NetChoice v. Texas, FloridaWhen the U.S. Supreme Court put challenges to Florida and Texas laws regulating social media content moderation on the docket, it seemed assured that this would be one of the yeastiest cases in recent memory. The Supreme Court’s majority opinion came out Monday morning. At first glance, the yeast did not rise after all. These cases were remanded back to the appellate courts for a more thorough review.
But a closer look at the opinion shows the Court offering close guidance to the appellate court, with serious rebukes of the Texas law. Anticipation was high for a more robust decision. The Court was to resolve a split between the Fifth Circuit, which upheld the Texas law prohibiting viewpoint discrimination by large social media platforms, while the Eleventh Circuit upheld the injunction against a Florida law regulating the deplatforming of political candidates. The Court’s ruling was expected to resolve once and for all the hot-button issue of whether Facebook and other major social media platforms can depost and deplatform. Instead, the Court found fault with the scope and precision of both the Fifth and the Eleventh Circuit opinions, vacating both of them. The majority opinion, authored by Justice Elena Kagan, found that the lower courts failed to consider the extent to which their ruling would affect social media services other than Facebook’s News feed, including entirely different digital animals, such as direct messages. The Supreme Court criticized the lower courts for not asking how each permutation of social media would be impacted by the Texas and Florida laws. Overall, the Supreme Court is telling the Fifth and Eleventh to drill down and spell out a more precise doctrine that will be a durable guide for First Amendment jurisprudence in social media content moderation. But today’s opinion also contained ringing calls for stronger enforcement of First Amendment principles. The Court explicitly rebuked the Fifth Circuit for approval of the Texas law, “whose decision rested on a serious misunderstanding of the First Amendment precedent and principle.” It pointed to a precedent, Miami Herald Publishing Co. v. Tornillo, in which the Court held that a newspaper could not be forced to run a political candidate’s reply to critical coverage. The opinion is rife with verbal minefields that will likely doom the efforts of Texas and Florida to enforce their content moderation laws. For example: “But this Court has many times held, in many contexts, that it is no job for government to decide what counts as the right balance of private expression – to ‘un-bias’ what it thinks is biased, rather than to leave such judgments to speakers and their audiences.” The Court delved into the reality of content moderation, noting that the “prioritization of content” selected by algorithms from among billions of posts and videos in a customized news feed necessarily involves judgment. An approach without standards would turn any social media site into a spewing firehose of disorganized mush. The Court issued a brutal account of the Texas law, which prohibits blocking posts “based on viewpoint.” The Court wrote: “But if the Texas law is enforced, the platforms could not – as they in fact do now – disfavor posts because they:
So what appeared on the surface to be a punt is really the Court’s call for a more fleshed out doctrine that respects the rights of private entities to manage their content without government interference. For a remand, this opinion is surprisingly strong – and strong in protection of the First Amendment. Murthy v. Surgeon General: Supreme Court Punts on Social Media Censorship – Alito Pens Fiery Dissent6/26/2024
The expected landmark, decision-of-the-century, Supreme Court opinion on government interaction with social media content moderation and possible official censorship of Americans’ speech ended today not with a bang, not even with a whimper, but with a shrug.
The Justices ruled 6-3 in Murthy v. Missouri to overturn a lower court’s decision that found that the federal government likely violated the First Amendment rights of Missouri, Louisiana, and five individuals whose views were targeted by the government for expressing “misinformation.” The Court’s reasoning, long story short, is that the two states and five individuals lacked Article III standing to bring this suit. The court denied that the individuals could identify traceable past injuries to their speech rights. In short, a case that could have defined the limits of government involvement in speech for the central media of our time was deflected by the court largely on procedural grounds. Justice Samuel Alito, writing a dissent signed by Justices Clarence Thomas and Neil Gorsuch, implicitly criticized this punt, calling Murthy v. Surgeon General “one of the most important free speech cases to reach this Court in years.” He compared the Court’s stance in this case to the recent National Rifle Association v. Vullo, an opinion that boldly protected private speech from government coercion. The dissenters disagreed with the Court on one of the plaintiffs’ standing, finding that Jill Hines, a healthcare activist whose opinions on Covid-19 were blotted out at the request of the government, most definitely had standing to sue. Alito wrote: “If a President dislikes a particular newspaper, he (fortunately) lacks the ability to put the paper out of business. But for Facebook and many other social media platforms, the situation is fundamentally different. They are critically dependent on the protections provided by §230 of the Communications Decency Act of 1996 … For these and other reasons, internet platforms have a powerful incentive to please important federal officials …” We have long argued that when the government wants to weigh in on “misinformation” (and “disinformation” from malicious governments), it must do so publicly. Secret communications from the government to the platforms to take down one post or another is inherently offensive to the Constitution and likely to lead us to a very un-American place. Let us hope that the Court selects a case in which it accepts the standing of the plaintiffs in order to give the government, and our society, a rule to live by. Fourth Circuit Forces Parents to Decide Between Religious Values or a Free Public Education6/26/2024
Mahmoud v. McKnight A recent ruling by the Fourth Circuit Court of Appeals has struck a severe blow to the cause of parental rights and religious liberty. This contentious case revolved around the Montgomery County Board of Education's controversial decision to deny opt-out requests for certain LGBTQ+ inclusive texts used in K-5 classrooms.
As we’ve reported, parents argued that this policy infringed upon their First Amendment rights to shape their children's education regarding sexuality and gender, contending that it forced them into an untenable position: compromise their deeply held religious beliefs or withdraw their children from public education altogether. The Fourth Circuit Court of Appeals affirmed the district court's decision, denying the parents' request for a preliminary injunction. The court concluded that the parents failed to demonstrate a substantial burden on their religious exercise, determining that exposure to the inclusive texts did not amount to a violation of their religious rights. The ruling emphasized that the school's curriculum did not compel students to affirm or renounce any beliefs, but merely exposed them to diverse perspectives. Judge A. Marvin Quattlebaum issued a strong dissent in this case that should be required reading for anyone in need of a better understanding of the foundational importance of religious liberty. Judge Quattlebaum criticizes the majority for not recognizing the burden placed on parents' religious rights. He asserts that “the board's decision to deny religious opt-outs burdened these parents' right to exercise their religion and direct the religious upbringing of their children by putting them to the choice of either compromising their religious beliefs or foregoing a public education for their children.” A key point in Judge Quattlebaum's dissent is his emphasis on the non-neutrality and lack of general applicability of the board's actions. He argues that the board's decision was not neutral because it selectively imposed a burden on religious practices while accommodating other types of opt-outs, such as for Halloween or Valentine's Day celebrations. He asserts that the board's actions were discriminatory against religious beliefs, which is contrary to the First Amendment's protections. The judge writes: “The policy was neither neutral nor generally applicable because it invited the government ‘to decide which reasons for not complying with the policy are worthy of solicitude’ in its sole discretion.” Judge Quattlebaum also highlights that the parents were not attempting to ban the books but merely sought the ability to opt out. He points out that the school’s guidelines previously allowed for reasonable accommodations for religious beliefs, and the sudden reversal without clear justification exacerbates the burden on religious parents. He finds it problematic that the board changed its policy to no longer permit notice and opt-out options, a move he describes as an unexplained “about-face” that failed to consider the substantial impact on religious families. While the board aims to foster an inclusive environment, Judge Quattlebaum argues that this goal should not come at the expense of fundamental religious rights. As he says: “The board’s refusal to grant the parents’ requests for religious opt-outs to instruction with the books the board required be used to promote diversity and inclusivity to the LGBTQ+ community forces the parents to make a choice – either adhere to their faith or receive a free public education for their children. They cannot do both.” Judge Quattlebaum's dissent stands as a powerful defense of the fundamental right of parents to direct their children's education according to their beliefs. There are tens of thousands of after-hours student groups in high schools across the country – from those celebrating film, music, chess, or drama to those of a more political or religious nature. At Noblesville High School in Indiana, for example, you could join the Young Democrats, the Young Republicans, the Fellowship for Christian Athletes, or the Gender and Sexuality Alliance. The one group students can no longer join is the Noblesville Students for Life (NSFL).
In August 2021 a freshman at Noblesville received initial approval to start a Students for Life chapter, which attracted 30 student sign-ups at the school’s fall activities fair. The following month, the student organizer prepared a poster advertising a club meeting, which featured a photograph of students outside the U.S. Supreme Court holding up life-affirming protest signs. Then Noblesville’s principal “derecognized” the group, calling the poster “inappropriate” and too “political.” Noblesville, apparently, has a policy allowing administrators broad authority to issue prior restraints on student speech, barring “anything political in nature” as well as specific “political stance[s].” What constitutes “political” is entirely undefined and left up the whims of the individual administrator. In December 2021, in coordination with Charitable Allies, the group’s student organizer brought suit against the school district, alleging First Amendment retaliation. The suit also claimed violations of the Equal Access Act, which prohibits discrimination against the political content of student groups meeting outside of class. School administrators have every right to prevent students from engaging in disruptive conduct, but students have every right to express their First Amendment-protected viewpoints after hours. Schools are limited public fora, which may issue viewpoint-neutral restrictions on groups. What they should not do is bar targeted political speech and then make ad hoc, biased determinations of what is unacceptable on a case-by-case basis. How the school found NSFL overly political when the Young Democrats and Young Republicans are permitted to meet and advertise their meetings is unfathomable. The administrators, of course, now claim they derecognized the club because of the student’s behavior, an argument contradicted by the evidence and the many contextual clues pointed out by the plaintiffs. It seems pretty clear that the principal simply doesn’t want the pro-life viewpoint represented at Noblesville High. Ultimately, a District Court bought the school’s argument. Now the student is appealing to the Seventh Circuit, and this case is receiving legal backing from the Alliance Defending Freedom. We hope that the court will recognize that rules must be neutral and that students don’t relinquish their First Amendment rights at the schoolhouse door – no matter how much some administrators might wish it were so. Facebook’s independent oversight board is now considering whether to recommend labeling the phrase “from the river to the sea” as hate speech. The slogan – often considered antisemitic – serves as a pro-Palestine rallying cry that calls for the creation of a unified Palestinian state throughout what is currently Israeli territory. What would happen to the millions of people who live in Israel today is, post Oct. 7th, the crux of the controversy.
However one feels about that phrase and its prominent, often uninformed, use by courageous keyboard warriors, it is appropriate that any debate about censoring it takes place in the open. This is particularly important for what is still a central social media platform, Facebook. Like X/Twitter, Instagram, and a few other media platforms, Facebook is an important venue for robust public debate. And while these private companies have every First Amendment right to moderate speech on their platforms on their own terms, because of their size and centrality we believe they nonetheless ought to be as open as possible about how they approach content moderation. Like all prominent thought leaders – individuals and companies alike – they can play an important role in reinforcing societal norms on matters of free expression, even if not legally obliged to do so. Still, at the end of the day, it’s their call. And make a call they did. According to the company, Meta analyzed numerous instances of posts using the phrase “from the river to the sea,” finding that they did not violate its policies against “Violence and Incitement,” “Hate Speech” or “Dangerous Organizations and Individuals.” This in contrast with the U.S. House of Representatives, which recently passed a resolution last month, 377-1, condemning the slogan as antisemitic. The House has a right to pass resolutions. But the opinions and sentiments of the government should not inform, and constitutionally cannot control, what we see on our news feeds. Already, we see too many instances of federal influence over social media platforms’ internal decisions, apparently done behind the scenes and always backed by an implied and sometimes expressed threat of coercion for highly regulated tech companies. Such government “censorship by surrogate” is inappropriate and inconsistent with the First Amendment. That’s why Protect the 1st opposes laws in Florida and Texas that would regulate how social media platforms police their own content. It’s simply not the place of government to use its power and influence to pressure private companies to remove posts or tell them how to make editorial choices. In this same spirit, we urge any decisions by Facebook to remove content to be done with full transparency, especially when that content is of a political nature. No law requires this, nor should it, but transparency is a sensible approach that provides clarity to consumers and reformers about societal norms regarding free expression and association. Hats off to Meta for allowing its advisory board to review and to potentially overrule its decision. Sometimes it seems as if the left and the right are in a contest to see which side can be the most illiberal. With each polarity defining the other as a “threat to democracy,” restrictions on political opponents are rationalized away as a necessary act of public hygiene. Recent events in Europe, from Budapest to Brussels, should serve as a warning to Americans who want to use police power to make their opponents shut up.
In December, the U.S. State Department warned that a new Sovereign Defense Authority law in Hungary “can be used to intimidate and punish” Hungarians who disagree with Prime Minister Viktor Orbán and his ruling party. No less an observer than David Pressman, the U.S. ambassador in Budapest, said: “This new state body has unfettered powers to interrogate Hungarians, demand their private documents and utilize the services of Hungary’s intelligence apparatus – all without any judicial oversight or judicial recourse for its targets.” So how are left-leaning critics responding to the rise of the Europe right? By also using intimidation to shut down speech. In Brussels, police in April acted on orders from local authorities by forcibly shutting down a National Conservatism conference. This event, which was to host discussions among European conservative figures, including Prime Minister Orbán and former Brexit champion Nigel Farage, was terminated hours after it began. The cited reasons for the closure included concerns over potential public disorder linked to planned protests. Such a policy, of course, gives protesters pre-emptive veto power over controversial speech, backed by the police. The conference had earlier faced official meddling to prevent the selection of a venue. Initial plans to host the event at the Concert Noble were thwarted due to pressure from the Socialist mayor of Brussels. Subsequently, a booking at the Sofitel hotel in Etterbeek was canceled after local activists alerted that city’s mayor, who pressured the hotel to withdraw its support. Finally, the organizers settled on the Claridge Hotel, only to encounter further challenges including threats to the venue’s owner and logistical disruptions orchestrated by local authorities, culminating in the police blockade that effectively stifled the conference. The good news is public response to the shutdown of the National Conservatism conference was vocal and critical. Belgian Prime Minister Alexander De Croo voiced a strong objection, stating that such bans on political meetings were unequivocally unconstitutional. British Prime Minister Rishi Sunak also responded that canceling events and de-platforming speakers is damaging to democracy. The closure in Brussels is particularly ironic given the city's status as the capital of the European Union, a supposed bastion of liberal democratic values. The forced closure, threats to cut electricity, and the barring of speakers are tactics that betray a fundamental disrespect for democratic norms. What transpired was a scenario more befitting a "tinpot dictatorship," as Frank Füredi, one of the event's organizers, put it. Speech crackdowns seem to be a European disease. This aggressive move to silence a peaceful assembly under the guise of preventing disorder echoes the same illiberal impulses driving Scotland's Hate Crime and Public Order Act. That law broadly criminalizes speech under the expansive banner of “stirring up hatred.” Americans would do well to look to Europe to see what cancellation and criminalization of speech looks like. As the cities and campuses of the United States face what promises to be a hot summer of protest over Gaza, Americans need to keep a relentless focus on protecting speech – even speech one regards as heinous – while preventing tent city invasions, vandalism, and violence that compromises the rights of others. Can a government regulator threaten adverse consequences for banks or financial services firms that do business with a controversial advocacy group like the National Rifle Association? Can FBI agents privately jawbone social media platforms to encourage the removal of a post the government regards as “disinformation”?
As the U.S. Supreme Court considers these questions in NRA v. Vullo and Murthy v. Missouri, a FedSoc Film explores the boundary between a government that informs and one that uses public resources for propaganda or to coerce private speech. (“Nice social media company you have there. Shame if anything happened to it.”) Posted next to this film, Jawboned, on the Federalist Society website is Protect The 1st’s own Erik Jaffe, who in a podcast explores the extent to which the government, using public monies and resources, should be allowed to speak, if at all, on matters of opinion. Is the expenditure of tax dollars to push a favored government viewpoint a violation of the First Amendment rights of Americans who disagree with that view? Jaffe thinks so and argues why this is the logical conclusion of decades of First Amendment jurisprudence. Furthermore, when the government tells a private entity subject to its power or control what the government thinks it ought to be saying (or not saying), Jaffe says, “there’s always an implied ‘or else.’” And even the government’s own public speech often has coercive consequences. As if to underscore this point, Jawboned recounts the story of how the federal Office of Price Administration during World War Two lacked the authority to order companies to reduce prices but did threaten to publicly label them and their executives as “unpatriotic.” That was a very real threat in wartime. Imagine the “or else” sway government has today over highly regulated firms like X, Meta, or Google. In short, Jaffe argues that a line is crossed when “the power and authority of the government” is invoked to use “the power of office to coerce people.” But it also crosses the line when the government uses its resources (funded by compelled taxes and other fees) to amplify its own viewpoint on questions being debated by the public. Such compelled support for viewpoint selective speech violates the freedom of speech of the public in the same way compelled support for private expressive groups and viewpoints does. Click here to listen to more of Erik Jaffe’s thoughts on the limits of government speech and to watch Jawboned. Now that the bill to force the sale of TikTok has passed the U.S. Senate, and its signature by President Biden is certain, Protect The 1st as a First Amendment organization must speak out.
We believe the bill – soon-to-be-law – is reasonable. Many of our fellow civil liberties peers make the valid point that if the government can silence one social media platform, it can close any media outlet, newspaper, website, or TV channel. We would oppose any such move with forceful public protest. But this is a compelled divestiture, which seems like the least restrictive way to protect the speech rights of TikTok’s American users while protecting their data. TikTok’s content is not the issue. The issue is one of ownership and operations. The fundamental problem, of course, and the problem that gave rise to this legislation, is that TikTok is obligated by Chinese law to share all its data with the People’s Liberation Army, the military wing of the Chinese Communist Party. Under President Xi Jinping, Beijing has crushed democracy in Hong Kong, and silenced a newspaper – Apple Daily – while imprisoning its publisher, Jimmy Lai. Xi’s regime also frequently expresses malevolent intentions toward the United States. It arms Russia’s imperialist war to conquer Ukraine, a democracy. And it frequently advertises its own imperialist plan to conquer Taiwan, another democracy. It doesn’t make sense to treat a publication utterly beholden to a regime that shutters newspapers, imprisons publishers, and supports wars on democracies as if it were just another social media platform. Caution is warranted. A crisis between the United States and China is growing increasingly likely. TikTok gives China the means to dig into the private data of 150 million Americans, including families with parents working in the U.S. military, government, and business. To mandate a sale to an owner outside of China would begin the protection of Americans’ data, while allowing TikTok to remain the popular and vivid platform that people enjoy. For more background on this issue, check out this recent PT1st post. The U.S. Supreme Court heard oral arguments Monday in Murthy v. Missouri, a case addressing the government's covert efforts to influence social media content moderation during the Covid-19 pandemic. Under pressure from federal and state actors, social media companies reportedly engaged in widespread censorship of disfavored opinions, including those of medical professionals commenting within their areas of expertise.
The case arose when Missouri and Louisiana filed suit against the federal government arguing that the Biden Administration pressured social media companies to censor certain views. In reply, the government responded that it only requested, not pressured or demanded, that social media companies comply. Brian Fletcher, U.S. Principal Deputy Solicitor General, told the Court it should “reaffirm that government speech crosses the line into coercion only if, viewed objectively, it conveys a threat of adverse government action.” This argument seems reasonable, but a call from a federal agency or the White House is not just any request. When one is pulled over by a police officer, even if the conversation is nothing but a cordial reminder to get a car inspected, the interaction is not voluntarily. Social media companies are large players, and an interaction with federal officials is enough to whip up fears of investigations, regulations, or lawsuits. In Murthy v. Missouri, it just so happens that the calls from federal officials were not just mere requests. According to Benjamin Aguiñaga, Louisiana’s Solicitor General, “as the Fifth Circuit put it, the record reveals unrelenting pressure by the government to coerce social media platforms to suppress the speech of millions of Americans. The District Court which analyzed this record for a year, described it as arguably the most massive attack against free speech in American history, including the censorship of renowned scientists opining in their areas of expertise.” At the heart of Murthy v. Missouri lies a fundamental question: How far can the government go in influencing social media's handling of public health misinformation without infringing on free speech? Public health is a valid interest of the government, but that can never serve as a pretense to crush our fundamental rights. When pressure to moderate speech is exerted behind the scenes – as it was by 80 FBI agents secretly advising platforms what to remove – that can only be called censorship. Transparency is the missing link in the government's current approach. Publicly contesting misinformation, rather than quietly directing social media platforms to act, respects both the public's intelligence and the principle of free expression. The government's role should be clear and open, fostering an environment where informed decisions are made in the public arena. Perhaps the government should take a page from Ben Franklin’s book (H/T Jeff Neal): “when Men differ in Opinion, both Sides ought equally to have the Advantage of being heard by the Publick; and that when Truth and Error have fair Play, the former is always an overmatch for the latter …” Protect The 1st looks forward to further developments in this case. |
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