Worst déjà vu ever: Kimmel! Comey! ABC v FCC! FIRE accused of hypocrisy! & more!
Bringing you the latest free speech news (5/3/26)
Stories of the week
But should liberals avoid talking about these issues simply because it might give ammunition to the right? That doesn’t seem like a winning strategy. [Ken] White thinks that free speech advocates who oppose left-wing cancel culture spout such blatantly hypocritical “bullshit” that they turn multitudes of people off the free speech cause. But surely it’s much more off-putting to evade or sanitize the truth—evasions plenty of people are savvy enough to notice. Given today’s free-for-all media ecosystem, liberal and centrist silence about the abuses of the illiberal left is not going to sweep those problems under the rug (even if that were desirable); it will only boost right-wing media that will happily report these problems—and, sometimes, misreport them in the service of their own agenda.
If “86” Is Illegal Speech, Nobody is Free (Persuasion) by FIRE Senior Editor & ERI Managing Editor Angel Eduardo & FIRE Director of Public Advocacy Aaron Terr
To assume that “86” means “kill” or “assassinate” is, at best, uncharitable. There are obvious ways to “get rid of” a president without ending his life, like impeachment and removal from office. When the Chicago Sun-Times reported that NBA coach Jim Boylen was “eighty-sixed by the Bulls,” nobody thought it meant the Bulls’ front office had murdered him.
Even if they can somehow establish that “86” unambiguously means what they say it means, the prosecution still has their work cut out for them. Unless it can be proven that Comey himself seriously expressed an intent to kill the president, the phrase “86 47” would still be protected speech. The law is clear that merely wishing for someone’s death is and should be protected speech, as distasteful as it may be, absent more evidence proving intent to cause harm.
This week in ERI
This week in Expression
What do the most and least tolerant students say about self-censorship? by Anaum Allimulla & Chapin Lenthall-Cleary
One thing that immediately jumped out was that across all three groups, emotional reasoning is more common than rational thinking. On today’s campuses, the divide over free speech isn’t just about who gets to speak but about whether students are thinking or feeling their way to that answer, and the data isn’t good.
Licensed to speak? How NY’s AI bill gets it wrong by John Coleman
A lawsuit against a Black Lives Matter activist could chill all of our speech by JT Morris
Lawmakers want to force Californians to take anti-hate speech training by Greg Gonzalez and ERI Editor in Chief Adam Goldstein
This week on So to Speak
Could it be?! A third week in a row with two offerings from the team that brings you FIRE’s most illustrious So to Speak podcast.
First up, FIRE staff react to the latest free speech news involving James Comey, Jimmy Kimmel, ABC & the FCC:
Then, FIRE Executive Vice President & So to Speak host Nico Perrino sat down with Reporters Without Borders Executive Director Clayton Weimers to discuss contemporary challenges to a free press, RWB’s “Uncensored Library”— a virtual archive hosted within a server of the videogame Minecraft — and a lot more!
FIRE in the press!
Chatbots are a problem. But this jumble won’t fix it (WaPo) by Logan Kolas and FIRE Senior Fellow Adam Thierer
Jimmy Kimmel proves the White House can’t take a joke (UnHerd) by Angel Eduardo
London Calling: Ronnie’s First Amendment Roundup
First Choice Women’s Resource Centers v. Davenport
Unanimous Supreme Court recognizes standing for nonprofit’s First Amendment associational freedom challenge to New Jersey subpoena for records identifying the organization’s donors
Reversing the Third Circuit’s affirmance of a New Jersey federal court order dismissing the case for lack of standing, the U.S. Supreme Court held that a nonprofit subpoenaed for donor records sufficiently suffers present, ongoing injury-in-fact to its associational rights to allow a First Amendment challenge and pursuit of preliminary injunctive relief from the subpoena.
New Jersey’s Attorney General ordered the production of records with (among other info) names, phone numbers, and addresses for those who donate to organization, which provides counseling and resources to pregnant women but not abortions or abortion referrals. The organization sued in federal court to challenge the subpoena, while the AG sued in state court, claiming it violated NJ law in not responding. The federal courts held the group lacked injury to state a claim, especially given the state proceedings, in which the court had yet to compel compliance with the subpoena.
No matter, the Supreme Court held. In a unanimous opinion, it credited the showing that the subpoena caused actual, ongoing injury to First Amendment rights by deterring donors from associating with First Choice. Injury in fact necessary for standing to bring a federal claim, the Court explained, “does not arise only when a defendant causes a tangible harm to a plaintiff, like a physical injury or monetary loss,” but also when he “burdens a plaintiff ‘s constitutional rights.” As the Court noted (citing FIRE’s amicus brief), “even if a subpoena targeting First Amendment activity is never enforced … it will give its targets a very good reason to clam up and give the target organization’s members and supporters a very good reason to abandon the cause.”
The fact that the subpoena is non-self-executing, and thus supposedly imposes no obligation on its own, but rather creates a legal duty only if a court enforces it, does not mean no injury, as “the value of a sword of Damocles is that it hangs—not that it drops.” So, the Court concluded (with citations omitted):
Put aside the possibility that, even with a protective order in place, donor information might wind up in the public domain due to a hack or leak. Put aside the risk of harassment and reprisals that could invite. And put aside that risks along those lines are “heightened in the 21st century,” where almost “anyone with … a computer” can access information once it migrates to the public domain.
**** An official demand for private donor information is enough to discourage reasonable individuals from associating with a group. It is enough to discourage groups from expressing dissident views.
“Worse,” the Court noted – citing again the FIRE Brief, in which the ACLU and ACLU of New Jersey joined – as “amici represent, officials ‘across the political spectrum’ have sometimes issued subpoenas and other investigatory demands in order to secure just these results.” The Court thus remanded the case to the lower federal courts to reinstate and conduct proceedings consistent with the high court’s opinion.
International free speech stories of the week
When Hate Speech Law Becomes Political Speech Law: The Tale of Armenian Church and State (The Bedrock Principle) by Ashkhen Kazaryen
We Should All Be Concerned About What’s Happening in India (NYT) by Arman Khan
Greece Reportedly Wants to Curb Anonymity on Social Media Platforms (CNET) by Omar Gallaga
Clip of the week
I grew up hearing that what made America special wasn’t ethnic unity or centralized power, but a commitment to pluralism, candor, and free speech.
As I explained at the ASU+GSV summit with Olivia Gross, those values are rarer than we think, and more fragile than we admit.