Month: September 2026

Hot Topics in Free Speech: September: Press Passes and Cancelled Concerts

Below is the inaugural post for a series where I analyze the month’s most discussed free speech topics. I will attempt to do this in a non-ideological way.  The First Amendment requires principles that we apply equally to speech we favor and disfavor.

Press Passes:

The rule of law was vindicated after President Trump complied with a temporary restraining order – issued by a judge he appointed – requiring the President to restore the press access of three media organizations during the pendency of a trial on whether President Trump can revoke those press passes.

In an extraordinary move, President Donald Trump banned three news outlets – CNN, MS NOW, and Politico – from the White House grounds. Reporters’ access cards were denied, and the three media organizations filed a federal lawsuit against the President. Their complaint alleges that President Trump violated the due process rights of the outlets, by depriving them of a liberty interest without notice and an opportunity to be heard. The complaint also alleges that the ban is a retaliation for their constitutionally protected viewpoints, in violation of the First Amendment. In addition, although White House grounds are a nonpublic forum, such that the government has some control over access, the government cannot deny access on an impermissible basis like viewpoint discrimination. 

In response, the President argued a viewpoint-neutral reason for the revocation of access, which is that the publications are not maintaining a minimum of journalistic standards and are compromising a compelling interest in national security. The President’s response argued that these publications revealed information – including misinformation – that compromises national security interests, such as articles about White House construction.

Judge Kelly, a Trump appointee, granted a temporary restraining order, restoring the media access while a trial proceeds on plaintiffs’ claims against President Trump.  Judge Kelly held that plaintiffs are likely to succeed on the merits of their Fifth Amendment due process claim because the journalists have a liberty interest in their press passes that was revoked without notice. Judge Kelly was skeptical that national security interests were what truly motivated President Trump, given his statements on Truth Social.

Initially, President Trump did not comply with Judge Kelly’s orders.  After the Judge required an explanation of why the President had not restored press access, the White House reinstated press access.

I have serious concerns about media bias and professionalism of journalists. I have lost faith in many reputable news outlets after appreciating how they promote certain narratives and introduce their ideological biases into their reporting. Unlike President Trump, I realize that the solution to media bias is (1) a change in culture, where journalists pursue truth over their ideologies and ensure that they have accurately reported the facts, and (2) a variety of publications with different perspectives, yielding a complete picture of events, resulting in pressure on the media to convey events more objectively. 

There is no healthy democracy where the media serves at the pleasure of the President.  The President’s decisions appear to be made based on the viewpoint of the publications, if perhaps in addition to their standards of professionalism.  The United States, with our constitutional protections, cannot require the media to echo the positions or biases of the state, like Russia’s state-sponsored RT or Qatar’s state-funded Al Jazeera.

I have long thought, although there have been abuses of the law in many presidencies, that we are not in a constitutional crisis.  The fact that a Trump-appointed judge ruled against the President and then forced the President to comply with his ruling shows that we in this country still possess the privileges that many in the world do not. Of course, we must take those privileges seriously and call out abuses of government power, regardless of who is in power, at the federal, state, and local levels.

Cancelled Concerts:

U.S. rapper Macklemore was ousted as English singer Ed Sheeran’s opening act after Macklemore performed a song called Hind’s Hall (about the occupation of a Columbia building during pro-Palestine protests at Columbia) and encouraged his audience to chant “Free Palestine” at MetLife Stadium.  On Macklemore’s second night at MetLife, he accused Israel of genocide and reiterated “Free Palestine,” in addition to making other political statements. Macklemore claimed that New England Patriots owner Robert Kraft banned Macklemore from playing at Gillette Stadium and pressured Ed Sheeran to drop Macklemore from his tour. Ed Sheeran is now continuing his tour without his opening acts, who all dropped out in solidarity with Macklemore.

Legally, there is no First Amendment problem.  There is no state action, just private actors making decisions about who can perform in their venues. Of course, we as a society should care about free speech values, not just government censorship. When billionaires have control over who can play in their venues, and they exercise that control based on viewpoint, we should be concerned that successful artists do not reflect what society wants to hear but what stadium owners want to hear.

At the same time, Robert Kraft surely has First Amendment rights to decide what is played in the venues he owns.  Kraft has spent significant resources fighting antisemitism. Some Jewish audience members asked for refunds of their tickets because they did not expect an anti-Israel rally at their Ed Sheeran concert. Hind Hall is a song about the occupation of Hamilton Hall; this building takeover involved assaults on two janitors and swastika vandalism.  “Free Palestine” is a phrase that means different things to different people, but it is not unreasonable to think that it has antisemitic connotations; it is often uttered at American Jews who have expressed no opinions on Israel.  To some, the slogan is a statement of liberation for the Palestinian people, but to others it is a call for the destruction of Israel.  The chant is associated with the slogan “from the river to the sea, Palestine will be free.” This sanitized English chant is a translation from some versions of the Arabic, “from water to water, Palestine will be Arab (or Islamic),” a call to ethnically cleanse the last remaining Jews from the Middle East, as Jews have been cleaned from all surrounding countries.

In addition, over the past few years, Jewish and Israeli artists have been cancelled at venues and film festivals across the country and the globe.  Jewish comedians have been told that venues cannot protect them from violent protesters – a deeper First Amendment problem involving the heckler’s veto and threats of violence.  Jewish writers have been removed from arts festivals, and university departments have called for full boycotts of Israeli academics and universities.  These cancellations are at least as worrisome, from a free-speech culture perspective, but they do not receive the same outcry because the censorship is against a tiny, minority population.

Respecting free speech values requires a coherent, principled theory about when venues can determine who performs there.  If venues cancel due to threats of violence, that is the surest sign of a failing free speech culture, as mob coercion has suppressed individual rights.  To my mind, patrons and Ed Sheeran should have known about Macklemore’s stances, and cancelling the rapper has only amplified his message and revived his relevance.  My hope is that venues provide spaces for a variety of viewpoints, but also that the venue owners’ First Amendment rights to control the speech in their venues are respected. 

Academic boycotts and literary boycotts run counter to the purpose of art and research, which is to foster understanding of different perspectives – this seems fundamentally different than a concert.  What also concerns me, in addition to venue owners perhaps having outsized power, is the way artists feel pressure to echo the most popular positions and prevailing sentiment and are berated for not doing so. We live in a polarized world, and this is surely a polarized topic that could benefit from fewer slogans and more listening to others who don’t share our perspective.

The Constitution that Hasan Piker Says He Wipes Himself with May Save Him from a $150 Million Lawsuit

Hasan Piker can often seem to be a caricature of bad faith. That does not mean his speech is unprotected incitement. The two important legal questions in the Florida lawsuit by Larry Klayman against Hasan Piker are (1) will this lawsuit get to a jury and (2) what will a jury do if this case is not dismissed on First Amendment grounds. Klayman, the plaintiff, is also a controversial figure known, among other things, for his litigiousness and ethics violations.

In August of 2026, Piker stated to a large audience, “If Jews in America keep putting this idea out there that they are singularly invested in Israel, eventually someone is going to come around and take action, not against the state of Israel, mind you, but against American Jews.”  According to the complaint, this comment was not a “stray remark,” but capped off a years-long practice of hatred and calls to action against Jews and Zionists (supporters and inhabitants of the state of Israel). The allegations are laid out in the complaint, as is the uptick in antisemitic assaults and murders in the United States. Klayman, a member of groups targeted by Piker’s comments, is suing Piker for reckless endangerment, assault, and intentional infliction of emotional distress, with compensatory and actual damages in excess of $150,000,000.

I make no excuses for Hasan Piker’s content. He has praised China’s former leader Mao Zedong, who is widely considered responsible for over 40 million deaths due to executions, forced famine, and purges of his political enemies.  Piker has stated that his favorite flag is the flag of Hezbollah, an Iran-backed, Hamas-supporting terrorist organization.  Piker targets those who disagree with him, including a Vietnamese refugee who fled communism, with vulgar, demeaning, sexist language.  Piker has said “I wipe my ass with the Constitution.”  I imagine Piker will cite this document, which protects all of us, in trying to dismiss Klayman’s lawsuit on First Amendment grounds.

The fate of Larry Klayman’s lawsuit against Piker is not determined by whether Hasan Piker’s ideas are wrong, bad, or even harmful. (It is also not determined by what people think of Larry Klayman or his views).  Freedom is not about the collective; it is about the individual.

The law cannot silence ideas simply for being dangerous, nor can it attach civil penalties that chill speech.  Harmful speech is protected, out of a distrust for our government having the power to decide which ideas are acceptable in a free society.  Speech must fit into an unprotected category for civil lawsuits to pass First Amendment scrutiny. For speech to be unprotected incitement under the Supreme Court’s articulation in Brandenburg v. Ohio, it has to be directed at and reasonably likely to cause imminent lawless action.

In Brandenburg, a conviction against a member of the Ku Klux Klan’s speech was overturned because the Ohio statute punishing Brandenburg’s speech did not distinguish between incitement and “mere advocacy.”  The KKK had been speaking at rallies and producing films telling Black people to go back to Africa and Jews to go back to Israel, with some KKK members holding weapons.  In addition, Brandenburg said the following: 

“The Klan has more members in the State of Ohio than does any other organization. We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.”

Brandenburg’s statement is, in structure and in some ways in content, similar to Piker’s.  If things keep going the way they are, someone might harm this group of people.  The Brandenburg Court did not directly address whether the statement should be deemed unprotected incitement, but Brandenburg’s conviction was overturned because the Ohio criminal statute was not narrowly confined to speech that rose to the level of incitement.  But Brandenburg’s statements, racist, terrible, and dangerous as they were, likely fall on the advocacy side of the line.

In some cases, courts have determined that a reasonable jury could conclude that speech rises to the level of unprotected incitement.   Several factions of the KKK have successfully been sued for incitement. In addition, the leaders of the Unite the Right rally in Charlottesville were liable for $26 million for engaging in civil conspiracy to commit violence. Speech that is directed at and reasonably likely to cause imminent violence will be deemed unprotected incitement.

There is a good chance that the Florida court will hold that Piker’s speech is not unprotected incitement. The lawsuit will then be dismissed. Piker’s comments may be directed at getting people to harm Jews or make them afraid to express their opinions – it’s unclear why he would say them otherwise.  However, his comments imply more of a vague threat than an imminent call to harm.  The standard for incitement is purposely high to allow a wide range of contested views into the marketplace of ideas. We only punish speech when it is imminently connected to criminal action.

Perhaps the court would hold reasonable jurors can differ on whether Piker’s comments rise to the level of incitement.  Then, a judge would send Klayman’s claim to a jury – in that case, Piker’s motives and the likelihood of harm coming to Jews, Israelis, or Zionists based on his comments and conduct would both be considered as a matter of fact by the jury. 

The irony is that Piker, known for espousing inflammatory views using noxious rhetoric, creates a world where people who espouse views he disagrees with are afraid to speak freely.  And now Piker, known for praising dictators and organizations that punish, kill, and torture those who do not echo their narrative, will be invoking free speech principles to save himself a lot of money.  The Constitution that he has decried has value, including protecting those who myopically reject its freedoms and structure.

The Bombing of Pan Am 103, the Murder of Charlie Kirk, Free Speech, 9/11, the Celebration of Death, and the Celebration of Lives

I recently watched Netlfix’s excellent series, “The Bombing of Pan Am 103.” This series has a 100% audience score on Rotten Tomatoes, likely due to its non-ideological, gripping, and sensitively-told dramatization of the bombing of a plane traveling from London to New York in 1988. A suitcase on Pan Am 103 containing a radio bomb killed all 259 people on the plane plus 11 people on the ground in Lockerbie, Scotland. After over a decade of investigations by law enforcement in England, Scotland, and the United States, two alleged members of the intelligence service in Libya were tried for this mass murder. Watching as a law professor, I noted the differences between this terrorist attack and the meticulous collection of evidence and arduous process to ensure guilt before these men could be convicted of a crime.

The bombing of Pan Am 103 can be designated a terrorist attack because it involves the purposeful targeting of civilians to effectuate a political aim — not a targeting of military assets, or a targeting of civilian infrastructure used as military assets, with unintended or collateral civilian casualties. The response to this terrorist attack, while surely imperfect, demonstrated important rule of law principles, including a lengthy investigation, counsel provided for the defendants, a trial accessible by the public, and efforts to prevent witness intimidation (some witnesses had to testify behind bulletproof glass). Ultimately, one of the men was deemed not guilty. The other, Abdelbaset Ali Mohmed al-Megrahi, who had lied about not having a false passport that he used to travel under a fake name to place the bomb in a suitcase in Malta, was convicted by three Scottish judges. (Not everyone believes he is guilty, or that the evidence was sufficient.)

Of course, no system is without major deficiencies. The FBI at first investigated a Pan Am 103 passenger, who emigrated to the United States with his parents from Lebanon, who was entirely innocent. His name was cleared, but the reputational damage to his grieving family in the United States remained.

Meanwhile, Abdelbaset Ali Mohmed al-Megrahi eventually returned to Libya to what many called “a hero’s welcome” and a cheering crowd. I have long associated the cheering and celebrations of civilian casualties with places, like Libya under Colonel Muammar Gaddafi, that do not respect the rights we cherish here, including due process and freedom of speech.

I fear we are becoming the sort of place where people celebrate the death of their political enemies, including civilians killed simply for exercising freedom of speech. I fear we are becoming a place where civilians are purposely targeted for their views, or people are killed without trial for behaviors the public has condemned.

Perhaps I am too earnest or too literal, but the jokes about the murder of Charlie Kirk, including jokes by those who style themselves as intellectuals, profoundly concern me. The thing I love most about this country is our robust First Amendment, which (although imperfect) guarantees us the right to speak freely no matter your views. It seems quite obvious that we do not want to become a society (and many exist) where people are killed for expressing objectionable views, creating objectionable art, or decrying things that members of the public find sacred or above scrutiny. The line between speech and violence is the line of freedom.

There are many people who, on a daily basis, share views – on a variety of subjects to extremely large audiences – that I find distasteful, illogical, immoral, wrongheaded, politically despicable, or even dangerous to me personally. I hope these people are shielded from violence, just as I hope people who agree with me and people who disagree but have totally reasonable and sensible views are shielded from violence. What is much more dangerous to me than any of their views is a United States where we condone the murder of people for their speech.

It is hard for me to understand celebration of the murders of Charlie Kirk, or Brian Thompson, or any other figure where people have eminently reasonable, serious objections, as anything other than failures of systemic thinking, principle, and humility. We have lost the ability or the desire to abstract away from people’s glee.  The deaths of those that many believe to be participating in oppression should trigger an appreciation of the more abstract principle that protects against systemic oppression – the principle that we do not resolve political disputes with tribal violence.

The celebrations of public assassinations of politically divisive people are also, of course, protected speech. I will defend people’s right to make the most distasteful (and sure, sometimes clever) jokes free from violence. It all just seems so shortsighted. Radicalization in the face of a flawed system seems to result from those entirely insulated from the dangers of a society that cheers death, tolerates terrorism over due process, and conflates speech and violence.

I remember 9/11 vividly. People working on a house near my off-campus place were listening to the radio, so my roomies and I heard enough to wake up and turn the television on to see a plane hit the second tower.  I remember still going to biology class, which proceeded as normal, and then going to lab before realizing that I should go home.  This was a much bigger horror than I had initially realized because the towers had come down.  I remember a scared friend trying to reach his father, who might have been in the Pentagon.  I remember my own father, stuck at airports.  I remember my grandmother, who lived in the Lower East side and saw the Twin Towers out of her window, thinking we were at war.  I remember the 911 calls of people who worked above where the planes crashed, who knew they were going to die.  I thought about their last moments, and the moments of those who jumped.  I remember the outstanding first responders and the pride and sadness I felt knowing the most heroic and the best of us are the ones who have to sacrifice.  I remember that a plane flew over me while walking around my college campus in Boston, and I wondered if that plane would crash down on me. I remember the beautiful stories of friendship and the sacred stories of people coming together.

I remember being told that large parts of the world thought “the Jews” did 9/11, and believing that was true in places where they don’t have free speech or information circulating sufficiently, yet not seeing real evidence of these conspiracies until recently. I remember the “let’s roll” hero from United Airlines Flight 93. I remember the anguish of the families of people affected.  I remember the companies that lost most of their employees. I remember wondering, naively, why anyone would hate the janitor and the trader and the CEO and the restaurant employee and the travelers and the police and the firefighters who all died together on that day. I remember learning why, and learning that the world is both simpler and more complex than I had realized. I remember the love those on the planes sent to their families. I hope that sort of love still exists today, in a much different world.

I remember. I hope we remain a society that largely celebrates life over death and rule of law over violence.