2025: The Year In Free Speech

- Welcome to Free Speech Unmuted. I am your co-host, Eugene Volokh of the Hoover Institution at Stanford. And your other co-host, Jane Bambauer, is on with us as always, from the University of Florida Law School. It's, first of all, happy New Year to everybody and hope it'll be a good 2026. I'm sure it'll be an interesting 2026. Things have certainly not lacked in interest over the last year. This is our 2025 free speech year in review episode. Now, we could have had a very long episode, indeed. There's been a lot happening, but we're gonna hit what we think are the highlights. Apologies if we've omitted your, your favorite item. We probably covered it in a separate episode earlier this year, but we're basically gonna be talking about three matters related to the Supreme Court, two Supreme Court decisions, and one, one pending Supreme Court case that was argued last year. And we're gonna be talking about three things involving the Trump administration. And then, and then one more thing involving employees in speech. We'll, we'll, we'll give you more details on that as it comes around. So we're gonna, so we've identified seven items that we thought particularly telling. Again, we had to exclude quite a few. So we're gonna begin with the Supreme Court cases. 'cause you know, that's the way we lawyers do things sometimes. The most important action is very far outside the Supreme Court, quite possibly this year. But we'll begin with the Supreme Court cases. And I'm gonna start with the first of the cases, which was decided basically a year ago. But it feels like tent things. Things move fast these days. And that's the TikTok case. So recall that Congress passed a law that basically required the TikTok social media platform to, to be basically divested from it. Its current donors who have connections to China. And the sense is that they're under the influence of the Chinese government. 'cause certain aspects of the governance structure are within China and within Chinese control. The, so basically the law is called a TikTok ban because it really is a ban on the operation of TikTok by, by its current owners. Still, of course, we're still talking after some, quite possibly not entirely legal extensions allowed by the Trump administration. We're still talking about whether TikTok is, is going to be divested, but, but the law essentially mandated this divestment. So TikTok challenged it and the challenge began in the DC circuit where a three judge panel with respected Reagan appointee, judge Douglas Ginsburg, respected Clinton appoint, excuse me, I think, I'm sorry, Obama appointee Judge Sri Nassan and a respected Trump appointee Judge Naomi Rao, considered the case and unanimously upheld the law over a First Amendment challenge. And that foreshadowed, I think in some respects, the Supreme Court decision, which also unanimously uphold Aldo are subtly, subtly different grounds. But yeah, once you have this three judge panel that basically had people from both the, the right and the left upholding the unanimously, it became hard to imagine that there'd be five justices who disagree with all of you. So the rationale that the panel gave was that, first of all, TikTok was, at least the panel majority focused on this, that TikTok was 'cause it was possibly under the influence of the Chinese government. It enabled Chinese government to spy an American user and to monitor very closely how U users use the platform, what it is they see, and maybe gather information that could be used for blackmail purposes or for other purposes. So that was one of the rationale. One might think of it as a content neutral rationale. 'cause it's not about the content of TikTok, rather it's about the, the harvesting of information about TikTok users and possible access to it by the Chinese Intelligence Agency. But there's also a content based rationale, which is that the Chinese government would be, would be, would have the power indirectly, but still substantially to influence what is shown on TikTok. And might as a result block certain kinds of things in that that saw as inconsistent with Chinese government policy. And the panel majority concluded that that too was an adequate basis for, for the law, even though that's a content based rationale. And the, the opinion essentially reasoned that, look, the US government can't impose viewpoint based controls on American social media platforms. Surely foreign governments wouldn't have the power to do that, and the US government could take steps to prevent foreign governance from being able to do that. When it went up to the Supreme Court, the Supreme Court's opinion focused just on the content neutral rationale, it said, look, this essentially is a law that is aimed at preventing the Chinese government from having this power to spied Americans. That is perfectly permissible, even though it does indeed potentially substantially burden the, the communications of Americans if TikTok is, is shut down. They did not focus on the content-based rationale, and they recognized that that was part of the rationale for the government's actions. But they said, look, the evidence suggests that the, that the law would've been enacted even if the only rationale were the content neutral. One, just as course that specifically had a concurrence that specifically renounced the content-based rationale said that rationale is impermissible, but the gov US government can't try to try to prevent certain kinds of editorial judgments by platform, even if those judgments are influenced by foreign governments. The, the rest of the court did not really focus on that issue though, and instead just said the content neutral rationale is adequate. So, so that's, that's where we stand. What can we take out of that? I think one big picture point is when it comes to speech and foreigners, the First Amendment rules are somewhat different. They're not completely different, but they're considerably different. There are various cases involving speech by as or influenced by speech on behalf of, and perhaps speech to foreigners, foreign governments, foreign organizations, foreign individuals, which approach things quite differently than would be the case for Americans. Just to give one example, the Supreme Court summarily affirmed some years ago a district court decision that upheld federal law banning non-citizens who are also not permanent residents, but who are lawfully in America from spending any money related to federal elections. Of course Americans have a First Amendment right to spend that money, but the, the court essentially said, well, that's different. And there are other examples as well, that's not a general national security exception to the First Amendment. We know from cases like the Pentagon Papers case, that when Americans are talking to other Americans even about things having to do with foreign policy and with military matters and maybe national secrets, there is a very broad protection even if that undermines potentially national security. But, but that's, but it's different at, we see in cases like this, we just dunno how different, but it is different when it's speech by to or with foreign governments. So that's my, my summary of TikTok, Jane. Well, what do you think about it?

- Well, I'm curious whether you agree as a matter of description or, or a matter of doctrine with the court's decision to say, look, one of the rationales was content neutral and we're only going to analyze that one. So first of all, I, you know, the way you summarized it was that there was a presumption that the law would've been passed just based just on the basis of foreign government collection of data alone. I, I have my doubts at least when I, you know, my, my recollection from the era when Congress sort of hastily passed the law was that they were really worried about the algorithm and the kind of mind control sort of aspects of TikTok and the, you know, the sort of effect on voters here and that sort of thing. So, so I guess, you know, are, are, are you nervous at all about this case setting a precedent that the Supreme Court can just assume that all, all sort of rationales given by the DOJ should be assumed appropriate? Maybe that's not quite what they did, but, you know, are you worried at all about the way that the court made the decision?

- Yeah, I think that's something that may be caused for some unease. I don't think it's clearly wrong. There, there is a longstanding principle in First Amendment and other areas of the law as well that even if there's potentially an impermissible basis for, for the government's actions, the question then becomes, would they have done the same thing without that basis? So a classic example which the court cited is in public employment, let's say somebody is fired. And we know that part of the reason was that the government didn't like a speech, but he also was

- Caught, didn't do his job well and pardon, but he also didn't do the job that well,

- Didn't do the job well. He responded with his hands in the petty cash drawer,

- Right?

- He, the court would, a court wouldn't say, oh, well you have to reinstate the person even though he's committed crimes, let's say, or, or been incompetent or even you have to pay damages to him for his last job if he would've lost his job in any case, but even but for his speech. So there is precedent for that. You're quite right that in this kind of situation, and it's easy for the court to say, oh, it would've been enacted even without this hard to know for sure. And this, this raises the possibility that in the future you'd have basically some content neutral, but pretextual rationale offered. And then there's a content based rationale, which is a real reason without which nothing would've would've happened. And then the court might kind of focus too much on this protectual content neutral rationale and either be diluted into thinking or deliberately pretend that it would've been enacted. But for this, but at the same time, yeah, true. You know, you're right that part of the concern was mind control, but a part of the concern was spying. And that certainly nothing imp implausible about thinking that American government officials and American legislators are worried about Chinese spying. We should all be worried about Chinese spying because the Chinese are particularly malign. Although I do think that the Chinese government is a bad government, but, but of course our adversaries are trying to spy on us. We're trying to spy on them. So, so it makes perfect sense that that indeed as the content neutral rationales at the very least, a very large part of the,

- All right. Two, two other very quick comments. One was that some people have, you know, if, if listeners have forgotten about the TikTok ca case, it might be because TikTok is still on everyone's phones that wants it. This is a law that has been found to be constitutional, but that the Trump administration is, has decided not to enforce. That bothers some people. It doesn't bother me that much. Maybe partly because I thought it was a bad law in the first place. But also I think, you know, we, the same can be said of the criminal that the, you know, criminal status of marijuana and whatnot. So I just don't think that the non enfor, anyway, I don't think it's that outrageous. The other thing is, I wanted to point out that this is a case that, this is one of two cases we're gonna talk about that was, that decided that I law passed intermediate scrutiny. So, you know, it's, it's for, for those like me who, who want to understand the First Amendment as something that provides solid protection but not insurmountable protection when the, you know, when, when the rationale and the means are are good enough. I think this case should give you some to comfort

- That. That's right. And the important thing is it is precisely the court's conclusion that the law was essentially content neutral, at least should be treated as content neutral. The justified applications

- Of Yeah, exactly.

- Scrutiny or content based would be strict scrutiny, which is much more demanding. And for a long time, the court has recognized that when it comes to content neutral restrictions, the government does have more authority. So it can set up, say, noise restrictions or, or it can't restrict demonstrations because of their message, but it can di restrict demonstrations because they block traffic, right? So yes, you're, you're quite right, as a content neutral road with judge and intermediates scrutiny and was upheld as some, although not all content neutral laws, the court has considered. So now let's turn to another case. This is one that the, that was argued this last, this last year hasn't yet been decided, but conventional wisdom is the writing is on the wall and it says both statute is being gonna be held unconstitutional. So the case is Charles Lee Salazar, and it has to do with a Colorado law that limits, that essentially bans so-called conversion therapy imprecise label. But that's the one people may have heard with regard to sexual orientation or gender identity for minors. So if a minor comes to a psychiatrist, even with a minor's full enthusiasm and with a parent's supports and says, I am attracted to, to the same sex. I don't want that to be the case for a variety of reasons, maybe religious, maybe others. Can you kind of help me lose that attraction or at least gain attraction to the opposite effects That would be sexual orientation, conversion therapy, or gender identity conversion therapy. I feel that my gender identity doesn't match my anatomical effects or my chromosomal sex. But I would like it to, again, maybe for religious reasons, maybe just because I think my life would be easier if I felt that way and, you know, maybe I'd be open to gender reassignment surgery or whatever else. But that's the big deal. If I could avoid that by just coming to terms with my, with my anatomical or chromosomal effects than, than, or then that, that would be good. So the Colorado law that's not allowed. The theory being that, that that's bad for the patient and that's essentially a form of malpractice and we can stop that from happening at the same time. This is a speech restriction because a lot of, because the law bans among other things, talk therapy, just talking to the patient, if the law banned, banned pharmaceutical therapy or electric shock therapy or whatever, all there'd be no first amendment problem. There's no first amendment right to electoral shock or first Amendment right. That takes certain pharmaceuticals. But there is a first amendment right to here and first amendment right to speak. And the law covers that as well. And it looks like the majority of the court says that is an impermissible speech restriction. Now, literally, of course it is a restriction on speech and the, the fit of RA argues no, it's a restriction on conduct, the conduct being psychotherapy. I don't think that's right. I've actually written pretty extensively about that. You know, you can't strip speech of protection by just relabeling it conduct and the court hit that.

- Yeah. This these are not spell, this is not spell casting.

- Exactly. Exactly. So, so what's what I think what the real issue here, well I think the real issue is that traditionally we have treated professional clients speech somewhat different from other speech. So let's just take a a few examples. One of them is that this law actually involves two speech restrictions. One is a restriction on life and therapist, but the other is a restriction on everybody, right? That you can't provide any kind of therapy to anybody adult or a minor with some, with some exceptions if you're not licensed, right? It's a licensed profession, just like law is a licensed profession. And we can't give legal advice on the law in a particular state to a particular client without having a license. That's a speech restriction outside the professional time speech context that would be at so-called prior restraint, the hardest speech restriction to uphold. Yet those are pretty routine. There have been challenges to them, but I don't think the court is prepared to say, Nope, all licensing for the speaking professions is unconstitutional. Likewise, malpractice law, generally, if I write something on my blog, I'm speaking to the public at large, I can't be sued on the ground that I was negligent in what I was saying, even if I screw up some legal analysis. But if I give legal advice to a client, then I can be sued for malpractice. Likewise, of course with psychotherapists, and it doesn't even require a lawsuit. Let's say that a psychotherapist offers clearly incompetent treatment to a patient, but thankfully no harm happens. Maybe because the patient realizes that, that this is incompetent. Or let's say a doctor gives a patient advice, don't, don't take any medicines for your cancer, just pray it away, let's say, or something like that. In this capacity, as a doctor, that's his medical advice. Then that may very well be something that even if the patient doesn't follow it, so there's no no harm and therefore no malpractice. Maybe the, the, the doctor could be disciplined by the medical board, maybe lose his license. So there got to be some differences in the way that professional client speech is treat. But I think the court's view is that professional client speech is still generally protected. And one interesting question is what will it say, if anything, about this different, it may actually avoid all of these things. 'cause one, one thing you might say is all the examples I gave are basically viewpoint neutral rules. Nobody can practice medicine or psychotherapy or law without going through a certain licensing process. Anybody who negligently causes harm to, to, to a patient or a client can be sued for, for malpractice or can be disciplined. But here you have the legislature saying expression of particular viewpoints or essentially saying to somebody with their, with their permission, with their, in fact their eagerness, oh, here is what what you might do to change your sexual orientation is just categorically forbidden and that particular viewpoint and not others that are prohibited. So maybe that's one way the court will deal with it. Another possibility is tradition. The court has been quite interested in looking at history and tradition recently in free speech. As in other areas of the laws. They may say, look, there's a pretty longstanding tradition of licensing requirements of malpractice law, but the, these kinds of targeted prohibitions on certain kinds of professional speech on are, don't have such a tradition and therefore should be a held un constitution. But to me the most interesting question isn't whether the port will strike down this law looks like it will, but whether it will count doubt on the other, much more familiar kinds of restrictions than professional clients pitch.

- Yeah, I I mean I, I think another option. So, so what I don't love about the idea of looking at the legislation and saying, ah, this is not viewpoint neutral, is that you could say that as applied malpractice lawsuits are also not viewpoint neutral

- Maybe

- So, right? So, so, you know, a, a doctor's adv advice to, you know, I don't know, drink blink a a doctor's bad advice is bad because it it, it is, it is out of compliance with the standard viewpoint of the profession. And so, so you know, you could say, well, maybe what the court, you know, maybe what the court will do is to look for like controversial viewpoints. I think one way to do it though is to actually embrace what the tort system, the tradition of the tort system, the tort system in malpractice cases has said, okay, when we're asking what the custom customary practice of the profession is, there will be times when there's not just one standard. There will be times where reasonable members of the profession actually disagree and make different choices. And there's not enough there, there's not enough information, not not enough solid evidence to have formed a, a strict single rule. And so the, you know, sexual orientations change efforts, especially with re respect to trans trans orientation change, there's just hasn't been enough time and, and therapists disagree, like, as a matter of description, therapists disagree about what the best practice is. So that's another way that they could kind of avoid, I, I think stick with tradition and, and keep a narrow opinion. Of course. I wouldn't mind though if they went after the big initial question you asked whether it is appropriate to have licensing requirements for pure speech professional acts. You know, of course I, it makes sense. You know, I I think a state can, can, can condition a medical license to the extent that it's required for writing prescriptions and performing surgery and whatnot. Everything that, you know, things that are related to, to conduct and to, you know, actual invasions into the body. I, but, but therapy is different. Many aspects of law are different. That's, a lot of it is just giving sound advice and it might make sense for the First Amendment to require something more like a certification rather than a licensing restriction. But anyway, that's probably not where the court's gonna go. I agree with you there.

- Right. Although who knows, who knows? Court surprises people and we, among other things, even if we know where the likely result is, we, we don't know whether it's wanna write a water, write a, a long opinion or a short one. A broad or a narrow

- One. Yeah. Yeah.

- So yeah, we, we'll, there there's a Russian phrase, live a little and we'll see. So

- That's exactly the common law. That's great.

- Exactly, exactly right. I also did wanna, turning to you, I'm sorry,

- Lemme say one, like, one more thing. I think listeners who, who hear us and might not sort of follow the background science might think, well this is, this is really terrible. 'cause you know, all of these, all of the medical associations insist that there is a strong correlation between sexual orientation change therapy and depression, suicide, you know, you know, bad outcomes. And at least the last time I looked at this, which wasn't that long ago, these are just purely correlation studies for the most part. And, and they can't tell us much because people who are suffering from, for example, their family abandoning them because they're gay or because they're trans, they're likely to already suffer more than the average person. And so, and so, just as, you can't say much about the studies finding that women who get abortions are more likely to be depressed, you know, that too has a omitted variable explains it. I think this too, you know, I I think that the same sort of statistical problem is, is, is in these studies as well. So, so I I really genuinely think that, that we don't know much about whether these practices are good or bad. Okay. Sorry. Let's go onto the next case.

- And it's Free Speech Coalition versus Baxton, and it's, it's all yours. Or rather the start of the discussion.

- It's all your Yeah. The start. Although as a longtime listeners now, I am a lot le I'm a lot looser on details and my memory is much poorer than yours. So I will just, so I'll do what I can. So, so free speech, pion Free Speech Coalition versus Paxton was the First Amendment challenge to the Texas law requiring age verification for websites that where one third of the content is basically porn. What we, what, what in First amendment lingo we'd say is obscenity with respect to minors. And, and so the question was whether an age verification, you know, sort of pro process applied to websites could survive the relevant scrutiny. The Supreme Court with, with Justice Thomas writing, which I think was assigned to everyone that it was probably going to survive scrutiny because I think Justice Thomas would go even further than the rest of the court with respect to restrictions on, on, on children. When it comes to speech Justice Thomas said, look, this, this does, first of all, when it comes to content that is obscene with respect to minors, the government does have a freer hand. And even though in other cases having, you know, involving the internet and access to porn, there were reasons, for example, at the time of A CLU versus Reno to be skeptical about laws that would impose some burdens on website. This is a burden that is well tailored to the context. If you're running a porn site, it's appropriate to check the age of, of your audience much the much of the way, say, you know, a convenience store would have to check the ID of, of somebody buying alcohol or tobacco. So please add your nuance Eugene, and correct any misstatements I may made.

- Right. Well, so, so I agree that, that that's the, the general shape of the court's reasoning, just to highlight a couple of things there. So first of all, the Supreme Court has already said that certain material that is protected for adults, that it's a not punishable obscenity is still obscene as to minors, right? It's just illegal to sell it to minors, at least when you know that it's a, that the recipient is a minor or illegal to distribute it to minor. So this is an unusual situation in the First Amendment area, but but not unheard of when it comes to constitutional law generally, where something is protected for adults, unprotected for minor. So the question then is all kinds of restrictions that are aimed at shielding minors are permissible when they also burden adults. So here, part of the problem is that age verification would burden adults that may be somewhat more expensive. It may also undermine the, the adult user's privacy interests. 'cause they'd have to identify themselves and may not wanna identify themselves. Someone who by porn. So, so, so that got the question. So on the one hand, we know that the speech protected for adults, but unprotected for minors. And then the question is, what kinds of restrictions aimed at shooting minors are justifiable despite their burden in adults? And how should we, how should we evaluate that? And of, it turns out that this is an issue that comes up in other areas too. Right? So Supreme Court is dead that there's a Second Amendment right to acquire guns. But that minors and the court has never said that as to minors. And everybody assumes that minors, at least there's a debate about 18 to 20 year olds. But under 18 year olds don't have such a constitutional right. Presumably gun sellers could be required as in fact they are required, least professional gun sellers are required. But any gun seller could be required to check the ID of, of the purchaser or even the non purchase transactions, check to make sure the recipient isn't a minor. Would that interfere with people's privacy interests? Perhaps if they wanted to buy a gun privately, yeah, but that's considered acceptable. Likewise, adults have a right to marry. Children don't have a right to marry. They may be required to identify themselves to, to show an ID in order to marry. Now that may be a different matter because marriage has long been understood as a public, as a matter of public record. But that's just an, an example. Mention one other thing that back before Dobbs abortion was recognized as a right for adults, but not fully for minors, minors abortion. There there could be quite substantial restrictions on abortions by minors. I, I asked around among people who knew, look what, how, how abortion clinics would deal with somebody who comes in and looks like maybe underage. What would the abortion clinic do in order to comply with those laws? And my, well, the response I got is, yes, they would check the ID and of course they would try very hard to keep all that information private, but, but just because adults have a right to access abortion doesn't mean that you couldn't have age check. And of course that traditionally had been the thing for bricks and mortar stores with regard to, to pornography. So the question was, does this apply? How does this apply on the age of the internet? Where on the one hand, pornography is more accessible than ever before for minors. But on the other hand, also concerns about privacy may be especially great. 'cause before, if you have to identify yourself to a clerk, you may worry there'll be goths if the clerk will tell his buddies or whatever else. But here there's a worry that that information will be either resold or stored somewhere and there's a hack, and then millions of porn users would be identified. So the Supreme Court strikes that down and, excuse me, strikes the down upholds the law. The Supreme Court rejects a First Amendment, first amendment objection to the law. And what it says is, look, the law should be treated as if it were content neutral. Obviously it's content based, it targets sexually material, but it is aimed at unprotected material for minors to the extent it burdens adults, it's only in the course of enforcing this already recognized of syn as to minors exception. And here's the interesting twist. The majority says, well we actually, it's important to treat the subjectives not to strict scrutiny for content-based restrictions, but the content, but to the intermediate scrutiny. Because strict scrutiny should be very, very strict in order to protect fully protected speech that it should be fatal, in fact, absent truly extraordinary circumstance. Whereas the descend was saying, well, we should review this under strict 'cause it's the content-based restrictions that interferes with adults' ability to access material is protected to them or for them. But at the same time, we acknowledge there may be a compelling interest in shielding minors that would justify upholding at least certain kinds of restrictions. So they say, the defense says we are more protective because we apply strict scrutiny more broadly. The majority says we are more protected because we apply strict scrutiny more deeply that may we, we want it to be super, super hard to satisfy as opposed to the dissent, which is willing to, to have some laws upheld under strict scrutiny. But in order for that to work, we, we have to essentially limit it to exclude situations like this one where, where there's an attempt to police this, this existing first exception. So interesting conceptual matter and important practical matter of course as well. Obviously pornography is both big business and just lots of people use it, presumably enjoy it. So this is actually pretty important practically, but there's also this interesting conceptual question at the heart of it.

- What, which of those do you think is, is better free speech policy A, a, you know, a a LA less expansive coverage of, of strict scrutiny, but a higher standard that the government would then have to clear or,

- Yeah, I'm inclined to say that that, and I'm not sure how it should play out in this particular case, but that we should be open to certain kinds of categorical exceptions to protection rather than funneling more and more through, through strict

- Scrutiny. Scrutiny.

- And this is in fact what the court long said with regard to commercial advertising that if you, yeah, if you, given that there are lots of restrictions in commercial advertising that we're going to uphold, if you apply the same test to commercial advertising as you do to other speech, that will just dilute it for other speech. Right? So I do think that if there is a good, good reason to say that this is just categorically excluded from strict scrutiny for the following reasons. Yeah, it's better to do that than to say, well, strict scrutiny, you know, sometimes we will uphold the launder under that test. In fact, not that rarely uphold a law that could then bleed over into upholding restrictions on speech that is fully protected as opposed to and to the borderline.

- And porn too was one of these categorical, not an, you know, it wasn't unprotected, but it, it was an exception to the way that the usual rules apply. So,

- Right. So this is in, it has been in fact, in

- Various ways. Exactly right. Yeah. Unlike violent speech, which, which exactly, which you, you know, you could imagine if we were just, you know, making, if the court were to make all new decisions today, it might think that, oh, violent speech is kind of like porn has similar social issues, but, but in fact the, the customs, the the past cases have gone the other way. So,

- Right. All right, so we've done the, the, the Supreme Court and now we're gonna turn on a turn to some things that, that have come

- Up. I think the rest is Trump.

- Well, the rest is Trump, except the last part, which is Trump adjacent. Don't even know

- Which one is Trump adjacent. But we'll see.

- I has been doing various things that at least quite plausibly can be seen as affecting free speech that have not yet reached. So one pa one of the first really high profile things had to do with, with the Trump administration's executive orders with regard to various various law firm. There, there were law firm, the, the reason for the orders was the position that the law firms had taken in, in various, various legal actions before. And the First Amendment protects not just a right to speak, but also right to petition the government for aggressive readdress of grievances. The Supreme Court has said that includes a right to, to go to court to ask for certain remedies. And it includes either the petition clause of a free speech clause, the right of law firms and lawyers to represent clients in court. And, but the orders basically said because of the various positions that the, that the firms have taken, we're going to do various things to them, are gonna deny them their members, certain security clearances. That's a somewhat separate issue, which is also being litigated, but I'm gonna bracket it for now. But also, basically we're going to not allow them access to certain government buildings. We're not, we're not gonna allow them to participate in various, various matters related to government contracts. By the way, if all the government said is we're not gonna hire them as our lawyers, that might, the government might be able to do. But it was quite clear these orders went well beyond that and interfered with these firm's ability to represent other clients. The firms had to figure out what to do. Do they, do they give into the government's demands to, to, to change various policies and do various things and or do they fight it? And some firms give into the demands, and I I don't wanna fault them for that. They're, they're commercial institutions. They're, they have responsibilities to their shareholders, to their employees, to their clients. And they may have thought, you know, that's what we have to do. But other firms fought it and really quite successfully part of the rationale that the courts have, have given this point, it's trial courts. I don't believe any of these cases have yet reached the appellate level, although appeals are pending. Part of the rationale that was given is that, at least for the regard to criminal representation, interfering with these firm's ability to represent criminal defendants in federal, federal courts and other federal proceedings that burdens the rights of the defendants to have the client cons of their choice. But courts have all also said that this interferes with, with the First Amendment rights as well, that the First Amendment prohibits government officials from relying on the threat of invoking legal sanctions and other means of coercion to achieve the suppression of disfavored speech that includes these kinds of, of just exclusions of firms from various kinds of actions related to the government and not just criminal prosecution of lawyers or civil liability. And that as a result, these orders were at least in large measure on Constitution. I think that's right. I think it's good to see courts, courts enforcing the law here, the fir First Amendment law here, and limiting the government's ability to, to retaliate against its ideological enemies in this respect to be sure the government has considerable ability to retaliate against ideological enemies. But obviously it has, oh, not obviously my view, obviously it has to be limited by the First Amendment, including with regard to actions such as this. One interesting fact is a case that is very often cited here is NRAV vulu, which was a case from, from a a, a year plus ago now, which actually I was one of the lawyers for the NNA on, but was argued the Supreme Court by David Cole, who was at the time the National Legal Director of the ACL U. So the A CLU represented the NRA at that stage. The challenge there was a blue government, the New York State government that was trying to retaliate against the NRA, or at least the allegation is there was trying to retaliate against the NA, there hasn't been a trial yet. This was an, a motion to dismiss. The allegation is it was trying to retaliate against the NRA by pressuring financial intermediaries to stop doing business with it. And that that interfered with the nras rights because even though it wasn't prosecuting the NRA, it was using this kind of coercive power over these intermediaries. And the Supreme Court said, unanimously, that's unconstitutional. And at the time, there were people who faulted, including two chapters of the ACL U, including the very important New York chapter faulted, the A CLU for presenting the NRA on this. And in the retrospect, I think very sound move on the part of the ACL U, it set this unanimous precedent that is now being cited routinely in this case and in other cases, excuse me, in these cases, the law firm cases, and in other cases, in order to defend First Amendment rights against a conservative administration, which is of course, as it should be, first Amendment rules protect people regardless of their ideology. And that's why I think it's important to protect even people on the other side of the aisle from you, because that protection is established, we'll end up helping your people as well.

- Well, and Vullo, I I think and the importance of Yeah, will, will also wind up being related to the university issue that we're going to next.

- Absolutely. Absolutely. So shall we turn to, to the university matters?

- Yes. So, so another controversy that, that cropped up pretty early in, in Trump's second term here, was his decision to use basically almost every sort of string and power he has to pull to, to try to change to the university culture, to try to, you know, you know, in, in her his words, I guess make it less woke. Now, some of the, I think the first major action was taken against Harvard. Well, let's see, maybe there might have been an executive order of some sort before that. But the fir the first direct action interaction with a university was Harvard, where Harvard was probably the Trump administration's maybe best chance to, to leverage some of the non-PE conduct issues that, that, that, that relate to university practices. So the Trump administration pointed out that Harvard may have been in violation of Title VI by failing to protect its Jewish students during a time when some of the student protests related to the Warren Gaza led to various acts of abuse and, and intimidation against Jewish students at, at Harvard. So Harvard's own sort of in internal, you know, investigation did indeed find that it was out of compliance with its understanding of Title vi the trouble. And, and so Donald, the Trump administration threatened to cut off Harvard's access, not only to future grants, but even the grants that had already been awarded to Harvard and, and wrote a letter trying to force Herbert to, to enter into a settlement and agreed to do various things, including changing, not, not only changing how it addressed, you know, student demonstrations that might have an effect on, on Jews and other, other demographic groups. But a whole range of things that, that would change how the university is run, how it does, does admissions, how it does hiring and, and then how it treats basically faculty and classes that that teach controversial subjects or, and so, let's see, so Harvard University didn't agree to the settlement and they filed a lawsuit and I, so so the district court, so they, they're, they brought, they had a few different claims. One is that the cutting off funds that had already been awarded might have been a violation of a federal statute or, anyways, but the more interesting questions for our purposes are the First Amendment questions. So Harvard claimed, first of all, that the, that the attempt to, to, you know, the attempt to prevent Harvard from being able to access any research funding at all, we're talking about over a billion dollars in research funding was a retaliation for things that had to do with speech. And it was not just limited to Title six violations, but that, and indeed Harvard had a lot of fodder to play with a lot of statements by Donald Trump himself saying that, you know, Harvard has been terrible and has done a, you know, has, has taught a lot of woke concepts and, you know, they had plenty of tweets for ammunition. They also claimed that even putting aside a retaliation, the conditioning of these large research grants on certain conditions, that had to do with, with, with sort of the, the viewpoint, the, you know, the sort of political viewpoints of the, of the researchers and the research ends violated the unconstitutional conditions doctrine. And, and those arguments persuaded at least a district court. This two is a case where I don't, by the way, after this, the Harvard, I mean, sorry, the Trump administration also released a compact that it tried to impose on a, a another set of pretty elite universities. Most of the, I I think all of the universities that were specifically targeted actually rejected the compact. But a few other universities signed on to the terms of the compact. But that compact two looked a little bit like the Harvard settlement letter. It was probably improved a bit. It was a bit less unconstitutional in terms of, of identifying specific, you know, specific viewpoints that can't be as sort of embraced. But, but, but it, it too had some constitutional frailties. So, so far I, I think that only the Harvard case has had an opinion. Eugene, is that right?

- That's the one that I remember. Okay. As the, as to specifically the, the university challenges, although they're Yeah. To the challenges to the, the things that target universities, although,

- Yeah, - I'll mention briefly, there's another case involving, or at least there are other cases involving targeting up grants.

- Okay. Okay. Yeah. So I I, I tried to look if any of the compact universities, right,

- I don't know of any compact cases.

- Yeah. And I, I think Columbia filed one, but that it doesn't have an opinion yet. But anyway, but the district court agreed with Harvard that for the most part, the, the, the exchange was a coercive and sort of, you know, unconstitutional use of the, of federal funding in order to try to not only affect the research that's funded by the grant itself, but actually to spill out into the viewpoint and, and, you know, pure speech activities of the entire university.

- Yes. So, so I think, I think that that's right, that I do think that there are real constitutional problems with this. And the case that, that I wanted to mention is at the same time that it would, that the administration was targeting particularly universities, it was also cutting off grants that, that it saw as unduly linked to DEI or to sexual minority matters or something like that. And the ninth Circuit just a couple of weeks ago basically concluded that indeed tho that kind of cla the terminations of grants on those grounds were indeed First Amendment violations. But in order to understand that, I think we need to step back a little bit and, and think what are the government's powers with regard to the money that it awards? So on one hand, when the government decides to promote a particular program or particular message, it is surely entitled to pick and choose what viewpoints to promote, as was said in one famous case in the subject Rusty Sullivan, this was an exam, an example in that case, not the facts of the case, but it's a, I think a very vivid example, the government can fund the National Endowment for Democracy without also funding a National Endowment for communism or National Endowment for Fashion. Right? Likewise, it could say, in fact that is what it does through these endowments, we will give grants for promotion of democracy and not promotion of capitalism are, or, or fascist. If likewise, if a democratic administration, the, the federal or state level says, we wanna promote research on how best to diminish global warming. And somebody says, well, I want, I want use this money to explain why I don't think there is global warming or why I think global warming on balances concerns are overstate that we don't need to do anything to diminish it. Or even, I, I just want, I just want to spend these, these funds on what I think are much more urgent concerns than global warming. Well, government could say, okay, fine, you're perfectly free to talk about it, but just we don't have to fund you for that because we want, we want fund a particular set of messages and not others set of messages. And you can just multiply that. You could have a, you know, you could have grants for recruiting videos for the military and not, and they don't have to be spent on pacifist messages, how people should not join the military because they shouldn't fight in a war, right? So that's one law. On the other, on the other side, let's look at a really very broadly available program of fund day. Let's say historically there were, for example, subsidies for, for newspapers and books. In some measure there still are sent through the mail or charitable tax exemption that's offered to 5 0 1 C3 organizations. That's essentially a form of subsidy. Or you could, there, there are lots of other such examples historically. There was also, there was a case spice of Iran, the late 1950s, which was just an ignorant, a a a tax exemption from property tax in certain situations for people, can the government say, well just, well don't want to give it to racists or we don't want to give it to communists, or people who aren't willing to condemn communism, let's say that was the, the issue in the 1950s in some measure or we want, we will give a a 5 0 1 C3 exemption to various groups, but not ones that support a policy that's contrary to the administration's po policy on Israel and settlements that were, that was the fact of the case called, I think called Koska and DC Street in the DC circuit some years ago. The answer is no. The government here is setting up this broad program aimed at promoting a, a diversity of private views and it can't then impose viewpoint based restrictions on that. There's a Supreme Court case deleting cases, Rosenberger v Rector, where University of Virginia said it would fund all these student newspapers but not religious ones. And the court said, that's viewpoint discrimination. It's impermissible because you're targeting religious viewpoints for special exclusion that it, that other viewpoints are, are not subject to, and it's not in the context of a specific message you want to send. The whole point of the program is to promote a wide range of messages. You can't then then exclude certain messages in a viewpoint based way. So those are the ends of the spectrum. And then the question is where you draw the lines in the middle and the courts, I think are settling on the view that the government can't just say here with regard to a wide range of benefits, whether it's student student loan funds or even just grants in a wide range of issues, we're gonna ref, we're gonna exclude a particular particular viewpoints from them, or we're gonna exclude universities that express those viewpoints. Or we're gonna exclude universities unless they try to suppress those viewpoints that courts are, are increasingly saying. And I think there's a lot of precedent for this that is unconstitutional viewpoint discrimination. So we've gotta agree, I think that the government does have the power to discriminate based on viewpoint when it's selecting the funding of particular messages that it wants to promote. But a lot of university funding isn't that a lot of university funding is precisely, we wanna fund students, we wanna find institutions to promote a diversity of use. And once you do that, you can't then say, ah, but not these particular,

- But not these. And and you know, let me correct myself too, I mean I do think that the compact did, did was a a bit more careful than the original Harvard letter, right? But it did have, it did have some language that absolutely I think would violate this principle. So the co reading now from the compact, not, not the Harvard, not the Harvard letter, the, the compact required signatories to commit themselves to transforming or abolishing institutional units that purposefully punish belittle or even spark violence against conservative ideas. Now, I actually don't have a problem with punish or spark violence. I think, I think, I think conditioning funding on making sure that the school doesn't punish or, or instigate violence against conservatives is, well I don't, you know, viewpoint neutral to be sure, but, or well now maybe not. In any case, the thing that really bothers me is belittle, right? That using funding, right, absolutely. Funding to prohibit university units from belittling conservative ideas is basically creating a protection for conservative ideas, even those that don't deserve to be protected. Right? Even those that might be on based on, you know, built from false premises. So yeah. So the compact two has, has some problems. Yes,

- Yes, absolutely. All right, so we're gonna turn to the third action of, of the Trump administration. Maybe one of the questions is how much did, did the, all this was all this caused by the Trump administration, but it certainly involves at least the FCC chair, so the chair of the Federal Communications Commission and possibly other aspect, other facets of the Trump administration as well. And that has to do with the Jimmy Kimmel controversy. So tell us about that, Jake.

- Yeah, well probably everyone remembers this goodie, so shortly after Charlie Kirk was murdered, there was, you know, the, the facts were sort of slowly coming out about the, the nature of the killer. And there was some, I'd say some, some misstatements made in various settings, but one of them was that Jimmy Kimmel went on his show one night and said that basically that the Republicans or the conservatives are trying to pretend like the sh the killer of Charlie Kirk was anyone other than someone from their side or something like that. And, and that already, by that point, I think the Utah Police Department had al had released enough information to, to at least shed some, some serious doubt that the shooter was a conservative or a drer or someone that, you know, someone from the far right. So, so, you know, so Jimmy Kimmel's statement may have been inaccurate and maybe also not based on the best available evidence at the time that would, you know, but of course the, the news gets a lot of things wrong a lot of times. And Jimmy Kimmel isn't exactly the news, but it was upsetting enough to a large, you know, portion of, of the Trump administration's base, I guess that the FCC chair made public comments, i, I believe on Fox News. But in any case, he, he said that the FCC is going to consider applying a, an FCC rule on news distortion to penalize a b, C for basically for distributing this content. And, and we had a whole episode on this with, with Osh bwa. So you know, listeners can, can go back and review that if they want. But, but this is a, you know, an FCC rule that hasn't been enforced, or at least not for a long time and, and almost certainly would violate the First Amendment if it, if it were enforced, have been challenged or at least in this context. Certainly I think it, I think we all agreed it would, but this, so this public threat though, was timed. I mean, so it was, it happened to come out at the same time that some of the, the, the local affiliate owners of the local affiliate stations cut out the Jimmy Kimmel show from their air, their broadcast of A, b, C, not clear how much that had to do with the FCC chairs statements or not. But I think the point was made, I, you know, I think, I think people were rightly outraged that the FCC would try to threaten, threaten a media company like this and rely on the special context of broadcast, which yes, it does have some special First amendment, you know, exceptions or some, some, you know, a little bit more leeway given the need for the federal government to be involved in licensing and spectrum management. But, but I think even the cases we have Turner broadcasting what, what and et cetera would really make the fccs action the FCC chairs threat here. You know, none of those cases would support what the FCC chair was threatening to do.

- Yeah. So, so I think that that's absolutely right. It's hard to know exactly why it is that the suspension of Kimmel happened and why that was been then that lifted. But there is suspicion that there was some degree of government pressure, although obviously not enough to get Kimmel canceled. And that at the very least it sounds like there was an attempt at government pressure. So even if there was no First Amendment violation, I think what we have here is returning to that NRAV vow case, I've mentioned it's a classic example of government pressure aimed at intermediaries in order to try to suppress speech that I think is, would be unconstitutional if, if it were the cause of speech suppression. So though, yeah, I was glad to see there was a lot of pushback to it, including from some people at least on the right, including, for example, Senator Ted Cruz who, who sharply condemned VFTC chairman's statement. So, so I think that's my hope is that the message from that incident is going to be that the government shouldn't be trying to imp to, to, to impose such pressure. And if it does that there will be pushback because ultimately the main constraints on a lot of this stuff are political, much more so than direct judicial.

- Yeah. The, the trouble is in addition to, you know, when the FCC chair says what he said, I think it's very easy to see the threat for what it is in the wake of the, the case m Murthy, the Murthy case, that was a 2024 case, but still fairly recent where the Supreme Court found that, well, I don't know it was a standing issue, but, but basically the, it left some questions open about how much sort of jaw owning or what, what, what courts will do with something that's more like soft pressure, right? That, you know, I think the, I think that Jimmy Kimmel episode reminded me of that. So that's sort of a, that that's a nice mirror image where we had a Democratic president using, well, I I thought that the most threatening thing was when the, when when his spokesperson said, you know, we don't like what, that the social media companies aren't taking down this, this content that's dangerous for public health. And by the way, we're looking into antitrust options. Right? So that's a, that was a, a, at least a, you know, sort veiled threat that there is a law here, we might brush it off and we might use it to our advantage. And antitrust has come up again with respect to the Barry Weiss, Barry Weiss controversy, her decision to pull a news story related to the, the, the deportation, the, the, you know, foreign facilities that we're deporting immigrants to right now. But there's speculation that she made that decision under pressure because, you know, some, some, because of a, a merger or an acquisition doesn't wanna get caught up with antitrust problems. And so, you know, I think I, I've seen enough examples now where I, I think antitrust is one of, is just, just as the f you know, the FCC rules provide one lever for the federal, the president, especially to, to meddle with media. I think antitrust is another one we might see more, you know, this is something we might look out for in the next couple years.

- Right, right. So just stepping back, the First Amendment protects against more than just criminal prosecutions for speech against more than just civil liability for speech. It does protect it against at least certain kinds of subtler governmental coercion. But in the nature of things, it's just a lot harder to get at some of that coercion. Some of it is subtle enough that you can't prove it, even though everybody in the regulated industry is, feels in some measure, pressured, in some measure coerced.

- Yeah.

- So, so we'd like there to be, I think, strong First Amendment protections against that kind of subtle coercion. And there is doctrine that supports that. But some level, the government can even get away with certain things, again, unless it sees political pushback. That's why political support for free speech is as important as judicial support. Just don't, not that easy to find. So let's close now with another Charlie Kirk related matter. So following the, the, the Kirk murder, there were a bunch of incidents in which people were fired or otherwise disciplined by their employers for what was seen as wrong, offensive, insensitive, evil reactions to the murders. A few of them, a few of the reactions we saw were people who actually seemed to su to, to endorse the murder. More of them were people said, you know, he got what he deserved, not that murder is good, but I can't, I'm not going to to cry about this. Or, it's too bad that he was murdered, but he was a bad guy. You know, that is something that might violate certain norms about not speaking ill of the, with the recently dead. And, but, and also norms about wanting to, to really very sharply condemn in an unreserved way. Political murder, which is just political murder, is poison to, to any country, especially a democracy that, and I think we, we shouldn't be saying, well, it's bad, but I think it should be basically just, it's bad. Nonetheless, that speech is protected by the First Amendment, generally speaking, in the sense that nobody can be criminally prosecuted for it. Question is, can they be fired for it? And that's been litigated a bit and probably will be litigated a bit more. So when the government is firing an employee for the employee's speech on a matter of public concern and speech in his private capacity, not speech as part of his job, but speech, just in a tweet, let's say, or even a conversation over lunch with Fred's, there are First Amendment constraints on the government. In fact, there was a case rank in V McPherson from the 1980s where, which also involved speech about an assassination that after, excuse me, attempted assassination after there was this, after President Reagan was wounded by, by an assassin, somebody was working in a clerical capacity for a, for a law enforcement office in Texas, said it said to a coworker who was also her boyfriend, I wish that if they shoot at him again, they'll, they'll kill him. And she was fired for that. And the Supreme Court said, no, this is speech on a matter of public concern. It's presumptively protect, but it's only a presumption. And that presumption can be reported if the government can show that the speech is disruptive enough to employ, to disruptive enough to function as an employer. Note, that's very different from the government acting as sovereign. You can't just throw someone in jail because the speech disrupted some government employment because he was picketing outside the office. You can't sue him for it, but you can fire him for it. And one of the things the court said in that case rank and V McPherson is it said, look, this was never really publicized. This was not a figma made to the public. It was just a conversation between two coworkers that happened to be over, heard by a coworker. There was no real sign of disruption. But some of these public statements do yield disruption. So the, to the extent there have been cases on the subject, and of course it's just been a few months, so there've been relatively few decisions. Courts do indeed try to apply that test. And sometimes they say, yes, this speech was sufficiently disruptive. Look at all of the condemnation of it. Look at all of the kind of public reaction that the employer had to field. The employer had good reason to think this would undermine employer's credibility with the public, and therefore firing is permissible. And in other cases they say, well, you know, there really wasn't much public reaction to the extent that it was, you know, it was just people saying, we don't like it. But you know, that by itself isn't necessarily disruptive and you have to respond to some emails, you have to respond to some email. So the consequence is that un what we're seeing is that under this test you have what is would otherwise in other areas of First Amendment law be rejected as a so-called heckler's veto. So generally speaking, you can't suppress a speaker because a lot of people are upset by him, even if they threaten to attack him. Even if the goal of the police is just to de just to preserve the peace they have to arrest the attackers and not the speaker, suppress the speaker. And if people are just saying, I'm outraged, well, the answer is, okay,

- Okay,

- They're outage, but that doesn't mean the speaker can be punished. But when it comes to government employment, Vito is alive and well, more broadly, it's this weird situation where the First Amendment protects speech until it gets too controversial, protects speech that people basically don't much dislike. And then the question is, why was the person fired? So there is a zone of things where the employer is upset, but the public really isn't. And the coworkers really aren't maybe just a manager who's angry for poor ideological reasons, or maybe they're too worried about possible future disruption in, but there's really no basis to think that. So no situations where the employer's upset, but really nobody else much is. Well then the speech is protected. But if enough people are upset by it, if it's, if it's sufficiently controversial, then it's not protective. A strange situation. Although at the same time, the employer could say, look, we are hiring you in order to, in order to let's say, maintain good relations with the public, we're hiring you to provide benefit for our job. And now in the aggregate, you are in net loser for us. You are, you are doing some of your work, but you are alienating enough of our, of, of our clients, some of whom may be paying customers for whom we're, we're compet when we're competing with others with private entities. For

- In

- Any event, you're alienating clients and you're just not doing your job as a result. That, yeah, I

- Was gonna make the second that I was gonna make the same point that, that an employer is, you know, sort of by definition trying to get some other other thing accomplished, some other job done. Right? And, and so there's a way in which you can understand the first amendment in the employer employee context as being kind of a subsidy like you get your job, even though in the background employment context, especially in states that have that, that have, what is it called? Employment by will or

- Employment at will. Yeah.

- At will, you know, if, if, if in other states you can be fired for, you know, the the minor inconvenience to, to the employee or why should we put the public's money in greater, you know, why should we demand that the public pay for you to have employment in this part,

- Right. Particular position. Well, so, so, so yes, that's right. One interesting twist, by the way is what happens if the employer is a public university? Some courts have said, well, because universities are supposed to be places where controversy is seen as valuable and not harmful. Well, there we provide more protection for the, for speech by professors or by graduate students perhaps who are working for the university and the like. And we're not gonna accept a heck Las Vito and other courts say, well no, and you know, the university's still an employer and again, it's an employer that's competing with others w with with private universities and also the employer. It's an employer that may be seeking, seeking donations, seeking public support. So the fact that you're a public university professor doesn't give you much, much extra benefit. So here's one left width that I want to add here. So we think of free speech, sometimes we say interchangeably use it the term interchangeably with First Amendment, but of course First Amendment protect speech against the government. What about protections against private entities? Well, the First Amendment does not protect by its own terms. It only applies to Congress. So that the federal Government 14th Amendment applies that the state and local governments, by its terms, it does not apply to private entities. But many states have statutes that, that do protect private employees from retaliation for certain kinds of political activity. Pretty much all states, for example, prohibit employers for firing employees for, based on how they voted. So they just say you voted for Trump or for Biden, or for a communist candidate or some extremist right wing candidate, you can't be fired for that. But other states, in fact, one to one degree or another, about half the states also cover other kinds of political activity. California, for example, specifically prohibits, makes it a crime for private employers to fire employees for their political activity. And courts have read political activity quite broadly to include advocacy of not just a candidate, but also a cause pol a political ideology. Now that's an interesting question is saying, yeah, you know, I wish that, or, or I I I'm glad that Charlie Kirk is dead, is that political activity. It's not actually advocacy of a cause, although it is, I suppose it implies advocacy of rejecting Charlie Kirk's office. But let's take another example. Colorado has a specific statute that says that employer may not fire employees due to that employee's lawful activity off the premises of the employer during non-working hours with a few exceptions. And speech is a lawful activity. So if you tweet something out not from the employer's premises during non-working hours, that law seems to pretty categorically protect you. I don't know of any cases where, where these laws have been used with regard to these private firings. I think they're not present in all states. And some states they're quite narrow. I think a lot of employment lawyers don't even know they're there. Sometimes they don't provide very generous remedies. But that is, it's also an interesting question and also interesting for employers who want to comply with the law, even if they're not sued, they could say, look, you know, I want, I expect my employees to comply with the law. Or let's say I'm a school and I teach my students to comply with the law. We ought to comply with the law too. It looks like certain kinds of those firings might in fact be illegal under these laws. And some of these laws provide deeper protection than the First Amendment test. That's the government employment. Because there isn't this so-called pickering balance where controversial speech ends up being excluded if it's controversial enough for a lot of these laws provide very categorical protection. Interesting to, it'll be interesting to see if, if there's more litigation on that. So it's a long episode we've had, because it's been a long year long commitment year. We've covered a, a, a good many, quite different, different kinds of free speech controversies and, and I, I hope, I hope our listeners have found them interesting. Jane, any parting words?

- Not really. I mean, so, so I, I, I'm in addition to some of the, the follow up to the items we talked about in this episode, I think we're gonna wind up talking more about addictive design. I know we already had one episode on it.

- Absolutely. - There's just so many cases related to that and a lot of different slight variations in the state rules that, that, that are sort of emerging and being challenged. So I think we're gonna talk about that. Is there anything else you think you expect that we're going to wind up tackling this coming year?

- Well, I do think a lot of these cases are not done. There's gonna be a lot more on the administration and universities. Yep. Probably will probably have at least one episode on administration of law firms, just because at some point, presumably the, the d the appeal to the DC circuit will be decided by the DC circuit. Right now it's actually, I checked the docket, it's moving pretty slowly. Maybe the administration lost great enthusiasm for it, or so far, like likewise the, the Charles D. Salazar professional client speech case will be, will be decided. That would be interesting. Interesting to see my wife and the

- Immigration,

- Pardon?

- And the, the visas visas and free speech. I think we're gonna have

- More

- On that too. Absolutely. Yeah,

- Absolutely. Whether, whether people could be deported. Yeah. Legal aliens, people who even have yes, maybe have lawful permanent resident status or, or here in student visas, whether they can be deported for their, for speech that will be constitutionally protected if said, by a citizen. So the one thing I think I can confidently predict is we're gonna have a fun free speech year, not necessarily a good pre speech year, not necessarily a bad pre speech year, but we'll certainly have lots of things to talk about. And Jane will be a great pleasure as always, to talk to, talk about them with you and great pleasure to have people tune in. Do people still say tune in? Remember when you actually tune the dial. Tune in next week or in a couple of weeks. Same bat time. If you remember that same bat channel.

- This podcast is a production of the Hoover Institution, where we generate and promote ideas advancing freedom. For more information about our work, to hear more of our podcasts or view our video content, please visit hoover.org.