Harvard Goes To Court To Stop Trump Nonsense

Legal Issues

from the turns-out-harvard-knows-some-lawyers dept

Last week, we wrote about Harvard showing a bit of institutional courage in telling the Trump administration to fuck off with its demands that the university fire certain professors, change its curriculum, and allow government oversight of campus activities. In response, Trump escalated things, as he tends to do, cutting off over $2 billion in promised funds and saying that Harvard should lose its tax-exempt status:

The IRS quickly got to work exploring just such a possibility, never mind that it’s a literal crime for the executive branch to weaponize the IRS to target any individual or entity.

For what it’s worth, there was a weird moment over the weekend when Trump officials tried to argue that the overly aggressive letter they sent Harvard was sent by accident:

It is unclear what prompted the letter to be sent last Friday. Its content was authentic, the three people said, but there were differing accounts inside the administration of how it had been mishandled. Some people at the White House believed it had been sent prematurely, according to the three people, who requested anonymity because they were not authorized to speak publicly about internal discussions. Others in the administration thought it had been meant to be circulated among the task force members rather than sent to Harvard.

The article claimed that the administration had actually been working with Harvard officials and seemed confident that a deal could be reached (i.e., Harvard was open to capitulating) when they sent this aggressive letter, leading to Harvard’s aggressive response. Yet another sign of administrative competence.

Either way, as you’d expect, Harvard has access to some lawyers, and on Monday they sued the administration seeking an end to all this bullshit (not quite the technical legal terms, but, close enough).

Defendants’ actions are unlawful. The First Amendment does not permit the Government to “interfere with private actors’ speech to advance its own vision of ideological balance,” Moody v. NetChoice, 603 U.S. 707, 741 (2024), nor may the Government “rely[] on the ‘threat of invoking legal sanctions and other means of coercion . . . to achieve the suppression’ of disfavored speech,” Nat’l Rifle Ass’n v. Vullo, 602 U.S. 175, 189 (2024) (citation omitted). The Government’s attempt to coerce and control Harvard disregards these fundamental First Amendment principles, which safeguard Harvard’s “academic freedom.” Asociacion de Educacion Privada de P.R., Inc. v. Garcia-Padilla, 490 F.3d 1, 8 (1st Cir. 2007). A threat such as this to a university’s academic freedom strikes an equal blow to the research conducted and resulting advancements made on its campus.

The Government’s actions flout not just the First Amendment, but also federal laws and regulations. The Government has expressly invoked the protections against discrimination contained in Title VI of the Civil Rights Act of 1964 as a basis for its actions. Make no mistake: Harvard rejects antisemitism and discrimination in all of its forms and is actively making structural reforms to eradicate antisemitism on campus. But rather than engage with Harvard regarding those ongoing efforts, the Government announced a sweeping freeze of funding for medical, scientific, technological, and other research that has nothing at all to do with antisemitism and Title VI compliance. Moreover, Congress in Title VI set forth detailed procedures that the Government “shall” satisfy before revoking federal funding based on discrimination concerns. 42 U.S.C. § 2000d-1. Those procedures effectuate Congress’s desire that “termination of or refusal to grant or to continue” federal financial assistance be a remedy of last resort. Id. The Government made no effort to follow those procedures—nor the procedures provided for in Defendants’ own agency regulations—before freezing Harvard’s federal funding.

These fatal procedural shortcomings are compounded by the arbitrary and capricious nature of Defendants’ abrupt and indiscriminate decision. Even before the freeze, the Government had threatened to terminate up to $8.7 billion in federal funding not just to Harvard, but also to preeminent Boston hospitals such as Massachusetts General Hospital, Beth Israel Deaconess Medical Center, Brigham and Women’s Hospital, Boston Children’s Hospital, and the Dana-Farber Cancer Institute. These hospitals are independent corporate entities with their own boards of directors or trustees and their own separate officers, leadership, and management. They are not under Harvard’s control. The hospitals have no control over Harvard’s enforcement of Title VI requirements, and vice versa. These hospitals have their own tax identification numbers, endowments, and accounts. And they seek and receive federal financial assistance directly from federal agencies, not through Harvard.

There’s more, but it’s a good, strong complaint.

What makes Harvard’s position particularly strong is how neatly it fits into recent Supreme Court precedent that we’ve discussed quite a bit on Techdirt. The complaint cites both Moody v. NetChoice and NRA v. Vullo, where the Court made clear that the government can’t use threats or actual coercion to pressure private entities into changing their speech or expression. Trump’s hamfisted attempts to dictate Harvard’s policies is just the latest in a long list of attacks on free expression from this administration.

It’s worth noting they have a ton of lawyers on the complaint, and their strategy is telling. The team includes Quinn Emanuel’s co-managing partner Bill Burck who was in George W. Bush’s White House (Quinn, notably, is also where Elon Musk’s favorite lawyer, Alex Spiro works). There are also lawyers from Ropes & Gray and King & Spalding. That’s three of the biggest “big law” firms all on the same filing. The King & Spalding lawyer is Robert Hur. If his name sounds familiar, he was the “special counsel” Merrick Garland appointed to investigate Joe Biden’s classified documents retention, and is known as a “Republican super lawyer.”

There are a bunch of other lawyers as well, including the named partners from the relatively new, boutique law firm Lehotsky Keller. While newer and smaller, Lehotsky Keller has been working on a number of high profile cases and are considered super well connected in the Republican world, with each of the named partners having roles in Republican politics (Keller, for example, was Solicitor General in Texas under Greg Abbott).

This isn’t just legal representation — it’s a political statement. Harvard has assembled a big list of big-name lawyers, many of them with strong Republican credentials, effectively telling Trump: “Even your own people think this is unconstitutional overreach.” It’s a move that makes it harder for the administration to dismiss the case as partisan politics (though it certainly won’t stop that argument from the true believer MAGA cultists).

The next phase will be critical. While the administration may continue pressuring Harvard, early court victories could decisively demonstrate the unconstitutionality of Trump’s attacks on academic institutions. Though some universities might still follow Columbia’s shameful example and capitulate, Harvard’s principled stand could embolden others to resist.

When the courts ultimately vindicate Harvard’s position — and they will — it will serve as more than just an institutional victory. It will reaffirm a fundamental constitutional principle: that no president, regardless of their political agenda or institutional threats, can leverage federal funding to override First Amendment protections. This reminder comes at a crucial moment, even if Trump and his allies rage against or attempt to circumvent these inevitable rulings.

Filed Under: 1st amendment, donald trump, free association, free speech, irs, moody v. netchoice, tax exempt, vullo
Companies: harvard, lehotsky keller, quinn emanuel

White House Censoring Press Pool Reports, While Still Discriminating Against AP

Free Speech

from the actual-state-sponsored-media dept

On Tuesday, the White House effectively eliminated the Associated Press from the White House press pool, changing the rules to basically bar the wire service entirely. This is even after (or perhaps in response to) a Trump-appointed judge ruling that the White House was clearly violating the First Amendment in excluding the AP from various press conferences. This isn’t a huge surprise, because last week there were reports that the White House was still excluding AP reporters… and then directly censoring press pool reports that mentioned this and other embarrassing facts.

I’m old enough to remember when there was ostensibly widespread concern with the Biden administration for supposedly (though not actually) ordering social media companies to “censor” conservative viewpoints on social media. The reality, of course, was very different as even the conservative Supreme Court clearly acknowledged just last year.

Since his second inauguration, the Trump administration has launched what may be the most aggressive, censorial attack on free speech in modern American history. While previous administrations have occasionally targeted specific speakers or types of speech, this administration is waging an unprecedented, multi-front war on nearly all forms of expression they disagree with. What makes this especially striking is that it’s happening in an era when First Amendment protections are supposedly at their strongest, and with an administration that keeps wrapping itself in the flag of free speech. And yet… here we are.

As noted, a Trump-appointed judge called out the administration’s discrimination against the Associated Press for failing to use Donald Trump’s preferred proper name for the Gulf of Mexico.

Last week, Oliver Darcy was the first to call out two troubling developments related to this: First, the White House was ignoring the ruling and still blocking the AP from certain access. Indeed, what Darcy had found is that the pool reporter on duty, Joseph Morton, the Washington correspondent for The Dallas Morning News, had written in the pool report the following:

“A reporter and photographer with The Associated Press were turned away from joining the pool.”

So why are we hearing this from Darcy instead of Morton?

Well, that’s the second discovery that Darcy reported on. The White House is now directly censoring White House press pool reports:

It was likely that sentence, which came after a judge had ordered the administration to restore the AP’s access, that irked the White House. That specific pool report from Morton, I’ve learned, was never distributed by the White House to news outlets subscribed to its pool report mailing list — a notable omission and a clear break from precedent.

It also wasn’t the first time this week that the White House chose to censor the pool. On Monday, Philip Wegmann, a reporter for RealClearPolitics, filed a pool report noting that a scheduled press conference between Trump and Israeli Prime Minister Benjamin Netanyahu had been “cancelled” and was “no longer taking place.” That report, too, was never sent out by the White House.

The selective distribution has raised alarm among some members of the White House Correspondents’ Association, particularly as the Trump White House seeks to exert a firmer grip over the press corps. Traditionally, pool reporters file dispatches about the president’s movements and remarks that are then distributed by the White House to the wider media ecosystem. Now, it appears the White House is withholding reports it doesn’t like — choosing not to distribute pool reports that contain information it finds inconvenient or unflattering.

It’s worth recalling that Matt Taibbi said that the Biden administration’s mere suggestions about vaccine misinformation were “a grave threat to people of all political persuasions” and claimed the “news media became an arm of a State-sponsored, thought-policing system.”

So where’s his outrage now? This is the White House literally punishing media for not repeating propaganda and editing press reports to hide unflattering information. I may just be a simple country tech/law blogger, but this seems like a far graver threat to press freedom and a much clearer example of state-sponsored thought-policing.

So, you’d expect Taibbi to be up in arms, but somehow, he’s still talking about how Joe Biden (apparently) lied about everything. Apparently, this literal suppression of speech doesn’t merit much of a mention. Ah well.

In any normal moment in US history, a White House directly editing press pool reports while defying a federal judge’s order about press access would be an earth-shattering scandal about government censorship. It would lead every newspaper and dominate cable news coverage for weeks. And yet, somehow, it’s barely cracking the top twenty stories of the Trump administration’s attacks on fundamental rights.

While I don’t expect Taibbi and his cohort to ever acknowledge how badly they misrepresented research on disinformation as “censorship,” you might think the mainstream media — which spent years amplifying that false narrative (or even just accepting the MAGA world’s false framing) — would at least speak up when faced with actual government censorship aimed directly at them.

I guess that’s too much to ask.

Filed Under: 1st amendment, censorship, donald trump, free speech, journalism, press pool, reporters
Companies: associated press

Library Study Shows It’s Just Politicians And Activist Groups Trying To Get Books Banned

Free Speech

from the too-much-free-time dept

What’s been noted before has been confirmed yet again: there is no widespread concern about the books kids have access to in public libraries. Instead, there’s just the concerted, but effective, efforts of a small group of people who feel everyone else’s rights end where their morality begins.

Something that was just the occasional blip on the radar for decades — the attempt to ban certain books — has become an everyday occurrence in recent years. There’s an acceleration in book ban attempts that can be directly traced back to Donald Trump’s first presidential term. Now that the window of opportunity is open, activists and “conservative” politicians are doing all they can to erase people and ideas they don’t like before that window closes or, at the very least, has its opening narrowed a bit.

The latest report [PDF] on censorship efforts compiled by the American Library Association makes it clear this isn’t a groundswell movement by personally offended parents to protect their kids from certain content. This is an activist movement that is determined to eliminate access to this content by whatever means necessary. Unfortunately, these groups are being helped along by legislators who believe their personal beliefs should be the only ones protected by the Constitution.

In its new State of American Libraries Report released Monday, the ALA found more than 70% of attempted bans of a given title or titles come from organized groups and elected officials, and just 16% originated with a parent.

The most commonly criticized books, including Maia Kobabe’s “Gender Queer” and the late Toni Morrison’s “The Bluest Eye,” can be found on such websites as www.ratedbooks.org and through lists compiled by Moms for Liberty and other conservative activists.

“We can trace many of the challenges to lists of books that have been distributed by Moms for Liberty and other groups,” said Deborah Caldwell-Stone, who directs the association’s Office for Intellectual Freedom.

The data shows this is a very recent phenomenon, with a sudden spike in book challenges occurring just as Trump was winding down his first term in office — one that was immediately followed by an insurrection attempt and the Republican party’s doubling down on everything Trump.

In 2023, OIF [Office for Intellectual Freedom] recorded demands to censor 4,240 unique book titles in libraries, the highest number of books challenged since ALA began compiling data about censorship in libraries. This reflects a 65% increase over the 2,571 unique titles targeted in 2022, the previous high. To understand how extraordinary this figure is, we can look at the average number of unique book titles challenged between 2001 through 2020. During that time, the average number of unique book titles targeted for censorship each year was 273. The highest recorded number of unique titles challenged during this period was 390 in one year. In that entire two-decade span, only 3,637 unique titles were challenged by censors—more than 600 fewer titles than in 2023.

This, of course, is due to the “party of free speech” being uniquely uninterested in actually protecting speech while acting in service of a man who didn’t even return to office until January of this year. His absence didn’t change the party’s thirst for censorship — something it touted even as it called for news agencies to have their licenses revoked, their press credentials rescinded, and — if possible — face prosecution for daring to criticize Trump and his followers.

There were plenty of empty threats involved in this concerted purge of content from libraries. But there were plenty of literal threats as well, ranging from personal threats delivered to librarians to the now-omnipresent government threat to libraries and the integral part they play in protecting First Amendment rights.

Reports filed with OIF documented an alarming number of threats directed at libraries and library workers. These threats included calls to close or defund libraries, attempts to criminally prosecute librarians and teachers for providing books and library resources to minors, and even bomb threats that closed down libraries and schools. Supporting many of these threats were legislative proposals by state lawmakers, who introduced 151 bills that would authorize the criminal prosecution of librarians, threaten library funding, or that imposed unconstitutional content-based restrictions on books for children and adolescents.

While it’s clear “Moms for Liberty” doesn’t actually care about liberty, it’s more disheartening to see elected officials not only ignoring the Constitution, but the best interests of their constituents. Contrary to what they may say in support of depriving people of rights, a majority of voters aren’t calling for book bans and/or the criminal prosecution of librarians. And, more hypocritically, many of these legislators, who claim their anti-DEI and anti-LGBTQ+ efforts are being made to return more “control” to parents of school-aged children, are more than willing to deprive parents of the power to determine what their own kids should or shouldn’t read.

These are the actions of malicious, selfish people who think they alone are qualified to decide what content is or isn’t acceptable to be made publicly accessible. And once they’re done destroying school libraries, they’ll be coming for public libraries (and, indeed, they already are) to prevent adults from obtaining any content these self-appointed censors don’t personally care for.

Filed Under: 1st amendment, book bans, censorship, free speech, gop, libraries
Companies: american library association, moms for liberty

Texas Legislator Wants To Fine Museums $500k Per Day For Displaying ‘Obscene’ Content

Free Speech

from the playing-to-the-cheapest-seats dept

Here’s a law no one has ever needed, being offered up by a legislator no one needs.

Authored by Texas Rep. David Lowe (R- North Richland Hills), the bill— HB 3958—would give the Texas Attorney General the ability to seek hefty penalties for museums that are deemed to promote obscene material. 

The bill defines “obscene material” based on Sections 43.22, 43.23 and 43.24 of the Texas Penal Code, which classify obscenity as content that portrays sexual conduct without any artistic or educational value or features the nudity of individuals under 18.

You know why we don’t have more laws like these? I mean, beyond the obvious constitutional issues. It’s because obscenity laws don’t have carve-outs for museums. Even beyond that, the mere fact that something is being displayed in a museum suggests strongly that it has “artistic or educational value,” as The Questionable Authority pointed out on Bluesky:

If you can’t see/read the embed, it says:

If it’s in a museum, it’s definitionally not obscenity.

Seriously.

If it’s in a museum, it has some form of social or artistic value, and if it has social or artistic value, it is not obscene under Miller and its progeny.

So, why does this bill even exist? Well, its origins lie with someone equally performative and stupid: Carlos Turcios, a self-proclaimed “conservative fighter” who managed to celebrate a (short-lived) coup when he turned his personal visit to the Modern Art Museum of Fort Worth (Texas) into police action and an equally stupid op-ed for the Dallas Express.

The Dallas Express visited the museum and saw several pictures featuring children. One photo showed a girl jumping on top of a table. Another depicted a boy with an unknown liquid substance and his genitals exposed.

The Dallas Express team then saw a video on a TV screen where an individual talked about her “queerness.”

“One of my major apprehensions around having a child was not knowing how we would be treated as queer people and queer parents. This is largely why I wasn’t interested in being pregnant,” the individual is heard saying during a video played during the exhibit.

Other photos showcase a topless woman exposing her breasts and a photo of two women together in bed, to name a few.

This article discusses Shirley Mann’s photography, which does include a few photos of her own children in the nude. None of this approaches the legal definition of CSAM, but Turcios is apparently one of those “I know it when I see it” people even though he doesn’t actually know it when he sees it.

That late December visit led to a single (apparently anonymous) complaint to local law enforcement, which of course resulted in this stupidity the following month:

Police in Texas have seized several works by the photographer Sally Mann from the Modern Art Museum of Fort Worth (The Modern), following a complaint that the images portray naked children and could be seen as pornographic. 

[…]

Although the exhibition has been open since mid-November, it seems Mann’s photographs first came under scrutiny just before Christmas, when The Dallas Express received a tip from a local resident and sent its staff writer Carlos Turcios to investigate. 

Of course, there are no follow-up articles from Turcios at his blog or at the quasi-newspaper that gives him space to spout his inanity. The cops raided a museum and seized a bunch of photos and the local prosecutor went so far as to present this to a grand jury for obscenity/CSAM charges. But the grand jury decided this wasn’t the ham sandwich it was looking for.

A Texas grand jury declined to take any action in the investigation surrounding Lexington-based photographer Sally Mann’s work, clearing the way for the return of several seized photographs to the Modern Art Museum of Fort Worth.

The images — part of Mann’s controversial “Immediate Family” series from the early 1990s — had been removed by Fort Worth police in January following complaints from local officials, including Tarrant County Judge Tim O’Hare, who alleged the photographs could constitute child pornography. The museum had included several of Mann’s portraits, which depict her children nude, in its “Diaries of Home” exhibition.

On Tuesday, the Tarrant County District Attorney’s Office issued a statement confirming the grand jury’s decision to take “no action” against the museum or its staff. The Fort Worth Police Department has said the photographs will be returned to the museum.

I guess Rep. Lowe is sore loser. Deprived of a victory lap by a jury of his peers (so to speak), he’s decided it’s time to specifically target Texas museums with a law that could result in $500,000/day fines should any other “conservative fighters” misinterpret/misrepresent museum exhibits. It’s not that the existing law isn’t capable of punishing museums for stacking a bunch of Hustlers in a corner and calling it an art exhibit (although porn is also protected by the First Amendment). It’s that the existing law just isn’t punitive enough to nudge museums — those bastions of woke liberalism — into self-censorship and limiting exhibits to whatever Norman Rockwell prints they have on hand (except for the one where the kid is waiting to get a shot in his naked butt cheek).

Having lost this battle, these local conservatives seem hell-bent on losing the war. The law, if passed, will be challenged. Considering its specific targeting of a single location hosting third-party artistic expression, it seems unlikely to survive even the most cursory review by a federal judge. Even the Tarrant County judge who’s similarly ridiculous won’t be able to change anything. It’s a state law, not a county ordinance.

Texans deserve better than this, even the ones who cheer this sort of thing on. Someone tried to turn art into smut and failed but rather than try to better their target selection, they’ve decided it’s time to make the entire state pay for their failures.

Filed Under: 1st amendment, censorship, david lowe, gop, moral panic, sally mann, texas

Federal Judge Tells Colorado School District To Return ‘Challenged’ Books To Its Libraries

Free Speech

from the stop-being-so-shitty dept

I’m not going to rehash the entire recent history of book bans/book challenges in this nation. Suffice to say that ever since Trump first took office in 2017, there’s been a significant increase in the number of suddenly “concerned” citizens seeking to remove books from libraries and a corresponding, equally-significant increase in legislation seeking to enact actual book bans. All this from the “party of free speech.”

In the Elizabeth School District of Colorado, the censorship effort took this form: a committee was formed last summer to determine which books in school libraries dealt with “sensitive topics.” The committee identified 19 books that met this extremely vague criteria. Unsurprisingly, these were some of the books the board flagged as problematic:

The removed books primarily featured Black, brown and LGBTQ people, the ACLU said, including “The Hate U Give” by Angie Thomas, “Beloved” and “The Bluest Eye” by Toni Morrison, “The Kite Runner” by Khaled Hosseini and “#Pride: Championing LGBTQ Rights” by Rebecca Felix.

According to the district board of regents, the targeted books depicted things it felt kids shouldn’t be exposed to — things like “racism, discrimination, mental illness and sexual content.” The books the board pulled (and flagged for review with post-it notes on pages dealing with these subjects) are the same ones being targeted all around this country. None of the members of the board were likely familiar with the subject matter. Most likely, a few of them received emails from “concerned” parents with the subject line “FWD:FWD:FWD:FWD:FWD Dangerous Books Your Kids MIght,, be Reading!!!”

The ACLU sued the school district. And, at least at this point, it has won. The federal judge handling the case has ordered the district to un-remove these books and stop being so stupid while the court busies itself with making this injunction permanent. (Somehow the Denver Post was unable to locate the court order displayed prominently on the ACLU of Colorado website, so we’ll link to the ACLU here and give it the credit its due, both for the win and for posting a copy of the court order.)

The decision [PDF] runs 45 pages and takes care to point out everywhere the school board went wrong, ranging from its baseless, self-serving claims that damning email conversations were “hearsay” to misrepresenting the standards for obtaining preliminary injunctions. Oh, and there’s also the thing where the school board tries to pretend determining what books can be in libraries is “government speech” that can’t be held to First Amendment standards.

That last argument simply doesn’t work. A library carrying a copy of Mein Kampf wouldn’t be assumed to be representative of the views of the government funding the library. And yet, that’s what the government (in the form of the school district) attempts to claim here in hopes of securing its censorship.

Then there are the emails. No wonder the board of regents wanted these treated as inadmissible hearsay. This one, sent from board of regents director Heather Booth to Superintendent Snowberger, says the quiet part loud. (Emphasis in the original.)

It’s crucial that as we navigate these discussions, we remain mindful of the promises we made and the values we pledged to support. By doing so, we can maintain our integrity and ensure that our actions align with the expectations of those who elected us. As I like to say “we need to keep politics out of the classroom and away from the kids”. However conservative values are exactly what we are and plan to continue to bring into the district.

That one gives the whole game away. Booth doubled down with another email, one that cc’ed the entire board of regents:

[I]n an email between Director Booth and a graduate of the District, Director Booth justified the book removal, stating that, “[a]s an elected official committed to conservative values for our children, I feel a strong obligation to honor the promises made during my campaign.”

And then tripled down:

Director Booth responded, “[p]ersonally, LGBTQ is only regarding sexual preference which doesn’t belong in any school. . . . Our constituents will not be happy about us returning any of these books. That is who we are beholden to.”

If anyone owns this federal court loss, it’s Director Heather Booth. Every example cited by the court contains one of her emails.

These five examples strongly suggest that the District’s motivations behind removing the 19 books is blatantly unconstitutional under Pico and other precedents.

And here’s why the district must put the so-called “challenged” books back on the shelves:

It is unconstitutional—under both the federal and Colorado Constitutions—to remove books from a school library merely because the District “disagree[s] with the views expressed in the books.”

Viewpoint discrimination has always been a non-starter in federal courts. That the district thought otherwise is problematic. So is its attempt to defend its actions, using tax dollars forcibly contributed to it by “constituents” Director Booth seems to feel are so loyal they’ll never realize they’re being steadily fucked by their incompetent representatives.

The Constitution lives to fight another day and, at least for now, students will have access to books that were, for lack of a more concise word, “banned” by people for no other reason than they didn’t like what they contained.

Filed Under: 1st amendment, book ban, book challenge, censorship, colorado, elizabeth school district

Trump Loyalist Judge Smacks Down Trump Admin Over Blocking The AP

Free Speech

from the bringing-free-speech-back dept

For someone who claims he single-handedly “brought free speech back,” Donald Trump sure spends a lot of time trying to silence speech he doesn’t like. His latest attempt just got demolished by one of his own hand-picked judges, as Judge Trevor McFadden ruled against the administration for its blatantly retaliatory ban of Associated Press reporters who refused to use Trump’s preferred proper nouns for the Gulf of Mexico.

Yes, yes, we know: the Trump administration claims that any judge ruling against the administration is a “far leftist radical Marxist who dreams of Mao” or whatever. But they’re going to have a wee bit of trouble making that argument with McFadden.

He isn’t just a Trump-appointed judge (he is), but he’s one of the Trumpiest judges on the bench, who has repeatedly ruled in ways supportive of Trump. When Trump tried to divert billions of dollars to his stupid Mexican wall project, Congress sued to block him, and McFadden ruled that Congress lacked standing (later overturned). In other words, if anyone was going to rule in favor of the White House here, it was likely Judge McFadden. Instead, he finds for the AP, and rather easily too. He notes, obviously, that the White House has the power to block access, but if it is opening up sessions to the media, it can’t block access on the basis of the media org’s expression:

So while the AP does not have a constitutional right to enter the Oval Office, it does have a right to not be excluded because of its viewpoint. And the AP says that is exactly what is happening….

The Court agrees. Indeed, the Government has been brazen about this. Several high-ranking officials have repeatedly said that they are restricting the AP’s access precisely because of the organization’s viewpoint. See supra Section I.A. Government counsel admitted that the AP was not being chosen for access, despite its “eligibility,” because of its viewpoint…. The Government offers no other plausible explanation for its treatment of the AP. The Constitution forbids viewpoint discrimination, even in a nonpublic forum like the Oval Office.

Judge McFadden goes on to point out that the cases the White House raises in response are obviously inapplicable, and the argument in favor of the AP being discriminated against for its speech is so obvious it’s barely worth highlighting.

In sum, precedent is unequivocal that the press does not enjoy any standalone right of access to highly restricted government locations like the Oval Office. Instead, forum analysis applies because the Government has chosen to open the Oval Office to some reporters for newsgathering. Under forum analysis, the Oval Office is a nonpublic forum, so the Government enjoys wide latitude on its restrictions, if they are viewpoint neutral. The AP presented evidence that the Government has discriminated against it based on its viewpoint, a claim the Government all but concedes. The AP is thus likely to succeed on its claim that its exclusion from eligibility to access the Oval Office violates its First Amendment rights.

The White House will likely appeal, though it’s hard to imagine it being successful (though, these days the Roberts Court would probably dream up some nonsense procedural argument for why Trump can do what he wants, while insisting it’s just ruling narrowly and people shouldn’t read anything more into the ruling).

What’s particularly notable here is how clearly McFadden lays out the constitutional principle at stake: the government can limit press access, but it cannot do so based on what reporters say or how they say it.

So the next time Trump or his supporters claim he’s a champion of free speech while simultaneously trying to punish media outlets for their editorial choices, remember: even his own hand-picked judges recognize this for what it is — unconstitutional censorship dressed up as “free speech advocacy.”

Filed Under: 1st amendment, donald trump, press pool, trevor mcfadden, viewpoint discrimination
Companies: associated press

Texas Judge Says Prior Restraint Is Cool And Legal While Silencing A Critic Of PTK Honor Society

Free Speech

from the Barbra,-get-your-gun dept

Welcome to the arena, Phi Theta Kappa Honor Society! Here’s your Streisand Beachfront Property commemorative dinner plates which, we must inform you, contain massive amounts of lead and should never, for any reason, be used as dinner plates.

PTK (as its abbreviated everywhere, even by the “society” itself) considers itself to be above the frat fray, despite its liberal use of the Greek alphabet. Instead, it’s a “society” that helps colleges students help themselves without having to resort to blackout drinking or ill-advised mascot thievery.

But it’s not quite smart enough. Toni Marek — a former volunteer who worked for PTK — is publishing a book based on her experiences there. Those experiences weren’t pleasant. She attended a dinner for the society, during which PTK Executive Director Rod Risely, allegedly forcibly pushed his hand between her legs. This followed several other sexual transgressions from Risely, ranging from the verbal to the physical during Marek’s brief tenure with PTK.

Marek intended to release her book (for free) on April 3, 2025, a date that deliberately coincided with PTK’s national convention in Kansas City, Missouri. Just as deliberately, PTK sought a restraining order blocking the book’s release prior to that date but extending past the end of its national convention.

PTK got what it wanted: a compliant judge. County Judge Kemper Stephen Williams not only bought everything PTK was selling in its unopposed motion, but granted a temporary restraining order that prevents Marek from distributing her book during the crucial PR period surrounding the society’s national convention. (h/t Popehat)

The opening paragraph of the prior restraint order [PDF] (call it what it is, folks) is pure frontier judicial gibberish:

On this date the Court heard Plaintiff Phi Theta Kappa Honor Society’s (“PTK”) application for a temporary restraining order against Defendant Toni Marek. The application was presented ex parte without notice to the Defendant. The Court, after considering Plaintiff’s TRO application, the pleadings, the declarations, other evidence submitted, and arguments of counsel, finds that the application is well-taken and should be in all things GRANTED.

I’m sorry, but all of these things cannot be true. An “ex parte” presentation only involves one party. So, there’s no way the judge can claim he truly considered everything that needed to be considered before John Hancocking PTK’s pre-written TRO pretty much unaltered. At this point, the judge only has one set of pleadings, declarations, evidence, and a single set of counsel. There was no emergency here, so there was no reason to keep Toni Marek and her counsel from being heard.

This is just a judge deciding the everything he just read must be true, even though it’s pretty clear the facts PTK presented aren’t actually facts.

However you may personally feel about Marc Randazza, one thing he does really well is embarrass courts that engage in clearly unconstitutional actions. Randazza’s motion [PDF] to revoke the order sets Judge Williams and his assertions on fire.

This aggression will not stand:

The TRO forbids Ms. Marek from publishing a book and states that she will not be permitted to publish her book until she hands it to PTK and allows PTK to determine what further prior restraints it wants from this Court. This is not just an unlawful prior restraint, but a never-before-seen type of prior restraint that acts in anticipation of a further prior restraint. It should never have been issued, and it must be dissolved.

So, clearly nothing justifies this prior restraint. But even the allegations are sketchy as hell. If this looks like a SLAPP suit, it’s because it’s a SLAPP suit. PTK is trying to prevent Marek from publishing a book that is, in part, based on records literally everyone already has access to.

PTK alleges, without proof, that some of the information in Marek’s book “is confidential and protected by non-disclosure agreements” and “is protected by the attorney-client privilege and/or work product doctrine.” It is not only without proof, but PTK’s very complaint makes it clear that this is false. PTK acknowledges that Ms. Marek obtained the information legally through interviews with third parties and public records requests. Let that sink in. PTK seeks to censor the publication of information received from public records requests.

Finally, there’s this part, which isn’t going to be fun for the judge to read, but needs to be said this pointedly and clearly to ensure he doesn’t double-down on the unconstitutionality.

Here, we have an injunction, based entirely upon anticipated protected speech by Defendant Marek, that contains a double prior restraint. It not only prohibits her from publishing her book as intended on April 3, 2025, but also provides Plaintiff with the sole discretion to determine what she is and is not allowed to say in her book. See TRO, ¶¶ A, B. Meanwhile, even if a tiny portion of the book were legally unpublishable (which is absurd), the Court enjoined the entire book from publication, and the Court has been manipulated by PTK into doing so for no better reason than to help PTK avoid embarrassment during its conference. The Order is wrong and PTK could not have possibly been ignorant to that fact.

That’s why PTK sought the smallest venue it could find to engage in this CYA Hail Mary play. It went to a county court solely because it increased its chances of slipping something past a judge unlikely to have racked up a lot of experience in First Amendment cases. It worked. This judge not only allowed PTK to present its case completely unopposed, he gave it everything it asked for, presumably deciding that whatever real justice might be applied could always wait until later.

If PTK had just sat back and allowed Marek to publish her book, it likely would have walked away from this pretty much unscathed. After the initial interest died down, PTK could go back to business as usual. Instead, it chose to be a bully, punching down in hopes of silencing a single critic for good. Because it chose this path, it will reap what it has sown: the resurgence of public discussion involving allegations that are now at least a decade old. And its extreme defensiveness in the face of this very minor threat makes an implicit statement that backs up Marek’s allegations. After all, if there were no truth to them, PTK would have nothing to worry about, much less sue about.

Filed Under: 1st amendment, censorship, marc randazza, prior restraint, streisand effect, texas, toni marek
Companies: phi theta kappa honor society

Supreme Court Not Ready to Blow Up Free Speech… Yet

Defamation

from the taking-the-small-victories-where-we-can-find-them dept

We came a bit too close to losing one of the most important First Amendment protections in American history — but at least for now we have a tiny bit of good news. Billionaire Steve Wynn, joining a growing chorus of the wealthy and powerful who want to make it easier to sue critics into silence, asked the Supreme Court to gut NY Times v. Sullivan’s vital “actual malice” standard. But last month, the Court turned him down, quietly listing his cert petition among the denied without comment.

While a simple cert denial may seem unremarkable, in today’s environment where foundational speech protections face relentless attack, keeping Sullivan’s protections intact represents a crucial firewall against wealthy interests weaponizing defamation law to silence critics.

The Sullivan standard exists for a very specific and crucial reason: to prevent the wealthy and powerful from using defamation lawsuits to bully critics into silence. The Court rightly recognized that if every minor mistake or inaccuracy about a public figure could trigger ruinous litigation, meaningful public discourse would become impossible. The “actual malice” standard (a confusingly named term that has nothing to do with “malice,” actual or not) requires plaintiffs to prove that false statements were made with knowledge of their falsity, or at least a strong suspicion that the statements were false.

Without this protection, billionaires like Wynn could bankrupt media outlets and critics simply by threatening expensive litigation over any perceived slight or minor factual error. The chilling effect would be devastating — who would risk reporting on corruption or misconduct if a single mistake could lead to financial ruin?

The “actual malice” standard has been so key to American free speech for over half a century that stripping it away would be a disaster of epic proportions.

Over the past decade, we’ve watched a coordinated campaign emerge to dismantle this vital protection. It started with Donald Trump’s calls to “open up” libel laws, but quickly evolved into a sophisticated infrastructure of MAGA-crafted nonsense legal scholarship and judicial skepticism. Federalist Society lawyers who once defended Sullivan began portraying it, practically overnight, as constitutional overreach (giving you a clear suggestion of just how “principled” some of those lawyers really are).

Basically, once Donald Trump said “jump” regarding defamation law, the MAGA legal infrastructure quickly began figuring out just how they should jump.

Most worryingly, two Supreme Court justices have explicitly called for overturning Sullivan. Justice Thomas led the charge (conveniently forgetting his own support for the standard during his confirmation hearings), followed by Justice Gorsuch, who was so eager to attack the standard that he relied on a deeply flawed law review article and had to quietly revise his dissent after its errors were exposed. We covered this disturbing evolution in detail in our recent podcast with “Murder the Truth” author David Enrich.

This cert denial suggests that, at least for now, there aren’t four justices ready to revisit Sullivan. We know Thomas and Gorsuch want to overturn it, and Alito likely agrees (he rarely strays from Thomas on such matters). But they needed a fourth vote to grant cert, and apparently couldn’t find one.

While it’s somewhat reassuring that two-thirds of the Court seems unwilling to demolish this crucial First Amendment protection, the fact that three justices appear eager to do so remains deeply concerning. The coordinated campaign against Sullivan isn’t going away — if anything, it’s gaining momentum. This cert denial bought us some time, but the next wealthy plaintiff with a grudge is surely already preparing their petition.

For now though, this firewall against frivolous defamation suits by the powerful remains intact. And in an era where free speech faces unprecedented challenges from all directions, we’ll take what small, but important, victories we can get.

Filed Under: 1st amendment, actual malice, clarence thomas, defamation, neil gorsuch, nyt v. sullivan, steve wynn, supreme court

Trump Earlobe Nibbler Brendan Carr Faces Inquiry Into His Broad Abuse Of FCC Power

Free Speech

from the something-vaguely-resembling-accountability,-maybe dept

If you think back to Brendan Carr’s first tenure as a regular Commissioner at the FCC, he was constantly warning about “FCC overreach.” We couldn’t have privacy rules or net neutrality rules protecting consumers from Comcast, he said, because that would be an extremist abuse of government authority. In fact, any oversight of shitty telecom monopolies was deemed “radical overreach” by Carr.

Of course, once Carr began to see that there was a path for him to be head of the agency, his phony concern about FCC abuse of power was thrown in the toilet. Instead, Carr spent all his time appearing on cable TV whining about how TikTok (an app his agency doesn’t regulate) should be banned in order to please Donald Trump (who then turned around and scuttled said ban to help his rich friend).

Fast forward to Carr’s short tenure as FCC boss, and it’s not hyperbole to say he’s abused FCC authority more in just a few months than any other FCC official in U.S. history.

Carr’s been illegally leveraging FCC power to trample the First Amendment, bullying media companies that aren’t kissing Trump’s ass, attacking FCC civil rights reforms, attacking public broadcasters, and harassing private companies for not being sexist and racist enough. While giggling about it like a little toddler. And desperately, desperately wanting to be taken seriously as a serious policymaker.

Enter Energy and Commerce Committee Democrats, who say they’ve launched an investigation into Carr’s very obvious abuse of FCC authority. In a letter to Carr, they state he’s wasting taxpayer money on all sorts of weird grievance gibberish, while trampling the First Amendment in the process. As per tradition, they’re very nice about it:

“We write to express deep concern over your actions to target and intimidate news organizations and broadcasters in violation of the First Amendment. These troubling actions assault the Constitutionally protected freedom of the press and violate the Federal Communications Commission’s (FCC) statutory prohibition against engaging in censorship,” the three Committee leaders wrote to Chairman Carr. “Moreover, directing FCC staff to devote time and resources to bogus investigations constitutes a violation of the law, gross mismanagement, extreme waste of funds, and an abuse of authority. Therefore, we are also sharing a copy of this letter with the FCC’s Office of Inspector General and are recommending that it open an investigation.” 

In their letter, The E&C Committees three leaders (Frank Pallone, Doris Matsui, and Yvette D. Clarke) are requiring that Carr turn over all sorts of documents by April 14 as part of their own inquiry, including communications between Carr and the Trump administration.

Documents that probably don’t exist given the administration’s love of ignoring records laws while they do sensitive war planning over Signal chats with journalists or destroy functional adult governance via unencrypted Starlink terminals duct taped to the White House roof. So we’ll see if any sort of meaningful accountability comes from this, and if House Dems hold Carr’s feet to the fire.

Carr’s assault on the First Amendment and journalism certainly is historically terrible, but it’s curious that neither Democrats nor the press really care all that much that Carr is also completely demolishing the entirety of telecom consumer protection. That seems to still be flying under the radar. His treatment of journalists shouldn’t be the only thing getting this level of attention.

With the help of the Supreme Court and Trump executive orders Carr’s destroying the entirety of what’s left of telecom monopoly oversight, giving lumbering terrible monopolies like AT&T and Comcast carte blanche to do literally whatever they want in the years to come.

That, of course, means killing off the FCC’s inquiry in to predatory broadband usage caps. And killing popular net neutrality rules. And eliminating media consolidation limits so NBC Universal Comcast can get bigger and shittier. And eliminating all FCC inquiries into predatory fees. And eliminating enforcement of rules requiring that your broadband and cable company be transparent about pricing.

Curiously I’m not seeing much in the way of investigations into any of that. Nor am I seeing many (if any) mainstream press stories about what that means for markets and consumers. And while there’s definitely a lot going on at the moment, I’m not sure I’ve seen a single Democrat spend much (if any) time talking about it on social media in an effort to inform and agitate the electorate (for what it’s worth, letting Comcast and AT&T fuck consumers over is not “populist”).

A lot of Democrats (and the media companies being threatened by Carr) were already abundantly feckless on stuff like labor and consumer rights before the authoritarians came to town. Might be nice if that changed.

Filed Under: 1st amendment, abuse, brendan carr, fcc, house energy & commerce committee, investigation, journalism, media, telecom

Iowa Book Ban Law Again Mostly Dead Following Return Trip To Federal Court

Free Speech

from the now-stay-down dept

Will the third time be the charm? Let’s hope so. This charmless act of hatred masquerading as “for the children” legislating has been struck down again by the same federal court that tried to kill it off the first time.

In late December 2023, an Iowa federal court told the state there was little chance of saving its anti-LGBTQ/book ban, given how completely unconstitutional it was. It forbade school libraries from carrying books “containing descriptions or depictions of sex acts.” It also prevented teachers or librarians from mentioning anything related to sexual orientation or gender identity to any student from kindergarten through sixth grade.

The law wasn’t very specific as to what constituted a “sex act,” but to be on the safe side, it created a specific carve-out for the Bible, which contains descriptions of several sex acts. More heinously, the law also wished HIV/AIDS into the ignorance cornfield.

The health curriculum shall include the characteristics of communicable diseases including acquired immune deficiency syndrome.

[…]

The health curriculum shall include age-appropriate and research-based information regarding the characteristics of sexually transmitted diseases, including HPV and the availability of a vaccine to prevent HPV, and acquired immune deficiency syndrome.

The court handling the challenge to the law said this about it on its way to saying the law, as written, was a good as dead, constitutionally-speaking:

The law is incredibly broad and has resulted in the removal of hundreds of books from school libraries, including, among others, nonfiction history books, classic works of fiction, Pulitzer Prize winning contemporary novels, books that regularly appear on Advanced Placement exams, and even books designed to help students avoid being victimized by sexual assault. The sweeping restrictions in Senate File 496 are unlikely to satisfy the First Amendment under any standard of scrutiny and thus may not be enforced while the case is pending. Indeed, the Court has been unable to locate a single case upholding the constitutionality of a school library restriction even remotely similar to Senate File 496.

Whew. You’d think no one would appeal this sort of shutdown, but the Iowa government isn’t spending its own money and wouldn’t even consider briefly borrowing its constitutents’ shame. It appealed this decision and was granted a brief revival by the Eighth Circuit Appeals Court eight months later.

It didn’t exactly green light the law, but suggested the lower court needed to spend a bit more time considering the underlying First Amendment issues. It also suggested that even if it agreed with the lower court’s reasoning, it would only apply the injunction to the named plaintiffs and allow the rest of state to be subjected to their legislators’ open bigotry.

The case has been examined again by the lower court. And, whatever hopes the state may have had about salvaging this terrible law have been dashed again. The lower court is no more impressed than it was the first time around.

Iowa cannot, for now, continue to enforce part of its book ban law, a federal judge said Tuesday, giving major publishers that sued the state the second temporary reprieve they requested.

The new decision from U.S. District Judge Stephen Locher again temporarily blocked the part of the law that prohibits school libraries and classrooms from carrying books that depict sex acts.

[…]

The appellate court told the lower court that it failed to apply the correct analysis in determining whether to temporarily block the law. In his decision Tuesday, Locher stated that the unconstitutional applications of the book restrictions “far exceed” the constitutional applications “under both legal standards the Court believes are applicable.”

In its latest decision [PDF] (which the Associated Press can’t seem to link to or embed in its coverage), the court arrives at the same conclusion it did last time. This isn’t a good lawful. It’s definitely not a lawful law. And it takes time to criticize the state’s hypocritical carve out for its preferred religious text.

In essence, Senate File 496 does what Pico and Pratt prohibit: it imposes a puritanical “pall of orthodoxy” over school libraries by concluding that there is no redeeming value to any book that contains a “description” of a “sex act” even if the book is a work of history, self-help guide, award-winning novel, or other piece of serious literature. See Pico, 457 U.S. at 871 (“Our Constitution does not permit the official suppression of ideas.”) (plurality opinion); see also Tinker, 393 U.S. at 511 (“In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate.”). The fact that the Bible and other religious texts are exempted from Senate File 496 reinforces the problem because it shows that even the Iowa Legislature does not believe all books involving sex acts are devoid of pedagogical value. There is no substantial or reasonable governmental interest that would justify allowing some books with sexual content to be in school libraries but not others.

The injunction is back in force. This will obviously be appealed because the Eighth Circuit reversed it the first time it handled the case. (Of course, it would be appealed anyway because there’s no way the state’s top bigots are going to let this one go until there are no further legal options.) We’ll see what the Appeals Court has to say at some point in the future but, at least for the moment, the Constitution wins and hateful ignorance is back to racking up losses.

Filed Under: 1st amendment, bigots, book ban, censorship, iowa, kim reynolds, lgbtq, libraries, stephen locher
Companies: penguin random house