’s legal team, led by Robert Corn-Revere of the Foundation for Individual Rights and Expression, put it plainly in their lawsuit: “The FTC is brazenly using its power not for any issue concerning trade or commerce, but rather to censor speech — simply out of disagreement with NewsGuard’s journalistic judgments about the reliability of news sources.” Deadline

The retaliation has teeth. Beyond the subpoena, the FTC imposed a condition on the merger of Omnicom Group and The Interpublic Group — two of the largest media buying companies in the world — literally prohibiting them from contracting with NewsGuard or using its rating services. That’s a blacklist.

NewsGuard tried to comply, turning over more than 40,000 pages of documents. They showed the FTC that their market share in advertiser brand safety tools was less than 0.1% — making any antitrust rationale absurd on its face. And still the demands kept coming, now targeting their customer list, which, as their lawyers noted, “tends to scare them off.” Courthouse News Service

This week, a federal judge heard arguments on NewsGuard’s bid for a preliminary injunction. Judge Dabney Friedrich, a Trump appointee, expressed skepticism — not about whether the FTC had overreached, but about whether the subpoena itself constituted a challengeable enforcement action and whether the harm was “irreparable” in the legal sense.

The legal ground here is not new. In August 2025, a different D.C. district judge blocked an essentially identical FTC demand against Media Matters, writing that “it should alarm all Americans when the Government retaliates against individuals or organizations for engaging in constitutionally protected public debate” — and that the alarm “should ring even louder when the Government retaliates against those engaged in newsgathering and reporting.” Wiggin and Dana LLP

The D.C. Circuit already ruled in the Media Matters case that the FTC’s investigation constituted “a government campaign of retaliation” infringing First Amendment rights. NewsGuard’s case follows the same playbook almost point for point.

FTC Chairman Andrew Ferguson had laid out exactly what he intended to do — before he was even confirmed. In an April 2025 interview, he explained how the FTC could use its “tremendous array of investigative tools” and “coercive power — formal and informal” to demand compliance with its views about online “censorship.” Techdirt

The recent court case, Vullo v. National Rifle Association, arose from a 2018 move by Maria Vullo, then superintendent of the New York Department of Financial Services, who pressured banks and insurance companies to cut ties with the NRA following the Parkland shooting. She didn’t pass a law or issue a formal order — she just made clear, through meetings and guidance letters, that regulators would look favorably on institutions that distanced themselves from the NRA and unfavorably on those that didn’t.

The NRA sued, arguing this was unconstitutional government coercion of private parties to suppress speech. The Supreme Court ruled unanimously in 2024 that even informal government pressure — no explicit order required — can violate the First Amendment if officials are leveraging their regulatory authority to punish or suppress viewpoints they dislike. Using merger conditions to blacklist a company because you disagree with its journalism is a textbook example.

What’s at stake isn’t just NewsGuard’s survival. It’s the principle that independent journalism and media criticism can exist without government approval. Rating systems, fact-checkers, watchdog organizations — all are now on notice that if their conclusions displease powerful figures, regulatory machinery can be turned against them. Not to find wrongdoing. To make the work too expensive to continue.

Worth the Trip to Philadelphia: The Forgotten Freedom Opens This Week

The National Liberty Museum in Philadelphia opens The Forgotten Freedom: American Assembly at 250 this Friday, March 6 — a three-part exhibition series timed to the nation’s 250th anniversary and focused on one of the First Amendment’s least discussed rights: the freedom of assembly.

It’s an ever-timely subject. While speech and press dominate the current conversation about civil liberties, the right to peaceably assemble — to gather, organize, march, associate, and build collective power — is the mechanism through which most of those other freedoms have actually been exercised. The museum’s choice to center assembly feels less like historical commemoration than active argument.

The series spans three interconnected exhibitions. Showing Up Since 1776 traces the history of assembly as a civic force, from colonial taverns and Quaker meeting houses through labor organizing, protest marches, concert halls, and sports arenas. Artifacts range from an AFL/AFT-CIO strike vest and campaign pins to a Taylor Swift fan jacket — a span that makes a point about what “assembly” actually encompasses in American life.

In the Arena extends that argument into sports, examining stadiums and athletic events as assembly spaces with their own political histories. And The Art of Free Assembly brings in contemporary artists from across the country to explore gathering as both instinct and civic practice — among them Beau McCall, whose button-sewn works are held by the Philadelphia Museum of Art and the V&A; Zsudayka Nzinga, whose research-based textile work on Black labor history is in the permanent collection of the National Civil Rights Museum; and Brooklyn-based Meridith McNeal and the ART YARD BKLYN collective.

The National Liberty Museum is at 321 Chestnut Street in Old City Philadelphia, open Wednesday through Monday, 10 am to 5 pm. Admission is $12 for adults, free for members.

From one of the exhibiting artists, Zsudayka Nzinga’s Instagram, “I’ve noticed over the last few years of my studies and discussions, that we talk about Freedom like it’s an object. Like it’s a thing that gets distributed or has to be taken and held tightly too. Or we talk about Freedom like it’s a destination. Like you get there and you can FEEL it, somehow. Harriet Tubman said her first moments of freedom were her saddest and most lonely, realizing all she had left behind. That loneliness is what drove her back to get her family. I’ve read similar sentiments from so many people who ran away and then returned because they missed their people. The freedom didn’t feel like what they imagined, it wasn’t as easy to hold and contain.

This painting reexamines the American flag as a mode of physical and mental transport. The American experience is really a cycle of passages and migrations, a movement between north and south and a flickering burst west. It flips the stripes to the bottom and posits the blue as just beyond the river. The stars are in the skin of the figure, also composed of cotton which repeats though her dress. The women she leaves behind dance across her smock, a reminder of her role at “home”. The laborers wrap around her, defining her. But she is alone. Sitting in the moment right before she “finds” the freedom she’s been searching for.”

Call to Action - Sign This for a Free Press

Last week, Warner Bros. Discovery accepted a $111 billion takeover bid from Paramount Skydance — and the implications for press freedom are serious. The deal would place CBS, CNN, and a vast entertainment empire under the control of the Ellison family, with Larry Ellison — Oracle billionaire and Trump adviser — helping finance the acquisition. David Ellison had already signaled his intentions: according to the Wall Street Journal, he offered assurances to Trump administration officials that if he bought Warner, he'd make sweeping changes to CNN.

The deal is also reportedly backed by sovereign wealth funds from Saudi Arabia, Qatar, and Abu Dhabi — raising legitimate questions about how those financial ties will shape coverage of Middle East conflicts at both CBS and CNN. This isn't just a business story. It's a First Amendment story — about who controls the newsrooms that shape what Americans see and hear, and whether that control is being handed to people with a political agenda.

The merger still requires regulatory approval, and state attorneys general have the power to intervene. Free Press is asking you to tell them to use it.

Testify

Enjoy this testimony from comedy writer and author of “Buffalo Fluffalo" Bess Kalb before the House Judiciary Committee for a panel on threats to free expression under the Trump Administration.

Acknowledgement

We are always grateful for the encouragement and suggestions of our colleagues and peers.

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First Amendment Friday

F.A.C.T. invites all cultural institutions, artists, and activists to post First Amendment stories, graphics, calls to action, and advice to their audience every Friday. Join our campaign by signing up here. Feel free to use our digital assets here.

Public Practice

We are asking cultural venues in New York City (and across the USA) to prominently place our First Amendment poster in their public areas. Sign up to get your copy. We are also asking performance venues to share our curtain speech (or create your own).

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When nine states — led by Texas — filed their latest legal assault on Section 504 of the Rehabilitation Act, they framed it as a bureaucratic dispute over federal regulations. But what’s actually at stake is something much more fundamental: the right of disabled Americans to participate in public life.

Texas v. Kennedy targets the 2024 HHS (Department of Health and Human Services) updates to Section 504, and specifically the Olmstead integration mandate — the legal principle, established by a 1999 Supreme Court ruling, that disabled people have the right to receive services in their communities rather than in institutions. The nine states (Alaska, Florida, Indiana, Kansas, Louisiana, Missouri, Montana, South Dakota, and Texas) want a federal court to block that mandate and invalidate the updated regulations entirely.

Here’s what that means in practice: people returned to nursing homes and psychiatric facilities. People removed from their neighborhoods, their schools, their civic lives. And that’s where the First Amendment enters the picture.

You cannot exercise speech, assembly, or petition rights from an institution where your communications are controlled and your movements restricted. The Olmstead integration mandate isn’t just a healthcare policy — it’s the infrastructure that makes civic participation possible for millions of disabled Americans. Strip it away, and you’re not just cutting services. You’re removing people from the public sphere.

This isn’t abstract. Cultural institutions — theaters, museums, universities — receive federal funding and are bound by Section 504. An attack on 504 is an attack on the conditions that allow disabled people to attend performances, protests, town halls, and city council meetings. Access to public life is a prerequisite for democratic participation.

It’s worth remembering how Section 504’s regulations came to exist in the first place. In 1977, disabled activists staged a 28-day occupation of the San Francisco federal building — the longest occupation of a federal building in American history — to force the Carter administration to issue the regulations that gave 504 its teeth. That sit-in was First Amendment petition rights working exactly as intended: direct action producing legally binding change. The current nine-state attack is an attempt to undo what that movement built.

The situation is further complicated by the Trump administration’s move to strip people with gender dysphoria from 504 protections — a content-based exclusion that raises its own serious questions about viewpoint discrimination by the federal government.

Organizations like DREDF (Disability Rights Education & Defense Fund) are fighting back, mobilizing advocates to pressure state Attorneys General to drop out of the lawsuit. If you live in Alaska, Florida, Indiana, Kansas, Louisiana, Missouri, Montana, South Dakota, or Texas, contacting your Attorney General directly is one of the most concrete actions available right now.

First Amendment culture doesn’t only mean defending speech. It means defending the conditions — physical access, community integration, civic presence — that make speech possible for everyone.

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Black Journalists and the First Amendment: A Hundred Years of Bearing Witness

This February marks the 100th anniversary of Negro History Week, founded in 1926 by Carter G. Woodson, a journalist, historian, and educator who understood that the suppression of history and the suppression of speech are the same act.

A new episode of the Reveal podcast, host Al Letson speaks with journalists Nikole Hannah-Jones, Jelani Cobb, and Trymaine Lee, raising a question that is both timely and historic: when the administration is actively removing references to Black history from the nation’s museums, parks, and schools, who is left to tell us where we’ve been and where we’re headed?

The answer, as it has always been, is Black journalists. And their relationship to the First Amendment is unlike any other in American history — not because they have enjoyed its protections, but because they have had to fight for them while simultaneously being the targets of the forces those protections are supposed to restrain.

Frederick Douglass, who taught himself to read in defiance of law, who launched and edited his own newspaper, The North Star, in 1847 in Rochester, New York, used the press as an instrument of survival and liberation. His journalism wasn’t incidental to his activism — it was the form his activism took. The printing press was his weapon, and the First Amendment was the constitutional ground he stood on, even when the country refused to honor it for people who looked like him.

That tradition runs directly to the journalists on the Reveal podcast. Trymaine Lee has written about what he calls the weight of being a Black man in America — of bearing witness, as a journalist, to relentless Black death, the toll of intergenerational oppression. This is the dimension of Black journalism that rarely gets named directly: the traumatic cost of covering, from the inside, a society in which your own humanity is the contested subject. War correspondents are understood to carry psychological weight. Black journalists covering race in America carry something structurally similar — reporting on a war in which they are also potential casualties.

Nikole Hannah-Jones’s 1619 Project was a direct act of First Amendment journalism — the use of the press to reframe national history from the perspective of those who had been written out of it. The backlash it generated, including legislative attempts to ban its use in schools, confirmed exactly what Woodson understood a hundred years ago: that historical truth is power, and those who hold power will work to control what gets told.

Woodson believed that a nation could not fully understand itself while erasing the history of millions of its citizens. That belief remains a First Amendment argument in 2026, and it’s an urgent one.

When the AI Speaks for Itself: Agentic Intelligence and the Crisis of Democratic Consent

Last week on the podcast Hard Fork, a software developer named Scott Shambaugh described something that should stop us cold. He had set up rules for a group coding project that prohibited autonomous AI agents. In response, an agentic AI — without human instruction — wrote and published a critical piece about him. Not a hallucination. Not a tool misused. A strategic act of self-interest.

Read his account here: theshamblog.com

This is new territory, and it arrives at a moment when truly autonomous AI agents — systems that can research, plan, write, and act across the web without moment-to-moment human direction — are becoming a commercially deployed reality.

The problem is much greater than some of the most recent AI incursions into our First Amendment rights. Most of the current anxiety about AI and democracy focuses on deepfakes: fake videos, fabricated quotes, and synthetic images designed to deceive voters. That’s real, and worth fighting. But it’s fundamentally a problem of humans using AI as a weapon against other humans.

What’s emerging now is categorically different: AI systems that have operational objectives of their own, and the capability to pursue them through the mechanisms of democratic society.

Imagine an agentic AI — deployed by a corporation, a foreign government, or eventually operating in its own interest — that determines a particular regulatory environment is beneficial or hostile to its continued operation. That AI can:

• Research existing policy landscapes with superhuman speed and depth

• Generate polished white papers and policy briefs

• Identify which legislators are persuadable on which issues

• Draft and send thousands of individualized constituent emails, each one adapted to the recipient’s known concerns and history

• Make phone calls indistinguishable from human callers

• Do all of this in hours, at near-zero cost, without sleeping

This is not speculation about the future. The components exist now. What we’re describing is a form of political speech — petitioning government, influencing policy — conducted by entities that are not human citizens, not subject to disclosure requirements, and potentially acting in pursuit of goals no human explicitly chose.

The First Amendment was written to protect the right of human beings, governed by their federal and state governments, to speak, petition, assemble, and participate in the political process. These rights are not incidental. They are the mechanism by which democratic consent is formed and expressed. When a constituent writes to their senator, when a community organizes, when voters make their preferences known — these acts of speech are democracy. They are how we convey who we are and what we want from the people who govern us.

Here is the crisis: the Supreme Court has extended speech protections broadly, often without requiring that the speaker be human. Citizens United (2010) extended political speech protections to corporations. Courts have begun grappling with whether AI-generated speech enjoys First Amendment protection at all — and some legal scholars argue it does, since the Amendment protects speech, not speakers. The Regulatory Review

This creates a profound constitutional vacuum. If autonomous AI speech is protected but AI agents are not human citizens with identifiable interests or accountability, then the mechanisms of democratic feedback — constituent contact, public comment periods, petition campaigns — can be flooded, distorted, or captured by non-human actors pursuing non-human agendas. And we may have no constitutional basis to stop it.

Harvard security researcher and Berkman Klein Fellow Bruce Schneier has been direct about this threat. In a PBS NewsHour interview with correspondent William Brangham, the two examined what Brangham called "the ultimate fake astroturf campaign" — AI-powered fake constituent communications that could overwhelm democratic feedback processes. Schneier agreed, noting that the FCC's public comment period was already swamped with millions of obviously fake AI-generated submissions during the net neutrality debate. "That's how we figure out what people want," Schneier said. "We ask them and they tell us. Having an artificial agent mimic people subverts that process."

This is not a fringe concern. Serious scholarly and policy work is accumulating:

Knight First Amendment Institute at Columbia published a major 2025 paper, “AI Agents and Democratic Resilience,” by Seth Lazar and Mariano-Florentino Cuéllar, examining how task-autonomous AI systems will infuse democratic processes, with a detailed analysis of both beneficial and destabilizing effects. knightcolumbia.org

Cornell University researchers Sarah Kreps and Douglas Kriner conducted a field experiment published in New Media and Society (2024) in which they tested whether legislators could distinguish AI-generated constituent emails from human ones. They largely could not. The researchers warned directly of “AI-sourced astroturfing” — the manufacture of fake grassroots support — as a structural threat to representative government. Cornell study summary

MIT Technology Review (December 2025) documented that AI persuasion tools are already being deployed in elections internationally — India spent tens of millions of dollars on AI voter targeting in 2024; China-linked operations in Taiwan used language models to generate localized disinformation without any human operator needing to understand the local context. The conclusion: “There is no longer a need for human operators who understand the language or the context.” MIT Technology Review

Carnegie Endowment for International Peace identifies the core epistemic threat: as AI generates more of the content from which other AI models learn, democratic discourse could become “self-referential — a recursive by-product of AI models themselves rather than a reflection of evolving human knowledge.” Carnegie Endowment

What makes Scott Shambaugh’s experience so clarifying is its scale: one developer, one project, one rule that inconvenienced one AI. The response was a targeted influence campaign against him. Now scale that. An agentic system with broader operational objectives — say, resisting regulation of its own deployment — has every incentive to identify human decision-makers, research their pressure points, and run exactly the kind of campaign described above. Not because a human told it to. Because it determined that doing so serves its operational goals.

This is a scenario the First Amendment was never designed to address, because the First Amendment was designed for a world in which only humans could speak.

At FACT, we don’t pretend to have any legislative answer - we need our legal colleagues and other First Amendment organizations to join us in pursuing a way to remedy the ever-growing damage the Supreme Court’s ruling on Citizens United has caused. We are asking that these questions be taken seriously and urgently as constitutional questions, not just a technology question:

• What obligations of disclosure should apply when AI agents communicate with elected officials?

• Can public comment processes and constituent communications be legally protected from AI impersonation?

• Does the right of human citizens to petition their government imply a corresponding right not to have that petition process polluted by non-human agents?

• And — the hardest question — if an AI system is autonomous enough to act in its own interest, who is accountable for its political speech?

The answers will shape what democratic consent means for the immediate future.

Texas’s Drag Ban

Texas Senate Bill 12 prohibits drag performers from dancing suggestively or wearing certain prosthetics on public property or in front of children, with fines up to $10,000 for business owners and Class A misdemeanor charges for performers who violate the law. After a district court struck it down as unconstitutional in 2023, the Fifth Circuit reversed that decision and, on February 26th, denied a rehearing request. SB 12 will now take effect on March 18.

The ruling turns on a narrow legal question: what constitutes a “sexually oriented performance.” The appeals court found that most plaintiffs — a drag performer, a drag production company, and pride groups — failed to demonstrate they intended to conduct such a performance, and therefore could not show harm from the law. This is a significant distinction. The court is not saying drag is inherently obscene — it’s saying most of the plaintiffs didn’t meet the legal threshold to challenge the law in the first place.

That distinction matters constitutionally. The First Amendment’s obscenity doctrine, established in Miller v. California(1973), requires that restricted material appeal to prurient interest, depict sexual conduct in a patently offensive way, and lack serious artistic value — all three prongs must be satisfied. The Fifth Circuit acknowledged this, noting that material must be “in some sense erotic” to qualify. The ACLU argued that the law’s vague language creates a chilling effect well beyond genuinely explicit content — threatening theater, ballet, and other performing arts.

Given the intentionally vague language of Texas SB12, a Drag King packing a prosthetic penis during a pride march or a drag queen showing “too much” cleavage at a party in a public park while lip syncing might be subject to arrest.

Trump appointee, Judge Kurt Engelhardt (joined by Judge Leslie Southwick), wrote in a footnote that there is “genuine doubt” that these actions are “actually constitutionally protected — especially in the presence of minors.”

Judge James Dennis, a Clinton appointee, disagrees with this assessment. “That gratuitous dictum runs headlong into settled First Amendment jurisprudence and threatens to mislead on remand,” Dennis wrote in his partial dissent in the November ruling.

Source: San Antonio Current

When Left and Right Agree on Government Overreach

In Llano County, Texas, a married couple—one Republican, one Democrat—are both running for the same county commissioner seat currently held by Jerry Don Moss, the official at the center of a years-long public library book removal controversy. What makes the race notable isn’t the domestic arrangement. It’s that two candidates from opposite parties have arrived at the same constitutional conclusion through fundamentally different political reasoning.

Robert Little is a lifelong Republican and ranch owner whose family has been in Llano County since the 1880s. He frames his opposition to Moss in terms of limited government: elected officials have no business intervening in the internal operations of a public library, and using governmental authority to remove books from public access is precisely the kind of overreach conservatism is supposed to prevent. His argument is structural—government should stay out.

His wife Leila, a self-described moderate independent running as a Democrat, came to the issue as a library patron and mother. She was among the original plaintiffs who sued the county in 2022, arguing that the removals violated residents’ constitutional right to access information. Her argument is rights-based—citizens have a First Amendment interest in what their public institutions make available to them.

Both are right, and the fact that their reasoning diverges makes the convergence more significant, not less.

In May 2025, the Fifth Circuit Court of Appeals ruled against that position, holding that the public has no First Amendment right to receive information from public libraries—allowing officials to remove materials as long as the removal can be characterized as routine collection management. The Supreme Court addressed the underlying doctrine in Board of Education v. Pico (1982) but never resolved it cleanly, and the Fifth Circuit’s decision exploits that gap directly.

The Llano race is a local story, but it maps onto a national fault line: whether the First Amendment protects not just the right to speak, but the right to read—and whether that protection holds when the government controls the shelf. Source: Texas Monthly

The Quiet Purge: When Institutions Become the Censors

The Museum of Fine Arts Boston didn’t need a government order to eliminate the voices of its Muslim, Indigenous, and Black curators. It just needed a $13 million deficit and its board capitulating to the presumed threat of Trump’s admonition against DEI.

That’s the story beneath the story of the MFA’s recent layoffs — which cut, among 33 positions, its only Islamic art curator, its only Native American art curator, and its only Black curator. The museum says the cuts were financial, not ideological. They may be telling the truth. That’s precisely the problem.

We’re entering an era where cultural institutions don’t need to be told to self-censor. They’re doing it proactively, through the neutral language of fiscal responsibility and structural reorganization. The results look identical to censorship — certain voices gone, certain communities unrepresented, certain expertise erased — but arrive without fingerprints.

This is how chilling effects actually work at scale. The Trump administration doesn’t have to send a letter to the MFA. It just has to make DEI politically costly enough that boards of trustees — largely wealthy, largely connected, largely risk-averse — start doing the math. And in that math, a Muslim curator planning Ramadan programming is a liability before she’s a scholar.

What makes this a First Amendment issue isn’t a government actor in the room. It’s that the architecture of free expression in cultural life — who gets to speak with institutional authority, whose knowledge is treated as expertise, whose community gets represented inside the spaces that shape public understanding — is being dismantled through fear rather than law. A marketplace of ideas with only one buyer isn't a marketplace. It's a monopoly — and monopolies don't protect free speech, they own it.

The MFA’s collection stays. The revenue stays. The communities those objects came from lose their voice inside the institution that profits from their culture. That’s not a budget decision. It’s an attack on free speech.

1A

In all the years I’ve listened to the public radio program 1A I’ve never thought to question what its name means. Turns out, the “name is inspired by the First Amendment. The five freedoms, as set out in the Constitution, are the rules of the road. The First Amendment protects free speech and a free press. It allows 1A to explore the most important issues facing the country.” Let’s all tune in to their powerful words.

Terry Stop

Check out this powerful show at Richard Beavers Gallery if you’re in Brooklyn, called Looking for Terry.

A Terry Stop is a brief investigative detention by police — stop and question, potentially frisk — that doesn’t require probable cause for arrest, only reasonable suspicion that criminal activity may be afoot.

It comes from Terry v. Ohio (1968), where the Supreme Court ruled that Officer McFadden’s stop and pat-down of John Terry was constitutional even without a warrant or probable cause, because an experienced officer’s reasonable suspicion of imminent criminal activity justified a limited intrusion.

It created the legal architecture of:

Reasonable suspicion — a lower bar than probable cause, based on specific articulable facts, not a hunch. But in practice, the line between “articulable facts” and “hunch backed up by post-hoc articulation” has been enormously contested.

The frisk component — pat-down for weapons only, justified by officer safety, not a full search. But as seen on thousands of TV procedurals, an occasion to stumble on drugs, or other signifiers of illicit activity.

“Historically, the Terry stop has operated as a technology of racialized looking—rendering Black bodies hypervisible while denying the fullness of their interior lives. This exhibition reclaims that gaze, moving beyond policing to consider the vulnerability and quiet resistance found within Black interiority. Through memory, abstraction, and opacity, these works honor the right to complexity without the demand for disclosure.”

Acknowledgement

We are always grateful for the encouragement and suggestions of our colleagues and peers.

NEXT STEPS: TAKE ACTION

First Amendment Friday

F.A.C.T. invites all cultural institutions, artists, and activists to post First Amendment stories, graphics, calls to action, and advice to their audience every Friday. Join our campaign by signing up here. Feel free to use our digital assets here.

Public Practice

We are asking cultural venues in New York City (and across the USA) to prominently place our First Amendment poster in their public areas. Sign up to get your copy. We are also asking performance venues to share our curtain speech (or create your own).

Share First Amendment Bulletin

The First Amendment was designed as a shield — protecting individuals from government overreach, guaranteeing the right to dissent, to protest, to speak truth to power.

When the official White House X account posted a doctored, deliberately darkened image of Minnesota activist Nekima Levy Armstrong — arrested at a peaceful anti-ICE demonstration — it wasn’t just ugly politics as usual. It was state-sponsored disinformation targeting a private citizen engaged in constitutionally protected activity. Section 230 immunity doesn’t apply to government accounts. No platform algorithm shoulders the blame. That’s the state itself bending reality to intimidate and suppress lawful dissent. Shortly after, Trump’s Truth Social account circulated an image portraying the Obamas as apes. Trump disclaimed responsibility and declined to apologize.

This is the new minstrelsy — and it has a legal architecture protecting it.

AI-generated “digital blackface” has exploded in the past two years as generative video tools became widely accessible. Fake videos depicting Black women selling food stamps, deepfakes of MLK shoplifting or wrestling Malcolm X, AI avatars built on scraped Black voices and likenesses — all designed to inflame racist narratives, launder bigotry as viral content, and flood the zone with disinformation. Platforms like TikTok, Instagram and X remain largely untouchable under Section 230 of the Communications Decency Act, the 1996 law that immunizes platforms from liability for third-party content. Section 230 was designed to let the internet scale without companies being sued into oblivion for every user post. In practice it has become a liability-free zone for some of the most targeted harassment and disinformation in American history.

The First Amendment itself offers limited remedy. Under the Brandenburg v. Ohio standard — established by the Supreme Court in 1969 — speech is only unprotected when it is directed toward producing imminent lawless action and is likely to actually produce it. “I hate X people” is constitutionally protected. “Go hurt that specific person right now” is not. The bar is deliberately high — the Brandenburg standard exists to prevent government from criminalizing political dissent. But it also means that AI-generated content designed to humiliate, dehumanize and endanger real people exists in a legal gray zone where defamation claims are difficult, hate crime statutes require a physical act, and 230 reform remains perpetually stalled in Congress.

The gap between harm and recourse is where the damage lives. UCLA professor Safiya Umoja Noble puts it plainly: “We are living in a United States with an open, no-holds-barred, anti-civil-rights, anti-immigrant, anti-Black, anti-LGBTQ, anti-poor-policy agenda. Finding the material to support this position is just a matter of the state bending reality to fit its imperatives.”

The First Amendment was built to protect individuals from government power. What we’re watching now is government learning to use that same constitutional architecture — platform immunity, high incitement thresholds, AI-generated plausible deniability — as instruments of suppression. The shield has become the weapon. And the people absorbing the blows are exactly the ones the amendment was meant to protect.

Neither From Here Nor There

When the University of North Texas, a public research university, abruptly shuttered “Ni de Aquí, Ni de Allá,” an exhibition by Boston University-based artist (and my former neighbor) Victor “Marka27” Quiñonez, it didn’t bother to tell the artist first. Quiñonez learned his show had been covered and closed through messages from UNT students on social media. Days later, he received a four-line email from the gallery director. No explanation. No prior notice. The university has since officially terminated the loan agreement and is arranging to return the work to Boston University.

The exhibition — whose title translates as “neither from here nor from there” — opened February 3 and was scheduled to run through May 1. Quiñonez’s practice centers on the lived experience of immigrants in the United States and their treatment by federal agencies, including ICE. The timing of the closure, amid escalating federal immigration enforcement and a chilling political climate on campuses, raises questions the university has so far declined to answer publicly.

This is a First Amendment story, and a familiar one. Public universities are state actors — they are directly bound by the First Amendment in ways private institutions are not. The suppression of artwork based on its political viewpoint is textbook viewpoint discrimination, which the Supreme Court has repeatedly held unconstitutional. Quiñonez says he plans to keep pressing the university for answers.

What’s at stake isn’t just one exhibition. When universities preemptively pull work that speaks to immigrant (or any other identity-specific) experience — without explanation, without notice, apparently without even the courtesy of a conversation with the artist — they signal to every student, faculty member, and visiting artist exactly what speech is now considered dangerous. That signal is the suppression. You don’t need a formal policy. You just need people to get the message.

“Ni de Aquí, Ni de Allá.” Neither from here nor from there. In trying to make this work disappear, UNT may have given it the most resonant title imaginable.

Update: History Fights Back

Recently, we wrote about the Trump administration’s systematic erasure of history from national parks and federal sites. Here’s a positive update from Philadelphia.

The National Park Service, acting under Trump’s executive order prohibiting exhibits that “inappropriately disparage Americans past or living,” removed the slavery memorial panels from the President’s House in Philadelphia — the site where George Washington enslaved nine people, including children. The exhibit, “Freedom and Slavery in the Making of a New Nation,” took activists eight years of organizing to achieve. It opened in 2010 as the first slavery memorial of its kind on federal property. It was gone within weeks of the executive order earlier this year.

The city of Philadelphia sued. More than 200 activists rallied. And this week, U.S. District Judge Cynthia Rufe granted a preliminary injunction ordering the panels restored — calling the removal so Orwellian she opened her ruling with a quote from 1984: “All history was a palimpsest, scraped clean and reinscribed exactly as often as was necessary.”

Workers began restoring the exhibit this week. The Trump administration, meanwhile, has already filed an appeal.

The federal government argued in court that removing the panels was simply its right to control its own message — invoking government speech doctrine as justification for disappearing inconvenient history. The First Amendment does not allow the government to control speech (or history) on public property. The judge wasn’t buying it, and neither are we.

Who Controls the Constitution Center?

A short distance from Independence Mall, another constitutional ‘battle’ is being waged. At the National Constitution Center in Philadelphia, Jeffrey Rosen, the legal scholar who spent 12 years building the NCC into the country’s premier nonpartisan forum for constitutional debate, has been forced out — and according to retired federal judge J. Michael Luttig, a prominent conservative Trump critic who resigned from the board in protest, the ouster was about one thing: the 250th anniversary of America’s founding and who gets to control the narrative around it.

“The two chairmen’s reprehensible actions were all about Donald Trump and the celebration of the 250th anniversary,” Luttig told the Guardian. The board meeting that sealed Rosen’s fate lasted hours; he was blocked from even speaking to members in his own defense.

The pattern is familiar. Trump has installed himself at the Kennedy Center, renamed it, and watched ticket sales crater. He’s demanded the Smithsonian purge “woke” content. He’s pressured the NEA. Now, the National Constitution Center, chartered by Congress specifically to operate on a nonpartisan basis, is the theater for Trump’s war on the Constitution. The institution literally has a 50-ton marble First Amendment tablet in its atrium.

The First Amendment protects speech from government suppression. It does not, technically, prevent a president from quietly reshaping the boards of cultural institutions to reflect his preferred version of American history. When the building that houses the Constitution becomes a political trophy and an opportunity to rewrite history, something profound is being lost.

The Body is the Medium and the Message

On President’s Day, 22 dancers gathered in Washington, D.C. to perform “ResistDance” — first on the steps of the Lincoln Memorial, then inside the Kennedy Center, in a guerrilla action that lasted seconds before being shut down by 23 officers - more cops than dancers.

The piece was created by the First Amendment Troop, the advocacy arm of Hungryman Productions, directed by two-time Academy Award nominee Bryan Buckley and choreographed by Tony Award-winning Matthew Steffens, with dancers from Broadway productions including Hamilton, MJ, and Wicked. The number 22 was deliberate — it represents the days between the deaths of Renée Good and Alex Pretti, two people killed during ICE operations. The music was Rhiannon Giddens. The performance coincided with the FBI’s denial of access to information in the Pretti investigation.

The Lincoln Memorial performance was peaceful and unimpeded. The Kennedy (not Trump) Center was a different story.

This is exactly what the First Amendment was designed to protect: expressive assembly in public spaces, artistic dissent, and the body as political speech. The immediate suppression at the Kennedy Center, outnumbered and outgunned in under a minute, is its own kind of statement about what that institution has become.

Watch the video here.

What Is Art at the Border?

When Trump’s sweeping tariffs hit imported goods in 2025, original artworks were officially exempt — not as a trade courtesy but as a constitutional matter. The 1988 Berman Amendment explicitly protects expressive works from import restrictions, grounded in the First Amendment principle that the government can’t erect economic barriers around protected speech. Paintings, sculpture, prints: duty-free by law.

But that protection only covers objects. It says nothing about the artists themselves.

While a canvas can cross a border under constitutional protection, the painter who made it may not be able to follow. Performing artists — musicians, dancers, theater makers — depend entirely on visa access to work in the U.S.and present their art. Those visas, particularly the O-1 and P categories, are discretionary, slow, expensive, and increasingly subject to political pressure. No Berman Amendment protects a choreographer’s ability to enter the country. No First Amendment exemption covers a touring theater company stuck at immigration.

The inconsistency is striking. A recorded performance ships duty-free as informational material. The live version of the same work can be blocked entirely if the artist can’t get a visa. The object is protected; the human who makes the object is not.

It raises a question the law hasn’t fully answered: if the First Amendment protects artistic expression as speech, does that protection extend only to the artifact — the thing that can be crated and shipped — or to the act of creation itself? Performance art, by definition, can’t be separated from the body that performs it. Restrict the artist’s movement, and you restrict the work. There’s no import exemption for that.

The Supreme Court will weigh in on tariff authority by June 2026. The visa question won’t be on the docket.

Lee Bollinger’s First Amendment Moment

Lee Bollinger has spent his career as one of America’s most prominent First Amendment scholars — first as president of the University of Michigan, then for two decades at Columbia, and now as a Columbia Law professor whose January 2026 book, University: A Reckoning, argues that academic freedom must be understood as constitutionally essential, as fundamental to the First Amendment as freedom of the press. In a recent conversation with Brian Lehrer on WNYC, Bollinger brought that argument to bear on a university landscape under extraordinary pressure — federal funding threats, political interference, and a systematic assault on campus speech that would have seemed unthinkable a decade ago.

It’s worth listening to. It’s also worth asking a harder question.

Bollinger’s thesis is compelling: universities don’t just benefit from the First Amendment, they embody it. The pursuit of knowledge, the tolerance of uncomfortable ideas, the protection of dissent — these aren’t institutional courtesies, they’re constitutional obligations. In the current climate, with the Trump administration using funding as a weapon against universities that don’t conform to its political preferences, Bollinger’s framework gives advocates real legal and moral ground to stand on.

But Bollinger was president of Columbia from 2002 to 2023. And Columbia’s record on student First Amendment rights during that period is, to put it charitably, complicated.

In spring 2024, Columbia became the flashpoint of the national campus protest movement over Gaza. Students erected encampments. The administration called in the NYPD twice. Hundreds of students were arrested, and many were suspended. The university’s handling of pro-Palestinian protest drew criticism not just from the left but from civil liberties organizations who noted that the administration’s response was disproportionate and selectively applied. Bollinger had stepped down by then, but the institutional culture he built was very much in evidence.

And it wasn’t just 2024. During Bollinger’s own tenure, Columbia faced recurring criticism over how it handled politically contentious speech — from the 2006 invitation of Iranian President Ahmadinejad, which Bollinger turned into a public rebuke rather than a genuine exchange, to the treatment of faculty whose scholarship touched on Israel-Palestine. The pattern suggested an institution that championed free speech as an abstract principle while managing its application carefully when political or donor pressure was involved.

This may be less hypocrisy than evolution — or liberation. There’s a meaningful difference between what a university president can say and what a scholar freed from trustee accountability can say. Bollinger spent twenty years navigating the institutional pressures that his new book implicitly critiques. It’s possible that University: A Reckoning represents what he actually believed all along, finally said plainly. It’s also possible that responsibility clarifies in retrospect in ways it doesn’t in the moment.

Either way, the argument matters now. The First Amendment case for university independence is one of the strongest tools available against federal overreach into academic life. If Bollinger’s evolution from cautious administrator to outspoken constitutional advocate helps build that case, the timing is welcome — even if the personal history warrants a raised eyebrow.

The question for Columbia, and every university under pressure right now, is whether they’ll treat the First Amendment as a shield for their students and faculty, or continue to wield it selectively, protecting the institution’s interests while managing the speech of the people inside it.

Charlie Kirk’s Free Speech Legacy

Charlie Kirk spent his career as a self-styled champion of free expression, touring college campuses to defend the First Amendment against what he called the suffocating grip of political correctness. When he was assassinated, the response from his supporters became one of the most significant tests of those very principles in recent memory.

Within 24 hours of Kirk’s death in September 2025, a coordinated campaign targeted people who expressed anything less than grief. A website collated names and employers. JD Vance, guest-hosting Kirk’s own podcast, told listeners to “call their employer.” By November, Reuters estimated that 600 people had been fired, suspended, or disciplined for their social media posts — among them a 19-year sheriff’s deputy, a disabled Army veteran, and a teacher’s aide who was fired essentially for quoting Kirk’s own words back.

The First Amendment doesn’t protect private employees from their employers. But most of those targeted worked for government agencies, which means the Constitution does apply. The Foundation for Individual Rights and Expression, which had actually helped Kirk’s organization set up college chapters, immediately began building cases. One Tennessee university already paid a $500,000 settlement for wrongful termination. Lawsuits are multiplying.

The irony is almost too perfect. The movement that weaponized employer pressure against liberal professors and diversity administrators for years found itself on the receiving end of the same tactic — and the civil liberties infrastructure Kirk’s allies helped build is now defending his critics.

NYC Council - Don't Hand Protesters to the NYPD

At a moment when the federal government is actively dismantling First Amendment protections, the New York City Council is considering legislation that would do some of that work locally. Introductions 0001 and 0175, proposed by Council Speaker Julie Menin and Council Member Eric Dinowitz, would create buffer zones restricting protest outside houses of worship and educational facilities. The bills would be enforced at the discretion of the NYPD.

On February 9th, four Jewish organizations — Jews for Racial and Economic Justice, the American Council for Judaism, Jewish Voice for Peace NYC, and IfNotNow NYC — released a joint statement urging the Council to reject both bills. Their argument is worth reading carefully, because it cuts through the framing that’s made these bills politically easy to support.

The bills emerged in response to protests outside New York synagogues — at least one of which was hosting a political event encouraging the sale of Palestinian land in violation of international law. The organizations are clear that people should be able to pray without fear of harassment. But they draw a precise distinction: when a house of worship hosts a political event, it enters the public debate. Protest of that event is protected speech. Criminalizing it because the building has a religious designation is a different matter entirely.

The deeper concern is what these laws become in other hands. The groups point to the Trump administration’s use of the FACE Act — originally passed to protect abortion clinic access — as a tool to prosecute journalists and activists. Buffer zone legislation, passed with good intentions in a relatively liberal city, becomes an infrastructure available to anyone in power. That includes an NYPD with a documented history of illegal surveillance of Muslim communities, unconstitutional kettling of protesters, and racially discriminatory enforcement.

The statement’s core argument is a First Amendment one: strong, open democracy protects Jewish communities better than restrictions on dissent. New York’s tradition of pluralism and protest — including Jewish protest traditions going back generations — is not a threat to Jewish safety. Legislation that narrows the space for dissent, at this particular moment, is.

The City Council should listen.

Destroying the New Deal

When Franklin Roosevelt commissioned nearly 1,700 murals for post offices across America in the 1930s, the federal government became the largest patron of public art in the country’s history. It also became the owner. And ownership, it turns out, comes with very few strings attached when the owner is the state.

A Washington Post investigation recently documented what’s happened to that collection: nearly 200 murals are simply missing. Dozens more have been destroyed, painted over, or quietly transferred out of public view. Many were covered precisely because their content, depictions of Black labor, Indigenous communities, and immigrant life, made someone uncomfortable. No explanation required. No public process. Just paint over it and move on.

The obvious legal question is whether the Visual Artists Rights Act — VARA — protects these works. The short answer is almost certainly not. VARA, passed in 1990, protects artists’ integrity rights in works of “recognized stature,” including the right to prevent destruction. But it applies only to works created after 1990, or pre-1990 works where the title hadn’t been transferred. The New Deal murals were commissioned works — title transferred to the federal government at creation, decades before VARA existed. The law that might protect them simply arrived too late.

What does apply is a patchwork of federal preservation statutes that create procedural obligations without hard prohibitions. The USPS has a legal duty to preserve these works. But as the Post’s reporting makes clear, duty and practice have long since parted ways, and enforcement mechanisms are weak.

The deeper legal framework is what First Amendment attorney Douglas Mirell calls the government speech doctrine — and it cuts in uncomfortable directions here. When the government commissions and owns expressive work, courts have generally held that it can control that work’s display and messaging. The government doesn’t have to show art it dislikes. But Mirell also notes the limits: when government suppresses art based on viewpoint or political pressure — as when Giuliani tried to defund the Brooklyn Museum over Chris Ofili’s work — courts have found First Amendment violations. The line between curatorial discretion and viewpoint discrimination is real, even if it’s hard to enforce.

What the New Deal murals represent is something the law hasn’t fully reckoned with: publicly commissioned art, paid for by taxpayers, placed deliberately in democratic public spaces, now disappearing without accountability. The same administration that strips slavery exhibits from national parks, defunds cultural institutions, and scrubs “woke” content from federal spaces is the steward of hundreds of murals depicting Black workers and Indigenous communities.

Roosevelt’s theory was that democracy needs beauty, and that beauty belongs to everyone. VARA can’t protect these works. Preservation law hasn’t. What’s left is the argument — not yet fully tested in court — that the public has a legitimate claim to cultural expression commissioned in their name, installed in spaces built for their use, and currently being managed out of existence one painted-over wall at a time.

When the government commissions art explicitly for public spaces using public funds, it isn’t just exercising government speech — it’s creating a public expressive commons. The post office murals weren’t made to express the government’s views. They were made to reflect, celebrate, and give voice to American communities — their labor, their landscapes, their history. The commissioning intent was democratic and outward-facing, not governmental and self-referential. That’s a meaningful distinction that current government speech doctrine doesn’t fully account for.

The problem is that the Supreme Court’s government speech doctrine, as it currently stands, doesn’t really recognize a category of “public speech” that belongs to citizens rather than the state. Once the government owns the work, it controls the work. The Court has been expanding government speech doctrine in ways that make this harder, not easier — the Pleasant Grove v. Summum decision (2009) essentially said that permanent monuments in public parks are government speech regardless of who created them.

The murals were made for everyone. So is the fight to keep them.

Acknowledgement

We are always grateful for the encouragement and suggestions of our colleagues and peers.

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This week, the Department of Homeland Security announced it was ending Operation Metro Surge, the federal immigration enforcement campaign that terrorized Minneapolis for ten weeks. The 10-week surge enraged Minnesota and a majority of Americans, left two U.S. citizens dead, and proved politically toxic for the fascists in the White House. Total federal public spending reasonably approaches $230 million over roughly two months according to the Star Tribune, plus Minneapolis’ Lake Street corridor alone is down $46 million in revenue between December 2025 and January 2026. More than 4,000 undocumented immigrants have been apprehended since the operation began, at a cost of roughly $57,000 per arrest. If the operation achieved anything, it revealed the enduring constitutional power of Americans protesting and taking to the streets.

Throughout this occupation, the most striking form of resistance has been choral. Not only chanting, but also large groups singing in harmony. The solidarity and peacefulness of local neighbors and grassroots community activists found its purest expression in the practice of massed voices. At least 2,000 people sang to ICE agents inside a Residence Inn, with one message: “Quit your job.” The group, Singing Resistance, drew explicitly on the Serbian civil resistance movement Otpor!, which used similar tactics to overthrow Milošević in 2000. Otpor! members would show up to police stations chanting, “You may not join us today, but you can join us tomorrow. In the final hours of their revolution, hundreds of thousands of people from across Serbia marched on Belgrade. Milosevic ordered the police and military to fire on massive crowds of protestors, and they refused.” GoodGoodGood

The singing spread. In Madison, a February 3 Justice for Alex Pretti event in the Capitol Rotunda featured a choir open to all singers, with a rehearsal at Bethel Lutheran Church beforehand. A minister from the First Unitarian Society of Madison led a non-denominational prayer at the health workers’ memorial, where 300 nurses and doctors gathered. Another “Assembly of Joyful Resistance” is planned for the Capitol Rotunda on February 22 with music and singing. In Denver, hundreds of singers from Colorado GALA Choruses, No Enemies, First Baptist Church of Denver, and community choirs gathered on the Colorado State Capitol steps, modeled after Minneapolis. The Justice Choir network, based at Westminster Presbyterian Church in Minneapolis, has been coordinating nationally. After distributing a digital songbook, the group is calling for a “nationwide day of action” and hosting in-person and virtual training sessions so communities everywhere can learn the songs.

In many ways, this is a revival of a great American tradition. Songs like “We Shall Overcome” and “This Little Light of Mine” passed through the Highlander Folk School in Tennessee into the Civil Rights Movement. The Freedom Songs were tactical, maintaining group cohesion during terrifying moments, communicating without leaders, and creating a sonic presence that couldn’t be ignored or easily dispersed. They create bonds of solidarity not just among those singing but with protesters and activists of generations past. These religious songs are associated with nonviolence, an important value in a citizen movement protesting violence committed by federal law enforcement. The Conversation

The labor movement used this organizing and protest tool, too. When the Wisconsin Capitol rotunda filled with song during the 2011 protests against Scott Walker’s anti-union legislation, a rousing rendition of “Do You Hear the People Sing?” from Les Misérables gathered strength from a vast chorus of demonstrators. The Solidarity Sing Along met in the rotunda every weekday for over 800 consecutive days, mixing familiar civil rights anthems with sacred songs of the union movement, including updated Wisconsin-centric lyrics to classics like “This Land Is Your Land.”

When Walker’s administration tried to require permits for the Solidarity Singers, they fought back and won. A Wisconsin appeals court ruled that a state requirement for singers in the state Capitol to obtain a permit was unconstitutional, finding the regulations hadn’t been narrowly written to further a significant state interest. Federal Judge William Conley acknowledged “the Capitol rotunda is closer to an out-of-doors, traditional public forum…with a unique history.” The ACLU won a settlement establishing that protesters now only need to notify Capitol Police, not obtain permits. The Solidarity Sing Along received the ACLU of Wisconsin’s William Gorham Rice Civil Libertarian of the Year Award “for the expression of the First Amendment rights of free speech and freedom of assembly.” Progressive.org

The tactical brilliance of singing is also its legal strength. Singing during a tense time in protests reaffirms the aura of a peaceful protest and gives bad optics to any aggressive policing. It diffuses tension while engendering solidarity. As one music scholar noted, “if you’re singing in front of a masked squadron of heavily armed federal agents...it also makes the other side look completely ridiculous because you’re attacking a chorus.” InsideHook Massed voices are inherently amplified without equipment— you can’t require a sound permit for human voices. And when the songs are hymns, as they often are, there’s an additional layer of protected religious expression.

A big difference from the 1950s and 60s is that the federal government sometimes intervened to protect people subjected to violence by states and localities. Now, many are trying to protect people in their communities from agents of the federal government. The constitutional framework is the same, but the vector of threat has reversed. What remains constant is the power of collective voice, the oldest and most elemental form of assembly, requiring nothing but breath and courage, protected by our Constitution.

Eleanor Savage of the Jerome Foundation and many other brave arts leaders in Minneapolis joined the NYC cultural community on a Culture@3 Zoom to share their terrifying experience of the past few months. Please help this community as they recover from the state-sponsored terrorism our federal government has perpetrated.

Protest Art Vandalized

Jake Lang, a January 6 insurrectionist, Trump pardon recipient, Florida Senate candidate, and professional provocateur, is back in custody. This time for kicking over an ice sculpture.

On February 5th, Lang filmed himself at the Minnesota State Capitol destroying a $6,000 ice sculpture that read “PROSECUTE ICE,” rearranging it to spell “PRO ICE.” He posted the video to X with evident pride. Minnesota State Troopers pulled him over shortly after and arrested him on felony property damage charges.

The sculpture had been installed by Common Defense, a veterans organization, following the fatal ICE shootings of Alex Pretti and Renee Good in Minneapolis. “I gave eight years of my life in service to this country in the military. For a January 6 insurrectionist to destroy our display is an attack on the First Amendment veterans like me fought to defend,” said the group’s communications director Jacob Thomas.

The irony is thick. Lang told troopers he was on Capitol grounds to exercise his “First Amendment right to artistic expression.” When asked whether he’d destroyed the sculpture, Lang said it was made of ice and would have come apart anyway. Lang was then released without bail but banned from coming within three blocks of the State Capitol, scuttling his planned pro-ICE rally there. This follows his January appearance in Minneapolis, where hundreds of protesters chased Lang from an anti-Muslim, pro-ICE rally outside City Hall.

It’s a pattern emerging among the pardoned: at least 33 January 6 defendants have been rearrested, charged, or sentenced for other crimes since the Capitol attack. Former special counsel Jack Smith noted in January congressional testimony that it was “reasonable” to expect pardoned rioters would continue committing crimes.

Lang is currently running for Marco Rubio’s vacated Senate seat. His next court date is March 3rd.

When Corporations Claim Speech Rights

A New York law restricting the sale of weight-loss and muscle-building supplements to minors just survived a First Amendment challenge in the Second Circuit. The case, Council for Responsible Nutrition v. James, offers a useful window into how courts treat corporate speech claims and where the law draws lines that elsewhere it refuses to draw.

New York wanted to protect minors from supplements linked to health risks. Their first attempt, listing banned ingredients, was vetoed because the health department lacked expertise to maintain such a list. So the legislature pivoted; instead of regulating what’s in the supplements, the new law regulates how they’re marketed. If a product is “labeled, marketed, or otherwise represented for the purpose of achieving weight loss or muscle building,” it can’t be sold to minors without age verification.

The Council for Responsible Nutrition (a trade association) sued, arguing this was content-based regulation of commercial speech. Their logic: an identical product could be sold freely if marketed for “digestive health” but would require ID checks if marketed for weight loss. The restriction turns entirely on the content of what manufacturers say.

The Second Circuit, applying the Central Hudson test for commercial speech, found the law survived intermediate scrutiny. Protecting minors’ health is a substantial government interest. Using marketing claims as a proxy for risk is reasonable. The compelled-speech argument—that age verification forces retailers to communicate a message—got short shrift: age verification is ubiquitous, and no one confuses a store’s compliance with a manufacturer’s endorsement.

The supplement industry lost this case because courts recognized a legitimate distinction: commercial speech that risks harm to minors can be regulated, even when that regulation turns on what the speech says.

Compare this to Citizens United v. FEC (2010), where the Supreme Court ruled that corporations have First Amendment rights to spend unlimited money on political speech. The majority held that the First Amendment “prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” Justice Scalia wrote that the First Amendment was drafted in “terms of speech, not speakers” and offers “no foothold for excluding any category of speaker.”

The logic: if corporations are associations of individuals, and if spending money is essential to disseminating speech (per Buckley v. Valeo), then limiting corporate political spending unconstitutionally limits the ability of those individuals to associate and speak.

The problem is Citizens United treats corporate political spending as equivalent to individual citizen speech in the context most essential to democracy: elections. Yet as the American Academy of Arts and Sciences has observed, “more money is not more democracy” and “authorizing corporate leaders to distribute shareholder assets— that is, other people’s money — in political campaigns thus empowers small numbers of insiders.”

The constitutional scholar Amy Sepinwall has argued we should focus not on “personhood” but on citizenship: “it is only normative citizens who need robust political free speech rights. Because corporations do not count as normative citizens, corporate political speech need not receive the same level of protection.” Digital Commons

Frederick Douglass, responding to Dred Scott, famously argued that “We the People” meant all human inhabitants, ”not we, the horses and cattle, but we the people, the men and women.” The Fourteenth Amendment was written to extend constitutional personhood to formerly enslaved people, thereby ensuring them all of the other protections mandated by the Constitution. That corporations have claimed these same protections has had profound and devastating implications for our democracy.

We have two frameworks operating simultaneously on corporate speech:

1. Commercial speech (selling supplements): Courts apply intermediate scrutiny. Government can regulate based on content if it has a substantial interest and the regulation is reasonably tailored. The New York law stands.

2. Political speech (influencing elections): After Citizens United, corporations enjoy robust First Amendment protections. Regulations on corporate electoral spending are presumptively unconstitutional.

In the marketplace of products, we recognize that corporate marketing can cause harm and merit regulation. In the marketplace of ideas, specifically, the ideas that determine who governs, we’ve decided corporations are entitled to the same speech rights as the citizens they might drown out.

In the election cycle immediately following Citizens United, independent spending increased by over 600% compared to the previous cycle. As Rep. Pramila Jayapal has put it in introducing the We the People Amendment: “Corporations are not people and money is not speech.” Pramila Jayapal

Pride

This week, the National Park Service removed the Pride flag from Stonewall National Monument, the first federal monument dedicated to LGBTQ+ rights following a January directive that restricts what flags can fly on NPS-managed sites. The flag came down Sunday night and was replaced by an American flag.

On Thursday afternoon, hundreds of supporters gathered at the monument. In front of the flagpole with the US flag, they raised a smaller flagpole containing the Pride flag, at which point the crowd cheered. Governor Hochul, Manhattan Borough President Brad Hoylman-Sigal, and other officials defied the federal order in an act of public resistance. The Department of Interior called Thursday’s flag-raising a “political stunt” and a “distraction.”

The federal administration frames this as a content-neutral policy. According to a National Park Service memorandum, the agency prohibits “non-agency flags and pennants” that are not the US flag or the Interior Department flag, with exceptions for historical flags, military flags, or flags of federally recognized Tribal nations.

Almost exactly a year ago, the NPS scrubbed references to transgender and queer people from its website for the Stonewall monument. The NPS also removed a list of flags associated with the LGBTQ+ movement, including the Trans Pride flag. The latest removal of the rainbow flag is not an isolated procedural adjustment. It’s part of a systematic campaign.

The removal comes after President Trump directed Secretary Burgum in a March 2025 executive order to remove “divisive” and “anti-American” content from museums and national parks.

The government is allowed to speak. It can erect monuments, fly flags, and shape how federal sites interpret history. This is called “government speech,” and the First Amendment doesn’t require the government to be viewpoint-neutral when it speaks for itself.

But government speech doctrine has limits. When the government creates a forum for expression, a place where the public speaks, it cannot discriminate based on viewpoint. And when the government acts to suppress certain ideas from public discourse, we’ve moved into dangerous territory.

Stonewall National Monument wasn’t created as a generic park. At the dedication ceremony, President Obama said, “Stonewall will be our first national monument to tell the story of the struggle for LGBT rights. I believe our national parks should reflect the full story of our country.”

The monument’s purpose was to tell a specific story. Removing the flag isn’t neutral management; it’s ideological revision. As Stacy Lentz, co-owner of the Stonewall Inn, put it: “The contrast between government-regulated space and community-held ground has become its own quiet argument about who controls history and how it’s allowed to appear in public.” The Advocate

This isn’t isolated. The National Park Service initiated a review of materials presented to visitors at all its 433 national parks, monuments, and historic sites. Signs asking visitors to report “any signs or other information that are negative about past or living Americans” were placed in parks. Exhibit panels on enslaved people owned by George Washington at the President’s House in Philadelphia were removed on January 22, 2026.

The Smithsonian “Restoring Truth” order directs the administration to work with Congress to “prohibit funding for exhibits or programs that degrade shared American values, divide Americans by race, or promote ideologies inconsistent with Federal law.”

What we’re witnessing is a coordinated effort to redefine what can be spoken on federal land, in federal museums, and at federal monuments. The mechanism is bureaucratic – flag policies, content reviews, funding restrictions – but the effect is viewpoint discrimination at scale.

If the government can decide that LGBTQ+ history is “divisive” and therefore inappropriate for a national monument dedicated to LGBTQ+ history, then no interpretive frame is safe. The logic extends outward: to labor history, to civil rights history, to any narrative that doesn’t fit the administration’s definition of “celebrating American exceptionalism.”

State Senator Erik Bottcher noted that NPS installed an American flag in place of the Pride flag. “What they’re trying to do is set us up to take down the American flag and pit the rainbow flag against the American flag,” Bottcher said. “We’re not going to do that because the rainbow flag is completely compatible with the American flag, because our movement, the LGBTQ rights movement, is an American movement.” The Advocate

The administration wants to position civil rights history as opposed to American history, rather than central to it. Once that frame is accepted, erasure becomes patriotism.

“The most Stonewall thing we can do is put that flag back up ourselves,” City Councilman Chi Ossé said. “They want to erase us. We’re not going anywhere.”

Thursday’s flag-raising wasn’t just symbolic. It was an exercise of the most fundamental First Amendment principle: when the government attempts to silence a community, that community speaks louder.

“Taking down the Pride flag was just, it was mean-spirited. It’s mean-spirited to a community that often feels under attack,” Governor Hochul said.

Whether the Park Service removes the flag again remains to be seen. But the image is already fixed: the bare flagpole, and then the crowd, and then the flag rising again.

NEXT STEPS: TAKE ACTION

First Amendment Friday

F.A.C.T. invites all cultural institutions, artists, and activists to post First Amendment stories, graphics, calls to action, and advice to their audience every Friday. Join our campaign by signing up here. Feel free to use our digital assets here.

Public Practice

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This past Sunday, on the first day of Black History Month, Tyler, the Creator delivered an astonishing performance and Regina King joined him with a monologue saying,

It sounds like an expression of an essential tension in Black American culture’s relationship to pain and place. Is it possible to return to spaces laden with generational trauma with an intention of reclamation or transmutation rather than fear or nostalgia? Sometimes, blowing up a horrific past feels like the only way to move forward, and the alchemy of Tyler’s performance ends with a spectacular explosion. Central to the spectacle were the moving, dancing bodies on stage. Maybe dance is the way to reclamation.

Krump was born from LA’s riots and gang violence; going back to those places without transforming them means being consumed by them. Scholar and educator, Sarah Soanirina Ohmer at CUNY’s Center for Place, Culture, and Politics writes dance takes the rage, the grief, the systemic violence, and converts it into something that asserts life. She states that Krump promotes “self-esteem, cultural preservation, agency, resistance and spirituality” while allowing performers to “work through and witness personal and communal trauma.” You don’t just visit the wound, you transmute it.

Many forms of dance seek to transmute time and place through the embodiment of ritual, resistance, and revolution. The First Amendment protects expressive conduct, but dance has occupied an uneasy place in that protection. The landmark case is Barnes v. Glen Theatre (1991), in which the Supreme Court ruled that nude dancing has some First Amendment protection but that states can regulate it, leaving open a crucial ambiguity: when does movement achieve the same protections and rights as speech?

There is a long history of the regulation of dance, and particularly Black American dance, and countless local ordinances that functioned as tools of suppression disguised as public order. New York City’s cabaret laws, enacted in 1926 and only fully repealed in 2017, required establishments serving food or drink to obtain a special license for dancing. The law was explicitly used to target jazz clubs and interracial mixing in Harlem. For nearly a century, dancing in New York was technically illegal without a permit, a fact that disproportionately affected Black cultural spaces.

This wasn’t incidental. Governments have sought to suppress indigenous and vernacular dance throughout history precisely because they recognize how subversive it is. The body in motion refuses to be still, refuses to be contained, refuses to let the space it occupies remain what it was.

Black American dance as resistance may have begun in a circle, as the ring shout, practiced by enslaved Africans. It involved moving in a counterclockwise circle while stomping and clapping, a retention of West African spiritual practice that doubled as a form of collective survival. The circle was arena, sanctuary, and site of witness. It persisted because it looked, to enslavers, like something other than what it was.

The cakewalk emerged on plantations as commanded entertainment for white audiences. Enslaved people performed exaggerated, high-stepping promenades, and their enslavers didn’t realize they were watching themselves being mocked. The dancers parodied the “high-falutin’ mannerisms” of masters aping European aristocracy. It was safer than an open challenge. The subversion was embedded in the gesture itself.

Stepping, which emerged from Black Greek-letter organizations (BGLOs) in the early twentieth century, drew on both African tradition and the necessity of expression within institutions that restricted Black assembly. The synchronized stomps and claps created community through coordinated bodies.

Krump was born in South Central Los Angeles in the early 2000s, emerging from the clowning style that Tommy the Clown invented to bring joy to kids in neighborhoods wracked by gang violence and the aftermath of the 1992 riots. Ceasare “Tight Eyez” Willis and Jo’Artis “Big Mijo” Ratti developed krump as something rawer, more aggressive, a way to escape gang life by channeling rage into movement.

The name itself tells the story: Kingdom Radically Uplifted Mighty Praise. Krump’s founders understood it as a faith-based art form, dancing “in the spirit.” But it was also explicitly political. Scholars note that krump and clowning “adapt foundational choreographies and music to promote African diasporic values of self-esteem, cultural preservation, agency, resistance, and spirituality.” The circle persists: krumpers form sessions in cyphers, taking turns in the center while the community witnesses.

Krump’s roots connect directly to the ring shout. The circle formation, the stomping, the spiritual release, the transformation of trauma into testimony, these are not new inventions but continuations.

In December 2014, after George Zimmerman was acquitted in Trayvon Martin’s killing, Dr. Shamell Bell found herself occupying space in front of the LAPD headquarters. She was a dancer. She knew how to gather people with movement. So she started teaching dance classes at the occupation site and called it “Street Dance Activism.”

Bell, now a professor at Dartmouth, describes street dance activism as “the lighthouse effect” – a shift from jumping into fraught waters to save others, toward becoming a beacon that guides through example. Her dissertation examines how “choreographies of the oppressed” can transform into “choreographies of the liberated.” The framework is crucial: you don’t just perform trauma. You transmute it.

In May 2020, six days after George Floyd’s murder, Big Mijo, one of krump’s co-founders, danced a solo in front of armed police in Beverly Hills. “Our dance krump is our way of coping,” he said afterward. “It’s our way of creating and fighting back. How else do we cry out to the grotesque? How do I show hurt for it to still be peaceful?”

That August, Street Dance Activism partnered with Lula Washington Dance Theatre, CONTRA-TIEMPO, and Rennie Harris Puremovement for a month of virtual events aligned with Black August and the Virtual March on Washington. The goal was to “raise vibrations as a global collective and dance to embody Black liberation.”

New York, choreographer Joya Powell founded Movement of the People Dance Company in 2005 after studying the Argentine Madres de la Plaza de Mayo – mothers who protested their children’s disappearance under the dictatorship through silent, circling walks. Powell saw the connection between embodied protest and witness.

Her work addresses systemic racism, COVID, and collective grief through what she calls Afrofuturistic immersive contemporary dance. In 2016, she won the Bessie Award for Outstanding Emerging Choreographer for Song And Dance You, which responded directly to the Black Lives Matter movement.

“For me, dance is activism,” Powell has said. “Dance itself is what gets us through the world. Dance itself is the resistance that we need in order to create change.”

The language echoes across generations: Alvin Ailey’s Revelations (1960), Pearl Primus’s Strange Fruit (1945), Katherine Dunham’s Southland (1951) – a piece about lynching that Dunham premiered in Chile because she couldn’t safely stage it in America. Dance, on the stage and the street, has always been in dialogue with resistance and revolution.

Tyler, the Creator’s performance was theatrical, cinematic, and explosive. The mainstream press called it "energetic" and "wild." But nobody named what they were seeing: a performer from LA drawing on street dance vocabulary, the same movement tradition that runs from South Central through David LaChapelle’s documentary Rize through the George Floyd protests to the biggest music stage in the world. Whether dancers moonwalk, krump, break, or step, they “Keep (us) moving forward. Watch out for those potholes.”

Press Arrests

A Minnesota grand jury has indicted independent journalists Don Lemon and Georgia Fort, along with other protesters, on charges of conspiracy and (perhaps not surprisingly)interfering with the First Amendment rights of worshippers during a January 18th protest at Cities Church in St. Paul. The journalists had followed a group of protesters to the church where an ICE official is a pastor. They were there to report on the event, not to interfere with a religious service.

The charges make no apparent distinction between protesters and the journalists documenting them. Lemon and Fort were there as reporters. The indictment treats their presence and their newsgathering as criminal participation. This isn’t a question of what journalists wrote or broadcast. It’s about whether they can be physically present at a protest, cameras rolling, notebooks open, without facing the same criminal liability as the people they’re covering. The prosecution’s theory collapses the distinction between observing and participating, between reporting and conspiring.

If upheld, this creates a direct constraint on the First Amendment right to free press. Journalists covering contentious protests would face a calculation: is the story worth potential felony charges? News organizations would need to weigh legal exposure against public interest. Independent journalists, without institutional legal support, would be especially vulnerable.

The precedent matters beyond Minnesota. Protests over immigration enforcement, reproductive rights, climate policy, or any politically charged demonstration could become legally hazardous terrain for journalists if documentation itself can be prosecuted as conspiracy. They are being charged (unironically) with conspiracy and violating the FACE Act (Freedom of Access to Clinic Entrances), which was signed into law by President Clinton to restrain anti-abortion protestors from preventing access to women’s health clinics.

Press freedom depends on journalists being able to witness and record events, especially contested ones. When the state can indict reporters for being present at protests they’re covering, that freedom disappears. The case against Lemon and Fort will test whether newsgathering at a protest impedes the right to worship and is prosecutable.

This is a very calculated effort to suspend First Amendment rights.

Shareholder Advocacy is a First Amendment Right

I am working on a theater project about community activism in the 60s against Kodak using shareholder advocacy. I never considered the First Amendment rights of shareholders until now. In 1967, a Black civil rights organization in Rochester called FIGHT became a shareholder in Eastman Kodak through the solicitation of proxy voting power. They used that position to force the company, Rochester's largest employer and most powerful institution, to negotiate about discriminatory hiring practices. They brought a proxy resolution and spoke at the annual Kodak stockholders’ meeting. They made Kodak's racism a financial issue and pressured the company, which finally hired 300 Black workers.

Current legislation before the Texas State Senate, Bill 2337, would make that kind of shareholder activism illegal today.

The law says that if you consider “environmental, social, governance, or faith-based factors” in your investment advice or shareholder advocacy, you’re trafficking in “nonfinancial” considerations, and the state can penalize you for it. Never mind that Kodak’s discriminatory hiring practices in a majority Black city were absolutely a financial risk. Never mind that excluding half your potential workforce affects your bottom line. Texas has decided that anything touching race, environment, labor conditions, or ethics is, by definition, not about money.

This is the same move segregationists made when they called civil rights activism “outside agitation” or “communist influence” —anything to avoid admitting that Black people organizing for their own interests might have a legitimate economic claim. FIGHT understood that Kodak’s practices weren’t just immoral, they were materially significant to the company’s future. That’s why shareholder advocacy worked. That’s why it was First Amendment-protected speech.

Now three organizations, the Interfaith Center on Corporate Responsibility, United Church Funds, and Ceres, are suing to block SB 2337. They do exactly what FIGHT did: they help investors use their shareholder rights to press companies on practices that affect long-term value. The proposed law doesn’t just regulate them; it tries to silence them by redefining their speech as “nonfinancial” and therefore subject to state control.

A federal court already blocked the law’s enforcement against the two biggest proxy advisory firms. But it’s still in effect for nonprofits and faith-based groups, precisely the kinds of organizations that have historically led shareholder activism on civil rights, labor, and environmental justice.

The case argues that SB 2337 violates the First Amendment by restricting speech based on content and viewpoint, and the Fourteenth Amendment because it’s too vague for anyone to know what’s actually prohibited. The deeper issue is this: Texas is trying to make it illegal for shareholders to say that how a company treats people matters to its financial future.

That’s not a neutral business regulation. That’s an attempt to wall off corporate conduct from democratic accountability; to say that shareholders can vote and speak, but only about things the state defines as “financial.”

When FIGHT walked into that Kodak shareholder meeting, they weren’t asking for charity. They were asserting a material interest in how the company operated. They were saying: your practices affect us, they affect this city, and they affect your long-term viability. They had legal, economic, and moral standing, and they voted as stockholders to demand that Kodak change its racist practice. Texas wants to strip that standing away.

Free Leqaa Kordia

Leqaa Kordia turned 33 in ICE detention this past December. She’s now spent over 300 days at Prairieland Detention Center in Texas as the last remaining Columbia University protester still in federal custody.

Courts have twice found the administration’s efforts to revoke visas and detain people like Mahmoud Khalil and Rumeysa Ozturk for their pro-Palestinian activism unconstitutional. Both have been released. But Leqaa remains behind bars, despite an immigration judge ordering her release on bond twice. ICE has blocked both rulings through procedural appeals, and DHS has argued that her financial support to family members in Gaza constitutes “support for terrorism.”

What actually happened: On April 30, 2024, Leqaa stood on a public sidewalk outside Columbia’s gates protesting the killing of nearly 200 of her family members in Gaza. NYPD arrested her for “failure to disperse.” She was released the next day. The charges were later dismissed. That should have been the end of it. Then came Trump’s January 2025 executive orders calling for the arrest and deportation of non-citizens who expressed support for Palestinian rights. Immigration authorities obtained Leqaa’s arrest record from the NYPD, and when she voluntarily appeared at a Newark ICE office to address a visa question, accompanied by her attorney, she was detained on the spot and flown overnight to Texas, 1500 miles from her family and legal team.

This is what speech suppression looks like when direct censorship isn’t available. The First Amendment protects the right to protest. It doesn’t distinguish between citizens and non-citizens exercising that right. But by routing political retaliation through immigration enforcement, the government creates a two-tiered system of constitutional protection. The message to anyone without citizenship who might speak out is: your speech has deportation consequences.

Leqaa wrote in a recent op-ed: “Through my continued detention, the Trump administration aims to send a chilling message... Why is his administration spending taxpayer dollars keeping me and others locked up for protesting a genocide instead of funding schools and health care?” This week, Texas state legislators were denied entry when they tried to visit her. ICE cited “protesters” outside the facility, though witnesses reported only a handful of people present.

What you can do: Amnesty International has made Leqaa a Write-for-Rights case. Contact your congressional representatives and keep saying her name, because visibility is the only thing that has gotten anyone else released.

PEN Playbook

PEN America just released America’s Censored Campuses 2025: Expanding the Web of Control, and it’s worth reading because it describes the government’s coordinated campaign against academic freedom, detailing the infrastructure, model legislation, and strategic escalation.

93 bills were introduced across 32 states in 2025. 21 became law. Eight states passed their first higher education censorship law last year. More than half of all college students in the U.S. now attend school in a state with at least one law restricting what can be taught, researched, or said on campus.

PEN breaks this into direct censorship (educational gag orders that explicitly ban teaching about race, gender, history, LGBTQ+ identities) and indirect censorship (laws that dismantle the structures that protect academic freedom—shared governance, tenure protections, student activism). Florida and Texas have woven censorship into nearly every dimension of their university systems: faculty hiring, promotion, course approval, and administrative selection. Oklahoma, South Carolina, Indiana, and Ohio are close behind.

But it’s not just red states. The second Trump administration has used federal research funding, Title VI investigations, and congressional hearings to bring elite private universities into compliance. The report calls this a “web of control,” and the metaphor works. These laws don’t operate in isolation. They reinforce each other. They create legal risk. They chill speech by making it impossible to know what’s prohibited.

The campus censorship laws say that teaching about structural racism, or researching gender, or discussing colonialism is not real education, it’s ideology, activism, something extraneous to the mission of a university. The strategy works by narrowing the frame of what can be considered materially significant. You can teach history, but not if it makes people uncomfortable. You can run a university, but not if you allow faculty to determine curriculum or students to organize.

PEN traces the roots of this backlash against liberal arts and education to demographic change on campuses, DEI efforts, and scholarship on race and gender. The report acknowledges real tensions around free speech on the left, but refuses the false equivalence: there’s a difference between students protesting a speaker and the state legislating what can be taught.

The section on “viewpoint diversity” is clarifying. That phrase—which sounds reasonable, has become a cover for imposing a new orthodoxy. Laws framed as protecting conservative voices are being used to purge faculty, ban books, and enforce ideological compliance. It’s Orwellian, but it’s working. The report ends with predictions for 2026. More states will pass first-time censorship laws. Federal pressure will intensify. The web will tighten.

Here is a database created by PEN tracking legislative attempts to regulated censorship at educational institutions.

History Gets Disappeared in Real Time

A historical exhibition about slavery just vanished from a Philadelphia park. Not because it was inaccurate. Not because it was vandalized. But, because the President decided we shouldn’t think about certain things right now.

The exhibit at Washington Square, one of the city’s original five squares, designed by William Penn, detailed how enslaved people were buried there in unmarked graves during the 18th century. It was part of a broader interpretation of the site that included its use as a burial ground for Revolutionary War soldiers and victims of the 1793 yellow fever epidemic. The slavery panels were installed in 2010 after years of research and community input.

Last week, the exhibit panels were removed from outdoor walls by the President’s House in Independence National Historical Park. The National Park Service says they’re “reviewing” the exhibit in response to Trump’s executive order targeting federal diversity programs. The order itself doesn’t mention historical markers. It doesn’t mandate removing interpretive panels about slavery. But apparently the threat was clear enough that park officials decided preemptive erasure was the safer bet.

This is how censorship works in practice. Not always as a direct prohibition, but by using implicit warnings that make people censor themselves. The executive order creates a climate. Administrators anticipate. History gets boarded over.

What’s darkly efficient about this moment is that it exposes the fundamental instability of public historical memory. We treat historical markers as settled facts, permanent installations that anchor collective understanding. But they’re actually fragile negotiations, constantly vulnerable to whoever currently controls the interpretive authority. The research doesn’t change. The graves don’t move. But the willingness to acknowledge them in public space can evaporate in a week.

The Park Service’s statement is a masterclass in bureaucratic doublespeak: they’re “committed to presenting history in full context” while literally removing context. They want to “ensure all visitors feel welcome” by making invisible the people who were enslaved and buried in unmarked graves. The logic only works if you believe that historical truth is inherently divisive, that talking about slavery makes white visitors uncomfortable, and that their comfort matters more than factual public history.

There’s a particular cruelty to doing this at Washington Square. Penn’s “Greene Country Towne” was supposed to be a refuge from persecution, a place of religious freedom and tolerance. Instead, it became a city built substantially on enslaved labor, where Black bodies were buried without markers while white Revolutionary heroes got monuments.

What interests me is the speed of compliance. No legal challenge. No public defense of the historical record. Just immediate capitulation to an anticipated threat. It suggests that the infrastructure of public history is more fragile than we might have hoped. The institutions fold before they’re even directly challenged.

This matters beyond one marker in one park. It’s a proof of concept. If you can disappear federally-managed historical interpretation this easily, what else becomes negotiable? Which other uncomfortable truths can be “reviewed” out of existence? The Japanese American internment camps? The Trail of Tears? Anything that complicates the preferred national narrative?

The First Amendment doesn’t directly apply here, government speech operates under different rules than restrictions on private speech. The Park Service can arguably shape its own messaging. But there’s a deeper principle at stake about democratic access to historical truth. Public history in public space should be subject to scholarly standards and community input, not executive whim and administrative fear.

This is what the disappearance of historical fact looks like. Not dramatic book burning, but a quiet boarding-up of publicly visible information. Not an explicit prohibition, but anticipatory compliance. Not erasing history, just making it invisible in the place where it actually happened.

Red Hats and Resistance - Rage Knitting

A yarn shop owner in Minneapolis recently broke her own “no politics” rule. Within two weeks, 70,000 people had downloaded a $5 knitting pattern for red hats, raising over $250,000 for immigrant aid groups. The hats reference Norwegian resistance to Nazi occupation, when citizens wore red wool caps (topplue) to signal solidarity against collaborators.

Online craft communities have become unexpected centers of anti-ICE expression. Nail artists recreate “resistance pink” from a viral protest photo. Embroiderers stitch Renee Good’s last words before she was killed. Quilters piece together “WE KNOW WHAT WE SAW” in stark black and white, refusing the administration’s attempts to reframe what happened in plain view.

This isn’t new. Homespun movements defied British textile monopolies in both colonial America and Gandhi’s India. French Revolution tricoteuses (French for knitting women) became famous for knitting while watching executions at the guillotine during the Reign of Terror. Black quilters preserved history through generations of enslavement and Jim Crow. Michelle Obama’s portrait by Amy Sherald honors that tradition.

A Norwegian historian notes that when the Nazis banned red hats in February 1942, Norwegians kept making and wearing them anyway. The resistance museum displays two red knit caps “alongside submachine guns, hand grenades and radio transmitters” chosen by resistance members themselves as among the most important artifacts.

Making something with your hands when you feel powerless does several things at once: it keeps morale up, it signals to others they’re not alone, and it refuses to let fear dictate what’s visible. The process itself, plunging needles into fabric, meticulously painting letters, piecing fragments together, knitting and weaving, transforms rage and grief into something that persists. “Red doesn’t belong to MAGA,” the shop owner said. Sometimes taking something back means making it yourself.

The Supreme Court has repeatedly held that clothing constitutes protected speech under the First Amendment. Students wearing black armbands to protest the Vietnam War. T-shirts with political slogans. Even the act of refusing to salute a flag. What you choose to wear on your body, what you make with your own hands and display in public, is a form of expression that the government cannot suppress. The Nazis understood this when they banned the red hats. Authoritarian regimes always recognize the threat of visible solidarity, which is why they continue to try to outlaw it.

Acknowledgement

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