National Rifle Association v. Vullo In this age of “corporate social responsibility,” can a government regulator mount a pressure campaign to persuade businesses to blacklist unpopular speakers and organizations? This is the central question the U.S. Supreme Court faces in National Rifle Association v. Vullo.
Here's the background on this case: Maria Vullo, then-superintendent of the New York Department of Financial Services, used her regulatory clout over banks and insurance companies in New York to strongarm them into denying financial services to the National Rifle Association. This campaign was waged under an earnest-sounding directive to consider the “reputational risk” of doing business with the NRA and firearms manufacturers. Vullo imposed consent orders on three insurers that they never again provide policies to the NRA. She issued guidance that encouraged financial services firms to “sever ties” with the NRA and to “continue evaluating and managing their risks, including reputational risks” that may arise from their dealings with the NRA or similar gun promotion organizations. “When a regulator known to slap multi-million fines on companies issues ‘guidance,’ it is not taken as a suggestion,” observed Gene Schaerr, PT1st general counsel. “It’s sounds more like, ‘nice store you’ve got here, it’d be shame if anything happened to it.’” The U.S. Court of Appeals for the Second Circuit reversed a lower court’s decision that found that Vullo used threats to force the companies she regulates to cut ties with the NRA. The Second Circuit reasoned that: “The general backlash against gun promotion groups and businesses … could (and likely does) directly affect the New York financial markets; as research shows, a business's response to social issues can directly affect its financial stability in this age of enhanced corporate social responsibility.” You don’t have to be an enthusiast of the National Rifle Association to see the problems with the Second Circuit’s reasoning. Aren’t executives of New York’s financial services firms better qualified to determine what does and doesn’t “directly affect financial stability” than a regulator in Albany? How aggressive will government become in using its almost unlimited ability to buy or subpoena data of a target organization to get its way? Can government stymie the speech rights of a national advocacy organization with 5 million supporters? Even if you take Vullo’s justifications at face value, the government cannot override the Bill of Rights to slightly reduce the rate of corporate bankruptcies. The dangers of a nebulous, government-imposed “corporate social responsibility standard” is a grave threat to all constitutionally protected individual rights. Protect The 1st is far from alone in this view. The ACLU, which also filed a brief in favor of the NRA, writes: “This is a critically important First Amendment fight: if government officials can pressure the businesses they regulate to blacklist the NRA in New York, then officials in other states can punish other advocacy organizations in the same way – including the ACLU itself.” Other not aligned with the NRA are alarmed as well. James P. Corcoran, former New York Superintendent of Insurance, in his amicus brief writes that while he does not support the National Rifle Association, he believes “that the threat to free speech at issue here could equally harm groups aligned with his own political views if left unchecked." For all these reasons, we urge the Supreme Court in this case to put the First Amendment first. “Once again, the House has passed the Protect Reporters from Exploitive State Spying (PRESS) Act with unanimous, bipartisan support. Forty-nine states have press shield laws protecting journalists and their sources from the prying eyes of prosecutors. The federal government does not. From Fox News to The New York Times, government has surveilled journalists in order to catch their sources. Journalists have been held in contempt and even jailed for bravely safeguarding the trust of their sources.
“The PRESS Act corrects this by granting a privilege to protect confidential news sources in federal legal proceedings, while offering reasonable exceptions for extreme situations. Such laws work well for the states and would safeguard Americans’ right to evaluate claims of secret wrongdoing for themselves. “Great credit goes to Rep. Kevin Kiley and Rep. Jamie Raskin for lining up bipartisan support for this reaffirmation of the First Amendment. As in 2022, the last time the House passed this act, the duty now shifts to the U.S. Senate to respond to this display of unanimous, bipartisan support. I am optimistic. At a time of gridlock, enacting this bill into law would be a positive message that would reflect well on every Senator.” While the Becket survey shows widespread respect for religious liberty among the American people, the same cannot be said of state leaders.
The Religious Liberty in the States project’s second annual index reveals the distance between citizens’ respect for the free expression of religion and the sometimes outright hostility against it practiced in some states. While we have been pleased by the significant growth in policy areas important to the First Amendment, such as more states adopting school choice and protecting religious charter schools, there is reason to remain concerned about a number of crucial religious liberty issues. Some states like Colorado have tried to block doctors from even discussing methods for reversing a chemical abortion, while others are working to deny parents their religious liberty right to opt their children out of instruction with extreme, ideological takes on family life and sex education topics. This year’s report spotlights exactly where work is needed. Here are a few of the topline findings. The Religious Liberty Index compiles data on fourteen different “safeguards” – key contentious issues where religious liberty is at play (a full list of these safeguards can be found here). These range from issues like the ability of medical practitioners to opt out of providing abortions, to whether a given state has its own RFRA (Religious Freedom Restoration Act). A composite score for each state is then assigned. The Religious Liberty in the States project approaches “religious liberty from the perspective that people of any faith or no faith should be allowed to live in all areas of their lives according to their sincere beliefs.” The results are, contrary to what you might guess, far from a separation of red states from blue states. This year’s top performing state for religious liberty was Illinois, at 85 percent compliance with religious liberty. Next came South Carolina (67 percent), New Mexico (66 percent), Mississippi (64 percent), and Ohio (64 percent). The worst performing states were New York (27 percent), Vermont (26 percent), California (26 percent), New Hampshire (21 percent), and West Virginia (14 percent) at dead last. Each of these bottom performing states scored poorly in every safeguard and made little or no statutory space for religious liberty. We should be careful to not mistake a top performing state for a state that is performing well. Even the top state, Illinois, earned only a “B” grade. If this were a school assignment, then 47 states would have a failing grade. As the report put it, more than half of all states are “doing less than half of what they could be doing.” For some examples of how each state could improve their score, look to the median state, Wisconsin, which currently has no state RFRA on the books. This puts Wisconsin well behind the other 25 states that do have state RFRAs. Wisconsin has passed no laws providing legal exemptions for clergy or religious organizations’ participation in or facilitation of marriage or wedding celebrations that would conflict with the religious beliefs of the person or organization. Low-ranked Colorado has proven to be a battleground for religious liberty this past year. A Catholic healthcare clinic had to sue the state for restricting the ability of physicians to discuss methods for reversing a chemical abortions with patients. Colorado is also being sued for imposing restrictions categorically forbidding all Archdiocesan Catholic preschools from participating in the state’s early childhood education program. It is no surprise, then, that Colorado ranked near the bottom on religious liberty at 41st place. Other states ranked surprisingly. For example, Texas, a state with its own RFRA and with a political disposition friendly to the issues polled by the Religious Liberty in the States project, ranked just beneath Colorado at 42nd place. The Lone Star state lacks laws that allow the refusal by healers of performing medical procedures, with no general conscience provision in healthcare. As the new year gets underway, we look forward to using the data compiled by the Religious Liberty in the States project to further advance the cause of religious freedom across the country. These statistical and analytical tools are indispensable in the struggle to ensure that the First Amendment works for all Americans. Becket Fund’s Religious Freedom Index Documents Another Increase in Respect for Religious Liberty1/16/2024
Yesterday, we reported on a RealClear Opinion Research poll demonstrating that a clear majority of Americans hold religious freedom to be a “fundamental human right.” Today is national Religious Freedom Day, which sees the release of a new survey from the Becket Fund for Religious Liberty that provides even stronger new evidence showing that “despite generational differences and ideological divides, America’s commitment to religious liberty remains strong.”
Jan. 16, 2024, marks the 238th anniversary of the Virginia General Assembly’s adoption of the Virginia Statute for Religious Freedom, Thomas Jefferson’s bleeding-edge innovation that became the basis for the Establishment Clause of the First Amendment to the United States Constitution. Today’s anniversary also comes some 30 years after the passage of the Religious Freedom Restoration Act, introduced by then-Congressman Chuck Schumer on March 11, 1993. RFRA established in law that the federal government cannot burden religious freedom without applying a strict scrutiny standard – that is, such a law must be the least restrictive means of a furthering a compelling government interest. Each year, Becket publishes the Religious Freedom Index, based on meticulously collected polling data, to document Americans’ changing perceptions about First Amendment freedoms. They ask 21 of the same questions to a nationally representative sample size of American adults (1,000 people), with 15 additional, topical questions intended to gauge sentiment about current issues of public concern. This year, the overall index score is an all-time high of 69 (a composite score based on public opinion regarding six statistical dimensions of religious freedom). Among this year’s top-line findings:
Other findings include a showing of robust support for the RFRA standard, with 88 percent of Americans favoring strict scrutiny or an even stronger standard for the protection of religious freedom. Becket also posed a question regarding Apache Stronghold v. United States, a case about a site, sacred to the Apache for centuries, set to be pulverized by a mining company. According to the study, Americans overwhelmingly support protecting sacred sites, even at the cost of sacrificing economic priorities. Becket releases another extremely encouraging report showing that support for religious freedom is healthy and growing year-over-year. We thank the Becket Fund for their continued efforts to document America’s ongoing commitment to one of its most foundational principles. UPDATE: Eleventh Circuit Permanently Enjoins Unconstitutional Ban on Religious Advertising Protect The 1st has long followed a First Amendment legal struggle between the Orthodox synagogue Young Israel of Tampa and the Hillsborough Area Regional Transit Authority (HART). That public authority had rejected Young Israel’s efforts to place advertisements for its “Chanukah on Ice” event on HART vehicles and bus shelters. The U.S. Court of Appeals for the Eleventh Circuit has now weighed in, permanently enjoining HART’s policy prohibiting ads that “promote a religious faith or religious organization.”
This case is important on multiple fronts. First, HART’s policy represents unconstitutional – and unreasonable – viewpoint discrimination because it bans religious speech on the sole basis of its religious character. It presents the troubling implication that if we can ban religious advertisements in public transit areas solely because they are religious, what’s to stop local governments from banning religious speech in public parks or other long-observed public venues of free speech? Further, the case represents a milestone in First Amendment jurisprudence because it has resulted in a permanent injunction on continued implementation of the policy as written. As we wrote in our amicus brief: “First Amendment rights are fundamental rights essential to every other form of freedom. As a result, First Amendment rights warrant special protection. Because courts cannot enjoin conduct and do not ‘strike down’ unconstitutional laws, a court cannot adequately protect First Amendment interests without including prohibitions against future illegal conduct in its injunction. “Without such preventative relief, governments would be free to repeat the same constitutional violation in the future. Any resolution of this case that fails to prevent future harm does not adequately vindicate the First Amendment.” Earlier, a district court had come down on the side of Young Israel, issuing a permanent injunction forbidding HART from “rejecting any advertisement on the ground that the advertisement primarily promotes a religious faith or religious organization.” On appeal, the Eleventh Circuit likewise upheld that permanent injunction, though on slightly different grounds, reasoning that “….HART’s policy, even if viewpoint neutral, is unreasonable due to a lack of objective and workable standards.” Indeed, the court found that HART has “no specific training or written guidance to interpret its . . . policy.” Internal review of religious advertisements is subject to the whims of the reviewers, and HART makes no attempt to inform its employees of any “workable norms” that might help them make an objective determination of the policy’s application. The Eleventh Circuit’s ruling thus “‘means that there is no circumstance in which this particular ban on [religious] advertising could ever be lawful.’” Presumably, HART could attempt to come up with a narrowed policy in the future. For now, we are pleased with and applaud the appellate ruling, which permanently protects Young Israel’s First Amendment rights vis à vis this policy – now and into the future. A new poll by RealClear Opinion Research offers a compelling and, for many, likely unsurprising rebuttal to breathless media reports about the decline in religious belief among Americans and the rise of the “nones.”
The survey of 1,000 adults, conducted from December 19-21, found that 85 percent of respondents believe in God – with the same 85 percent also reporting a belief in heaven. Fifty-eight percent of those polled self-identified as Christian (with 36.8 percent identifying as Protestant and 22 percent as Catholic). Some 2.9 percent identify as Members of the Church of Jesus Christ of Latter-Day Saints. The poll revealed the pluralistic wealth of religious belief in America: 3.2 percent consider themselves Muslim; 1.9 percent are Jewish; Buddhists account for 1.6 percent; and Hindus make up 0.5 percent. Despite the clear Christian majority, respect for religious pluralism is strong, with an overwhelming majority of all Americans – 94 percent – saying they believe religious freedom is a fundamental human right. Despite assertions that so-called “nones” make up a large and growing percentage of Americans, only 3.8 percent of respondents claim to be atheist while only 3.7 percent identify as agnostic. The religious pessimists are right about one thing: While the RealClear poll did find that those who consider themselves religiously affiliated far outnumber those who do not, regular attendance at worship services is well below where it once was. Only 30 percent of respondents regularly attend a formal religious service once a week or more. The good news for the First Amendment’s guarantee of the free exercise of religion remains. Large majorities believe that prejudice against Jewish and Muslim people is a very serious or somewhat serious problem in the United States. As RealClear writes, “Americans strongly believe that they have the right to practice the religion of their choice in the manner they choose or not to practice at all.” With National Religious Freedom Day approaching tomorrow, this poll is a clear reminder that Americans overwhelmingly reject religious bigotry in all its forms. This RealClear poll is an excellent set up for our next report Tuesday on another poll from Becket’s Religious Freedom Index that will drill down deeper into Americans’ beliefs about the freedom of religious expression. Read more of the RealClear poll’s top-line results here. Censorship controversies made many headlines throughout 2023. We’ve seen revelations about heavy-handed content moderation by the government and social media companies, and the looming U.S. Supreme Court decisions on Florida and Texas laws to restrict social media. Behind these policies and laws is a surprising level of public support. A Pew Research poll offers a skeleton key for understanding the trend.
According to Pew, a majority of Americans now believe that the government and technology companies should make more concerted efforts to restrict false information online. Fifty-five percent of Pew respondents support the federal government removal of false information, up from only 39 percent in 2018. Some 65 percent of respondents support tech companies editing the false information flow, up from 56 percent in 2018. Most alarming of all, Americans adults are now more likely to value content moderation over freedom of information. In 2018, that preference was flipped, with Americans more inclined to prioritize freedom of information over restricting false information – 58 percent vs. 39 percent. Pew doesn’t editorialize when it posts its findings. For our part, these results reveal a disturbing slide in Americans’ appreciation for First Amendment principles. Online “noise” from social media trolls is annoying, to be sure, but sacrificing freedom of information for a reduction in bad information is anathema to the very notion of a free exchange of ideas. What is needed, instead, is better media literacy – not to mention a better understanding of what actually constitutes false information, as opposed to opinions with which one may simply disagree. Still, the poll goes a long way toward explaining some of the perplexing attitudes we’re seeing on college campuses, where polls show college students lack a basic understanding of the First Amendment and increasingly support the heckler’s veto. These poll results also speak to the increasing predilection of public officials to simply block constituents with whom they disagree. And it perhaps explains some of the push-and-pull we’re seeing between big, blue social media platforms and big, red states like Florida and Texas, where one side purports to protect free speech by infringing on the speech rights of others. While these results are interesting from an academic perspective, the suggested remedies raise major red flags. Americans want private technology companies to be the arbiters of truth. A lesser but still significant percentage wants the federal government to serve that role. Any institution comprised of human beings is bound to fail at such a task. Ultimately, if we want to protect the free exchange of information, that role must necessarily fall to each of us as discerning consumers of news. The extent to which we are unable to differentiate between factual and false information is an indictment of our educational system. And, as far as content moderation policies are concerned, they must be clear, standardized, and include some form of due process for those subjected to censorship decisions. More than anything, Americans need to relearn that if we open the door to a private or public sector “Ministry of Truth,” we will eviscerate the First Amendment as we know it. You might be on the winning side initially, but eventually we all lose. A letter of protest sent by the lawyers of Rabbi Levi Illulian in August alleged that city officials of Beverly Hills, California, had investigated their client’s home for hosting religious gatherings for his family, neighbors, and friends. Worse, the city used increasingly invasive means, including surveilling people visiting the rabbi’s home, and flying a surveillance drone over his property.
A “notice of violation” from the city specifically threatened Illulian with civil and criminal proceedings for “religious activity” at his home. The notice further prohibited all religious activity at Illulian’s home with non-residents. With support from First Liberty Institute, the rabbi’s lawyers sent another letter detailing an egregious use of city resources to launch a “full-scale investigation against Rabbi Illulian” in which “city personnel engaged in multiple stakeouts of the home over many hours, effectively maintaining a governmental presence outside Rabbi Illulian’s home.” The rabbi’s Orthodox Jewish friends and family who visited his home had also received parking citations. The rabbi began to receive visits from the police for noise disturbances, such as on Halloween when other houses on the street were sources of noise as well. Police even threatened to charge Rabbi Illulian with a misdemeanor, confiscate his music equipment, and cite a visiting musician for violating the city’s noise ordinance, despite the obvious double-standard. First Liberty was active in publicizing the city’s actions. In the face of bad publicity about this aggressive enforcement, the city withdrew its violation notice late last year. Protect The 1st congratulates Rabbi Illulian and First Liberty for their bold stand against religiously motivated state surveillance. That the city of Beverly Hills would blatantly monitor and harass a household over Shabbat prayers and religious holidays, particularly at a time of rising antisemitism, is made all the worse by sophisticated forms of surveillance aimed at a legitimate First Amendment activity – the free exercise of religion. This case is reminiscent of the surveillance of a church, Calvary Chapel San Jose, by Santa Clara, California, county officials, over its Covid-19 policies. Is there something about religious observances that attracts the ire of some local officials? Whatever their reasons, this story is the latest example of the need for local officials who are better acquainted with the Constitution, especially the First and the Fourth Amendments. Everyone loves cake pops, right? We’re talking about those rounded pieces of cake with icing presented on sticks like lollipops. In the Commonwealth of Virginia, however, there is a bitter taste over what is and what is not protected speech when it comes to cake pops sold by a cottage vendor.
The state recently sent an email to Richmond-based baking entrepreneur Kelly Phillips after she posted a social media photo of her homemade baked goods, informing her that she lacked the requisite permits to advertise online. Ms. Phillips runs KP’s Kake Pops, a cottage foods establishment that is exempted from regulation under Virginia Code Section 3.2-5130(C)(3). Virginia’s regulations prohibit home bakers from selling their products online without necessary permits, yet the First Amendment protects the conveyance of true information about lawful products. It’s called commercial speech and there is a whole body of law that backs it up. So, when does posting Facebook photos constitute advertising? How do speech rights in advertising change with the prospect of online marketing? And is banning online advertising constitutional in the first place? The Supreme Court has suggested it is not. In Virginia, the boundaries are murky. The state exempts cottage food businesses from regulation but prohibits them from online advertising. In Ms. Phillips’ case, roughly half of her sales come from posts she makes on her website and social media accounts, in which she informs followers where she plans to sell her goods at farmers markets. Her website also gives out her contact information for sales. When the Virginia Department of Agriculture and Consumer Services contacted Ms. Phillips, they told her that her products “appear to be for sale for consumers on your Facebook page.” Another state official later confirmed “the VDACS Office of Policy and Planning has clarified that ‘offered for sale’ includes advertising on the Internet.” To be clear, permit requirements are acceptable when a type of consumer good has the potential to be unsafe – particularly if they’re being sold online. At the same time, it’s hard to make the argument that posting a Facebook photo of cake pops and future appearances at community events constitutes sales. As the Institute for Justice recently explained in a letter to VDACS, “[s]elling cottage foods is legal in Virginia, and the First Amendment requires that talking about a legal activity must be legal too. The ban is also a poor policy choice because it stifles Virginians’ ability to start or grow their small businesses.” To be fair, Ms. Phillips apparently has more than 2,000 flavors of cake pops. That sounds like a fairly significant operation. To the extent she’s avoiding regulation, that’s a significant government benefit. Still, Virginia should be required to demonstrate narrow tailoring to advance a substantial government interest if they want to abridge commercial speech. There needs to be more clarity here, and we broadly agree with IJ’s calls for VDACS to rescind any guidance restricting commercial speech. As they write in their letter, “at bottom, VDACS’ policy is that people are free to sell cottage foods at their home or at farmers’ markets but forbidden from posting about that same food on Facebook or Instagram.” When there are such close calls, Protect The 1st recommends leaning in on the side of speech. Besides, more cake pops are an inherent good in and off themselves. Protect The 1st Drives Growing Support for Press Shield Law, Expansion of School Choice, and Giving Religious Liberty Its Day in Court Protect The 1st looks back on an active year with many achievements in the protection of the First Amendment guarantees for free speech, a free press, and the free exercise of religion. PRESS FREEDOM & THE PRESS ACT Protect The 1st joined with more than 50 civil liberties groups in October to protest the FBI raid on the home of Tim Burke, a Tampa Bay journalist. The FBI seized Burke’s computers, hard drives, cellphone, and all the information they contain on sources and stories. We commented: “This raid on a journalist’s home and devices seems to be a flat contradiction of Attorney General Merrick Garland’s revision to the Justice Department’s News Media Policy forbidding the use of compulsory legal processes to obtain the newsgathering records of journalists.” In late 2022 Protect The 1st went to Capitol Hill to promote the Protect Reporters from Exploitive State Spying (PRESS) Act – which shields journalists and their sources by granting a privilege to protect confidential news sources in federal legal proceedings. The House passed that bill, but it died in the Senate. The PRESS Act has since been reintroduced and Protect The 1st is pushing for another vote on the House floor in 2024. Protect The 1st Senior Policy Advisor Bob Goodlatte, former chairman of the House Judiciary Committee, said: “Journalism and the right to report on government actions must be better protected. We’ve all seen law enforcement officials under multiple recent administrations issue secret orders to surveil the private communications of journalists. Their freedom to report on government misdeeds is critical to maintaining a free society.” SCHOOL CHOICE In our work with parents, what comes through loud and clear is a desire for children to be taught specific values along with quality instruction. Protect The 1st will continue to work to expand school choice and to protect the free expression of religion through those choices. School choice becomes speech when it is a decision to express one’s values across generations. We thus cheered on a school choice movement that swept the nation like a prairie fire in 2023.
Protect The 1st has also been active nationwide in protecting equal treatment for religious education.
RELIGIOUS LIBERTY With a strong liberty-minded majority on the U.S. Supreme Court, Protect The 1st is seeing a renewal and strengthening of speech and religious rights. Other courts are doing their part to preserve and expand religious liberty throughout the country.
For such an active year, it was appropriate that in November came the celebration of the 30th birthday of the Religious Freedom Restoration Act (RFRA). RFRA was a landmark bill signed into federal law by President Bill Clinton that ensures religious freedom is protected from government overreach. RFRA has since become a cornerstone of religious freedom, putting statutory muscle behind the promise of the free exercise of religion in the First Amendment. RFRA has since served as a guiding light for the courts in their deliberations on religious freedom. Protect The 1st’s litigation and advocacy rest firmly on the strong basis of this law. PROTECT THE 1st IN COURT 2023 was a productive year for Protect The 1st in court as well. We filed five amicus briefs on a wide range of issues, two of which centered on religious liberty.
In March, we filed a certiorari petition before the Supreme Court in the case of Keister v. Bell. The University of Alabama – through an agreement with the City of Tuscaloosa – shut down a street preacher, Rodney Keister, who preached on city-owned streets near the school.
We expect more positive developments for the year ahead. We are hopeful Gov. Greg Abbott will succeed in persuading the Texas Legislature to add the Lone Star State to the honor roll of states that have now embraced widespread school choice. We hope to see a positive resolution for the Apache Stronghold in Oak Flat. And we are optimistic that courts will fall in line with the reasoning of the U.S. Supreme Court on granting equal treatment to religious education. Protect The 1st also looks forward to courts applying the new standard set forth in Groff v. Dejoy. We are determined to give greater care to the claims of minority religions, which are often without the resources to fight for their rights like larger religions and denominations. Protect The 1st will continue to advocate for the fullest protection of the speech, religious expression and other freedoms guaranteed by the First Amendment. When the Big Walnut Local School Board of Education passed a resolution banning Pride and other “controversial” flags from school grounds, it did so against the objections of two board members and many parents and teachers, who voiced their opposition to the policy over two hours of public debate. Now, the ACLU of Ohio has weighed in, expressing “grave concerns with this policy, which is unconstitutional in multiple respects …”
Protect The 1st has always held that it’s the job of schools to educate children but the job of parents to instill personal values. We should always strike an appropriate balance between safeguarding the proper functioning of the classroom and overprotecting young people from any whiff of controversy. A blanket ban on "flags, banners, posters, electronic insignia and other items" that "promote activist causes, or [are] otherwise deemed controversial" falls short of any reasonable goal. It’s a vague, poorly articulated, viewpoint-based restriction unlikely to survive judicial scrutiny. There seems to be growing confusion over the First Amendment at the local level (particularly at the Big Walnut school board, which previously landed in hot water for shutting down parental dissent back in 2022). School boards regularly overstep their bounds in the context of debates about educational curricula. That’s to say nothing of recent municipal and county attempts to go after newspapers based on unfavorable reporting. The Big Walnut resolution is another example of attempting to direct the culture with laws and rules. The ACLU called it “vague to the point of incoherence.” That’s not far off. School boards and other government officials should be wary of exceeding constitutional strictures in their efforts to appease a vocal constituency, left or right – or themselves. We look forward to further developments in this story. A recent podcast featuring Prof. Eugene Volokh, Senior Legal Advisor to Protect The 1st, looks at restraining orders and their potential for overbreadth – particularly when they deal with speech (and not conduct) in the digital age.
Volokh joined the California Appellate Podcast with Tim Kowal and Jeff Lewis on December 19 to tackle the issue, about which the professor has written extensively. As Volokh points out, criminal harassment and restraining order laws are gradually undergoing a curious evolution: where once they largely (and constitutionally) restricted unwanted speech to a particular person, now many orders restrict speech about a particular person. It’s the latter category of orders that implicate the First Amendment and could potentially constitute unlawful prior restraints. Volokh discusses this issue at length in the podcast, though it is perhaps best summarized by a hypothetical he posits in a 2022 article he wrote for the Harvard Journal of Law and Public Policy: “Donna is publicly criticizing Paul. So Paul sues her, and gets an injunction such as this: ‘[Defendant] is permanently enjoined from publishing… any statements whatsoever with regard to the plaintiff.’ “It’s hard to reconcile such an injunction (whether entered in a libel case or as a ‘personal protective order’) with First Amendment precedents. The injunction isn’t limited to speech within a First Amendment exception, such as libel or true threats. It is far from ‘narrowly tailored,’ which is often set forth as a requirement for the rare content-based anti-speech injunctions that are permitted.” Even so, as of last year Volokh had found over 200 such injunctions – many involving cyberstalking and other online conduct, a particularly murky area with outsized potential to implicate protected speech. As Volokh points out, this trend threatens the imposition of liability not just on criminal libel and falsehoods but also, potentially, on true statements and opinions. One such case is Chan v. Ellis, in which poet Linda Ellis sued website author Matthew Chan for criticizing Ellis’ copyright enforcement practices. There, the Supreme Court of Georgia reversed a lower court ruling ordering Chan to delete “all posts relating to Ms. Ellis” from his website, finding that the posts were not sufficiently directed to Ellis. Rather, they were merely opinion-based assessments about her. The California Appellate Podcast is, in large part, oriented around practical advice for practicing attorneys on issues of public importance. Here, the hosts urge lawyers to look closely at restraining orders for the “to/about” dichotomy. We’d second that and recommend the podcast to anyone interested in how judicial reactions to changing technologies can result in First Amendment backslides. They say, “misery acquaints a man with strange bedfellows,” and to most followers of the national discourse, no pair of institutions could make for an odder couple than the National Rifle Association and the American Civil Liberties Union. Yet in keeping with its principles, the ACLU has decided to represent the NRA before the Supreme Court, and it’s causing some consternation within the group.
The ACLU of Texas announced on December 15 that it would not join with its national organization in siding with the NRA’s suit against New York’s Department of Financial Services. They join the New York Civil Liberties Union, who said in a statement: "The NRA is among the most powerful advocacy organizations in the country, with resources to secure the nation’s finest lawyers. It does not need the ACLU to volunteer for that job." The case, National Rifle Association v. Vullo, asks whether former New York State Department of Financial Services Superintendent Maria Vullo violated the First Amendment by encouraging banks and insurance companies to stop doing business with the NRA following the 2018 Parkland, Florida high school shooting. The U.S. Court of Appeals for the Second Circuit ruled against the NRA, arguing that “government officials have a right — indeed, a duty — to address issues of public concern.” The NRA, which is also represented by Brewer Attorneys and Counselors as well as constitutional scholar and Protect the First Senior Advisor Eugene Volokh, believes the case was erroneously decided. In their certiorari petition, they write: “The Second Circuit’s opinion below gives state officials free rein to financially blacklist their political opponents – from gun-rights groups to abortion-rights groups, to environmentalist groups, and beyond. It lets state officials ‘threaten[] regulated institutions with costly investigations, increased regulatory scrutiny and penalties should they fail to discontinue their arrangements with’ a controversial speaker, on the ground that disfavored political speech poses a regulable ‘reputational risk.’ … It also permits selective investigations and penalties targeting business arrangements with disfavored speakers, even where the regulator premises its hostility explicitly on an entity’s political speech and treats leniently, or exempts, identical transactions with customers who lack controversial views.” For their part, the ACLU has made clear that they disagree with the NRA’s overarching policy goals. In a statement, they said: “The ACLU does not support the NRA or its mission. We signed on as co-counsel because public officials shouldn’t be allowed to abuse the powers of the office to blacklist an organization just because they oppose an organization’s political views.” We could not agree more, and the NRA makes a compelling argument that Vullo overstepped her bounds. In fact, the Supreme Court has already ruled in Bantam Books v. Sullivan from 1963 that the government violates fundamental First Amendment rights when it targets an organization through “informal sanctions,” including “coercion, persuasion and intimidation.” We applaud the ACLU for standing up for what’s right, even – and especially – when it’s hard to do so. We look forward to further developments in this case. A federal judge in Texas has upheld the state’s TikTok ban on devices used for government business. It’s the right ruling – a correct response to a precise law which undergirds the state’s legitimate interest in prohibiting the use of a potentially harmful social media app in official settings.
TikTok is a Chinese company with user data stored on servers in the PRC. It holds inordinate sway over young people in the US, with 67% of teens using the platform with some regularity, according to Pew. Yet, there is now credible public evidence that China’s officials enjoy open access to personal data on the platform, using it to spy on pro-democracy protestors. An employee of ByteDance, the corporate owner of TikTok, has made that claim. The Coalition for Independent Technology Research filed the lawsuit in July, arguing that the Texas ban compromises academic freedom. One teacher from the University of North Texas even suggested that they cannot sufficiently assign work without use of the app. Texas’ law specifically disallows the use of TikTok on state-owned, official devices. That’s in contrast to Montana’s outright ban on the app – for everyone. There, U.S. District Judge Molloy asserted that Montana’s law infringed on free speech rights and exceeded the bounds of state authority. He was right, too, and it was a significant affirmation of the importance of safeguarding fundamental rights in the digital age, particularly within the context of online platforms that serve as crucial arenas for expression. This court split exemplifies the balance we must strike between protecting user freedoms and enabling a safe digital environment without compromising free expression. States have every right to prohibit use of a foreign-controlled app on government owned phones. At the same time, blanket banning of TikTok is neither a constitutional nor reasonable response. Americans can speak freely and freely associate, even if they are unaware of the implications in doing so. State officials and employees, by contrast, are subject to different rules. But they are welcome to use TikTok on their personal phones. As Judge Robert L. Pitman correctly asserts, state universities constitute a “non-public” forum – the touchstone of which is whether “[restrictions] are reasonable in light of the purpose which the forum at issue serves.” Here, “Texas is providing a restriction on state-owned and -managed devices, which constitute property under Texas’s governmental control….” It is both viewpoint neutral and reasonable – which is all that is needed in such cases. Whether TikTok itself is viewpoint neutral is a question for another day. The Freedom of the Press Foundation reports a disturbing trend at the county and municipal levels: governments pulling official notices from local papers in retaliation for unfavorable reporting.
In Delaware County, New York, the board of supervisors dropped local newspaper The Reporter as the official county paper for printing local laws and notices in 2022, citing increased prices for advertising. A year later, however, the board wrote a letter to The Reporter’s publishers to complain about its coverage, specifically stating the true reason for the county’s decision: displeasure over certain elements of the paper’s reporting. The New York Times picked up the story. Days later, the Delaware County Attorney issued a gag order on all county employees prohibiting them from speaking to The Reporter at all. Now, the paper is suing, alleging First and Fourteenth Amendment violations. In addition to police raids of newsrooms and arrests of journalists by local governments, the defunding movement is gaining steam against already financially stressed local newspapers across the country. In Putnam County, New York, the local government terminated The Putnam County News and Recorder’s contract to publish county legal notices following supposedly critical coverage of the newly elected county executive. As in Delaware County, it seemed a blatant attempt to use the power of the purse strings to manipulate local media. Similarly, in Kansas, the attorney general issued an advisory opinion suggesting that local governments could exempt themselves from a state law requiring official notices to be published in a designated newspaper. Since then, the cities of Hillsboro and Westmoreland have done exactly that, creating heightened concerns about a lack of government transparency in the process. In Ohio, the state passed a little noticed new law in its 6,000-page budget permitting cities and towns to publish notices on their official websites rather than in local papers. (A similar action also took place in Florida.) There are benign explanations for this move. But these new standards give local governments new ammunition to employ against newspapers in an effort to control the narrative. It’s a storied tradition for municipalities to post public notices in newspapers (in fact, most cities and towns have laws requiring them to do so). The purpose is to keep residents and voters informed of official government actions – local meetings, land sales, zoning changes, and the like. And while failing to uphold this practice does not violate the Constitution, government retaliation against newspapers based on their reporting certainly does. Gagging county employees willing to speak on matters of public concern, moreover, violates both the newspapers’ First Amendment rights and those of the prospective speakers and whistle-blowers. We applaud the Freedom of the Press Foundation’s efforts to support local papers and fight back against officials more concerned with consolidating power than protecting speech. PruneYard Shopping: Are the Speech Rights of Shopping Centers Really Like Those of Social Media?12/19/2023
The Cato Institute’s recent amicus brief making the case that social media laws passed by the states of Texas and Florida are unconstitutional also takes aim at a precedent from 1980, PruneYard Shopping Center v. Robins. Cato’s brief raises the question: Does it make sense to analogize the speech rights of those who own a physical property with those who own a social media company?
In PruneYard, the U.S. Supreme Court held that the California Constitution protected reasonably exercised speech on the privately owned PruneYard shopping center against the owner’s wishes. The Court noted the California Constitution has broader protections for speech than the Bill of Rights. The Court correctly reasoned that states can have greater and positive protections for speech than the negatively defined rights of the First Amendment, which forbids government censorship and curtailments of speech rights. Based on this singular insight, the Court’s opinion established that the shopping center could not prevent outsiders from protesting or soliciting for political purposes on its private property. In its brief, Cato argues that the Supreme Court should at the proper time address this odd ruling and hold that forcing private property owners to accommodate on their premises speech they do not support is a violation of the property owners’ First Amendment rights. Cato also argues that social media platforms should similarly be protected from being forced to carry the speech of others. While Protect The 1st agrees with Cato that the Texas and Florida laws are unconstitutional, the analogy to PruneYard is flawed. Cato’s comparison with real property, however, remains useful, offering an illuminating look at what is unique about social media. As Protect The 1st previously reported, the Florida law would prohibit social media platforms from removing the posts of political candidates, while the Texas law would bar companies from removing posts based on a poster’s political ideology. The former law was struck down by the Eleventh Circuit, while the latter was upheld by the Fifth Circuit. Both cases are now headed to what promises to be a landmark digital speech review by the Supreme Court. But is the extension of the critiques of the PruneYard applicable to social media? This seems inapt because property owners who allow outsiders to mount politically-charged events on their premises might face liability for that speech, just as newspapers can be sued for speech contained in letters-to-the-editor. Social media is different. Section 230 of the Communications Decency Act is a government grant of immunity to social media platforms for third-party speech, while allowing some discretion for the platforms to moderate content. Despite frustrations over actual content management by social media companies, and government involvement in it, Section 230 has allowed a thriving online world to develop – along, of course, with all the attendant psychic garbage. This is utterly unlike shopping centers, which don’t enjoy any such government immunity and could be held legally accountable for the speech that occurs on their property. The two state laws have obvious First Amendment flaws and striking them down doesn’t require revising precedents. The authors of the Texas and Florida laws, concerned about the manipulation of the online debate, would further intrude government meddling into social media content moderation. This power would likely extend far beyond what these politicians imagine (and perhaps even to their specific detriment). We suggest the Supreme Court take a more straightforward analysis of the Florida and Texas laws as it invalidates them under the First Amendment. That the performance of three Ivy League presidents before a congressional hearing last week was disastrous doesn’t need context – any version of academic freedom that tolerates a call for the genocide of Jews or any other group is well beyond any proper understanding of that concept. It would transform universities into arenas of fear.
This debacle continues to spark a long-needed reassessment of the correct balance in protecting speech on campus against the need to protect students with laws and court rulings that forbid “true threats.” Eugene Volokh, UCLA School of Law professor and Senior Legal Advisor to Protect The 1st, explores this territory in a thoughtful essay for The Los Angeles Times. He urges university presidents to do all they can to protect students from true threats without abandoning free speech standards. "Antisemitism on campus is a real problem, and in this fraught moment, many Jewish students are understandably scared. But if freedom of expression is to survive on American campuses — and for our nation’s vitality, it must — Magill’s original answer was right. Context does matter. The categorical exceptions to the 1st Amendment are few, narrow and carefully defined by precedent. And while Penn is a private university not bound by the 1st Amendment, its policies commit the school to 1st Amendment standards." Volokh finds considerable context for utterances or writings that are interpreted as calls for genocide for some, and merely an explication of just-war theory by others. Between these two polarities, however, many thorny questions present themselves. For example, is the call for a “global intifada” a true threat or a political statement? What matters most: what the speaker means or how it is heard by others? Beyond the university, has the jurisprudence of true threats and incitement kept up with the internet age? Shouting “Kill the Jews” in an empty park is one thing. Promoting such a message with a vivid post that reaches millions of people – potentially inspiring the most unbalanced mind among them to take up a gun and attack a synagogue – is another. Protect The 1st looks forward to examining these questions and holding debates on “true threat” exceptions to speech throughout 2024. Colorado and the Catholic Church are locked in a struggle over whether the state’s universal preschool program should include religious schools that impart religious instruction.
It began in 2022, when Colorado's Department of Early Childhood launched a program offering 15 hours of free education per week to all preschoolers at a private or public school chosen by their parents, aiming to provide universal preschool access before kindergarten. According to the Becket law firm, the department then imposed restrictions categorically forbidding all Archdiocesan Catholic preschools from participating – excluding over 1,500 kids at 36 preschools. It seems as if universal isn’t so universal after all. The Catholic schools’ federal lawsuit against the State of Colorado aims to protect the right of families who send their children to Catholic schools to participate in that state’s universal preschool program. The lawsuit filed by St. Mary’s and St. Bernadette’s parishes, brought by the Becket Fund for Religious Liberty, would ensure their preschools had access to state funding, seeking to challenge the Colorado Department of Early Childhood’s decision. Such schools fulfill a vital charitable role within their communities. Many of the families they serve are of limited means. Twenty percent of families who send their children to preschools in the Archdiocese qualify for the free and reduced-price school meals program. At St. Bernadette’s, that number is 85 percent. At St. Mary’s over a quarter of families also receive scholarships or discounts on their preschool education. That Colorado would knowingly deprive impoverished schools and families of critical resources simply because of their religion is unconscionable – and also unconstitutional. The Supreme Court has three times in the past six years affirmed that the government cannot exclude some people from public benefits because of their religious beliefs or the free exercise of their religion. Families of any religion – or no religion – ought to have the freedom to raise their children in accordance with their values without losing out. In late October, U.S. District Court Judge Daniel D. Domenico granted a Christian school in Buena Vista, Colorado, a preliminary injunction, allowing the school to remain in the universal pre-K program and receive state funding while their case proceeds. Judge Domenico wrote that the state forces the school “into the unconstitutional choice of abandoning religiously motivated practices or foregoing otherwise available public funding … Exclusion of a preschool is inherently anti-universal, and denying participation based on one’s protected beliefs or speech is not equitable.” PT1st looks forward to further developments in this case. “The First Amendment guarantees the public a qualified right of access to judicial proceedings and documents that is rooted in the understanding that public oversight of the judicial system is essential to the proper functioning of that system and, more generally, to our democratic system of self-governance.”
A hearing last week before the Fourth Circuit Court of Appeals includes this quote from an amici brief by the Reporters Committee for Freedom of the Press and 38 other media organizations including the Associated Press, Atlantic Monthly Group, Axios, McClatchy, the National Press Club, the New York Times and The Washington Post. At issue is Virginia’s Officer of the Court Remote Access (with the charming acronym of OCRA) system, which allows attorneys and certain government agencies online access to non-confidential civil court records from participating circuit courts in the state (105 courts out of 120 in the Commonwealth). Those not allowed online access to court records through OCRA include, well, everyone else – but most notably members of the press, who are forced to travel to each circuit court individually, in person, during weekday business hours in order to obtain documents and properly report on proceedings of public concern. Virginia’s practice stands in contrast with the policies of at least 38 other states that allow unfettered online access to court records for all members of the public. Accordingly, one media outlet, Courthouse News Service, filed a complaint in the U.S. District Court for the Eastern District of Virginia against a Virginia court clerk and the administrator of OCRA, alleging that the “Non-Attorney Access Restriction” constitutes an unconstitutional speaker-based restriction on speech. Although the district court initially rejected the defendants’ motion to dismiss, it ultimately granted summary judgment, finding that the attorneys-only rule was a content-neutral time, place, and manner restriction and thus did not require a strict scrutiny analysis. Courthouse News subsequently appealed to the Fourth Circuit. The defendants argue that limiting online access to lawyers and certain government agencies allows the courts to better prevent against fraud and misuse of “private, sensitive information let out into the world and limiting the potential for widespread data harvesting which is often done by bots.” On its surface, this seems a noble argument, but it fails to consider that: 1) the information online is already non-confidential in nature, with any sensitive information required to be redacted by filers of the documents; 2) any member of the public can already access these documents in person; and 3) openness has worked well for the 38 other states that have functional, non-compromised online systems in place that allow widespread public access. Protect The 1st is particularly sensitive to the protection of online data – but, as the amici point out, Virginia’s argument is speculative at best, showing no evidence of data harvesting by bots or anyone else. Restricting access to OCRA based on assumptions about how certain non-favored speakers may use that information is plainly not content-neutral. Instead, as amici contend, it “amounts to unconstitutional speaker-based discrimination that demands strict scrutiny.” Further, as other courts show, less restrictive means of protecting information in court documents obviously exist – certainly less restrictive than denying access to public documents. Most importantly, fundamental press freedoms are at stake here. “…[I]n denying the press and the greater public access to OCRA,” amici write, “the Non-Attorney Access Restriction infringes the public’s presumptive constitutional right of contemporaneous access to civil court records.” Journalists depend on remote, online access to report on cases of public concern in a timely manner. “If not reversed,” the brief declares, “the District Court’s order will hamper the ability of the news media to report on court proceedings of public interest in Virginia and around the country.” Courthouse News Service, the Reporters Committee for Freedom of the Press and their fellow amici are right in urging the Fourth Circuit to overturn the lower court’s grant of summary judgment in this case. We’ll be following future developments closely. It’s fashionable to say, “I’m intolerant of intolerance.” This refrain can justify all manner of censorship. If any undesirable opinion can be plausibly cast as “intolerant,” then nearly any action to stifle that speech (instead of refuting it) is not only justified but desirable. We see this logic play out in American colleges and universities, where sprawling bureaucracies routinely try to micromanage speech, as well as in efforts to manage the culture by both blue and red state legislators.
It’s no surprise, then, that younger Americans believe it is more important to feel welcome and safe, especially online, than it is to be able to speak their minds freely. Many no longer believe the freedom of speech covers offensive speech. To see what this looks like in action, we only need to turn to the example of the United Kingdom, which enacted a censorship regime only to reverse course. In 1986, the UK passed the Public Order Act. Section 5 of the act made it a statutory offense to use threatening, abusive, or insulting words or behavior, or to display any writing, sign, or other visible representation which is threatening, abusive, or insulting, within the hearing or sight of a person who is likely to feel harassed, alarmed, or distressed as a result. Got that? In effect, it became illegal to offend someone in the UK. Countless citizens were brought to court, many found guilty, because they made some pillock feel barmy or gormless. There was sufficient British commitment to the principles of democracy to spur a countermovement. At the launch event for a campaign to reform Section 5 in 2012, Mr. Bean actor Rowan Atkinson joined the fray, giving a rousing speech and a call to action. He called the right to express oneself freely the “most precious thing in life,” second only to food in your mouth. Atkinson has never been arrested for insulting someone, but he attributes that to his fame, which protects him from charges which might befall the less famous. Atkinson spotlighted three particularly ludicrous cases: one in which a man was arrested for insulting a police horse, another in which a teenager was arrested for calling the Church of Scientology a cult, and a third in which a cafe owner was arrested for displaying passages from the Bible on a TV screen. The first two cases were only dropped once they had gained public notoriety, and the police were worried about being publicly embarrassed. In the process, people were arrested, questioned, and taken to court – three things which are themselves enough to chill speech, even if the case is ultimately dropped. Atkinson sums up the problem with the law nicely: “The clear problem with the outlawing of insult is that too many things can be interpreted as such … merely stating an alternative point of view to the orthodoxy can be interpreted as an insult.” Rather than censorship, what should be done instead? Atkinson says: “More speech …The strongest weapon against hateful speech is not repression, it is more speech.” The campaign to amend Section 5 was ultimately successful. Reforms passed in 2013 dropped language that outlawed insulting speech. The UK’s trial and error with outlawing offensive speech should be an enduring warning to those in the United States who want to enact similar restrictions. U.S. District Judge Donald Molloy recently blocked Montana's ban of the Chinese-owned social media platform TikTok, standing up for free speech but leaving a host of issues for policymakers to resolve. Montana’s ban, which was slated to take effect at the beginning of 2024, made it the first U.S. state to take such a measure against the popular video sharing app.
Judge Molloy asserted that Montana’s law infringed on free speech rights and exceeded the bounds of state authority. This decision is a significant affirmation of the importance of safeguarding fundamental rights in the digital age, particularly within the context of online platforms that serve as crucial arenas for expression. While celebrating this victory for free speech, it remains essential to acknowledge legitimate concerns over national security and data privacy regarding social media platforms answerable to a malevolent foreign government. TikTok's ownership by China's ByteDance raises pertinent questions about safeguarding user data and its potential exploitation by foreign entities. So worrying were the reports that the FBI opened an investigation into ByteDance in March. The need for robust measures to protect against data scraping, digital surveillance, and misuse of personal information is a valid concern. This case prompts reflection on the broader social welfare implications of platform regulation. TikTok's substantial user base, particularly youth, holds significant sway over American culture. Striking a balance between protecting user freedoms and privacy enables a safer digital environment without compromising free expression. Even storing Americans’ data in the United States might not be enough to lessen the danger that the regime in Beijing might override any firewalls. A better solution could be to incentivize China's ByteDance to divest TikTok's ownership to American ownership. This move would alleviate worries about data security by placing the platform under the oversight and governance of a company within the United States, subject to American laws and regulations. Ultimately, Judge Molloy's ruling upholds the sanctity of free speech in the digital realm. It should fuel constructive dialogues on the complex challenges to the United States posed by TikTok, particularly to the tension between individual liberties, national security imperatives in the face of a hostile regime, and the responsibility of digital platforms. Finding a delicate equilibrium among these facets remains an ongoing challenge that requires creative solutions, not restrictions on speech. Settlement Spurs Civics Lesson for Law Enforcement Last month, Los Angeles County reached a $700,000 settlement agreement with a radio journalist who was accosted and arrested by police while attempting to document law enforcement’s response to a local protest. It’s a significant sum that will deter future government hostility against reporters who are simply doing their jobs.
Most critical of all, the settlement includes new training requirements for law enforcement personnel about the media and the First Amendment, as well as policies and laws governing interactions with the press. We wrote recently about a series of similar incidents across the country in which government officials have misused their authority to punish journalists. This includes an FBI raid of a Florida journalist’s home, a retaliatory raid in Kansas preceding an elderly publisher’s death, and the arrest of a publisher in Alabama for lawfully reporting on leaks from a grand jury about the mishandling of COVID funds. Even in Washington, D.C., the media is not immune from such abuses. Consider the case of CBS News Correspondent Catherine Herridge, who was ordered by a U.S. district court judge to reveal the identity of confidential sources she used for a series of 2017 stories. She has, laudably, refused to do so, risking imprisonment in the process. In Herridge’s case – and in many other similar cases – the passage of the Protect Reporters from Exploitive State Spying (PRESS) Act would be a major step in the right direction, limiting the ability of prosecutors to expose the sources and notes of journalists in federal court. More fundamentally, however, what we need most is better education and constitutional literacy. That’s why the recent events in Los Angeles County are so important. In that case, LAist journalist Josie Huang briefly filmed sheriff’s deputies arresting a protester when she was ordered to “back up.” Before Huang could respond, she was brutally slammed to the ground and subsequently taken to jail and charged with obstructing a peace officer. Outcry was swift, with the Reporters Committee for Freedom of the Press and 65 other media organizations quickly mobilizing to demand that charges against Huang be dropped. The district attorney’s office, likely recognizing the unconstitutional actions of the sheriff’s deputies, declined to prosecute. A court later found her factually innocent of the charges. The resolution in Los Angeles is a good outcome, but it shouldn’t take a crisis to require law enforcement officers to have some semblance of understanding of the First Amendment. With any luck, the Huang incident can serve as a lesson – in civics as much as in consequences. Tennessee Gov. Bill Lee has declared his intent to catch up with the pack on school choice policy. He unveiled a new proposal to expand education savings accounts (ESAs) to provide families and students with increased autonomy in choosing educational pathways.
“Nine states have passed us in this effort,” said Gov. Lee. With plans to extend ESAs to universal availability by the 2025-26 school year, Tennessee signals a commitment to achieving school choice throughout the state. Tennessee stands as a sharp contrast to Texas, which recently backtracked on advancing school choice. Despite a strong atmosphere in favor of school choice, including pressure by Gov. Greg Abbott, school choice has stalled out. It was conservative Republicans in the Texas House who killed a recent measure out of fear that a school choice program would divert funds away from rural public schools. Universal school choice is spreading across the nation like a prairie fire. What started decades ago as a fringe movement is becoming a realized path to educational freedom across the country. By joining the cause, Tennessee is on a path towards an educational landscape that emphasizes parental empowerment and student-focused policies. Protect The 1st is pleased by these developments and looks forward to further progress in Tennessee. We urge Texas to come to a fair agreement on rural schools and enact a school choice bill soon. A recent Federalist Society debate between NYU law professor Richard Epstein and the Cato Institute’s Clark Neily offered an illuminating preview of an urgent legal question soon to be addressed by the U.S. Supreme Court: can states constitutionally regulate the content moderation policies of social media platforms like Facebook and X (Twitter)?
Florida and Texas say “yes.” A Florida law bars social media companies from banning political candidates and removing anything posted by a “journalistic enterprise” based on its content. A Texas law prohibits platforms with at least 50 million active users from downgrading, removing, or demonetizing content based on a user’s views. Both bills are a response to legislative perceptions of tech censorship against conservative speakers. These two laws are based on the premise that states can regulate online platforms. But two federal courts came to two entirely different conclusions on that point. In 2022, the U.S. Court of Appeals for the Eleventh Circuit struck down the Florida law, finding “that it is substantially likely that social-media companies – even the biggest ones – are ‘private actors’ whose rights the First Amendment protects ...” Also in 2022, the Fifth Circuit Court of Appeals ruled for Texas, allowing the state law to stand. In the FedSoc debate, Epstein and Neily agreed about many of the problems some have with social media platforms but diverged – radically – on the remedies. Epstein argued that social media companies should be regulated like “common carriers,” fee-based public transportation businesses and entities offering communication transmission services such as phone companies. Under federal law, common carriers are required to provide their services indiscriminately; they cannot refuse service to someone based on their political views. Epstein – who himself was deplatformed from YouTube for offering contrarian views on Covid-19 policy – believes this is an appropriate requirement for social media platforms, too. Epstein cited a number of examples that he classifies as bad behavior by social media companies (collusion with government, acquiescence to government coercion, effective defamation of the deplatformed) which, in his view, compound an underlying censorship concern. He said: “…[I]t’s a relatively low system of intervention to apply a non-discrimination principle which is as much a part of the constitutional law of the United States as is the freedom of expression principle….” Neily, by contrast, took the Eleventh Circuit’s perspective, arguing that social media platforms are private companies that make constitutionally protected editorial decisions in order to curate a specific experience for their users. Neily said: “Even the torrent of Richard’s erudition cannot change three immutable facts. First, social media platforms are private property. There are some countries where that doesn’t matter, and we’re not one of them. Second, these are not just any private companies. These are private companies in the business of speech – of facilitating it and of curating it. That means providing a particular kind of experience. And third, you simply cannot take the very large and very square peg of the social media industry and pound it into the very round hole of common carrier doctrine or monopoly theory or regulated utilities ….” Protect The 1st understands Epstein’s frustration. Social media platforms routinely curate the content posted by third parties in order to ensure conformity with the platforms’ policies and terms of use. Modification of the content or refusal to publish often enrages the party who made the submission. But we remain decisively inclined towards Neily’s view. The First Amendment only prohibits repression of speech by the government. To carve out constitutional exceptions against private companies based on the disaffection of some with curation decisions would be a tremendously shortsighted error. To again quote Neily: “This is how you lose a constitution of limited government – one exception at a time.” One of the examples of the bad behavior to which Epstein alludes is presently being litigated in Missouri v. Biden. In that case, it is alleged that the government coerced social media platforms into downgrading or removing content that did not comport with the government’s efforts to ensure the provision of accurate information to the public regarding the Covid-19 pandemic, such as the effectiveness of vaccines. And while coercion is certainly reprehensible, we again agree with Neily as to how it should be addressed – through existing legal remedies. Said Neily: “What we should be doing instead [of regulating] is identifying the officials who engaged in this conduct and going after them with a meat axe.” When platforms engage in content moderation practices that are aggressive, they risk compromising their status as mere hosts of other’s content to become publishers of the content. The threat of losing the liability protections of Section 230 in these cases would serve as a useful deterrent to egregious content modification. Meat axes and other hyperboles aside, what we need most is an articulable roadmap for distinguishing between coercion and legitimate government interaction with tech platforms. Advocates of the common carrier argument tend to accurately diagnose the problem but overprescribe the solution. The preponderance of new issues that would arise if we transformed platforms into common carriers is staggering. Shareholder value would plummet, and retirement plans would suffer. And then there’s the problem of deciding which particular bureaucrats should be entrusted with overseeing these thriving, innovative, bleeding-edge technology companies, and the social media townhall. It’s unlikely the federal bench is that deep. We cannot seamlessly apply common carrier doctrine to social media platforms, nor should we nullify their constitutional rights just because of their success. As Neily said: “The idea that somehow you begin to lose your First Amendment rights just because you create some new way of affecting public discourse or even the political process, just because you hit it big … That is utterly alien to our tradition.” In a recent Fox News interview, presidential candidate Nikki Haley drew a lot of raspberries when she called online anonymous posting a “national security threat.” She proposed that social media platforms require identity verification for all users to stop foreign disinformation campaigns.
Nikki Haley is legitimately concerned with real online dangers. But such a requirement would chill speech, stifle the free flow of ideas and information, harm journalists and their sources, and land several American Founders in internet jail. Anonymity serves as a shield for individuals to freely express opinions without fear of retribution or persecution. For marginalized communities, victims of abuse, or those living under oppressive regimes, online anonymity can be a lifeline, allowing them to voice their concerns and opinions without risking personal safety. Banning anonymity would silence these voices. Furthermore, this proposal fails to acknowledge the pivotal role played by anonymous sources in investigative journalism. Banning online anonymity could place an insurmountable barrier for journalists to protect their sources, impeding the public's right to know about crucial matters of public interest. Platforms that allow anonymity often become safe spaces for open discussions on sensitive topics, mental health, or personal struggles. Removing this protective veil might discourage individuals from seeking help or sharing their experiences, ultimately stifling lifesaving conversations. Rather than enhancing security, enforced identification online could create an environment ripe for censorship and surveillance, where individuals feel compelled to self-censor out of fear. It may also pave the way for increased government intrusion into private online spaces, eroding the very freedoms the First Amendment aims to protect. Anonymity plays a vital role in many areas of American life, not just online speech. Since the landmark Supreme Court ruling in 1958, NAACP v. Alabama, the anonymity of donors has been recognized as critical to the protection of speech and the flourishing of the First Amendment. Perhaps that is why civil liberties groups on both the left and right have united to challenge laws that seek to expose donors, given such laws’ history with coercion, discrimination, and surveillance. Perhaps most important of all, this great country and our freedoms might not exist if not for anonymity. Friends of history will know that America’s Founders and pivotal figures made generous use of anonymity. Alexander Hamilton, John Jay, and James Madison wrote under the pseudonym “Publius” when they drafted The Federalist Papers. So too did their opponents, who published the Anti-Federalist Papers anonymously under multiple pseudonyms like “Brutus,” “Cato,” and “Federalist Farmer.” Thomas Paine published Common Sense anonymously. Less monumental in scope, Benjamin Franklin wrote under the name “Mrs. Silence Dogood” for the New-England Courant when his brother, the founder and publisher of the newspaper, refused to publish his letters under Benjamin’s real name. Were it not for anonymity, American history would look very different. To be sure, online anonymity has an ugly side. Social media platforms such as Facebook and Linked In have a First Amendment right to restrict anonymity and do so for sound business and public policy reasons. A personal attack or bombastic ideological statement without an identifiable author, however, inherently lacks credibility. We believe Americans have become savvier in their online judgments about online graffito than many experts believe. Instead of advocating for the elimination of anonymity, we should focus instead on promoting responsible online behavior, fostering digital literacy, and developing mechanisms that balance security concerns with the preservation of free speech rights. We’ve said it before – it would be a pointless victory to combat Russian disinformation if we become Russia. |
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