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Intimidating abridgments and political stunts — First Amendment News 461

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First Amendment News is a weekly blog and newsletter about free expression issues by Ronald K. L. Collins. It is editorially independent from FIRE.

“This proceeding is a political stunt.”

Those were the words with which FIRE Chief Counsel Robert Corn-Revere (joined by FIRE General Counsel Ronnie London and FIRE Legal Director Will Creeley) submitted comments on behalf of FIRE to the Federal Communications Commission concerning a complaint by the Center for American Rights.

Such “political stunts” have become more the norm with the Trump administration. Consider, for example, the recent crazy letter by Trump’s interim U.S. attorney Edward R. Martin, Jr., in which he tried to intimidate the dean of Georgetown Law School by saying that if the school continued to teach DEI, his office would not hire their students. Or consider the bizarre attempt by the Social Security Administration’s acting commissioner to change Maine’s Social Security requirements because their governor criticized Trump. 

As to the Center for American Rights’ FCC complaint, it alleged “news distortion” by CBS Broadcasting when it assertedly edited the news program 60 Minutes “to such a great extent” that the “public cannot know what answer . . . Vice President [Kamala Harris] actually gave to a question of great importance.”

The FCC had originally dismissed the complaint because the center failed to make a viable allegation of “intentional” or “deliberate” falsification, as opposed to merely an editorial judgment protected under the First Amendment.

Nonetheless, on Jan. 20, the FCC seated Trump-appointed Chairman Brendan Carr, and two days later the FCC reinstated the center’s complaint and then invited public comments. 

It is against that backdrop that Corn-Revere and his colleagues, acting on behalf of FIRE, offered their comments.

Screenshot of FIRE Comment to FCC About CBS 60 Minutes Complaint

Below are a few of the statements set out in FIRE’s poignant comments on the FCC matter:

Public comments and the legitimate scope of the Commission’s enforcement authority:

FIRE . . . seeks to ensure the FCC does not exceed the scope of its authority in encroaching on broadcasters’ journalistic decisions. . . The general public is not a “party” to enforcement proceedings, 47 C.F.R. § 1.1202(d)(1)(iii), and generally lacks standing in such matters. 

Then what is the point of all this? By seeking public comment, is the Commission seriously asking viewers and listeners, along with politically energized partisans, to “vote” on whether they think CBS’s editorial choices ran afoul of FCC policies? Any such submissions are meaningless in helping the agency decide whether CBS violated any policies or what remedies might lie.

The commission’s attempt to regulate editorial judgments:

[B]ecause this proceeding focuses entirely on a news program’s editorial judgment, it runs headlong into the elementary rule that the right to “free speech [and] a free press...may not be submitted to vote; they depend on the outcome of no elections.”

Using the law to pressure CBS:

Bottom line, the Commission’s request for public comment lacks any legitimate regulatory rationale, but its realpolitik purpose is sadly transparent. This proceeding is designed to exert maximum political leverage on the CBS network at a time when President Trump is engaged in frivolous litigation against it over the same 60 Minutes broadcast, with the FCC using other regulatory approvals the network needs to exert added pressure.”

An unconstitutional use of regulatory power:

This is not just unseemly, it is precisely the sort of unconstitutional abuse of regulatory authority the Supreme Court unanimously condemned in NRA v. Vullo, 602 U.S. 175 (2024). The Court held that regulators violate the First Amendment when they use their official powers over certain transactions in ways designed “to suppress the speech of organizations that they have no direct control over.”

And then, with historical accuracy and legal acumen, Corn-Revere, London, and Creeley tendered a powerful point (emphasis added and notes omitted):

There is a name for this kind of thing — it is called a show trial. When proceedings become a performative exercise conducted to further a political purpose, they forfeit any claim to legitimacy. Show trials tend to be retributive rather than corrective and are designed to send a message, not just to their unfortunate victims, but as a warning to other would-be transgressors. There is a dark and deadly history of such showcase proceedings in authoritarian regimes around the world, ranging from Stalin’s purges of perceived political opponents to China’s trials of “rioters and counterrevolutionaries” after the 1989 Tiananmen Square protests. In our own country, similar tactics were employed during the Red Scare with investigations and hearings aptly described by the Chairman of the House Committee on Un-American Activities as “the best show the committee has had yet.” Those who staged the proceedings “were not seeking justice but staging a show trial to accuse, indict, and punish.” And while the stakes of a sham FCC proceeding obviously differ, the perversion of the rule of law is the same.

Note

Corn-Revere was a legal adviser to FCC Commissioner James H. Quello from 1990 to 1993 and was Chief Counsel while Quello was interim chair of the FCC in 1993. Among other works, he is the editor of the 1997 book “Rationales & Rationalizations: Regulating the Electronic Media.”

Beyond stunts

In all of this, it is important to emphasize a critical point: It is not partisan to speak out against authoritarianism. It is vital.

Furthermore, and as the poet Lawrence Ferlinghetti (a strong defender of free speech) put it in his book “Poetry as an Insurgent Art”:

Governments lie. The voice of the government
is often not the voice of the people. 
Speak up. Act out. Silence is complicity.

What we are witnessing in the first weeks of the Trump administration is more than intimidating political stunts; it is the start of the serial suppression of free speech. See, for example, Michelle Goldberg’s piece in The New York Times, “This Is the Greatest Threat to Free Speech Since the Red Scare,” in which she writes that “a government [so] willing to disregard the First Amendment is a danger to us all.”

I will say more about this general point in a future post. Meanwhile, next week I will post another installment of professor Timothy Zick’s “Executive Watch.”

Trump v. CBS update

Thomas C. Riney
Thomas C. Riney (lead counsel for defendants)

Argument

  1. The Lanham Act And The DTPA Do Not And Could Not, Consistent With The First Amendment Apply To Editorial Speech Like The Broadcasts At Issue
    1. Editorial Speech About Public Officials During An Election Enjoys Maximum First Amendment Protection 
    2. Consistent With The First Amendment, The Lanham Act And The DTPA Extend Only To Commercial Speech 
    3. The FTN And 60 Minutes Broadcasts Are Indisputably Editorial, Not Commercial, Speech
  2. Plaintiffs Fail To Plead Article III Standing 
  3. President Trump Fails To Plead A Lanham Act Claim
  4. Plaintiffs Fail To Plead A DTPA Claim

Revenge Storm: ‘Chill all the lawyers’

  • G.S. Hans, “Trump’s Attacks On Law Firms Are Borrowed From Some Pretty Famous Despots,” Balls and Strikes (March 10)

Threatening lawyers and legal organizations remains a classic from the despot’s playbook. Letting these orders stand without robust opposition — such as lawsuits from the affected firms, media statements from their leaders, and advocacy from similarly situated law firms — merely makes it easier for this administration to continue to stomp on less prominent targets.

Ronnie London on the Trump administration’s directive to impose court costs on rights litigants

FIRE general counsel Ronnie London
FIRE General Counsel Ronnie London

A new White House directive to heads of executive departments and agencies threatens to make it prohibitively expensive for Americans to defend the Constitution in court. The memo “directs” the departments and agencies to “demand” that courts make those seeking injunctions against federal actions “cover the costs . . . incurred if the Government is ultimately found to have been wrongfully enjoined.”

The move could not be more transparent in attempting to scare off potential litigants challenging executive orders or other federal actions of questionable constitutionality.

The White House deems this necessary because “activist organizations” are supposedly “inserting themselves into the executive policy making process” and have “obtained sweeping injunctions.” The administration claims Rule 65(c) of the Federal Rules of Civil Procedure mandates security bonds for all preliminary injunctions and temporary restraining orders to protect against the prospect of a later judicial ruling that the defendant was improperly enjoined.

But this is misleading. That literal reading of the rule may make sense in the mine-run of private disputes, like claims in commercial contexts. But courts have long recognized exceptions for public-interest litigation, especially when it comes to those seeking to protect constitutional rights. In other words, “activist groups” like FIRE and the clients we proudly defend.

David Cole on self-censorship

David Cole ACLU Legal Director
Former ACLU Legal Director David Cole

The Trump administration’s attack on diversity, equity, and inclusion (DEI) programs in higher education has many college administrators running scared. The Chronicle of Higher Education, which is tracking DEI changes, has already identified forty-one campuses that have altered or dismantled their programs since Inauguration Day. The University of North Carolina ordered all its colleges to remove DEI-related courses from its requirements for specific majors or general education. The University of Alaska will not use the terms “diversity,” “equity,” or “inclusion” in any communications. Columbia “removed diversity, equity, and inclusion policy language from several of its websites.” Northwestern’s business school “removed a diversity, equity, and inclusion pathway from its MBA program.” Vanderbilt “took down its Equity, Diversity, and Inclusion page, which now redirects to ‘You at VU.’” And on Friday, the University of Virginia governing board voted to end all DEI at the state’s flagship school.

Yet not a single one of these changes was necessary. This is self-censorship. It’s what Trump wants — but it’s not what either his executive order or federal law requires. Clarifying that confusion is essential as more colleges plan their response to Trump’s attack. But so is a little courage on the part of college administrators.

Executive Watch

New cert. grant on ‘conversion therapy’ case  

  • Chiles v. Salazar: Issue: Whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the free speech clause of the First Amendment.

John Bursch (Counsel of Record, Alliance Defending Freedom)

[T]he Supreme Court granted certiorari in Chiles v. Salazar, a First Amendment challenge to a Colorado law that prohibits so-called “conversion therapy” for minors. At issue is whether this is a permissible regulation of professional conduct or a viewpoint-based restriction on speech (with potential religious liberty implications as well). This will almost certainly be one of the most watched (and potentially most controversial) cases of next term.

Cert denied in college reporting bias case

  • Speech First, Inc. v. Whitten: Issue: Whether university bias-response teams — official entities that solicit anonymous reports of bias, track them, investigate them, ask to meet with the perpetrators, and threaten to refer students for formal discipline — objectively chill students’ speech under the First Amendment.

Related

The Supreme Court said March 3 it wouldn’t hear a challenge from conservative college students who say their freedom of speech is violated by a university program for reporting allegations of bias. Two of the nine justices, Samuel Alito and Clarence Thomas, publicly said they would have heard the case.”)

Primate speech: PETA’s First Amendment complaint

The case is People for the Ethical Treatment of Animals v. National Institute of Mental Health (Dist. Ct., MD, March 6, 2025). The lead lawyer for the Plaintiff is Laura Handman. 

Laura Handman
Laura Handman (Counsel for Plaintiff)

Below are a few excerpts from the complaint filed in the U.S. District Court for the District of Maryland:

This lawsuit seeks to enforce the fundamental first amendment right of Plaintiff, People for the Ethical Treatment of Animals, Inc. (PETA), to receive, without censorship or interference, communications from fellow primates, imprisoned and tortured in the laboratory of Elisabeth Murray, PhD, at the National Institute of Mental Health in Bethesda, Maryland.

The First Amendment to the United States Constitution provides PETA a right to receive communications from willing speakers. This right exists regardless of whether the speakers themselves possess First Amendment rights. The First Amendment also protects nonverbal communications as speech.

PETA engages in extensive news gathering and reporting activities as part of its charitable animal protection mission. This includes substantial investigation and reporting on the plight of animals subject to experimentation, including specifically the deprivations and injuries inflicted on the captive rhesus macaques in Murray’s NIMH laboratory. This Circuit has applied first amendment protections to PETA’s new gathering activities.

News gathering serves a particularly powerful function under the First Amendment when seeking access to incarcerated beings whose voices are otherwise silenced, to ascertain information about their conditions.

The captive rhesus macaques, including but not limited to Beamish, Sam Smith, Nick Nack, and Cersi in Murray’s NIMH laboratory are willing speakers under the First Amendment, regularly communicating about their physical and psychological pain and suffering through vocalizations, facial expressions, head and limb movements, body postures, and stereotypical behavior, indicating anxiety and depression (including pacing, rocking, pulling out their hair, and biting their flesh).

[ . . . ]

PETA has a right to receive those communications in real time directly from the rhesus macaques and to report the information received to the American people in order to inform the public discourse on the highly controversial and much criticized issue of government funded experiments on animals. Without these communications, the public will remain inadequately informed about the circumstances of their fellow primates.

This lawsuit follows the Defendants’ refusal of PETA’s August 5, 2024 written request for reasonable, uncensored, and unedited access to a live streamed audiovisual feed of the rhesus macaques in Murray’s laboratory in order to receive the macaques’ communications and exercise its first right to listen. Defendants also refused PETA’s offer in this letter to cooperate in devising and the alternative means for PETA to meaningfully access the macaques’ communication in real time without government interference [citations omitted]. 

New scholarly article: Abrams, et al, on the press clause

More in the news

2024-2025 SCOTUS term: Free expression and related cases

Cases decided

  • Villarreal v. Alaniz (Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
  • Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
  • TikTok Inc. and ByteDance Ltd v. Garland (The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)

Review granted

Pending petitions

Petitions denied

Last scheduled FAN

FAN 460: “James Goodale on Trump: ‘He’d sue everybody . . . in the media business’ and their ‘response has been pathetic’”

This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.

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