As we wrap up the first year of Protect The 1st, this is a good time to revisit the amendment we are dedicated to guarding and extending. The desire to improve (or fiddle) with the Constitution is today shared by many groups, left and right, as well as by many judges. But what would you do if you could just rewrite it?
The Boston Globe recently commemorated the 230th anniversary of the ratification of the Bill of Rights with a special section, which “asked legal experts, advocates, journalists, and members of the next generation what changes they’d make to the Constitution if they could.”
Mary Anne Franks, a former Rhodes Scholar and University of Miami law professor, argues that the First and Second Amendments are flawed because they are “highly susceptible to being read in isolation from the Constitution as a whole and from its commitments to equality and the collective good.”
Further, she writes, these amendments “tend to be interpreted in aggressively individualistic ways that ignore the reality of conflict among competing rights. This in turn allows the most powerful members of society to reap the benefits of these constitutional rights at the expense of vulnerable groups.”
Franks explains that perhaps Congress should enact a new First Amendment along these lines:
Every person has the right to freedom of expression, association, peaceful assembly, and petition of the government for redress of grievances, consistent with the rights of others to the same and subject to responsibility for abuses. All conflicts of such rights shall be resolved in accordance with the principle of equality and dignity of all persons.
Both the freedom of religion and the freedom from religion shall be respected by the government. The government may not single out any religion for interference or endorsement, nor may it force any person to accept or adhere to any religious belief or practice.
The actual First Amendment simply says:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
As to Franks’ elaboration on religion, the current language achieves her goal of freedom of religion (and from religion) with an economy of words. That’s the terse, elegant power of our Constitution. The Founders’ understood that centuries of lawyering, if given sufficient verbal hooks, would be apt to erode even the most clearly enunciated rights. With similar logic, the First Amendment protects the occasional bigot, yes, but it also ensures that powerful organizations and groups cannot shut up men and women of conscience who criticize them.
The First Amendment as it is also defends speakers against being prosecuted for violating vague values like someone’s “dignity,” a qualifier that Franks would balance against your right to speak. Who gets to decide what erodes whose dignity? Agree with Franks’ rewrite, and you’re well on your way to arresting the likes of Lenny Bruce and Robin Williams, if not Mark Twain.
Finally, why did she excise freedom of the press? Perhaps Franks did this because, in an era of blogging, we’re all part of the media now. Protect The 1st holds to the notion that having a specific, designated recognition of the press is essential to protecting the right to investigate, criticize and humble the powerful.
It is the First Amendment’s focused, economy of words that prompted British Prime Minister William Ewart Gladstone to describe the U.S. Constitution – still the oldest written constitution in effect today – as “the most wonderful work every struck off at a given time by the brain and purpose of man.”
These are forty-five words for all seasons and all ages.
A federal court in Richmond will soon hear arguments in a lawsuit filed by a news organization against the Commonwealth of Virginia for its policy of blacking out court records for public access over the internet.
Virginia law only allows remote access to court documents to attorneys and their staff. One reporter, Brad Kutner – who works for the plaintiff in this case, Courthouse News Service – drives to multiple cities each day to visit state courts just for access to the latest filings from public terminals.
For a comprehensive review of the day’s court filing, a journalist would have to drive 485 miles, visiting 120 courts from Virginia Beach in the south to Lee County in the state’s western tip.
Virginia’s attorney general’s office argues that it has “a legitimate state interest in protecting court records from the ease of exploitation that a limitless internet database would provide.” The AG’s office left unclear how “limitless” access could “exploit” court records, and why this is not a problem for the majority of states that post court documents online.
Courthouse News Service alleges the law discriminates against the press and violates free speech under the First and 14th Amendments. It would not be smart to bet against this media organization. In November, it won $2.4 million in attorneys’ fees in a case against clerks in Norfolk and Prince William, who had been holding back access to new civil complaints while they indexed and scanned them.
In that case, U.S. District Judge Henry Coke Morgan Jr. ruled against the clerks on First Amendment grounds. During the trial, he compared fresh news to “fresh bread.”
Not only are the First Amendment rights of journalists violated by forcing them to, in the judge’s words, sell “stale bread,” but as Brad Kutner adds, “it keeps the public out of the loop as well.”
Jana Winter, investigative correspondent of Yahoo News, recently wrote a must-read piece about a secretive unit within Customs and Border Protection (CBP).
Winter reviewed a 500-plus page inspector general report on this unit which, she reports, “had few rules and routinely used the country’s most sensitive databases to obtain the travel records and financial and personal information of journalists, government officials, congressional members and their staff, NGO workers and others.”
Furthermore, Winter reports that “as many as 20 journalists were investigated” as part of the wide-ranging and apparently rogue operations of this unit. These activities eventually led to referrals of officials in this CBP unit for criminal prosecution. None were charged.
One agent in this unit, Jeffrey Rambo, interacted with a journalist, Ali Watkins, who was involved with James Wolfe, the long-time Security Director of the U.S. Senate Select Committee on Intelligence. Wolfe was later fired and sentenced to two months in prison for lying to the FBI in an investigation of intelligence leaks regarding Watkins.
From the account, it appears that Rambo’s digging may have alerted the FBI to this potential leak from the Senate Committee. But Winter’s account also shows this CBP unit casted a wider net that included not only Watkins, but also journalists with the Associated Press, The New York Times, as well as Huffington Post founder Arianna Huffington.
Winter’s story portrays Rambo as trying to “recruit” a journalist for a “PsyOp” operation. As thorough as Winter’s account is, it leaves us with many unanswered questions ripe for a Congressional hearing.
A comical thread runs throughout Winter’s report. For all of Rambo’s attempts to play the role of an anonymous spy with Ali Watkins in a furtive, late-night meeting at a bar, Watkins easily defeated his attempts at anonymity by returning to the bar to ask a bartender for Rambo’s credit card receipt. We have seen elsewhere how small and marginal centers in the government attempt to play spy games in the style of a John Le Carré novel, only to come closer to resembling the ludicrous characters in the movie, “Burn After Reading.” But the report has too many disturbing implications for the First Amendment to evade Congressional scrutiny.
Federal Election Commission v. Ted Cruz for Senate
Protect the First Foundation filed an amicus brief in a case that challenges a restriction on the ability of campaign committees to repay funds a candidate loans to his own campaign.
The case involves Section 304 of the Bipartisan Campaign Reform Act, which imposes a $250,000 limit on the repayment of such loans using funds contributed after the election. Sen. Ted Cruz of Texas loaned $260,000 from his personal bank accounts and margin loans to his committee to finance his re-election. After the election, the Cruz campaign used pre-election contributions to repay other creditors before repaying Sen. Cruz himself. When the campaign began repaying Sen. Cruz the month after the election, the loan-repayment limit prevented the campaign from repaying $10,000 of Cruz’s personal loans.
PT1st supports Sen. Cruz’s position because it involves Americans’ most fundamental rights to run for office and to pay for political speech. PT1st’s amicus brief demonstrated to the Court that:
“The loan repayment limit is nothing more than political protectionism, passed by well-heeled and well-connected politicians with massive war chests that insulate them from the threat of a challenger.”
PT1st noted that all candidates need access to funding early in a campaign to establish their place in the race, but early spending is particularly important for challengers. Candidates of modest means often must rely on their own resources to be competitive. The practical effect of the loan repayment limit is to deter candidates of limited means from spending money in advance of raising funds.
Thus, “the loan repayment limit provides an advantage to incumbents at the expense of challengers, particularly challengers of limited means.”
For all these reasons, PT1st wrote to the Court that Section 304 imposes an unconstitutional burden on free speech.
An investigative piece by The New York Times today reveals that the FBI stationed undercover agents to infiltrate the protest movement in Portland, Oregon, and other cities. Begun in the violent aftermath of the protests and violence in Portland after the murder of George Floyd in Minneapolis, the operation continued past the inauguration of President Joe Biden.
The Times piece is notable for setting out the complex issues involved in this operation. On one hand, Portland protesters had started fires, smashed windows and threatened a federal courthouse. One protester attacked a federal officer with a hammer.
On the other hand, positioning the eyes and ears of the government inside a protest movement weakens the First Amendment rights of the peaceful. According to The New York Times, some in the Department of Justice and FBI worried that the practice could easily slip into the COINTELPRO practices of a previous era, when the federal government routinely and widely surveilled political dissenters.
That internal debate – and The Times’ thorough reporting of it – is a healthy sign. So is continuing vigilance by civil liberties advocates.
“Yet within the social platforms’ walled gardens, society and government are subordinate to private censorship, with social media companies, through their content moderation policies, now deciding what we see and say and even what policies our elected officials are permitted to publicly embrace on their platforms.”
The non-partisan Real Clear Foundation published a white paper by Kalev Leetaru, internet entrepreneur and theorist, that sets out in detail the ways in which the status quo in social media content moderation is unacceptable. Social media companies have an absolute right under the First Amendment to moderate their platforms as they wish. But “network effects” – the tendency of mass audiences to cluster around a few platforms like Facebook, Twitter and Google – ensure that a decision to remove a post or deplatform a site amounts to “private censorship” and exile from the debate.
Worse, when private companies establish rules for content, they are in Leetaru’s words “opaque and their enforcement uneven.” Witness the travails of John Stossel, the Emmy Award-winning television journalist and libertarian, who chronicled how he has been misquoted and mischaracterized by Facebook’s “fact checkers.” Liberals are upset that the algorithms of social media inspire social division and hatred. Conservatives are hopping mad about having their posts slapped with “warning labels,” or deleted altogether.
So what to do?
Leetaru turns to Wikipedia as a model of transparency. Wikipedia has clear rules, a chronologically documented history of all content actions, and publicly archived conversations between contributors and moderators. On Wikipedia’s “Talk” pages, such open debate eventually leads to a settled consensus.
In a similar way, social media companies – in exchange for the extraordinary protections they receive from Section 230, far beyond any enjoyed by traditional publishers – should have reciprocal obligations. They should be required to “fully publish all their policies, guidelines, and precedents, eliminate their unpublished exemptions, clearly explain every decision in plain language, and offer rapid appeals” to make moderation “more objective and standardized.” Leetaru argues for tearing away the veil from social media removal decisions. This would benefit the companies, because its decisions “would no longer seem as politically motivated and capricious.”
This approach fits in well with bipartisan legislation, the Platform Accountability and Transparency Act (PACT Act), co-sponsored by Sens. Brian Schatz (D-HI) and John Thune (R-SD), which would require more transparent processes in content moderation, along with an appeals process for the cancelled. Kalev Leetaru’s paper might offer a strong and detailed plan for fleshing out such transparency and accountability.
Prosecutors have a hard job. They deserve a lot of leeway and public understanding that their actions are going to be continually second-guessed and criticized. But they are not perfect. As public officials, complaints against them should not be hidden from the public. And prosecutors should not be able to squelch the free speech rights of those who file formal grievances against them.
But that is exactly what the law allows in New York and many other states.
A group of law professors demonstrated this by filing formal grievances against 21 prosecutors in Queens. These filings involved prosecutors who were found by appeals courts to be guilty of misconduct, ranging from lying in court to withholding key evidence from the defense.
Now the corporation counsel, New York City’s top attorney, is warning the professors they will face some unspecified punishment for violating a state law that shields formal complaints against prosecutors from public scrutiny. The corporation counsel is also denying these professors access to updates on their complaints. In a splendid piece of eloquent outrage, the editorial board of The New York Times wrote:
For good measure, the corporation counsel then sought to keep secret the letter requesting the professors be punished for violating the secrecy law. This isn’t just shooting the messenger; it’s tossing the gun into the East River and threatening anyone who tries to fish it out.
We doubt that these law professors are quaking in their boots. But imagine the impact such a threat has on someone with limited resources who lacks the prestige and power of a law professor. That person, whether a convicted person’s spouse or parent, may well think twice before exercising her First Amendment rights.
This lack of transparency, moreover, is not unique to New York. At the federal level, while most of the Department of Justice (DOJ), FBI and Drug Enforcement Administration officials are subject to review of their actions by an inspector general, there is a carve out for federal prosecutors. Their actions are reviewed by the Office of Professional Responsibility which, The Times reports, “almost never makes its findings public.”
Thankfully, a bipartisan bill co-sponsored by Sen. Dick Durbin (R-Ill) and Sen. Mike Lee (R-UT) would empower the DOJ inspector general to review claims against federal prosecutors, just as that office does for other DOJ employees. Officials who have the power to put people in prison or on death row should not enjoy secret protections. In New York, they especially should not be able to threaten the First Amendment rights of those who want to speak about their complaints.
We will continue to monitor the progress of The Bipartisan Inspector General Access Act. In the meantime, we hope that New York’s corporation counsel will recognize that such threats are repugnant to the First Amendment.
Protect The 1st Applauds Judge Torres’ Decision to Appoint a Special Master to Review Project Veritas Evidence
Journalists and defenders of the First Amendment have reason to applaud the decision of Judge Analisa Torres, who granted a request by Project Veritas that a special master be appointed to review confidential, journalistic materials seized by the FBI in a dawn raid last month.
In an apparent desire to determine who gave O’Keefe access to the stolen diary of President Biden’s daughter, the FBI seized O’Keefe’s cell phone and those of two of his colleagues. Groups ranging from the American Civil Liberties Union to the media columnist of The New York Times – not philosophically aligned with the conservative activists in Project Veritas and its leader, James O’Keefe – have questioned the invasive tactics of the Department of Justice and FBI.
The contents of a cell phone, as the U.S. Supreme Court has noted, reveals the private information of its owner – and compromises any source a journalist has been in contact with. O’Keefe said that “on my phone were many of my reporters’ notes, a lot of my sources unrelated to this story and a lot of confidential donor information to our news organization.”
Protect The 1st applauds Judge Torres’s decision. O’Keefe never published the contents of the diary and says he had reported it to law enforcement. If this violation of O’Keefe’s digital life is allowed to stand, no media organization will be safe from battering rams and digital confiscations.
This is a welcome step, but it is a first step. Attorney General Merrick Garland, who in July enacted policies to restrain federal investigators from seizing reporters’ records, should reinforce his policies with his department. Attorney General Garland wrote:
“The United States has, of course, an important national interest in protecting national security information against unauthorized disclosure. But a balancing test may fail to properly weight the important national interest in protecting journalists from compelled disclosure of information revealing their sources, sources they need to apprise the American people of the workings of their government.”
Clearly, Attorney General Garland needs to make it clear to his subordinates that his memo was not a suggestion.
The Supreme Court heard oral argument in Carson v. Makin this morning. During the argument, Michael Bindas, the lead attorney for a group of Maine parents, batted back one hard question after another.
What is this case about? Maine refuses to allow parents who qualify for tuition assistance programs to use their funds to send their children to religious schools that meet state education certification standards if they also impart religious teachings and hold religious activities. So a parent could theoretically accept funding for a “Catholic” school, provided it is Catholic in name only. Even one Bible class or the administration of communion to its students would render a school ineligible to participate in the program. This case asks whether that system violates the Religion Clauses of the First Amendment. Earlier this year, Protect the 1st argued that it did.
Several Justices asked whether, if petitioners won, it would amount to a state subsidy of religious schools. Bindas noted that the money only goes to parents, who then decide where they send their children. Justice Clarence Thomas added later that Maine – like all states – makes school attendance compulsory, and that in some rural areas the only option is a religious school.
When asked whether Maine would fund a school that teaches in science class that evolution is a lie, Bindas replied that religious schools must meet Maine’s standards of education – and that the Maine Legislature can require the teaching of evolution in science classes.
When he was asked whether these schools discriminate against students on the basis of gender, sexuality or race, Bindas replied that all religious schools practice “inclusion and diversity through the lens of faith.”
Such difficult questions took up a lot of time at the argument. What about the First Amendment, which forbids the establishment of a religion? Wouldn’t state funds to these schools constitute a violation of the Establishment Clause? No. Bindas told the Justices that the real affront to the Constitution is allowing a regulator in Augusta, Maine, to review schools’ curriculum and decide if a school is “sufficiently irreligious or too religious.”
We agree. Maine’s decision to deny access to public funding based on that school’s religious beliefs, according to the sensibilities of a regulator, violates the Constitution.
Based on how the Justices reacted to the arguments made today, we believe the Court will invalidate Maine’s discriminatory system. If they do, it will be a significant win for religious liberty.
To have one’s posts removed by Facebook, Twitter and YouTube is not, in a legal sense, a violation of one’s First Amendment rights. Facebook’s rights to manage speech on Facebook are identical to your First Amendment rights to manage your own website.
While we want social media platforms to remove content that harms national security or incites violence, to be evicted by Facebook or any other platform that dominates the marketplace of ideas greatly limits the reach of one’s voice. Striking the right balance – finding the right formula for content moderation – has proven to be perplexing for industry and highly controversial for policy makers.
The deletion of harmless content is frequently the result of artificial intelligence programs that fail to understand the nuances of human communication. Thus, we find posts that document war crimes by terrorists in Syria are conflated with terrorism and removed.
In a new podcast from the Electronic Frontier Foundation, Cindy Cohn and Danny O’Brien talk with Daphne Keller of the Stanford Center for Internet and Society to explore the pitfalls of the current regime of content moderation – and how ideas for reform might make it better or worse.
In the early internet era, platforms for speech were distributed throughout society, which prompted digital visionaries to wax poetic about the democratization of speech. Now internet speech is more centralized within dominant platforms. The perception is widespread that the national dialogue is being distorted. Why has this happened?
The sheer scale of moderation on a Facebook for example means that they have to adopt the most reductive, non-nuanced rules they can in order to communicate them to a distributed global workforce. And that distributed global workforce inevitably is going to interpret things differently and have inconsistent outcomes. And then having the central decision-maker sitting in Palo Alto or Mountain View in the U.S. subject to a lot of pressure from, say, whoever sits in the White House, or from advertisers, means that there’s both a huge room for error in content moderation, and inevitably policies will be adopted that 50 percent of the population thinks are wrong policies.
Keller, Cohn and O’Brien discuss possible solutions, including schemes to reduce internet standards of conduct to the “level of a local café” or town square. EFF’s podcast is a thoughtful discussion, one in which the speakers show great humility in the potential for suggested reforms to have serious unintended consequences.
For our part, Protect The 1st supports the Platform Accountability and Consumer Transparency (PACT) Act. This bipartisan Senate-sponsored legislation would require greater transparency by social media companies and some due process for consumer complaints by those who’ve had content removed.
The PACT Act would likely not be a comprehensive solution to the dilemma of internet content moderation. But enacting it would undoubtedly reveal paths to further improvements and refinements in how speech is moderated by a handful of companies, without compromising the First Amendment.
On Wednesday, U.S. District Judge Robert Pitman blocked a Texas law designed to crack down on perceived censorship by social media companies of conservative posts and ideas. The law would have heavily regulated the content decisions of platforms with 50 million active users (another way of saying Google, YouTube, Twitter and Facebook). Judge Pitman determined that the statute violates the First Amendment freedom of speech rights of the social media platforms.
The legislation, signed into law by Gov. Greg Abbott in September, would have treated large social media platforms as “common carriers.” It would have allowed any Texas resident who believes he was improperly “censored” to sue the tech giants. The state attorney general would also have been empowered to sue on behalf of users.
Judge Pitman objected. He wrote that social media companies have a right to exercise editorial judgment and that interference in that process “chills the social media platforms’ speech rights.”
Judge Pitman’s ruling reminds us that the First Amendment is meant to protect Americans from governmental censorship. Decisions by private companies to modify or remove content from their platforms are protected by the First Amendment and cannot be prevented by government action.
Looking beyond this ruling, however, it is fair to note that the dominance of large social media companies in the marketplace of ideas is so complete that to be demonetized and “deplatformed” by big social media can sometimes have the same effect as censorship. Removing a post makes sense when, for example, the content poses a threat to national security or to public health, and when the deplatformed person has engaged in a persistent pattern of posting such harmful material. The absence of clarity about how content moderation decisions are made and the standards that guide the decisions have given rise to understandable concerns and calls for change. The Texas law was a clumsy attempt to address these concerns.
An example of social media company conduct underlying such concerns was highlighted in a Sept. 13 Wall Street Journal article, which was part of its series questioning Facebook’s practices. The Journal revealed that Facebook has “whitelisted” elite users who enjoy broader and more lenient standards for their content than most users. “We are not actually doing what we say we do publicly,” an internal Facebook review reported. The review called the company’s actions “a breach of trust” and added: “Unlike the rest of our community, these people can violate our standards without any consequences.”
Social media companies are standing on solid constitutional grounds but remain in risky political territory by testing the patience of their customers. The status quo is sure to tempt lawmakers to pass more ill-considered laws. Social media companies should consider:
Such requirements could be enacted in exchange for the special liability protection internet-based companies enjoy. Senators Brian Schatz (D-HI) and John Thune (R-SD) have proposed the PACT Act, a bipartisan measure that would require social media companies to adopt many of these provisions in exchange for having legal immunity under Section 230 of the Communications Decency Act for content posted on their platforms by third parties.
For now, however, the courts are right. If First Amendment rights can be curtailed for social media companies, then they can be curtailed for anyone.