Ep. 257: Conversion therapy at the Supreme Court

Summary

Episode Summary: "Ep. 257: Conversion therapy at the Supreme Court"

So to Speak: The Free Speech Podcast | Host: Nico Perrino (FIRE)
Release Date: November 13, 2025

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Episode Overview

In this episode, host Nico Perrino is joined by FIRE colleagues Ronnie London (General Counsel) and Connor Fitzpatrick (Supervising Senior Attorney) for an in-depth discussion of the Supreme Court case Chiles v. Salazar, which examines Colorado's ban on conversion therapy for minors through the lens of the First Amendment. The episode also explores Pentagon press badge policies, recent free speech issues at Indiana University, and recent federal actions concerning visa holders and speech, particularly post-Charlie Kirk assassination.

The conversation is candid, analytical, and rich with references to both legal precedent and current events.

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1. Chiles v. Salazar: Conversion Therapy at the Supreme Court

Main Issue:

• Colorado law bans "conversion therapy" (efforts to change a minor's sexual orientation or gender identity) when performed by licensed therapists, raising questions about the boundary between "speech" and "conduct" and what level of First Amendment scrutiny applies.

Key Discussion Points:

• Distinction Between Speech & Conduct:

  • Ronnie London explains that the courts below viewed therapy as "conduct" and thus subject only to rational basis review, the lowest form of constitutional scrutiny ([03:44]).
  • Historically, conversion therapy included both speech and more drastic measures like aversion therapy, but the current case is solely about "talk therapy" ([04:20]-[06:08]).

• Licensure and Free Speech:

  • The discussion illuminates how professional licensing interacts with free speech. Even though licensed therapists are regulated, pure speech cannot be stripped of First Amendment protection merely by virtue of licensure ([07:26]-[08:49]).
  • Notably, non-licensed individuals can still engage in conversion therapy under Colorado’s statute; the restriction is only on licensed professionals.

• Viewpoint Discrimination:

  • The hosts highlight that the Colorado law carves out exceptions for affirming therapy, raising concerns about inherent viewpoint discrimination ([15:50]).
  • Ronnie London: “If this is speech in any way, shape or form, and by the way, if I’m not telegraphing it, I think it is, if this is speech in any way, shape or form, that viewpoint discrimination baked into the statute ought to be fatal to it.” ([16:19])

• Hypotheticals & Precedents:

  • Connor Fitzpatrick invites listeners to imagine a law, in a more conservative state, banning affirming therapy for transgender minors to test the consistency of their principles ([14:17]).
  • The case is contextualized with analogies to previous cases involving tour guide licensing and legal practice—fields regulated through licensure but built on speech ([06:08]).

• Parental, Medical, and Tort Law Issues:

  • Parental rights and the fact the law targets minors is considered relevant to the level of scrutiny, not the threshold First Amendment analysis ([13:11]).
  • Medical malpractice and licensing serve as existing less-restrictive alternatives to outright bans, especially under strict scrutiny ([11:12]).
  • Parallels are drawn to other professions and government interventions—e.g., regulation of abortion dialog, marijuana advice, and pandemic-era medical recommendations ([26:13]-[27:20]).

Notable Quotes:

• “You have a willing speaker, a willing listener, and the government saying, we don’t care that you want to hear this Speech, and we don’t care that you want to give the speech. We are going to step in and prevent you from making it and you from hearing it. And I think that’s where the First Amendment feelers need to go up here.”
  — Connor Fitzpatrick ([09:41])
• “That would mean that the government can do whatever it wants almost with respect to licensed professions that are heavily dependent upon communication and speech because all they have to show is a reasonable relationship to something legitimate the government might want to accomplish.”
  — Ronnie London ([25:39])

Key Timestamps:

• [00:52] – Introduction to Chiles v. Salazar
• [03:44] – Rational basis vs. strict scrutiny
• [08:49] – Viewpoint discrimination and exceptions within the statute
• [14:17] – Hypothetical to test viewpoint neutrality
• [16:19] – Viewpoint discrimination as a “third rail”
• [25:39] – Danger of removing entire professions from First Amendment protections

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2. Pentagon Press Badge Policy & Press Freedom

Main Issue:

• The Pentagon instituted new press badge policies requiring journalists to affirm restrictive conditions—including not soliciting information a government employee is legally barred from sharing.

Key Discussion Points:

• New Policy Details:

  • Journalists risk losing Pentagon credentials if they encourage or ask government employees to provide non-disclosable information ([32:16]-[33:13]).
  • Most mainstream outlets refused to sign, seeing this as a threat to press independence; a few, such as One America News, complied ([31:29]-[34:41]).

• First Amendment Concerns:

  • The team critiques the policy as a fundamental misunderstanding of journalistic inquiry and the First Amendment: journalists asking questions is not itself a crime—punishing the act of inquiry chills critical reporting ([34:00]-[37:52]).
  • Ronnie London: “You can prohibit an unlawful quid pro quo. But you can’t simply prohibit asking a question and asking for information...the burden is on the government employee to not give up the information.” ([36:25])

• Real-World Analogies & Legal Precedent:

  • The Villarreal case (FIRE litigation for a citizen journalist prosecuted for “questioning officials”) exemplifies the danger of statutes penalizing inquiry ([39:18]-[40:58]).

• Photography/Filming Restrictions:

  • The group discusses the policy at the Pentagon 9/11 memorial, which prohibits journalists (but not citizens) from filming in their journalistic capacity without special permission—even with a cellphone ([43:27]-[48:15]).

Notable Quotes:

• “Savings clauses are bullshit...You don’t get to adopt unconstitutional regulation and say, but to the extent it’s unconstitutional, it’s not unconstitutional because I’m not doing anything to the First Amendment. That’s nonsense.”
  — Ronnie London ([42:51])

• “But what they cannot constitutionally do is punish you, the journalist, because you reported something that you would rather have not gotten out.”
  — Connor Fitzpatrick ([35:51])

Key Timestamps:

• [31:29] – Origins of the new Pentagon policy
• [33:13]-[34:41] – Legal and practical analysis of “solicitation” ban for journalists
• [39:18]-[41:43] – Villarreal case discussion
• [43:27]-[45:42] – Photography restrictions and analogies

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3. Indiana University – A Case Study in Campus Speech Suppression

Main Issue:

• Once a symbol of academic freedom, Indiana University has become notorious for repeated censorship of student journalists, protesters, and faculty—languishing at the bottom of FIRE’s college free speech rankings.

Key Discussion Points:

• Recent Actions by Administration:

  • Banning the student newspaper before homecoming, firing its adviser over refusal to censor, and sanctioning reporting critical of the university’s own speech ranking ([50:47]-[51:54]).
  • Crackdown on protests and public speech, exemplified by last-minute bans on protest encampments at Dun Meadow and the use of police/snipers ([52:20]-[52:59]).
  • Student and faculty discontent, as evidenced by survey data and overwhelming votes of no-confidence in administration ([54:47]).

• Historical Comparison:

  • Contrast with the defense of Alfred Kinsey’s research in the 20th century—highlighting a dramatic change in the university's approach to free expression ([50:47]-[51:30]).

• Response to Legislative and Federal Pressure:

  • Administrative capitulation to legislative and federal pressure on speech issues, particularly regarding controversial topics like Palestine and LGBTQ+ rights ([53:32]-[54:43]).

Notable Quotes:

• “Absolutely effing incredible.”
  — Nico Perrino, on IU’s censorship providing FIRE vindication for their ranking ([51:45])

Key Timestamps:

• [48:54]-[55:39] – Full segment on Indiana University’s free speech record

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4. Deporting Visa Holders for Speech After Charlie Kirk’s Assassination

Main Issue:

• In the wake of Charlie Kirk’s assassination, the federal government has revoked the visas of noncitizens and threatened deportation explicitly for their speech (including criticism of Kirk), touching off First Amendment litigation.

Key Discussion Points:

• Legal Precedent:

  • Aliens lawfully present in the U.S. are entitled to First Amendment protections (Bridges v. Wixon, 1945) ([56:38]).
  • The government is using INA 1201 provisions: power to revoke visas “at any time for any reason.” But the panel notes this cannot constitutionally include speech-based reasons ([61:16]).

• Recent Cases:

  • Examples include students and journalists targeted for protest, op-eds, or critical comments. In all habeas actions brought so far, the courts have sided with the petitioners ([57:58]).
  • Stanford Daily lawsuit (and AAUP case): challenges the constitutionality of speech-based deportations via §1201([61:24]).

• Government's Position in Litigation:

  • Government claims foreigners have only “diluted to non-existent” First Amendment rights and the political branches can expel them for speech as a sovereign power ([63:27]).
  • Litigation remains pending; oral arguments in Stanford v. State set for November 19 ([64:46]).

Notable Quotes:

• “You cannot throw someone out of the country because you don’t like their ideas. That is an incredibly un-American approach to freedom of speech.”
  — Connor Fitzpatrick ([61:58])

• “They are bragging about it...”
  — Ronnie London, on the government’s public statements regarding speech-based deportations ([62:08])

Key Timestamps:

• [56:38]-[65:03] – Visa revocation and deportation for speech (Bridges v. Wixon, INA 1201, ongoing lawsuits)

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Notable Memorable Moments

• Ronnie London, on First Amendment “savings clauses”:
  “Savings clauses are bullshit...That’s nonsense.” ([42:51])
• Connor Fitzpatrick, on “shoe on the other foot” legal tests:
  “Imagine a law passed by a more conservative state...your answer to both hypotheticals needs to be the same because it’s the same constitutional interest at stake.” ([14:17])
• Host banter on Pentagon police pulling over their cars to “Frozen” soundtrack ([47:02])

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Timestamps Index of Major Segments

• 00:52 — Chiles v. Salazar: Conversion therapy and free speech
• 31:29 — Pentagon Press Badge Policy
• 48:54 — Indiana University: Censorship scandals
• 56:38 — Visa revocations and free speech for noncitizens

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Conclusion

This episode is a comprehensive, no-punches-pulled rundown of current free speech battlegrounds in the courts, government, media, and universities. Thoughtfully traversing complex constitutional questions, the conversation elucidates the high stakes of First Amendment jurisprudence for a range of actors, from therapists and journalists to students, faculty, and foreign nationals.

Recommended segment: For those short on time and interested in current SCOTUS developments, listen to [00:52]-[30:05] for the Chiles v. Salazar breakdown, or [56:38]-[65:03] for the most urgent free speech/deportation litigation updates.

Transcript

[A]

Somewhere I read of the freedom of speech.

[B]

You're listening to so to Speak, the free Speech podcast brought to you by fire, the foundation for individual rights and Expression. All right, folks, welcome back to so to Speak, the free speech podcast where every other week we take an uncensored look at the world of free expression through the law, philosophy and stories that define your right to free speech. I am, as always, your host, Nick. Nico Perino. It's been a while since we've covered the free speech headlines on this podcast. I feel like every episode has been about someone's book. But we're going to take today to catch up on the headlines. And to do so, I am joined by my colleague and recurring so to Speak guest, Ronnie London, fire's general Counsel. Ronnie, welcome back.

[A]

Hey, Nico.

[B]

And also Connor Fitzpatrick, Fire supervising Senior attorney, another kind of recurring guest on the show. Connor, welcome back.

[C]

Thanks for having me.

[B]

Let's start by talking about the Supreme Court. This isn't as active of a Supreme Court term for the First Amendment as it seems like previous terms have have been. It's not 20, what was it, 2023, 2024 where you had Bob Korn revere saying it was the most active Supreme Court term for the First Amendment in his 40 some odd years practicing the First Amendment. You don't have a headline Grammy case like you did last term with the TikTok case, but you do have this Chiles v. Salazar case, which was one of the first cases that was argued this term. It was argued on October 7. And this is the case that deals with the conversion therapy ban out of Colorado. So Kaylee Chiles, she identifies as a Christian licensed professional counselor slash therapist who works with clients who want religiously informed care, it seems, and clients in particular who want to diminish their same sex attraction or align their gender identity with their biological sex. Now, this runs headlong into a Colorado law that pretty much bans that sort of therapy. So the law bans conversion therapy with a client who is under 18 years of age. And conversion therapy, which it bans, is defined as any practice or treatment by licensee, registrant or certificate holder that attempts or purports to change an individual's sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings towards individuals of the same sex. It says conversion therapy does not include practices or treatments that provide acceptance, support and understanding for the facilitation of an individual's coping, social support and identity exploration and development. So this is one of those cases that gets at the distinction between speech and conduct. Right. The court, when it was hearing this case, had a hard time. I guess I shouldn't say a hard time, but it spent a lot of time trying to distinguish between a sort of medical treatment that might involve a procedure or the prescribing of medication and. And a treatment such as therapy that just involves speech and whether a treatment that just involves speech, if you want to call it a treatment, is protected under the First Amendment. So Ronnie, how are you looking at this from that perspective as a First Amendment question? Well, because the lower courts, right, the district court and the circuit court held that this law was constitutional under the First Amendment, right. Or at least maybe it was on a preliminary injunction. The law was never applied to Kaylee Childs. This is a fac challenge or a pre enforcement challenge.

[A]

They upheld the constitutionality of the statute basically by determining that the therapy in question is conduct and therefore it receives only rational basis review. And as we know, that's the lowest level of review. Let me finish. As we know, it's the opposite of strict scrutiny. Right. So strict scrutiny, as we learned in FSC is, is almost always fatal. And it has to be almost always fatal to operate the right way.

[B]

FSC is Free Speech Coalition.

[A]

Free Speech Coalition from last term, the non exciting case, unlike TikTok, it didn't.

[B]

Get the same amount of headlines, but it was very important.

[A]

But that's another story altogether. On the other end is rational basis review, which almost by definition is any relationship to a legitimate governmental interest will satisfy the standard, and it almost always is satisfied. It's almost impossible to not survive rational basis review. But I think we need to go back a little bit and understand that conversion therapy in this case involves exclusively talking. But that's not only what conversion therapy has involved. Historically, yes. I mean, historically conversion therapy could be everything from giving someone electric shocks every time they looked at or thought about same sex attraction or whatever it is, including, you know, to the genitals. They tried all kinds of things. They tried aversion therapy that would, you know, give people drugs, that would make them nauseous when they were shown pornography or other supposedly arousing material involving same sex. And everybody agrees in this case that that is not what we're talking about here. In this case, we are talking exclusively about therapy involved. That involves solely talking. The plaintiff's counsel, the state's counsel, everybody agrees that if you cross that line into anything other than talking, different rules might well apply. Constitutionally speaking. It's Much easier to talk about this in terms of conduct rather than speech. So what it comes down to is when you are talking solely about therapy that is delivered through speech, do you somehow find a way, constitutionally or magically. I'm tipping my hand here a little bit. Or magically to turn it into conduct which you can regulate without thinking about the strictures of the First Amendment? And that's really the question in this case.

[B]

Yeah, I remember when I was working at the Institute for Justice, we had a case involving a client in Savannah, Georgia who was a licensed tour guide operator. And this was another realm that obviously the government licensed. And all he did though, was give people his opinions on Savannah history. And you had to actually take a test. It was almost like government approved history in order to receive a license. So we challenged that under the First Amendment. And the Institute for Justice has litigated many such cases. But there it's similar. All he's doing is talking, giving his rendition of history. And I believe even ghost tour tour guides had to take this government test and get a license in order. And this is separate from a business license, which anyone needs to operate. So in this case, what Is there anything about the license though that would change the First Amendment analysis? Because I think when we think of a licensed provider, you think they meet certain rigorous government standards. And in this case, if you participate or you try and prevent someone from participating in conversion therapy, that's one of the standards that a licensee can't meet. I'm just trying to get at what is the license relationship here.

[A]

Well, that's logic. And this is not the first conversion therapy case in the federal courts. It's not the first one to go to the circuit court. It's the first one to make it to the Supreme Court. You can go back 10 years to the King case out of the third circuit. And the third circuit basically held that no, you can't pigeonhole professional speech as conduct just to avoid the First Amendment. What it did ultimately hold though, was that when the state is providing a license to certain types of learned professions, what they are doing is they are essentially certifying that the person provide, has the necessary knowledge, the necessary skill, and it's really a protection of the patient or the consumer or the client that it is designed to protect. And as a result, you have this, and this is pre Nifla. So they were able to get away with it back then. Nifla overruled this kind of thinking, but they were able to basically say, when you're talking about professional Speech. It's not dissimilar from commercial speech. And they said that it accordingly gets a test similar to the Central Hudson test for commercial speech, essentially intermediate scrutiny. But that's the idea. Once you license someone, certain obligations attach. And it's interesting that under this statute, in Colorado, if you are not a licensed therapist, you can engage in conversion therapy.

[B]

Yeah.

[A]

And in fact, if you are licensed, and this is undisputed by the parties, if you are a licensed therapist in Colorado, you may not engage in the actual conversion therapy, but you can advocate for conversion therapy. You can tell someone where they can go for a conversion therapy. You can say, there's a nice little church right down the road where the minister will happily take you through conversion therapy and solve your problem. Which, again, suggests certain constitutional problems with this statute, no matter what level of review you apply. Right. I mean, if everybody in the world, except for licensed therapists can do this query whether you have a legitimate governmental interest, and even if you do what, whether you're advancing it in any way, shape, or form. But that's the beauty of rational basis. Right. You only have to be reasonably related to the government interest. You don't actually have to achieve it in any measure.

[B]

Yeah. Go ahead, Connor.

[C]

I think one thing that's important to keep in mind with this case is remembering what's at issue and what's not. So much of the scuttlebutt around this case has been some of the traditional culture wars stuff. It seems like any time over the last five or so years that something touches on LGBTQ issues, that everyone retreats to their respective corners and we sort of stop listening to each other. So a lot of the discussion that's gone on around this case has been about conversion therapy, whether it works or doesn't work. And I think one of the very important concessions that the attorney for the challengers made at the Supreme Court is that medical malpractice actions are. Are still available. So if someone goes to conversion therapy and it has a horrible effect on their mental health, heaven forbid they try to kill themselves or they're successful at it. There is still a medical malpractice action available in the event that you can satisfy the standard for medical malpractice. What's at issue in this case, and I think why there's some real free speech warning lights going on here, is we have a situation that we often warn of here at fire, which is you have a willing speaker, a willing listener, and the government saying, we don't care that you want to hear this Speech, and we don't care that you want to give the speech. We are going to step in and prevent you from making it and you from hearing it. And I think that's where the First Amendment feelers need to go up here.

[A]

And that's an important point, that the whole standard of care based liability system, the tort regime here that would apply in the case of a bad result is important because that's a less restrictive mean. So if you're dealing with strict scrutiny, which is what they applied in the 11th Circuit in the Otto case in striking down a very similar statute, that's how you got your circuit split that got this to the Supreme Court. Whether you're applying intermediate scrutiny where, whether it's King's version pre nifla or any other version of intermediate scrutiny, it's the restriction on speech can't be any greater than necessary. And in order for the statute to survive the fact that there are these alternatives. Right. And not even considered, is the state coming out against conversion therapy, providing going on an information campaign against conversion therapy. By the way, I find that a little bit ironic that here we are again talking about what's conduct and what's speech with a law coming out of Colorado is a cake speech. I don't know. Is designing a website speech? I don't know. Turns out it is and you can't compel it. Now we're talking about is therapy delivered solely by discussion speech. And that's the question before the court. But those are important points you make because if any level of first amendment scrutiny applies, it greatly reduces the chance of a statute like this surviving, which is why the state needs so hard to push it into conduct in order to get to rational basis review.

[B]

Kayla Childs, attorney made a point during oral argument that this was voluntary. But does it change the calculus that this only applies to minors? Like one of these therapists could provide conversion therapy to an adult and this law wouldn't prohibit it. It's just minors. Does that change the calculus at all?

[A]

Does it make it more conduct and less speech? I don't think so.

[B]

So you don't even almost need to get to that question. If what we're talking about here is just purely speech, there's no first Amendment exception here that would.

[A]

It arguably affects the application of the appropriate level of scrutiny. Right. When you start talking about the government interest and you start talking about what its nature is, is it compelling, is it important, is it legitimate? And then are you materially advancing it and what are the alternatives? Whether it's under intermediate scrutiny and strict scrutiny. I think the fact that it's minors, the fact that the state has a very difficult time determining whether the minor is in fact undergoing the therapy or voluntarily or not, or whether they're doing so at the behest of their parents. I mean, we invest parents with an awful lot of discretion over what their minors can do, whether it's taking certain types of classes. As from a case in the Supreme Court last term, Mahmoud parents do have certain overriding ability in the absence of appointing a guardian med litem or somebody being emancipated. So it does affect the analysis, but it doesn't affect the threshold question of whether you're talking about a speech regulation or a conduct regulation.

[B]

Yeah, Conor, you were gonna say something.

[C]

I think this case is a great candidate for Imagine the shoe on the other foot and make sure that your principles are being consistent. So pause it. And this is just to make sure that nearly everyone listening to your podcast, Nico will have something to get mad at here. Imagine a law passed by a more conservative state that wishes to ban children from attending a type of therapy that would encourage them to identify with a gender different from their biological sex and attend therapy saying it is okay that you identify with this different gender. It is right that you do so. So essentially the flip side of the law at issue in Colorado and to make sure that all of our listeners free speech principles are being consistent, I will tell you that your answer to both of those hypotheticals needs to be the same because it's the same constitutional interest at stake.

[B]

Yeah, you could imagine in the 1960s or 70s when same sex attraction or being gay was held to be a medical disorder, that you would have states that would ban a therapist from affirming someone's sexual identity, saying it's okay that you're gay, it's okay that you're attracted to another man or to another woman. You could imagine that scenario playing out just decades ago. And now what we have, I think 27 states, including or in addition to Colorado, that have bans on this sort of conversion therapy. But the shoe on the other foot thing strikes at one of the core questions in any first Amendment analysis is whether there is viewpoint discrimination happening.

[A]

And that's exactly the point. So if you read the definition of conversion therapy again, and in particular the second part of it that you read, I think it's fairly obvious it does.

[B]

Not include practices or treatments that provide acceptance, support and understanding for the facilitation of an individual's coping, social support and identity Exploration and development. So you can affirm someone's sexual orientation or gender identity, but you can't try and tell them that it's wrong, so to speak.

[A]

Which again is the reason why it's so important to get these statutes out, out of the speech box and into the conduct box if they're going to have any hope of surviving. Because we know whether you're talking regardless of whether you're talking about strict scrutiny, intermediate scrutiny, public forum, non public forum, limited public forum, we all know that the third rail is viewpoint discrimination, right? So if this is speech in any way, shape or form, and by the way, if I'm not telegraphing it, I think it is, if this is speech in any way, shape or form, that viewpoint discrimination baked into the statute ought to be fatal to it.

[B]

Can I just ask a general question? This may be getting a little bit out of fire's wheelhouse, but how can we license psychology or psychiatrists. No, not psychiatrists, because those are doctors. Right. Who can prescribe treatment. And that wouldn't be covered under this because there is a medical treatment involved. But psychologists, right?

[A]

Well, they would be covered under this if the therapy that they are providing, because psychiatrists don't always only treat through the prescription of pharmaceuticals, they do treat through talk therapy.

[B]

So the aspect of their practice that is just talk therapy would be covered under this. But I'm saying more generally, how can we license any profession where the profession is mainly just talking? Right.

[A]

You can license it, but the license.

[B]

Can'T involve content or viewpoint based prohibitions or prescriptions, presumably for your practice.

[A]

Right.

[B]

So for example, or it could, but it would just have to meet the level of scrutiny that's being applied.

[A]

Well, that's right. I mean, for example, I have a license to practice law as far as, you know. And you know, if they were to adopt a prohibition on saying these are the types of arguments you may not make. Right, Just on the front end, a prior restraint. And this is a prior restraint right on the front end, this is prohibited. Thou shalt not. It would be, I think, fairly easy to see that it was a restriction on speech and a viewpoint based one at that. Notwithstanding that there's a licensing regime in place. I mean, the licensing regime shouldn't give the state the ability to simply strip away all First Amendment protections from professions that operate through speech. That doesn't mean that they can't do anything. It just means that they have to be subject to the tests that typically apply to the First Amendment. And for example, if they said I as a Licensed attorney may not take a fee and then fail to render services. That's probably okay because it arguably even falls into a. And this is kind of a silly hypothetical, but it illustrates the point. Let's keep going with is arguably fraud or it is arguably speech incident to criminal activity of theft. Right. And so you would at least say, okay, there's some speech going on, it's unprotected speech, God bless, do whatever you want. Alternatively, if it didn't fall into an unprotected category, but if it was clearly viewpoint based or content based, then you would apply strict scrutiny. And if it's content neutral, then you apply a lesser level of scrutiny and the burden on the state is less. But it doesn't mean that just because I have a license that that all of a sudden it's a free pass for the state.

[B]

Two more questions here. How does standard of care play into this? If you're a licensed profession, you work in the medical field, there's a certain standard of care that you must provide. And this came up during COVID era where you had many doctors who were talking to their clients about doing things to prevent Covid or to treat Covid that weren't within the standard of care then. And recognizing that Covid was a very fluid situation in the standard of care, it seemed like or understanding of the disease changed weekly. You had some doctors who, I think in California in particular, they tried to pass a law threatening these doctors license for things that they were saying related to Covid that was struck down in the district court, if I'm not mistaken. But that is something that is regulated within the medical field, right? Is that something you just handle with medical malpractice or can the state stipulate the standard of care?

[C]

Well, usually where a standard of care is going to come up is in a tort suit, is you have a medical malpractice suit by a patient or the estate of a patient if things have gone very, very wrong, saying you performed or did not perform the requisite medical treatment on me, I was harmed by it. And in the law, the way you prove that up in a case is you usually would put on an expert witness at trial who would say here, here is the type of thing that is standard practice and that should be done in a case with a patient like this. Here is what this doctor did. In my professional opinion, what this doctor did fell below the requisite standard of care. Then often whoever is representing the doctor or the hospital will put on their own experts saying no. What happened here was within the wheelhouse of reasoned judgment that a physician in that position would have made, and then a jury will decide. So the standard of care is still there. There are, I think, understandably, concerns, as there always are when medical treatment is being provided to children because we try and protect them, as to whether or not this type of treatment or any other is efficacious or is it doing more harm than good standard of care comes in to where if someone says, my child or I was hurt because of this treatment, and I can put on expert testimony to show that this doctor is either exceedingly careless or an outright quack based on the type of treatment they provide, and I was harmed by it, that's when the standard of care.

[B]

Okay, so that would speak to, I think, Justice Sotomayor's question during oral argument about anorexia. So let's say you have a licensed therapist who's treating a client who suffers from anorexia, and instead of trying to get this client, he or she to eat more and to recover that way, this therapist decides, let's try something counterintuitive, and let's try and affirm their idea that they shouldn't eat and say that they, you know, maybe it's someone who's adversarial, and you say, no, you're doing the right thing. Just keep not eating.

[C]

See, oddly enough, I remember that exchange during the oral argument. I came away a little bit unsatisfied by the challenger's response to that hypothetical, because I think if you carry their argument to its logical conclusion, that type of advice should have been protected speech, and the fallback would have been, yeah, you can still get to it through a tort law suit.

[B]

That's what I'm saying.

[C]

Yeah, right. But if someone's advice for anorexia is, hey, eat less, well, you know, that's still protected advice. But the way that Mr. Campbell tried to get out of that is by saying, well, there they are actively not trying to help the patient, which for me is a begs the question.

[B]

Response.

[C]

It is assuming that one type of treatment is seeking to help a particular patient and assuming that that hypothetical was seeking to harm the patient.

[B]

Because Colorado's whole law is based on the idea that this sort of treatment does not help.

[C]

That's right.

[B]

Clients.

[A]

Right. Well, and, you know, let's play with that hypothetical just a little bit. Instead of saying, you know, keep not eating. Instead, imagine if the advice was, let's do this. Let's not make food as available. Let's only put it on the table once. A day. And if they don't come in the first half hour, they don't get to eat. Let's make food less, reduce the opportunities. Okay.

[B]

That's actually a strategy that I'm told to use with my kids when they're not sitting down and eating their lunch or dinner, their prepared meals, stop giving them snacks in between.

[A]

I just assumed they were skinny because you're skinny. But maybe not. But my point is, and I don't think it would, just to be clear, but what if it worked?

[B]

I know.

[A]

What if it worked. And you know, in addition to, it's.

[B]

Like exposure therapy for people with ptsd, exposing them to the thing that troubles them has a way of curing it. Yeah.

[A]

And the thing is, in addition to tort liability, you can also yank a license for bad outcomes. Right. Even if you don't get sued for them. Right. If somebody reports you over and over again for not actually helping, for actually undermining your health as a result, you can lose a license for bad outcomes. But that is an after the fact punishment for, even if it's arguably speech. And the calculus is very different than a prophylactic rule on the front end. And you made a point that standards of care can be fluid, especially around Covid, when we didn't know exactly what was going on. Sometimes that fluid is water, sometimes that fluid is molasses. Because as you mentioned in the 60s, the opposite of this kind of therapy would have been what was prescribed. And sometimes the arc of time bends slowly, not quickly. Just a question of whether or not we should be constitutionalizing the standard of care by removing people who engage in professions that are mostly about, talking about from the protection of the First Amendment altogether. And imagine for a second what the consequences of the analysis in Chiles and Tingley and some of the other cases that have upheld these laws is, if you accept their logic, not that they satisfy intermediate scrutiny, not that they satisfy some lesser basis even of First Amendment scrutiny, or fall into a category of unprotected speech, but. But rather they literally do not get any First Amendment protection at all. That would mean that the government can do whatever it wants almost with respect to licensed professions that are heavily dependent upon communication and speech because all they have to show is a reasonable relationship to something legitimate the government might want to accomplish.

[B]

And you see this on the other side of the political spectrum too, with government, state governments that is trying to regulate what doctors can tell their patients about the availability of abortions, for example, even if they're not providing an abortion themselves. Maybe they're in a state that prohibits it. Merely having that conversation is something that red states have tried to regulate. Yeah.

[A]

Or ironically enough, one of the other states that upheld and other circuits that upheld a law like this was California law in Tingley. And before that pickup, California also had a law. Sorry, the Ninth Circuit also struck down a law that prevented medical doctors from advising about the potential benefits of marijuana. So the federal government adopted a rule saying doctors can't advise about the benefits of marijuana. Ninth Circuit struck that down under the First Amendment and said, you have to allow doctors to ply their trade through speech, as they will. And at the same time, the ninth Circuit upholds a law just like this in Colorado and California by saying that, oh, no, no, that's talk therapy and therefore it's conduct.

[B]

Yeah. We always have to apply the shoe on the other foot test and figure out how these principles will apply to speech that we agree with or disagree with.

[C]

One final point that I'd add on that, and I think it's important to keep in context in terms of. We always say we want to keep the government out of the marketplace of ideas. We want the human mind to be able to flourish and let ideas fall or succeed on their own merit. Every medical treatment was prescribed for the first time once. And every medical treatment that's now no longer given was prescribed in good faith for the last time once. I think it's a very dangerous road to go down to constitutionalize medical care, to allow the government to preemptively decide, here are the treatments that we have decided it is okay for you to receive and not receive, and to leave that in the hands of the political branches rather than in the hands of the medical community.

[B]

So let's say one of these clients to close out here of Kaylie Childs ends up sadly committing suicide after the treatment. What would the recourse of the parents of this minor in that case be? It would be a tort action. I'm assuming it would be a tort.

[C]

Action, though I would imagine if they are the ones who encourage the child to go to this particular. They may have some real issues proving up a claim there.

[B]

Yeah. All right. Fascinating case. So it was argued on what, October 7th? When you're the lawyers here, when do we expect a decision in this? Is this a late term?

[C]

How about this? Before the end of the term.

[B]

So before July of 2026, before the.

[C]

Chief justice gavels out, this term of the Supreme Court will have a decision.

[B]

You know, I hate asking lawyers to predict Supreme Court outcomes either the date something might be decided by or the outcome of any. Because you always punt. I can hardly ever find a lawyer.

[A]

I'm prepared to be wrong on the timing, not the substance. But I think this one, as controversial as it is, it feels like, and I may ultimately be wrong on this, but it feels like the kind of decision that the court likes to drop on one of the last days of the term and then skip town. Not unlike FSC versus Paxton or Mahmoud or any of the other cases that came down on the last day of the term last year.

[B]

Well, this is one of those cases that I think, I think would have captured many headlines, would have had endless editorials written about it were at any other year. But you have so many other high profile cases predominantly dealing with executive authority right now that it kind of became a page six story.

[A]

Well, it also, I mean, you know, what do they say? First Monday in October or whatever? I mean this is, it happened so quickly at the beginning of the term. It also got lost a little bit in the, hey, what to expect from the Supreme Court this term. So there was a lot of Supreme Court reporting also and this kind of just got folded into it.

[B]

Let's move over to the Pentagon next. So folks might remember September, October, the Pentagon had a new press badge policy. The Pentagon has had a history of having a press corps, kind of like the White House has a press pool who follow the goings on in the Pentagon. And Pete Hegseth comes in, the new administration decides they're gonna put in place new policies to regulate what the press can and can't, if they're a member of that press pool. And they had a number of restrictions and asked the members of that pool to sign on to this policy to maintain their credentials. And a number of these institutions, these media institutions had offices in the Pentagon. That's how institutionalized the press pool was there. Most of them, most of the kind of legacy media that is decided they weren't going to sign on to this policy. You have a number of other more less right wing, conservative leaning publications and commentators who were willing to do it. It shook out as you might expect in this current political environment. But this got us asking, like, how common are these sort of press policies? Ronnie, you've worked in this space before, right? And you're in private practice over at dwt. I mean, I think we had a, we had a moment there where we were trying to figure out, well, like what's required of them now. And I think for a while there, the policy wasn't even Available.

[A]

Yeah. I won't profess to having deep experience in this area, but it does seem rare and or odd to me that any policy adopted, restraining the media or even writing heard on the media, asking them to affirmatively adopt it and approve it and sign onto it, that's a little weird. I mean, it'd be one thing to say, these are the new rules, and if you want to press pass, here's what you have to do, and you make a decision whether you want the press pass or not. But to actually ask the media to affirmatively sign onto it and in effect endorse it, that to me feels like it takes some stones.

[B]

But this is one of the most secure buildings in America, maybe the most secure building in America next to perhaps the White House, for example. But that's not what they're asking. They're not saying, you can go to this part, you can't go to that part. This is, you know, top secret security or clearance, whatever. They have one policy in the security risk section that states, in part, there's a critical distinction between lawfully requesting information from the government and actively soliciting or encouraging government employees to break the law. The First Amendment does not permit journalists to solicit government employees to violate the law by providing confidential government information. So to just translate that this policy would prohibit a journalist from asking a government employee a question about government policy. If that government employee was prohibited from sharing that information, it would make the journalist responsible for what the government employee provides to the journalists. More or less. Right. That kind of turns journalism on its head.

[C]

Of course it does. And that's the point of this policy. Think of how many remarks we've heard from this administration bemoaning the existence of leakers and people telling things to the Washington Post, New York Times, or Wall Street Journal that the administration would prefer did not get out. Think about the amount of ire from the administration after Secretary Hegseth signal chat happened to be leaked. And so this is really about trying to condition press access on pinky promise that you aren't going to ask your sources for information and then publish that. So the First Amendment's prescription is very easy, which is that if you're a government official and you leak information you shouldn't, you can lose your job for that. You can lose your job, and rightfully so, for leaking classified.

[A]

You can go to jail.

[C]

Right? Even worse than losing your job. But what you can't do is you can't throw a journalist in jail because they asked someone for information and a loose lipped employee decided to give it.

[B]

To you, but can you take away their press badge? Is there a distinction there, from the First Amendment's perspective, between footing them in jail and yanking their press badge because they violated the terms of this policy, for example?

[C]

So that's interesting. And I think there's probably a little bit of crossover in terms of what happened in the AP case a little bit earlier this year.

[B]

This is the case where the AP was denied access to the press pool because it refused to adopt Gulf of America and its editorial standards when reporting on what had previously been the Gulf of Mexico.

[C]

Right. So at least as I understand what's going on at the Pentagon right now, it's if you want to keep your Pentagon office and if you want to have the access you are used to having, here are the conditions we are going to place on you. Now, I haven't heard of any of these organizations actually contemplating or filing suit to enjoin the operation of these new policies. They've almost uniformly, other than, I think one American news network was the only sort of highly watched outlet that agreed to these terms. But even Newsmax said, no, we're not going to do this. This hurts journalistic integrity. And I think that was very good. Deceased so many journalistic outlets on the left, right and center saying, no, this harms essential journalism. We're not going to do this. But the First Amendment line has been and should continue to be that the journalists get to ask the question and the government can say, no, I'm not going to tell you that no, that's classified, or go pound sand. But what they cannot constitutionally do is punish you, the journalist, because you reported something that you would rather have not gotten out.

[B]

So if the Wall Street Journal, for example, had agreed to this new press policy for the Pentagon and they wanted to maintain their badge if they happen to report a story, let's say it's an anonymous source within the Pentagon, and that anonymous source provided classified or confidential information that the Pentagon hadn't authorized for release, the Wall Street Journal could lose its press credentials by doing so because they had asked someone for information that the Pentagon hadn't approved or permitted to be provided to a journalist?

[A]

Yeah, I mean.

[B]

I mean, at least theoretically, yeah.

[A]

To answer your question, I mean, does it make a difference whether you're talking about losing your press badge or whether you're talking about being arrested and going to jail or some other punishment? I mean, I think for First Amendment purposes, I mean, so long as it crosses that threshold into adverse action, adverse action is Adverse action. You know, if you read the policy and you get to the word solicit, if you imbue it with the same kind of meaning that you have in, and this would be wrong to do, mind you, but the same kind of definition that you have in, say, prostitution statutes, where you're talking about a quid pro quo. Yes. You can prohibit bribery. Right. You can prohibit an unlawful quid pro quo. Quid pro quo. But you can't simply prohibit asking a question and asking for information. And again, Conor's right. I mean, the burden is on the government employee to not give up the information. What's worse, this provision actually has the potential for imposing liability, even if it's liability by losing a press pass without sienter. Cuz you could ask for something not knowing it's classified, right?

[B]

Yeah.

[A]

And then if the government employee, the Pentagon officer, gives it to you, you've violated this policy without even knowing that you were trying to. And the First Amendment doesn't allow that either.

[B]

Yeah. So pretty much the only thing, if you agreed to this policy that you could report on is what is in a Pentagon press release or what is provided to a journalist with senior Pentagon official approval. So theoretically, nobody would have been allowed to report on that signal chat because presumably the Pentagon's not putting in a press release, not announcing it, or not approving their spokespeople to talk about it.

[C]

Right.

[B]

And that signal chat, the story would.

[C]

Have just been buried and what this would do. And we use this analogy in our Villarreal case that we're litigating here.

[B]

I was hoping someone would bring that up.

[C]

It would turn a press briefing, a news conference into an active crime scene because journalists are going to be asking questions of whether it's the press secretary for the Pentagon or whether it's Secretary Hegseth himself for information about ongoing U.S. operations around the world. And under this policy, if the answer to the question you ask would necessarily include classified information, you have violated that policy. So if you ask, for example, hey, when is this particular nuclear submarine going to come back into port and that information turns out to be classified, you violated the policy.

[B]

There's another interesting aspect actually. Before we get to that, can we can, Ronnie, can you set up the Villa Real case for our listeners who might not be familiar with it? This involves a citizen journalist out of Laredo, Texas, who asked a. What was it? A police officer for some information about a case. The police officer wasn't permitted to provide that information, but nevertheless did. And they prosecuted our client, Priscilla Villarreal. For asking the question, more or less.

[A]

Well, that's right. I mean, you have to understand that Priscilla is a bit of a thorn in the side of law enforcement.

[B]

Any good journalist is, though, presumably.

[A]

Yes, and she is, especially because she reports on hyperlocal things. They were looking for opportunities. And so there's this old dusty Texas law that basically prohibits law enforcement officers from being given for consideration being asked to disclose information that is non public or otherwise not supposed to be released. And so again, all Villarreal was asking for was confirmation for certain things for a story she was following up. And they dusted off this old statute and charged her under it. And look, at the end of the day, it's not the duty of the journalist to not ask the question. In fact, I would argue that if journalists have any duties, it's to follow journalistic standards and ask the hard questions. And ultimately, it's incumbent upon government actors to police themselves, not to police journalists.

[B]

Yeah, journalists all the time will get a scoop on something and they will ask the institution that they're reporting on to confirm or deny it. And sometimes that will go forward with the story if the institution isn't willing to confirm it or doesn't respond. But nevertheless, that's good journalistic practice to actually ask for confirmation.

[C]

It is entirely constitutional and legal for the journalists to ask the question. We should want journalists asking questions they do not have a constitutional right to an answer. And I think that's where a lot of the rhetoric here can get lost, is that just because a journalist asks a question does not. We're going to set FOIA concerns aside does not necessarily mean that the government is required to answer. What it means is that they cannot interfere with the journalist's ability to ask the question.

[A]

Actually, you mentioned foia, a media organization that files a FOIA request with the Pentagon that requires the Pentagon to issue either a refusal to disclose by invoking one of the law enforcement or top secret FOIA exemptions or alternatively to issue a glomar response which is we can't admit or deny whether documents like that exist because doing so would disclose a state secret. You would be in violation of this for filing that FOIA request because you would be soliciting material that unbeknownst to you, might have been classified. And if the government has to actually give you a Vaughn Index, if you sue to get the material and put it's exempt because it's classified, well then there goes your press pass. Right?

[C]

And what it does is it puts the onus on people to know what Information is classified, which is going to be hard to do because, as I may have mentioned, the information is classified.

[B]

But guys, there's a saving clause in the policy that says the rules do not prohibit you from engaging in constitutionally protected journalistic activities such as investigating reporting or publishing stories.

[A]

Well, first of all, savings clauses are bullshit. Let's just get that out of the way.

[B]

I was hoping you would say that.

[A]

You knew I would say that. You don't get to adopt unconstitutional regulation and say, but to the extent it's unconstitutional, it's not unconstitutional because I'm not doing anything to the First Amendment. That's nonsense. But what's interesting about this one in particular is you've got one provision that purports to define what the First Amendment allows and does it incorrectly, as we've been discussing. And then it comes along and says, oh, but we're not prohibiting or restricting anything that the First Amendment protects subsilentio as we define it.

[B]

So come on, there's another aspect, and to close out this discussion of this policy that says news media visiting the National Pentagon 911 Memorial in their personal capacity, not as a member of the press, may take photos using their personal devices. Filming or photography in the memorial for a news media interview or to obtain B roll requires an exception as described below under filming photography exception request. So if you're a citizen or you're a journalist acting in your personal capacity, you can film or take photos at this memorial. But if you're, if you put on your journalist hat, you cannot.

[A]

Well, and even worse, let's suppose that you are taking that picture in your personal capacity and that just happens to be when the aliens decide to land. And then you want to use it as a journalist. Well, I guess you're shit out of luck, aren't you?

[B]

But aren't they trying to get after here? If journalists want to come onto the campus and film things for B roll or for broadcast, they've got to go through the process to get permission to do that, to set up their big cameras, to set up their anchors and their teleprompters. Isn't that what they're trying to get? Is there anything reasonable about that?

[A]

It doesn't say that. It says, even if you want to use your cell phone, the same exact device that you would use in your personal capacity, if you want to use it in your journalistic capacity, you have to go through the rigmarole. This reminds me a little bit of the federal Lands National Parks photographing statute that we challenged because you had to file an application, get a permit and pay a fee if you wanted to photograph or film on federal lands for commercial purposes. And we fought that to the point where ultimately the statute was amended while the litigation was going on. But. But basically, if you came onto federal lands. And by the way, that includes the National Mall down here. Right. It includes all these monuments around here. And if you came on and you took a picture not intending to commercially exploit it, but down the road, there was a basis for your doing so, you would be in violation retroactively because you hadn't gotten the permit or paid the fee under the permitting regime. This reminds me a little bit of that.

[B]

Well, what's the problem with that? Can you not have a different standard for journalists that you have for regular citizens?

[A]

Well, you know, it's funny because you often hear the government saying, just being a journalist doesn't get you any special preferences under the First Amendment. Which, by the way, I would have a bone to pick with that, because there is the press clause separate from the speech clause. But the government is very fond of saying that being a journalist doesn't give you any special privileges. Okay. But it also shouldn't give us any special handicaps.

[C]

Right. They're sort of adding on to. I think the case was hoochins right from the early 70s that said that reporters don't get special access to a jail. And now it seems like they're trying to expand that to saying, by the way, not only does being pressed not give you make you better than everyone else, it actually makes you worse. And we're going to make sure that you can do less things than everyone else.

[A]

And if the regulation was just. If you're going to come onto the reservation, they call it, for some reason, I never quite understood that.

[B]

That's right. They have their own police force. And I know that because I've been pulled over for speeding through the Pentagon. They didn't give me a ticket, but.

[A]

I got pulled over on the Pentagon also, but not for speeding. Just because I went down a road I wasn't supposed to.

[C]

Well, Ronnie is famously a very, very careful, sane and slow driver.

[A]

If they're on the Pentagon, I'm a little more careful.

[C]

I'm sure he's never been pulled over in the camaro.

[B]

Well, down 395, it can get congested. And so I was taking a cut through in the Pentagon, which you're allowed to do. Yes, but they have a speed trap there where it's like 20 miles per hour. And I was going like 30 miles per hour. And there was nobody else.

[A]

50% over the speed limit, man, I.

[B]

Don'T even remember what I was going. But I was going somewhere around.

[C]

I was gonna say those are rookie numbers.

[B]

But the poor cop, he pulled me over. I have like the Bluey or the Frozen soundtrack playing. I've got my. I've got my three little kids in the car. And he pulls me over, he's like, damn, I pulled over the guy who's taking his kids to the daycare who's listening to the frozen soundtrack. So he just gave me a warning, which was very nice of him. But anyway, yes, that's how I learned it was the Pentagon reservation.

[A]

But anyway, if the rules had said the professional media, if they want to come on the reservation and set up at the memorial with large scale equipment with tripods and lights and everything else, you need to go through the press office, whatever it is, Especially if that's something that happens often enough that you actually have to coordinate so nobody's stepping all over everybody else. That would be one thing. But this basically says if you use your cell phone to photograph yourself or anything else for that matter, around the memorial for journalistic purposes, well, you're shit out of luck. And, you know, that's not supposed to be.

[B]

At one time, I want to do a podcast about the press clause of the First Amendment. Because in some conceptions, it's like the press as an entity or the press as a technology. But I think most often today, correct me if I'm wrong, we think of it as an activity, right? It's reporting on something. And today that could be anyone. In the advent of social media, for example, some of the best reporting you can get as news is breaking comes from scrolling social media and seeing people on the scene report about it.

[C]

I mean, some of the worst, too.

[B]

Some of the worst. I remember the Charlie Kirk thing, though. I mean, worst in the sense that you saw the video of the murder, but that was a form of reporting, frankly.

[A]

And then there's student journalism. Was that a good segue?

[B]

I was gonna go to Indiana University, which is my alma mater, and we'll just touch on it very briefly because we've gone longer on these previous two topics than a nice win over Penn.

[C]

State, by the way.

[B]

You know, Indiana's football team, putting all its other problems to the side, is playing some really incredible football. When I was a student at Indiana University, the football game was a tailgating opportunity and nothing else. You had this big stadium that was hardly ever full. It was kind of a laughingstock and then they brought this new coach in, Kirk Signetti. And not only has he become a celebrity of sorts for his post and pre game interviews, but, well, you have eight and two.

[C]

You have Indiana football second in the country. You had the Pacers in the NBA finals. What are you doing with all the sadness?

[B]

You usually don't forget about Notre Dame. I'm a Notre Dame football fan. They're ranked number nine in the country. I know that's much to many people's chagrin. They always think Notre Dame is overrated, but in some, in some years they are. I don't think they are this year. I think they've got a really good team. But what was overrated when I was an Indiana University student apparently was its free speech history. Because this is an institution that early, or I should say in the middle part of the 20th century. One plaudits from people who supported academic freedom for its defense of Alfred Kinsey, who is the famed, or depending on how you look at it, notorious sex researcher, one of the first sex researchers in America, and Herman B. Wells, the chancellor or the president. I forget what he was at the time. And many of the senior administrators at the university spent a lot of time defending this guy against a state legislature that wanted to go after him. They made a movie about Alfred Kinsey called I Believe Kinsey with Liam Neeson playing the Kinsey role. It came out in 2004. Great movie, highly recommend it. So I graduated from Indiana University, kind of really proud of its legacy as a defender of free speech and academic freedom despite some speech codes that I tried to reform while I was there. But lately, I mean, I'm just looking at this article that we published on our website from October 23rd. What the hell is going on at Indiana University? It came last in our college free speech rankings in our recent polling and it recently banned its student newspaper from printing just days before homecoming weekend. It fired its papers advisor when he refused to censor critical coverage. And one of the things that the paper and the advisor came in for criticism from from the administrators and might have led to this ban and might have led to this firing was their reporting on their last placed ranking as a public institution in our college free speech rankings. So they're censoring allegedly, again, allegedly, their student newspaper because it reported on their censorship.

[A]

I thought they were doing us a favor because, you know, we put them last among public universities in the rankings and they're just doing this to give validity to our rankings, I think. Right. I mean, they're reinforcing the reasons for which they're at the bottom of the rankings.

[B]

Absolutely effing incredible.

[C]

People wouldn't believe us, and they wanted to step in and make sure they knew that our rankings are legit, and we can only thank them for that.

[B]

But you just have to look at their past couple years, and you see censorship after censorship. So there's this famous spot on Indiana University's campus called Dun Meadow. It's traditionally a place for protest activity. And during the times of the encampments and all that, it was used as a place for pro Palestinian activity. And at the 11th hour, they ban Dunmetto from having structures or encampments or those sorts of things.

[A]

And mind you, literally the 11th hour.

[B]

Literally the 11th hour. And mind you, this is a place where people set up camps and had encampments during their protests of apartheid in South Africa and whatnot in the late 1980s. I mean, it has a history of this sort of thing. But the state legislature was coming in on them for allowing these sorts of activities. So at the 11th hour, they banned activity. The next day, people are protesting this change of policies. And what do they do? They put snipers on the roof of the student union, which is right adjacent to Dunmetto, and then they arrest some students. Anyway, it got crazy.

[A]

And this is a lot of students and a lot of professors, too.

[B]

Yeah. And there was. There was one professor who was sanctioned for hosting a pro Palestinian event and signing his name to the forms that you need to rent a room, and they. They got him on, like, a paperwork error. They were sort of a show me the man, I'll find you the crime sort of deal. There was a professor or. No, not a professor. There was an artist, a Palestinian artist who was supposed to have an exhibit and their art museum, which is a very kind of established, well respected art museum, who had her art exhibit canceled. There was a LGBT conference that was supposed to take place. And then you had Trump's anti DEI executive order come through. They canceled the LGBT conference, and it was supposed to be keynoted by this famed journalist. And anyway, it's like one thing after a number. I don't remember anything like this happening. When I was an Indiana University student, and I. And I understand, of course, if you were the leadership of Indiana University, you've got a state legislature that's very conservative, that's looking to go after institutions that are hosting pro Palestinian speech or pro LGBT speech. You also have a federal government that's issuing executive orders and extorting many institutions across the country who host this sort of speech or are seen not to fall in line with their executive order. So I get it. But at the same time, have some backbone. I mean, you had a backbone when Alfred Kinsey was doing his sex research in the 1940s and whatnot. There's just no backbone right now. And that's why they find themselves at 255 out of 257 schools. No, they're. Where are they? They're two. Sorry, I'm trying to read my notes here, and there's a lot of numbers, and it's confusing the hell out of me. They're the last ranked public school in.

[A]

Our rankings, and they're like, third for second or third from the bottom overall.

[B]

Yeah. And the faculty, when we surveyed them last year from March 4 to May 13, said it was not at all or not very clear that administrators protect free speech on campus. Three quarters of them said that. That it was not at all or not very clear that administrators protect free speech on campus, while 69% said academic freedom is not at all or not very secure on campus. And 93% of the 948 faculty members voted for a no confidence resolution against the administration. So, yeah, that's Indiana University for you right now.

[A]

Well, I will say I may have dropped the ball a little bit on this one. When I was touring the campus year before last with my son, I wanted to ask the tour guides about free speech on campus, but my son inveigled me not to embarrass him, and I withheld.

[B]

Well, I mean, for. For all we know, given how things are going there, they probably censor the tour guides.

[A]

No doubt.

[B]

So we've seen some colleges do that. All right, Connor, I have you here, so I need you to give us an update on where some of this litigation stands surrounding visa holders here in the United States, green card holders here in the United States who speak out in ways that the current federal government does not like. In the wake of the Charlie Kirk assassination, the Department of State tweeted out that it has no obligation to host foreigners who wish death on Americans. And the State Department continues to identify visa holders who celebrated the heinous assassination of Charlie Kirk. And here are just a few examples of aliens who are no longer welcome in the United States. And the first example it gives is of an Argentine national who said that Kirk, quote, devoted his entire life to spreading racist, xenophobic, misogynistic rhetoric and deserves to burn in hell. Sure as hell seems like protected speech to me. But these people believe that the First Amendment doesn't apply to foreigners. So what are the courts saying right now? Where do things stand?

[C]

So on that last point, the government's just wrong. We know from a 1945 case called Bridges vs. Wixon that aliens are entitled to the protection of the First Amendment when they're in the United States. All of this kicked off, as many of your listeners may recall, back in March, when the administration moved against students like Mahmoud Khalil, Ramessia Ozturk, Moshen Badawi, and tried to deport them for things that they wrote or said about Palestine and Israel. And to be clear, these are not students who were engaged in or been charged with vandalism, throwing a brick through a window, harassment or anything like that. Ramessio Oster co authored an op ed in the Tufts University student newspaper. Mahmoud Khalil attended some protests that the administration didn't like the message of. But pure speech.

[B]

Yeah. Although some people say with Mahmoud Khalil was involved in unlawful activity, but that's never actually been alleged and we've seen no evidence of that.

[C]

That's right. And the basis that the administration used to try to render him deportable was purely protected speech. And the reason we know that is because they relied on a section of the Immigration and Nationality act that only applies to protected speech.

[B]

Yeah. Caroline Levitt held up flyers that he was alleged to have distributed or his group was alleged to have distributed. They can't actually prove that he distributed these flyers. And flyers are speech. Right, Right.

[C]

So what's been encouraging is that for the folks who have been either had their visa revoked or they've been. Their legal status has been revoked and they've been rendered deportable based on speech. The ones who have filed for habeas corpus relief from their detention, they've all won.

[B]

So they're not detained currently.

[C]

They're not currently detained. But what that doesn't do is it does not remove the threat of deportation. The administration is still trying to deport them. Now, due to the way the Immigration and Nationality act is designed, they have to wait until very, very late in the immigration appeals process to actually raise their constit arguments. So even though Mahmoud and Ramessia are out and about right now and back to more or less living their life, they are still under a very real danger of deportation. And then, as you mentioned, we saw about a month ago the administration bragging that they revoked six visas of foreign nationals who they say celebrated the assassination of Charlie Kirk. That's all pure protected speech. And I understand the view of a lot of folks that, well, these are really kind of unkind words to say about the dead. Is it really a bad thing if we throw someone out for saying those things? Yes, because what you're doing is you're giving the government of the day, whoever that happens to be, the power over tens of millions of people to pluck any one of them out and say, I don't like what you have to say about that. Get out.

[A]

So let me break the cardinal rule of depositions in cross examination and ask you, and I don't know the answer to this, I kind of understand, at least as a syllogism, I think it's bullshit. But at least as a syllogism, you say, okay, Khalil Azturk. And they've engaged in this debate about, you know, Palestine and Israel. They've said these very public things I can almost understand and say, okay, that's going to undermine some kind of foreign policy initiative by the government. That's right. That's the INA provision. Right. I think that's bullshit. I mean, it's hard to imagine how either of them would do anything that would affect U.S. foreign policy at all, but at least you can say it involves another country in some way, shape or form. Is the government using the same provision on these people who are saying mean things about Charlie Kirk?

[C]

No.

[A]

Okay, what do they. What's their fig leaf there?

[C]

So far as we can tell, what they are using is the same statute they used against Ramessia Osterk. So there are two primary provisions of the INA that are at issue here. One allows the Secretary of State to revoke a visa at any time or for any reason. And the other allows him to render someone deportable based on his personal determination that their speech activity compromises a compelling foreign policy interest. So for Ramessia Osterk, and so far as we know, for these six individuals who just had their visas revoked based on the Charlie Kirk commentary, they're not even trying to make a foreign policy nexus. The assertion of power is section1201. I gives me the power to revoke a visa at any time for any reason. I am revoking your visa.

[B]

Why?

[C]

Because F you, that's why.

[A]

Well, of course, that runs into the issue that you can revoke a visa for any reason except for an unconstitutional one. Right.

[C]

Well, and that gets into our lawsuit that's currently pending in the Northern District of California that's set for argument on November 19, where we are alleging on behalf of the Stanford Daily Student newspaper and two lawfully present noncitizens who have engaged in protected speech that these two statutes, to the extent they allow adverse immigration consequences based on protected speech, are unconstitutional. You cannot throw someone out of the country because you don't like their ideas. That is an incredibly un American approach to freedom of speech.

[B]

And just so I'm clear here, the government is conceding that they're throwing these individuals out based on their speech. It's not trying to make some sort of conduct argument to get to our first topic.

[A]

Conceding they're bragging about it.

[B]

Well, yeah, I mean, clearly. But, you know, yeah.

[C]

So I would say two things there. One, as Ronnie said, they're bragging about it when they're asked for comment on these. It's, we have no obligation to host these people with anti American or deplorable views. There's never an argument that they're separately deportable. They had overstayed their visa, they had committed these other immigration offenses that render them deportable. It's just, hey, have you seen what they said? And the other way that we can sort of surmise that the basis is their speech is, is I've yet to see anything suggesting that the basis is something other than 1,201.

[B]

But what are they saying in their briefing? Right. I mean, are they acknowledging that they're deporting these people based on their speech?

[C]

As far as I've seen, Because our.

[B]

Case isn't the only one. It's also the AAUP case. Right, right.

[C]

So at least in the case of the six Charlie Kirk folks who've had their visas revoked, I'm not aware of any legal proceedings that have been initiated based on those visa revocations. Not to say it hasn't happened, but. But I haven't seen it yet. But in cases like the AAUP litigation, which you mentioned, and in ours, and then in some of the briefing in Mahmoud Khalil and Ramesse Ozturk's case, they are making the argument that noncitizens have incredibly diluted to non existent First Amendment rights.

[B]

Okay, yeah, that's what I was getting.

[C]

Yeah. And their argument is that the power of the political branches over immigration is so total and so all encompassing that they can kick a lawfully present noncitizen, whether it's a visa holder or a green card holder, out at any time for any reason, because that's just a power inherent in the sovereign. The problem with that argument is that it relies on sort of this Blackstone theory of the power of the government, where all of the power is consolidated in the sovereign. But the whole point of our Constitution, which made the power over immigration an enumerated right for Congress, is that we are a government of limited power, not all omnipotent power like the English government was. And here Congress's power over immigration, just like Congress's power over taxation or any of its other enumerated powers, are subject to the Bill of Rights. So just as Congress cannot impose a 10% higher tax on you because you happen to espouse conservative views, Congress cannot condition your immigration status on the basis of something that would violate the First Amendment. James Madison said it best in 1800. Opinions are not the appropriate object of legislation.

[B]

All right, well, where does that case stand? So, the Stanford case, we have oral argument on the 19th. When do we expect any sort of ruling in that case? This is why I know I'm going to keep asking the question, because I know our listeners are going to want to know. They want to know when these issues are going to get resolved.

[C]

And if any of your listeners know, please do tell them to get in touch.

[B]

All right, Screw you guys. All right, that's Ronnie London, FIRE's general counsel, and Connor Fitzpatrick, our supervising senior attorney. I am Nico Perino, and this podcast is recorded and edited by a rotating roster of my FIRE colleagues, including Bruce Jones and Ronald Baez. To learn more about so to Speak, you can subscribe to our YouTube channel or substack page, both of which feature video versions of this conversation. You can follow us on X by searching for the handle Free Speech Talk, and you can send us feedback by emailing sotospeakhefire.org Again, that is, so to speak, at the fire.org and if you enjoyed this episode, you should leave us a review on Apple Podcasts or Spotify or wherever else you get your podcasts. Reviews help us attract new listeners to the show, and until next time, thanks again for listening.