Last year, Attorney General Merrick Garland announced an investigation into whether the Phoenix Police Department “engages in a pattern or practice of violations of the Constitution or federal law.”
As if to say, “I resemble that remark,” a Phoenix police officer was recently revealed by local TV news as having handcuffed a Wall Street Journal reporter doing man-on-the-street interviews with customers in front of a bank. “No journalist should ever be detained simply for exercising their First Amendment rights,” The Journal reacted to this event in a public statement.
The reporter, Dion Rabouin, was approached by bank executives but was not asked to leave the premises. When confronted by a Phoenix Police officer, Rabouin offered to leave – which was appropriate, given that he was on private property. But Rabouin was handcuffed nevertheless. No less important, a bystander who recorded the incident on a video phone was ordered to stop by the police officer.
“You wanna get arrested as well?” the police officer asked.
There are several important takeaways from this incident. First, the officer had no authority to tell the bystander to quit filming.
Last summer, we reported on Arizona’s space-squeezer law on citizens’ right to record the police. The law was an Arizona statute that allowed police to charge citizens who record them within eight feet, or who don’t stop recording when told to do so by an officer, with a misdemeanor. News organizations protested that this prohibition would easily dragoon protestors and news photographers on the move in an active protest.
But later in the year, a federal judge blocked the law, and the Arizona legislature declined to defend it. The arrest of the reporter that was recorded by the bystander demonstrates the need to respect citizens’ right to record.
Second, this incident is Exhibit A in a pattern identified by the Reporters Committee for Freedom of the Press that there is an “alarming number of incidents we’ve seen over the last several years where police have detained, arrested, or assaulted journalists who were doing their jobs.” Witness the treatment of local Laredo, Texas, news blogger Priscilla Villarreal (aka “La Gordiloca”), who was arrested and humiliated in a police station for “misuse of official information.” Villarreal did beat the rap in court, but she did not beat the ride, enduring jeers and insults as she went through the booking process.
The Freedom of the Press Association recently reported that two North Carolina reporters who were filming an eviction of people from a homeless encampment were arrested after police instructed the crowd to disperse. Police seized one of the reporters’ phone, even though she identified herself as a reporter.
“Regardless of the outcome, the fact that these charges were even filed, let alone brought to trial, is an affront to press freedoms, and everyone involved should be ashamed,” wrote Seth Stern of the Freedom of the Press Association. “The First Amendment requires the government to let reporters gather news firsthand – not rely on self-serving spin from official sources. Courts tolerate restrictions on reporters’ access to public land only in exceptional circumstances, like serious public safety risks, and then restrictions must be narrow enough to avoid unduly interfering with newsgathering.”
In the DOJ’s Arizona investigation, the department says it is interested in investigating the Phoenix PD for violating “conduct protected by the First Amendment.” The Phoenix New Times – a long-time critic and bête noir of the local police – reports that DOJ may be interested in exploring overly aggressive use of rubber bullets and tear-gas against protestors, as well as the alleged targeting of activists for arrest and smearing them as gang members.
These concerns should lead Congress to renew and pass the PRESS Act, which would bar prosecutors, except in exigent circumstances, from requiring the revelation of the notes and sources of journalists in court – as 49 states already do. While this law curbs the actions of prosecutors, not police, and does so in court, not on the streets, the impulse of authorities to suppress the press is the same. So is the need to protect one of the most sacred guarantees of the First Amendment: freedom of the press.
In just our second year as a civil liberties organization, Protect The 1st enjoyed great success in advancing and protecting the principles and spirit of the First Amendment in Congress, the courts, and the media.
The Press Act
In 2022, Protect The 1st supported a bill, introduced by Rep. Jamie Raskin of Maryland, to bring the federal government up to the same standard as 49 states by protecting journalists’ notes and sources in court proceedings.
Persistent advocacy of the Press Act by Protect The 1st Senior Policy Advisors Rick Boucher and Bob Goodlatte, both former House Members from Virginia, was instrumental in securing passage of the bill in the House and advancing it with bipartisan support in the Senate. “The PRESS Act passed unanimously because courts continue to hold journalists in contempt and even jail them for refusing to reveal their confidential sources,” said Rick Boucher. “The House made a strong statement today that this is not acceptable.”
The free exercise of religion is one of the principal guarantees of the First Amendment. Thus, every religious group has a stake in the ability of the people of the Apache Stronghold to continue observing their ancestral religion at their sacred site in Oak Flat, a large parcel of land in the Tonto National Forest in Arizona. As a result of a midnight deal in Congress, that land is slated to be transferred to a foreign mining consortium to mine copper. That operation would transform the Apache’s sacred land into a crater as long as the Washington Mall and as deep as two Washington Monuments.
“Imagine doing that to any other community or religious group — to pulverize St. Patrick’s Cathedral in New York City, or the Touro Synagogue in Rhode Island — and not only destroy an irreplaceable site of worship but leave behind an ugly and enormous gash in the earth,” Rick Boucher wrote in an Earth Day op-ed in The Hill.
In this and many other ways, Protect The 1st strongly advocated on behalf of the Apache, including advocacy on Capitol Hill and in amicus briefs in the courts.
For most of the year, Oak Flat seemed like a lost cause. The Apache lost their case in the Ninth Circuit Court of Appeals, only to have a rare decision by that same court to revisit its ruling later in the year. While the court ponders the religious liberty implications of the destruction of land sacred to these Americans’ religion, Protect The 1st will take the opportunity to press Congress to pass the Save Oak Flat Act.
Religious liberty scored a touchdown when the U.S. Supreme Court, in a 6-3 opinion, upheld the rights of a coach to pray after games. In its opinion, the majority adopted a view that is almost a verbatim quote from the amicus brief Protect The 1st filed in the case of the “praying coach.”
Protect The 1st in the Courts
Protect The 1st filed a brief in FEC v. Cruz, a case asking the U.S. Supreme Court to invalidate limits on the amount candidates for federal office can recover from their personal donation to their campaigns. In the majority opinion, Chief Justice John Roberts cited Protect The 1st’s brief on removing limits on the right of candidates to personally support their campaigns and their political speech.
Protect The 1st petitioned the U.S. Supreme Court to determine if local authorities can regulate speech on public sidewalks, testing the scope of the public forum doctrine in Keister v. Bell. This petition was selected as Petition of the Week by the respected SCOTUSBlog. Our petition also drew the support of multiple First Amendment organizations.
Protect The 1st filed multiple briefs asking the U.S. Supreme Court to clarify the rights of public-sector employees to opt-out of being forced to pay for political speech through compelled membership in unions. Protect The 1st ended the year with a filing, Kurk v. LRCEA, that challenges such compulsion and violation of workers’ First Amendment rights.
In 2022, Empirical SCOTUS ranked Protect The 1st sixth in the nation in filing amicus briefs. Only five organizations, which included the U.S. government and the U.S. Chamber of Commerce, filed more briefs.
Much of the logic and actual language offered by Protect The 1st appeared not only in FEC v. Cruz, but in four important religious liberty cases Ramirez v. Collier, Carson v. Makin, Kennedy v. Bremerton School District, and Shurtleff v. Boston. In each case, Protect The 1st anticipated the Supreme Court majority’s reaction against sudden and dramatic curtailments of the freedom of speech and religion.
In all these ways – from the court of public opinion, to the U.S. Supreme Court, to Capitol Hill – Protect The 1st is building on our early successes to support the guarantees of free speech, a free press, and the free exercise of religion.
The fourth edition of the Becket Fund’s annual Religious Freedom Index found—among other things—an increase in respect for religious diversity. This is welcome news to champions of religious freedom everywhere.
The Religious Freedom Index regularly polls Americans to measure their “perspectives on core principles of religious freedom” and to provide “timely insights into pressing social and cultural questions.”
This year, public support for religious pluralism increased by four points, capping off a ten-point increase since 2020. Over 90% of survey respondents completely or mostly support:
The American public also widely supports protecting religious minorities. For example, the poll found nearly 90% of Americans support protecting Native American sacred sites located on federal land. Americans also support the rights of business owners to conduct their businesses in accordance with their religious beliefs, with little variation when the business owner is a member of a majority or minority religion.
Still, there is room for progress. The report found that while 85% of respondents correctly identified the freedom of speech as a First Amendment right, less than half could do the same for religious freedom. For this reason, the report states “advocates for religious freedom have an opportunity to educate the broader public on key constitutional rights.”
PT1 commends the Becket Fund for producing yet another rigorous and high-quality report. The data paint a promising picture of the health of religious freedom in the United States. First Amendment advocates should avail themselves of this valuable resource.
The freedom of the press is a First Amendment right that protects the ability of every American to know what our government is doing in our name. Reporters expose much of what the powerful in government and in corporations would rather keep quiet, and in doing so, journalists face a variety of threats in the performance of their jobs: harassment, assault, improper legal action, and even death threats.
The Freedom of the Press Foundation has been monitoring and logging these dangers for several years now. They provide hard data on their U.S. Press Freedom Tracker, a database of incidents involving journalists in the United States. It is an indispensable tool for anyone who wants to preserve, protect, and enhance civil liberties by protecting a free and unencumbered press.
The U.S. Press Freedom Tracker tracks the arrests of journalists, the seizure of their equipment, assaults, and interrogations at the U.S. border. It also tracks legal actions, such as subpoenas and prior restraint orders. The database extends back to 2017, grouping its data by well-defined categories. Altogether, the database offers a comprehensive understanding of the threats to press freedom at a glance.
For example, one can see the explosion in assault incidents that coincided with the protests and riots of the summer of 2020. The tracker data are complemented by up-to-date reporting on these incidents.
Among the events it tracks and reports on are legal actions that threaten to intimidate reporting. In October, for example, Ohio’s Scioto Valley Guardian Editor-in-Chief Derek Myers was charged with felony wiretapping for publishing a recording of witness testimony from an ongoing trial in Ohio.
After judicial back-and-forth on whether to bar recordings of testimony in a murder trial, someone did just that. Myers was out of the country when he was provided a secret recording of the testimony taken by someone in the courtroom. Myers later published condensed portions of that recording.
Judge Anthony Moraleja responded by issuing a search warrant for the Guardian equipment. A laptop was seized, along with Myers’ cellphone. Myers was then charged with interception of wire, electronic, or oral communications. Myers’ attorneys pointed to the Supreme Court case Bartnicki v. Vopper, which ruled that the media cannot be held liable for publishing information that was obtained illegally by a source.
All this information was logged and reported by the U.S. Press Freedom Tracker, just one example of the rich resources civil liberties advocates can find here.
Elon Musk’s release of Twitter’s records to journalist Matt Taibbi that revealed a content moderation decision by Twitter to delete the Hunter Biden laptop story continues to set off a chain of recriminations. Some fevered reactions call into question basic constitutional principles.
For example, former President Trump publicly posted (and later tried to walk back) a statement saying that such an act of censorship is one of several reasons to “terminate” provisions of the U.S. Constitution. That bit of histrionics aside, what does the Constitution actually say about the rights of Twitter and its users?
Twitter as a private company is not bound by the First Amendment: it can freely decide to post or remove content. The decision to remove an article with political content in the shadow of a presidential election did not violate the letter of the law. But it did arguably violate First Amendment principles.
Leave it to progressive Rep. Ro Khanna (D-CA) to remind us in a recent op-ed in The Wall Street Journal the once-banal but seemingly lost truth that the Constitution and its freedom of speech works for all people, in every direction, all the time.
Rep. Khanna wrote: “Defending free speech is easy when it’s speech you agree with. Defending speech you dislike, or speech that doesn’t advance your interests, is more challenging. But it is in exactly those uncomfortable situations that American democratic principles call on us to protect the free exchange of ideas and freedom of the press.”
Rep. Khanna points to the seminal 1964 Supreme Court case New York Times Co. v. Sullivan that debate on public issues should be “uninhibited, robust, and wide-open.” Even though this debate may “include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials,” that is no cause for censorship.
Certainly, Twitter and any other social media company have an absolute First Amendment right to manage content and to exclude the Kanye Wests of the world. But with size should come acceptance of responsibility.
Khanna’s position is not posturing after the fact. Twitter’s records reveal that when the censorship occurred, Khanna wrote to Twitter’s general counsel saying that the company’s actions “seemed to be a violation of First Amendment principles.”
Rep. Khanna has it just right. Twitter’s removal of the content was a violation of the principles and spirit of the First Amendment, even if not an actionable violation of the law. The principles of the First Amendment are foundational to who we are as Americans. They should be for social media companies as well.
Protect The 1st commends Congressman Ro Khanna for standing up for speech – even when it is uncomfortable.
Protect The 1st supports cases before the U.S. Supreme Court concerning school choice and follows political developments in favor of the millions of American parents who send their children to private schools, many of which are religious schools.
But what is driving the rising numbers of parents to send their children to private schools?
Since 2019, some two million children have exited public school for a private alternative, with another two million expected to go private by 2030. More than 3.1 million children study K-12 curricula at home, added to the millions of children in private schools.
A recent Washington Post magazine piece by John D. Harden and Steven Johnson captures the reasons why parents opt for a private school for their children, and highlights the reasons behind the decision of some parents who have chosen religious schools:
But parents also are fleeing public schools that often do an inferior job of instruction:
Parents also value the often-superior instruction of private schools, which by law must teach to the same state-mandated standards as other schools. One woman said, “I struggle with this decision because I believe I’m contributing to the failure of public schools and society, but, honestly, public education is failing anyway.”
In all our conversations and work with private schools and parents, what comes through loud and clear is a desire to have children taught specific values along with quality instruction. Protect The 1st will continue to work to protect the free exercise of school choice and the opportunity to make a religious school choice as an expression of one of the most personal decisions on how to raise children.
How wrong does a journalist have to be in her reporting to be held liable for a false statement about a public figure?
The baseline for libel of a public figure traces back to the 1964 New York Times v. Sullivan opinion, in which the U.S. Supreme Court held that a city public safety commissioner could not win a liable suit against a newspaper over minor misstatements in an ad. That case set a lasting precedent that in order to prevail a public figure must prove actual “malice” – a statement made knowing that it is false or with reckless disregard to its truth or falsity – to win a libel case.
The limits of protected speech and the definition of a public figure were expanded when Hustler publisher Larry Flynt was sued by The Rev. Jerry Falwell after producing a fictional and pornographic “interview” with him in the 1980s. The Court ruled against Falwell, holding that the prominent minister was a public figure for First Amendment purposes.
Recent years, however, have seen fine-tuning in the direction of the plaintiffs. In 2017, Rolling Stone magazine agreed to pay $1.65 million to the University of Virginia chapter of a fraternity after falsely portraying its members as brutal gang rapists. The magazine capitulated because the reporter in this case was demonstrated to have practiced a degree of carelessness that could easily be judged as “malice.”
An ongoing, high-profile case will once again demonstrate the courts’ application of the “malice” standard and the rights of public figures in a libel suit. A federal court will allow former Rep. Devin Nunes to proceed on one claim made by MSNBC commentator Rachel Maddow on her eponymous TV show in 2021. Maddow’s statements concerned a mysterious package delivered to the House Permanent Select Committee on Intelligence more than a year before. Addressed to Nunes, the package had come from a Ukrainian politician believed to be close to the Putin government. Nunes’ staff delivered the package unopened to the FBI, while Rep. Nunes sent a letter to the attorney general notifying him of the receipt of the package.
In July 2020, Rep. Sean Maloney publicly asked Rep. Nunes if he had ever received materials from this individual, Andriy Derkach, suspected by U.S. intelligence of operating on behalf of the Kremlin. And if so, would Nunes share what he had received with the committee? Nunes declined to answer.
On her show, Maddow said that the mailer “is singled out by name by the Director of National Intelligence as someone under Vladimir Putin’s direct purview who helped run this organization targeting our election last year. Congressman Nunes accepted a package from him. What was in it?”
Maddow’s next made more problematic statements: “Congressman Nunes has refused to answer questions about what he received from Andriy Derkach. He has refused to show the contents of the package to other members of the intelligence community. He has refused to hand it over to the FBI which is what you should do if you get something from somebody who is sanctioned by the U.S. as a Russian agent.”
The U.S. District Court for the Southern District of New York refused to allow Rep. Nunes to sue over the statements that he had refused to answer questions, or that he had refused show the contents of the package to other members of the intelligence community. These statements are true (or true enough), the federal court reasoned, because to the average viewer the “intelligence community” would certainly cover the House intelligence oversight committee.
Where Maddow and her employer are at risk is the statement that Nunes refused to hand the package over to the FBI. The court found this statement “does not fall within the fair report privilege” because “it is not substantially true.” Thus, the court dismissed all of Nunes’ claims except this one.
Will Maddow’s false statement amount to “malice” in the eyes of the court? Would a loss by her lead to more careful reporting, or would it have a chilling effect on journalism? Once Maddow’s statement is litigated, the outcome will sharpen our understanding of how courts today judge a factual error, how they continue to apply libel law to public figures, and the implications of these judgments for the First Amendment.
This is a case to watch.
The U.S. District Court for the Northern District of Florida recently halted the enforcement of several higher education-related provisions of that state’s “Stop WOKE Act.” This action by a federal judge highlights the pitfalls of trying to extend Florida’s popular movement to define teaching about race and gender for elementary and secondary public schools to higher education.
In September, the Foundation for Individual Rights and Expression (FIRE) filed a suit challenging the constitutionality of the law’s higher-education restrictions. The Stop WOKE Act expands Florida’s anti-discrimination laws to prohibit schools and companies from promoting ideas of race- or sex-based guilt to students and employees. A person should not be made to “feel guilt, anguish, or any other form of psychological distress” due to their race, color, sex, or national origin. The law includes higher education instruction, a provision that led to a proposal to link tenure to a professor’s adherence to this law.
Like many laws restricting speech, the Stop WOKE Act sounds commendable, but the provisions at issue here would have the practical effect of making professors worry about their job security and tenure if they even touched on issues of race or gender in class. Chief U.S. District Judge Mark Walker, appointed by President Obama, called the law “positively dystopian.”
The law, Judge Walker wrote, “officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints.” Judge Walker even colored his 138-page order with a vivid passage from George Orwell’s 1984 to make his point. The legal basis for the order rests on long-established judicial principles that academic freedom and the First Amendment go together.
“[T]he First Amendment does not permit the State of Florida to muzzle its university professors, impose its own orthodoxy of viewpoints, and cast us all into the dark,” Judge Walker wrote.
While Protect The 1st believes Florida had every right to regulate curricula of early grades in public schools in response to parental guidance, the law goes too far in trying to pass academia-wide restrictions, particularly in private, non-state schools. Public school teachers act on behalf of the state, and there are only so many hours in the school day. The state has a right to prioritize what it believes are the most important, elemental lessons that students should learn.
But professors are not government spokespeople in the sense that public elementary school teachers are. Blanket restrictions on lessons and content, especially at the university level, strike at the very heart of academic freedom. Restrictions that could also chill the speech of professors at private universities or those with tenure expands the possibilities for future state intervention and widens the latitude for unconstitutional legislation.
If you believe there’s a problem with ideological conformity, cancel culture, or “wokeism” in higher education, this approach is not the way to address those concerns. If anything, suppressing speech would create martyrs and only make their speech more popular. If you believe that higher education has become an echo chamber, agitate for more diversity in backgrounds, perspectives, and ideas, but not a gag order.
With a coming razor-thin Republican majority in the House to replace a razor-thin Democratic majority, there is a risk that the nuances of religious liberty will be overlooked in the partisan crossfire on Capitol Hill.
Consider Oak Flat – the pending transaction in which land sacred to the Apache for centuries and recognized as such by the federal government in a 19th century treaty – will be transferred to a foreign mining consortium. Land that is to the Apache what the Vatican is to Catholics and the Temple Mount is to Jews is slated to be utterly destroyed. When the mining is done, Apache’s sacred land will be a crater as long as the Washington Mall and as deep as two Washington Monuments.
When debate concerning Oak Flat occurred in the House Natural Resources Committee on Wednesday, concerns about the rights of a minority religion, the free expression of religion under the First Amendment, and the protections of the Religious Freedom Restoration Act were barely mentioned. The mostly party-line vote was on a measure to press the Biden Administration to release internal memos on what Republicans see as its slow-walking of environmental and other approvals for the land transfer. The debate between the still-Democratic majority and the incipient Republican majority centered around the overall policies of the Biden Administration.
Wherever you come down in this debate, it is unfortunate that Oak Flat was chosen as the lead plaintiff for the case against Biden’s energy and environmental policies – at the expense of a focus on religious liberty.
The measure did not pass, but it will have a better chance when the Republicans take control in January. When they do, they should consider that destroying the prime place of worship for one minority religion will make it all that easier for government to discriminate against other religions. The weakening of the Religious Freedom Restoration Act will also make it easier to infringe on the religious freedom of Christians and evangelicals, Jews, and Muslims.
More Students Support Violence Against Offensive Speakers
A new poll of undergraduate students reveals they lack a basic understanding of the First Amendment’s guarantees and are growing in acceptance of the heckler’s veto and even violence against speakers on campus.
These are the results of the William F. Buckley, Jr., Program’s eighth annual survey measuring the opinions of college students at four-year colleges and universities. One might wonder if a survey commissioned by a group named for the famous conservative author of God and Man at Yale might have a built-in bias of its own. But the survey, conducted by McLaughlin & Associates of 803 undergraduates nationwide, shows a clear deterioration in basic understanding of the principles of free speech that matches growing reports of intolerance for speech on campus over the last year.
The deterioration of speech principles in higher education begins as a failure in American secondary education. Students are not in disagreement with the American tradition of free speech and the Constitutional order as much as they seem to lack a basic understanding of what that tradition is.
As always, such discussions center around the most offensive speech imaginable, but the practical effect is to demonize anyone we disagree with as being the moral equivalent of a Nazi or Satan. Limiting speech on campus can come from conservatives as well as from liberals.
Students need to understand that – except for explicit calls to violence – hate speech, as contemptible as it is, is allowed in America. This is based on a mature understanding that once we outlaw one kind of speech, rhetorical contortions will be made to define any opposing argument as somehow being hateful and thus worthy of repression. Students are also not taught that outlawing hate speech does not eradicate it: rather, it drives such speech underground and glamorizes it. Repression endows hate speech with a glimmering allure for immature and unhealthy minds.
“The First Amendment bars the government from deciding for us what is true or false, online or anywhere,” the ACLU recently tweeted. “Our government can’t use private pressure to get around our constitutional rights.”
The ACLU responded to a report from Ken Klippenstein and Lee Fang of The Intercept news organization that the federal government works in secret to suggest content that social media organizations should suppress. The Intercept claims that years of internal DHS memos, emails, and documents, as well as a confidential source within the FBI, reveal the extent to which the government works secretly with social media executives in squashing content.
After a few days of cool appraisal of this story, we have to say we have more questions than answers. It is fair to note that The Intercept has had its share of journalistic controversies with questions raised regarding the validity of its reporting. It also appears that this report is significantly sourced on a lawsuit filed by the Missouri Attorney General, a Republican candidate for the U.S. Senate. We’ve also sounded out experts in this space who speculate that much of the content government is flagging is probably illegal content, such as Child Sexual Abuse Materials.
There is also reason for the government to track and report to websites state-sponsored propaganda, malicious disinformation, or use of a platform by individuals or groups that may be planning violent acts. If Russian hackers promote a fiction about Ukrainians committing atrocities with U.S. weapons – or if a geofenced alert is posted that due to the threat of inclement weather, an election has been postponed – there is good reason for officials to act.
The government is in possession of information derived from its domestic or foreign information-gathering that websites don't have, and the timely provision of that information to websites could be helpful in removing content that poses a threat to public safety, endangers children, or is otherwise inappropriate for social media sharing. It would certainly be interesting to know whether the social media companies find the government’s information-sharing efforts to be helpful or whether they feel pressured.
The undeniable problem here is the secret nature of this program. Why did we have to find out about it from an investigative report? The insidious potential of this program is that we will never know when information has been suppressed, much less if the reason for the government’s concern was valid.
The Intercept reports that the meeting minutes appended to Missouri Attorney General Eric Schmitt’s lawsuit includes discussions that have “ranged from the scale and scope of government intervention in online discourse to the mechanics of streamlining takedown requests for false or intentionally misleading information.”
In a meeting in March, one FBI official reportedly told senior executives from Twitter and JPMorgan Chase “we need a media infrastructure that is held accountable.” Does she mean a media secretly accountable to the government? Klippenstein and Fang report a formalized process for government officials to directly flag content on Facebook or Instagram and request that it be suppressed. The Intercept included the link to Facebook’s “content request system” that visitors with law enforcement or government email addresses can access.
The Intercept reports that the purpose of this program is to remove misinformation (false information spread unintentionally), disinformation (false information spread intentionally), and malinformation (factual information shared, typically out of context, with harmful intent). According to The Intercept, the department plans to target “inaccurate information” on a wide range of topics, including “the origins of the COVID-19 pandemic and the efficacy of COVID-19 vaccines, racial justice, U.S. withdrawal from Afghanistan, and the nature of U.S. support to Ukraine.”
The Intercept also reports that “disinformation” is not clearly defined in these government documents. Such a secret government program may include information gathered from activities that violate the Fourth Amendment prohibition on accessing personal information without a warrant. It would also be, to amplify the spirited words of the ACLU, a Mack Truck-sized flattening of the First Amendment.
One cannot ignore the potential that the government is doing more than helpfully sharing information with websites along with a suggestion that it be taken down. Is the information-sharing accompanied by pressure exerted by the government on the website? From the information now available, we simply don't know.
Bottom line: if these allegations are true, the U.S. government in some cases may be secretly determining what is and what is not truth, and on that basis may be quietly working with large social media companies behind the scenes to effect the removal of content. So, the possible origin of COVID-19 in a Chinese laboratory was deemed suppressible, until U.S. intelligence agencies reversed course and determined that a man-made origin of the virus is, in fact, a possibility. And the U.S. withdrawal from Afghanistan? Is our government suppressing content that suggests that it was somehow a less-than-stellar example of American power in action?
If these allegations are true, Jonathan Turley, George Washington University professor of law, is correct in calling this “censorship by surrogate.”
This program, which Klippenstein and Fang report is becoming ever more central to the mission of DHS and other agencies, is not without its wins. “A 2021 report by the Election Integrity Partnership at Stanford University found that of nearly 4,800 flagged items, technology platforms took action on 35 percent – either removing, labeling, or soft-blocking speech, meaning the users were only able to view content after bypassing a warning screen.” On the other hand, the Stanford research shows that in 65 percent of the cases websites exercised independent judgment to maintain the content unmoderated notwithstanding the government's suggestion.
After mulling this over for a few days, we propose the following:
There is no reason why the government cannot stand behind its finding that a given post is the product of, say, Russian or Chinese disinformation, or a call to violence, or some other explicit danger to public safety. But we need to know if the most powerful media in existence is subject to editorial influence from the secret preferences of bureaucrats and politicians. If so, this secret content moderation must end immediately or be radically overhauled.
Protect The 1st Joins Jewish, Muslim and Sikh Coalition to Defend the Religious Rights of Native Americans
Petition to Supreme Court in Slockish v. U.S. Department of Transportation
Protect The 1st today joined the Jewish Coalition for Religious Liberty, the Sikh Coalition, and the American Islamic Congress in petitioning the U.S. Supreme Court to review the harms inflicted on religious liberty by a Ninth Circuit Court of Appeals decision.
This petition concerns a case that began in 2008 when the U.S. Highway Administration, ignoring the objections of members of the Yakima Nation and Grande Ronde tribes, bulldozed Native ancestral burial grounds and dismantled a stone altar. The site was razed to widen U.S. Highway 26 in Oregon, while a tattoo parlor on the other side of the highway was left untouched.
After this desecration of their sacred lands, tribal members sought relief for this infringement in federal court. On Nov. 24, 2021, the Ninth Circuit Court of Appeals ruled the government would not be held responsible for destruction of the sacred site and dismissed the case as moot.
On Nov. 4, 2022, a coalition of Jews, Muslims, Sikhs, and Protect The 1st petitioned the Supreme Court to consider the threat to religious liberty, especially non-Western and Indigenous religious groups lacking political clout, by this cavalier treatment of a faith by the federal government.
The coalition’s petition demonstrates three errors driving the Ninth’s egregiously wrong decision, which threatens to gut the protections of the free exercise of religion under the First Amendment, the Religious Freedom Restoration Act (RFRA), and the Religious Land Use and Institutionalized Persons Act (RLUIPA).
First, The Ninth Circuit took a ‘our hands-are-tied approach.’ The court ignored that under RFRA, the government must rule out any possibility of remedying a religious freedom violation—including remedies that might partially satisfy the plaintiffs’ religious beliefs. The court uncritically accepted the government’s position that any relief would, somehow, involve “safety” regarding the highway easement.
For example, the Ninth Circuit refused to consider actions that could be taken without impairing highway safety, such as planting trees or medicinal herbs in the surrounding areas, or whether any part of the sacred site could be rebuilt outside of the narrow strip of land covered by the easement.
The coalition’s petition informs the High Court that the failure of the Ninth Circuit to consider the possibility of some measure of relief “is especially troubling here, where the Ninth Circuit was deciding the rights of minority religious adherents. Especially in such cases, courts must thoroughly evaluate what sorts of accommodations believers of minority faiths might find acceptable …”
Second, the Ninth Circuit’s decision ignores RFRA’s broad grant of authority to the judiciary to redress government interference with religious practice. The coalition brief explains that the Ninth Circuit decision here “flouts RFRA’s text” and Supreme Court precedent. “In holding that courts are powerless to redress statutory and constitutional violations because some remedies might (in the government’s view) implicate a state agency’s right-of-way, the Ninth Circuit got things exactly backwards.”
Instead, when federal courts confront federal actions that infringe on religious rights, the authority of courts to act in defense of those rights is strong.
Third, the Ninth Circuit took at face value the government’s claims that no remedy was feasible, instead of analyzing that claim under RFRA and RLUIPA. The coalition concludes: “If left standing, the Ninth Circuit’s decision would gut RFRA, permitting government actors to simply claim ‘infeasibility’ whenever they find accommodating religious practice inconvenient.”
“This case is a matter of heartbreak for American citizens of Native faiths,” said Gene Schaerr, general counsel of Protect The 1st. “It should also be a matter of deep concern for Sikhs, Jews and Muslims who wish to wear outward manifestations of their faith, as well as Christians and people of all faiths who want to preserve the protections of the Religious Freedom Restoration Act.”
The threats to donor privacy keep coming. In 2021, the U.S. Supreme Court ruled 6-3 in Americans for Prosperity v. Bonta against a California law that would have forced non-profit organizations to report the identities of their donors to the state. That bad idea has now wafted across the Colorado River to find new life.
Arizona’s Proposition 211, “The Voters’ Right to Know Act,” would require organizations that promote, support, attack, or oppose a candidate within six months of an election – or mounts any public communication that refers to a candidate within 90 days of a primary – to disclose the identities of donors who give more than $5,000.
Former Arizona Attorney General Terry Goddard has said that there is no evidence harassment of donors would be a problem. Does he not watch the news? To dismiss the danger of donors being “doxxed” is to ignore a pile of evidence as high as Camelback Mountain. A few years ago, Mozilla CEO Brendan Eich was forced out of his job when the California Attorney General mandated the disclosure of donors in support of Proposition 8, which supported traditional marriage. Small donors received death threats and envelopes containing white powder. Their names and ZIP codes were helpfully overlaid on a Google Map.
And don’t overlook the tense state of our political culture, one in which Rep. Steve Scalise received multiple gunshots and the husband of House Speaker Nancy Pelosi had his skull fractured by a hammer. In both instances, disturbed men acted on political impulses.
A chilling effect on the free exercise of one’s First Amendment rights need not come from violence. Exposure can heighten donors’ fear that they, or their businesses, will be singled out by vengeful regulators with political motivations or by activist boycotts. Whispered threats of cancellation can be just as effective as the cancellations themselves.
Tellingly, the group behind this measure – the Voters’ Right to Know Committee – discloses the names of small donors, but does not disclose in its most recent official campaign report the corporations and out-of-state PACs behind this ballot initiative.
Perhaps this committee’s “dark money” donors appreciate the words of Justice John Marshall Harlan II, who wrote in the NAACP v. Alabama decision that immunity from state scrutiny supports the rights of Americans “to pursue their lawful private interests privately and to associate freely with others.”
Last week, we applauded Attorney General Merrick Garland for formalizing a rule in the Department of Justice that restricts the ability of federal investigators and prosecutors to get their hands on the notes of journalists.
We applaud the Attorney General’s action because the freedom of journalists to protect confidential sources has proven time and again a way to hold the government accountable for wrongdoing or malfeasance. As we took a long look at the published rule over the weekend, however, one aspect of it popped out at us. The DOJ rule protects “members of the news media” without giving that term any definition.
Does the new DOJ rule protect local citizen journalists like Priscilla Villarreal, aka “Lagordiloca,” who was arrested by Laredo police and slapped with the Orwellian charge of “misuse of official information”? Does the rule protect the political and speech rights of activist groups, from BLM to Project Veritas, who post news? Or does it only protect salaried employees of large media organizations?
We reiterate that the announcement of this rule, while heartening, is not enough. As we noted, it can be changed at any time. The fuzziness about DOJ’s thinking on who is and who is not a journalist is more reason for the Senate to pass the PRESS Act. This bill would prohibit the federal government from compelling journalists, and phone and internet companies, to disclose journalists’ notes, except in limited circumstances such as preventing terrorism or imminent violence.
The PRESS Act, which passed the House by voice vote on Sept. 19, defines covered journalist as “a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, investigates, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.”
This bill follows a successful approach enshrined in the law in most states. With little debate and no time required, the U.S. Senate should show that we all agree on the need for a free and unfettered press.
Attorney General Merrick Garland this week formalized a policy he announced early in his tenure that restricts the use of legal tools by federal prosecutors to force journalists to divulge their notes and sources.
This new rule precludes “the use of compulsory legal process, including subpoenas, search warrants, and certain court orders for the purpose of obtaining information from or records of members of the news media.”
Such protections are sorely needed. We’ve seen federal intrusion into the records of the AP, CNN, The Washington Post, The New York Times, and even morning raids to confiscate the phones of activist journalists. Over the years, journalists have been held in contempt and jailed for refusing to reveal their confidential news sources. Most U.S. states have “press shield” laws that protect journalists’ sources and notes, with reasonable exceptions. But the federal government has no such law.
It is heartening to see the Attorney General make this directive a formal rule. We should remember, however, that Department of Justice rules can change with the next Attorney General and the next administration — or even if the current Attorney General changes his mind.
We value the ability of journalists to shield confidential sources because so many times revelations from whistleblowers have revealed wrongdoing or dysfunction that the American people need to know about. Recognition of a shield law as essential to freedom of the press explains why Reps. Jerry Nadler and Jim Jordan, Chair and Ranking respectively of the House Judiciary Committee, led a bipartisan group to vocally support the Protect Reporters from Exploitive State Spying (PRESS) Act, introduced by Sen. Ron Wyden (D-OR) and Rep. Jamie Raskin (D-MD). The PRESS Act passed the House with unanimous support in September.
Attorney General Garland deserves our gratitude for pushing this issue forward and underscoring its importance. All that’s left is for the Senate to seal the deal and join the House in sending the PRESS Act to the president’s desk for signature.
“Why Elon Musk’s Idea of ‘Free Speech’ Will Help Ruin America,” reads a headline in the liberal The New Republic. Bottom line – the sale of Twitter to Elon Musk “means that lies and disinformation will overwhelm the truth and the fascists will take over.”
“Stop the Twitterverse – I Want to Get Off,” writes Debra Saunders in the conservative American Spectator a few weeks before Elon Musk’s acquisition of Twitter became inevitable.
From left and right, cynicism is the dominant reaction to the potential of Twitter under Elon Musk’s direction. The left hates Twitter because it can be abused by noxious personalities with extreme politics. The right hates Twitter because of a perception among conservatives that Twitter takes out the magnifying glass only when evaluating conservative speech.
Both sides have become so used to distortion and the failure of public enterprises and personalities that they have come to welcome it. We’ve even started to root for failure. There is an emotional comfort to always assuming the worst will happen – you will never be disappointed. E.K. Hornbeck, the journalist character in Inherit the Wind, captured the mentality of our times in a play written by Jerome Lawrence half-a-century before the emergence of social media:
“Cynical? That's my fascination.
Social media has elevated Hornbeckism and taught us not just expect the worst, but to celebrate it. We should pause, then, to take note that on the day Elon Musk visited the headquarters of Twitter as he assumes ownership, the billionaire released a surprisingly sweet note to advertisers about the direction the platform will take.
Musk wrote that he bought Twitter “because it is important to the future of civilization to have a common digital town square, where a wide range of beliefs can be debated in a healthy manner, without resorting to violence. There is currently great danger that social media will splinter into far-right wing and far-left wing echo chambers that generate more hate and divide our society.”
He wrote that the “relentless pursuit of clicks” of traditional and social media fuels caters to polarized extremes. Musk admits that failure is real possibility for him and that he must allow some degree of content moderation to keep Twitter from becoming a “free-for-all-hellscape.”
Musk and his team face many granular decisions between statements that are edgy and even offensive to many, and those that are over the line. That line will probably waver back and forth as Twitter experiments with a broader array of speech and speakers. Security will also need to be addressed. A fired former senior executive of Twitter, Peiter “Mudge” Zatko, testified before the Senate Judiciary Committee that there are “no locks on the doors” at Twitter when it comes to securing users’ data. Twitter, he said, had been infiltrated by foreign spies, including actors on behalf of the People’s Republic of China, seeking Americans’ personal data.
It will be up to Musk to assess and if necessary correct security flaws. He will lead a team that must be capable of executing operations while bringing a more open-minded ethos to the Twitterverse. We can be certain that there will be mistakes, embarrassments, policies made and revoked. But Elon Musk’s rockets exploded on the launchpad before he got SpaceX right. Maybe the same will happen this time.
We should all hope so.
As Twitter evolves, stumbles, evolves some more, we should remain calm and continue to cheer for the platform’s success. There’s nothing quite like it. And if Twitter fails because we cannot as a nation manage a dialogue, then we will all fail as well.
When the founders drafted the First Amendment forbidding the abridgement of freedom of speech, “pamphlet wars” were common, with opposing sides handing out flyers and inviting passersby to listen to their opinions. Even in this age of tweets, most Americans recognize parks, sidewalks, and other public spaces as venues where people are allowed to hand out flyers and politely ask passersby to hear them out.
The federal courts, however, are split on the question of whether this form of expression, as old as colonial America, must be respected today under the First Amendment.
Concerned about this encroachment on speech, Protect The 1st petitioned the U.S. Supreme Court to hear a case from a street preacher who was silenced by university officials and police. This happened when evangelist Rodney Keister stood on city-owned sidewalks on a public street in Tuscaloosa, Alabama, near the University of Alabama. By agreement with the city, the UA campus police oversee a portion of the public sidewalk at an intersection near – but not on – the campus. The campus police more than once warned Keister that he could not preach on this public sidewalk. Fearing arrest, the preacher left but filed a lawsuit that was eventually heard by the Eleventh Circuit Court of Appeals.
The question as to whether a city-owned public sidewalk is a traditional public forum should be a slam-dunk in favor of free speech. But federal courts are split on the issue.
The Ninth, Tenth, and D.C. Circuits stick with the First Amendment analysis in these public forum cases, allowing speech. But other circuits hold that streets open to the public but adjacent to college and university buildings are limited public forums. Speech there can be restricted.
In one public forum case, the D.C. Circuit ruled against the government, which attempted to prohibit a demonstrator from holding a sign or distributing leaflets on the grounds of the U.S. Capitol building. While these grounds are obviously under the control of federal authorities, they are parklike and open to the public. Making this distinction, the D.C. court rejected any claim that the grounds were a “special type of enclave” that had to be protected from free expression. That court held that “because of their historical association with the exercise of free speech,” streets, parks and sidewalks are quintessential examples of public forums.
The Eleventh Circuit, on the other hand, held that even though the sidewalk in Tuscaloosa was open to the public and owned by the city, the maintenance of that sidewalk by the university necessarily involves the university’s intent toward expressive activity.
Protect The 1st asks the Supreme Court to consider if courts can “apply an amorphous and manipulable balancing test that relies on the government’s or its delegee’s intent to restrict speech as a justification for doing so.” We also informed the Court that by “denying ‘public forum’ status to a place that has traditionally been a public forum – sidewalks tied to public streets – the decision below threatens the First Amendment not merely in Tuscaloosa, but throughout the Nation.”
In our petition, Protect The 1st tells the Supreme Court that the “use of multifactor balancing tests makes the outcomes in any given case unpredictable and unprincipled. There is a better way. Relying on the text of the First Amendment, read in light of history and tradition, providers a surer approach.”
Protect The 1st believes this case not only raises important constitutional questions on which the courts of appeal are divided, but also presents an excellent vehicle for the Supreme Court to resolve them.
Protect The 1st welcomes the news that Democratic Pennsylvania gubernatorial candidate Josh Shapiro added a private school choice plan, Lifeline Scholarships, to his education plan. In Illinois, where more than 7,000 students benefit from a state tax-credit scholarship program, Democratic Gov. J.B. Pritzker reversed his opposition to this scholarship program so it will continue to provide financial support for thousands of students to attend private and parochial schools.
Shapiro and Pritzker are not alone. Today, 31 states, Washington, D.C., and Puerto Rico have private school choice programs. Twenty-one states offer tax-credit programs for parents. And 45 states plus Washington, D.C., permit public charter schools.
“Governors are responding to the evidence that for millions of children, school choice is a powerful first step on the ladder to success,” said Rick Boucher, former U.S. Representative from Virginia, and Protect The 1st Senior Policy Advisor. “It is in the finest tradition of our party to provide quality education for American children across all zip codes. I am glad to see my fellow Democrats take up the mantle.”
Perhaps you’ve never heard of the U.S. Maritime Administration (MARAD), an agency of the U.S. Department of Transportation. You might not be interested in MARAD, but MARAD might be interested in you. Let us hope that MARAD does not have reason to want to put you to death.
Harry Byrd Wilt of The Dispatch (paywalled, but the Cato Institute has a good synopsis) revealed that in March 2020 a committee of the maritime shipping panel reacted to the opposition of two libertarian think tanks, the Cato Institute and the Mercatus Center, to the Jones Act – a 1920 law governing shipping. The Jones Act requires the use of U.S. flagged vessels for the transport of items originating at a U.S. port and bound for another U.S. port. Critics say the law inflates the shipping costs for intrastate traffic.
And what did MARAD propose as a response to these criticisms?
“Charge all past and present members of the Cato and Mercatus Institutes with treason.”
Treason, of course, is punishable by long prison sentences and even death. But why put all past and current members of the Cato Institute and Mercatus Center to death for criticizing the Jones Act when we could, with equal justice, put them to death for their positions on “zoning land use planning” and for writing papers with titles like “Improving the Regulatory Process through Regulatory Budgeting”?
On the surface, this is a silly story. But it contains within it a very serious one. One of the long-standing civic norms that has gone by the wayside in recent years is restraint in the use of the word “treason.” Politicians of both parties and of all ideological stripes now freely accuse one of another of being traitors. This is more dangerous than it seems, because in much of the world, loose standards for treason are a way to imprison and sometimes judicially murder critics of the government. From Iran, to China, to Russia, critics of the government are silenced by painting them as acting at the behest of some foreign (usually American) interests.
It is discouraging to see the same impulse emerging here.
Fortunately, the American Founders were alert to the danger that accusations of treason pose to free speech and the free exchange of ideas. In Article III, Section 3, of the U.S. Constitution, they set a very high bar for convicting an American of treason. Treason consists of a citizen who is guilty of “only in levying War against them [the United States], or in adhering to their Enemies, giving them Aid and Comfort.” Note the use of the word “only.” In addition, the guilty person must either confess or have two witnesses testify against him or her in open court. Furthermore, the Constitution holds that a treasonous person’s guilt cannot be a reason to punish his or her family.
The Constitution is our guardrail against transforming rhetoric about treason into prosecutions. But we cannot rely on that document to shape our norms and political culture. Friedrich Hayek, the Nobel-Prize winning economist and for decades a leading light at the Cato Institute said that “to choose one’s government is not necessarily to secure freedom.” So much free talk about treason, both on the left and the right, betrays a growing desire to use force to silence the other side.
Eugene Volokh Represents Protect The 1st
Eugene Volokh, famed legal scholar and professor of law at UCLA, appeared before the judges of the D.C. Court of Appeals in Mashaud v. Boone. The result (go to 50:50 mark) is 26 minutes of rich discussion about the First Amendment and its limits.
The court’s en banc hearing examines the District of Columbia anti-stalking statute that makes it a crime to (among other things) “directly or indirectly … in person or by any means, on two or more occasions” communicate “about another individual” where the speaker “should have known” that communications would cause “significant mental suffering or distress.”
Judge Catherine Friend Easterly noted that this provision could apply to “every high school student in the District of Columbia,” to journalists and even to the court itself, since the court’s opinions often publicize unpleasant facts or allegations, thus causing significant emotional distress.
The facts of Mashaud are indeed emotional. A distraught husband learned that his wife, who worked at a firm as an intern, had an affair with a superior. The husband informed the company’s HR department about the extramarital affair, made posts on Facebook, and emailed the superior’s colleagues, family, and friends about it.
Volokh, Protect The 1st Senior Legal Advisor, argued that to avoid “overbreadth” and “vagueness” the court should limit the law to speech that fits within First Amendment exceptions long recognized by courts – such as fighting words, obscenity, threats, and fraud. To this he might also add narrow categories of highly sensitive personal information, such as Social Security numbers or where one’s children go to school.
Volokh cited Organization for a Better Austin v. Keefe, in which the Supreme Court reversed a lower court ruling on First Amendment grounds. In that case, the Court allowed civil rights activists to distribute leaflets with a realtor’s phone number and urged people to call him to complain about his practices. Given that precedent, how could something as vague and broad as the DC statute stand?
Judge Easterly asked Volokh why the court should recognize these exceptions instead of just sending the whole section of that law regarding speech back to the DC council to revise. Volokh, happy to welcome that idea, noted that if the court wasn’t going to void that section of the law, it should at least limit its provisions to these well-established exceptions.
Volokh’s section of the oral arguments ends with a fascinating discussion about the enduring strength of the First Amendment despite the fact, Volokh noted, that the amendment is itself vague.
Earlier this year, we reported how the Mustangs, the basketball team of the Oakville Academy of Huntsville, Alabama, were denied their chance to compete for the state title by the Alabama High School Athletic Association.
The rub was that they were scheduled to play on a Saturday, which the young men of this Seventh Day Adventist school could not do on their Sabbath. Other teams agreed to switch out their times with other teams, avoiding a problem. But the Alabama High School Athletic Association refused to approve the switch.
Our take at the time was that the treatment of these Seventh Day Adventists was “the exact opposite of reasonable accommodation.” Alabama Gov. Kay Ivey apparently agreed. She sent a letter to the Athletic Association asking if the media reports were true, who on the staff would not relent, and if the board of that organization was consulted.
Raynon Andrews, Mustangs senior captain, said holding true to his faith is more important to him than a state championship. “When God created the Earth,” he said, “on the seventh day he rested … I’m not going to play on that day no matter what, because it’s bigger than basketball.”
Under intense public pressure, the Athletic Association recently voted to change its policy to accommodate faith-based scheduling requests, which Gov. Ivey called “a win for religious liberty.” She also praised the Mustang men. “They stood strong in their faith and showed that good can come from a difficult situation.”
In America today, a special day of worship in many religions can fall on a Friday, a Saturday, or a Sunday. Conflicts are inevitable in a nation of many religions but still largely observing a Gregorian calendar with mainstream Christian holidays. The Athletic Association might still face a serious conundrum if only Saturday games should be available.
The change of policy in Alabama shows us, however, that if we are willing to bend a little, most everyone can be accommodated most of the time.
A recent Los Angeles Times editorial recounted how The Baltimore Sun won a Pulitzer Prize this year for unearthing a scandal that forced the resignation of Baltimore’s mayor. The editorial also told of The Boston Globe’s Pulitzer finalist series on how that city’s public schools fail to help even its best students succeed. And yet, The Times revealed, dogged shoe-leather reporting has not been enough to stem the tide of pay cuts, layoffs and furloughs with these and other newspapers. Across the nation, newsroom employment dropped 23 percent from 2008 to 2018.
What to do about the disintegration of local journalism in the face of the digital dominance of Google, Facebook, and Twitter, and the loss of classified advertisement to digital platforms?
The Times recommends federal and state support, stating this could be done in way that wouldn’t compromise the independence of local news. We respectfully disagree. Taking government money would create the appearance of being in the bag for the powers that be, whether that is true or not.
A better solution is emerging – of all places – in Washington, D.C. The full Senate will soon consider a bill sponsored by Sen. Amy Klobuchar (D-MN) that recently moved out of the Senate Judiciary Committee with strong bipartisan support from Sens. John Kennedy (R-LA) and Ted Cruz (R-TX). The Journalism Competition Preservation Act would grant news organizations with fewer than 1,500 full-time employees and non-network news broadcasters a narrow exemption from antitrust law to collectively negotiate payment for their content.
On the other side of the table would be companies that have at least 50 million U.S.-based users or subscribers or market cap greater than $550 billion. Translation – Google, Facebook, and Twitter.
Sen. Cruz had blown up an earlier version of this bill, which secured an agreement from Sen. Klobuchar that the bill would not extend antitrust protection to discussions of content moderation and censorship. That won him over and launched the bill with Republican support.
The bill as it exists now makes great sense. One reason local journalism is ailing is that Big Social Media has been displaying the fruits of local investigative reporting and writing for free. Journalists should be allowed to ask these companies to pony up for the use of their content.
That is one way to create a revenue stream for local journalism that won’t make the news dependent on handouts from government or grants from people and foundations with agendas.
“The Journalism Competition and Preservation Act is a needed correction to the free use of local news by digital giants,” said Rick Boucher, former U.S. Representative from Virginia, and Protect The 1st Senior Policy Advisor. “We wholeheartedly endorse it to protect the role of local journalists in exploring local issues and holding government accountable.”
As Republicans and Democrats square off for the final weeks of this midterm election, we should take a moment to recognize that bipartisan cooperation can still work in favor of good policies, including protections of free speech and the free exercise of religion.
President Biden’s recent signature of a bill to extent the United States Commission on International Religious Freedom, a bipartisan commission that monitors and reports on the treatment of religious groups around the world, demonstrates our country’s continued commitment to freedom of religion. The USCIRF has no lack of persecuted groups to track – Yazidis, Baha’is, and Christians in the Middle East, Jehovah’s witnesses in Russia, Rohingya in Burma, and Christians in Nigeria.
Congratulations for pushing the reauthorization of this body goes to a bipartisan group of supporters – Sens. James Lankford, Marco Rubio, Bob Menendez, Jim Risch, Dick Durbin, and Chris Coons.
It is not lost on us, however, that while funding for international tracking of religious persecution was being discussed over the summer in the U.S. Senate, writer Salman Rushdie almost died from a vicious attack in Chautauqua, New York. We are reminded that attacks on belief can strike here, too, as well.
Conservatives are hopping mad about the perception that social media companies have trigger fingers when it comes to removing posts with right-leaning political content. Liberals loathe “hate speech” online and the posting of material they deem to be a threat to public safety, and want more of it removed. On the question of content moderation, lawmakers and federal courts are now tangled up like players in a game of Twister.
In the exercise of free speech, the First Amendment has long recognized the right of social media companies to make their own content moderation decisions without government interference. That settled principle is now being contested. A split in decisions of two federal circuit courts of appeal may lead to the U.S. Supreme Court taking the historic step of defining rules for how Facebook, Twitter, and other social platforms must moderate the stream of millions of daily posts.
Such a review became likely after Florida’s Attorney General filed a petition last week asking the Supreme Court to review a decision by the 11th Circuit Court of Appeals that overturned a Florida law prohibiting social media platforms from removing the posts of political candidates. The Republican AG was encouraged to make this move after the 5th Circuit Court of Appeals approved a Texas social media law that bars companies from removing posts based on a poster’s political ideology.
The 5th Circuit’s decision reverses years of First Amendment law by holding that the government can restrict private speech (in this case, forcing social media companies to carry content it deems offensive) without violating the First Amendment.
Those arguing for a greater role for government in content moderation maintain that a handful of social media companies have a dominant role in the national online debate. If Amazon, for instance, decides to delist a book, that author loses access to the most robust sales platform for their speech. It Twitter removes a politician’s posts, it has meaningfully hindered that politician’s ability to respond in the national debate in real time.
Countering those arguments is the reality that alternatives to these platforms do exist. If someone no longer enjoys access to Twitter, there's always Facebook or other platforms upon which views can be disseminated. This includes the opportunity for prominent politicians to start their own social media services where they have total control over the content on their site.
Moreover, the dominance of these media platforms does not make them common carriers like providers of phone or email services. For example, unlike the phone company, social media companies under Section 230 of the Communications Decency Act are empowered to restrict access to material that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” The words “harassing” and “objectionable” provide a lot of room for interpretation.
Section 230 gives social media platforms of all sizes liability protection against lawsuits over items posted by users. Without this protection, thousands of commercial and non-profit sites would fold instantly, killing the business model of much of the internet.
Social media companies warn, not without reason, that to be forced to post speech that goes against their written policies would not only constitute mandatory speech (violating the First Amendment), but it would also violate their ability to keep their sites relatively clean. It could force U.S. social media to run Russian propaganda on Ukraine, neo-Nazi posts denying the Holocaust, and posts encouraging children to take up risky behaviors.
What does all this add up to? One thing is certain – the status quo has broken down.
“We are in a new arena, a very extensive one, for speakers and for those who would moderate their speech. None of the precedents fit seamlessly,” wrote Judge Leslie Southwick, who dissented from the 5th Circuit’s opinion. Supreme Court Justice Samuel Alito has stated that the issue “will plainly merit this court’s review.”
As much as we might criticize how social media companies moderate their content, they have an absolute right under the First Amendment to manage the speech under their purview. So how can we strike a new and better balance?
As the law evolves, we urge jurists and lawmakers to give deeper consideration to the principles behind the Platform Accountability and Consumer Transparency Act, sponsored by Sens. Brian Schatz (D-HI) and John Thune (R-SD). The PACT Act would require social media companies to publish and adhere to clear standards for their content moderation decisions in exchange for receiving the liability protections of Section 230. It would also give users due process, allowing them to appeal for quick resolution of complaints.
There are more than 100 state bills currently pending that are along the lines of the Texas and Florida legislation. Instead of opening the door to the potential for government to mandate content moderation standards, we hope that the Supreme Court will reaffirm longstanding First Amendment law by allowing social media sites to make their own content moderation decisions. At the same time, however, Congress should take a harder look at modifying the terms of liability protection in exchange for clearer standards in how content is moderated.
The one set of principles that must not be modified is the First Amendment.
A federal district court this month protected the right of physicians in California to opt out of participating in assisted suicide if they have religious or ethical objections to the practice. This ruling highlights the need for responses to a troubling trend by state governments from California to Maine to steamroll the First Amendment’s guarantee of the free exercise of religion.
Gov. Gavin Newsom last year had updated California’s six-year-old euthanasia law to reduce patients’ wait times and streamline the documentation of their cases under the End of Life Option Act. While the law had a clause that doctors “shall not be required to participate,” physicians were still getting caught up in a requirement for them to “document” a patients’ request to die, and to “educate” them in the procedure and its prescribed pharmaceuticals.
The court sided with the Christian Medical and Dental Association by issuing a preliminary injunction preventing California from forcing physicians to participate in these aspects of assisted suicide. The court based its ruling on the provision’s likely violation of physicians’ First Amendment rights.
“Our clients seek to live out their faith in their medical practice, and that includes valuing every human life entrusted to their care. Participating in physician-assisted suicide very clearly would violate their consciences,” said Kevin Theriot, senior counsel of the Alliance Defending Freedom, who is representing CMDA.
This preliminary injunction should become a permanent rule. First Amendment advocates must continue to be wary of rising anti-religious attitudes in some states’ policies.