 Earlier this summer, we wrote about an opinion and order issued by Judge Terry Doughty of the U.S. District Court for the Western District of Louisiana in the case of Missouri v. Biden. The controversy stemmed from accusations of government censorship and viewpoint discrimination against speech – under both the Biden and the Trump administrations – most notably social media posts related to COVID-19.
The plaintiffs argued that the government pressured social media platforms to such a degree that it interfered with the First Amendment right of the platforms to make their own content moderation decisions. Judge Doughty agreed. The district judge’s controversial order enjoined the White House and a broad range of government agencies from engaging in a wide array of communications with social media platforms, with 10 separate provisions laying out the parameters. The administration appealed to the Fifth Circuit, which stayed the injunction. Now, a three-judge panel from the Fifth Circuit has weighed in. Broadly, they side with Judge Doughty’s finding that the White House, the Surgeon General’s office, the FBI, and the CDC either coerced or significantly encouraged social media platforms to moderate protected speech. At the same time, the court significantly reduced the scope of the injunction order, striking nine out of the 10 prohibitions for vagueness, overbreadth, or redundancy. Further, the court found that a range of enjoined parties – including former NIH Infectious Disease Director Anthony Fauci and the State Department – did not engage in impermissible conduct. What we are now left with is a much narrower new injunction with a single prohibition reading as follows: “Defendants, and their employees and agents, shall take no actions, formal or informal, directly, or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies’ decision-making processes.” Unsurprisingly, the Biden administration is appealing the ruling – this time to the highest court in the land. The U.S. Supreme Court granted the administration’s request for an administrative stay of the Fifth Circuit injunction as the administration prepares to file a petition for certiorari by Oct. 13 (which would allow the Supreme Court to hear the controversy this term). While it is at least reasonably likely that the Court will agree to hear this case, we stand by our prior position on the issue – that questions surrounding the limits of government interaction with social media companies merit a vigorous, informed public debate. We again urge Congress to hold bipartisan hearings to examine among other questions whether social media platforms find the communications with government to be unwelcome pressure or whether they find the information provided to be helpful. In order to combat a tide of Covid misinformation, in 2021 the White House began closely monitoring social media companies’ health related postings. The sense of urgency felt by federal officials was soon reflected in sometimes hyperbolic communications to the public that reflected the deep concern with a flood of harmful misinformation that they believed was getting in the way of the provision of accurate Covid related information to the public. In July 2021, at a White House presser, the Surgeon General accused social media companies of “enabl[ing] misinformation to poison” the public. Soon after, President Biden responded with his own comment about social media “killing people” and the White House publicly discussed legal options. Social media companies apparently understood the message, changing internal policies and making new efforts to deplatform users like the “disinfo dozen,” a list of influencers deemed problematic by the White House. Still, the administration continued its public messaging, with the White House Press Secretary at one point expressing explicit support for Section 230 reforms so the companies can be held accountable for “the harms they cause.” Of course, the government must be able to communicate freely to the public and with private companies, especially on matters of public health and safety. The parties released from the District Court’s injunction likely exercised that right appropriately. There is danger, however, when the government works with social media silently to remove content, with no public transparency, especially if there is a hint (or more than a hint) of coercion. What is that danger, exactly? Reasonable people agree there are public health messages that are irresponsible and harmful. But secret censorship, no matter the justification, is the royal road to a censored society. Protect The 1st hopes that congressional hearings and a high Court review will bring clarity on the question of government communications with social media, now America’s main public square.  In 2000, the U.S. Supreme Court in Hill v. Colorado found that restrictions on speech-related conduct outside abortion clinics was content-neutral and thus subject only to intermediate scrutiny, a lesser degree of protection. Since that time, lower courts have upheld similar state and local restrictions on speech based on this binding precedent – and despite a raft of subsequent cases that call Hill’s reasoning into question.
The recent case of Vitagliano v. County of Westchester is a perfect exemple of these ongoing challenges. It is now up for potential review before the Court. It offers a good opportunity to overturn Hill and the unconstitutional legal trend it originated. Here are the facts of the case: Debra Vitagliano is a devout Catholic whose mission is to offer compassionate counsel to women seeking abortions at the last minute, when such counsel might be most effective. Westchester County, like many jurisdictions before it, passed a law establishing a 100-foot buffer zone around reproductive health care facilities (encompassing public sidewalks), prohibiting anyone looking to offer such assistance from getting within eight feet of another person unless they receive explicit consent. Critics of the Hill decision, including 14 states that recently filed an amicus brief, argue that Hill misapplied the legal test for determining whether a speech restriction is content-based. Specifically, they argue that the Court erroneously relied on Colorado’s references to “access” and “privacy” as justification for the statute’s purported neutrality. Since 2000, the Supreme Court has conspicuously refrained from drawing on Hill’s reasoning, and in Dobbs v. Jackson went so far as to call it a distortion of First Amendment doctrines. Whenever the government passes a speech restriction that is obviously content-based (as it is here) it must be looked at through the lens of strict scrutiny. It must be narrowly tailored to serve a compelling government interest. This means a government cannot simply abridge its citizens’ First Amendment rights because of some particular policy preference – for example, in another context, the idea that protest should not be allowed outside military recruitment facilities because it discourages young people from enlisting. It’s clear that Hill was a policy decision, and while one may agree with its intent, it also opened the door to overstepping when it comes to restricting speech in public places. The sidewalk has long been held to be a public forum. In fact, it’s arguably the place where speech about contentious political issues most belongs. As the Supreme Court wrote in McCullen v. Coakley, sidewalk speech reflects the First Amendment’s goal to “preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.” Criminalizing certain speech on public sidewalks endangers that goal. And preventing Debra Vitagliano from engaging in peaceable, non-violent conversation amounts to the kind of overbreadth that seals the deal when it comes to a law’s unconstitutionality, particularly when laws already exist prohibiting assault, trespass, and blocking clinical access. Whatever your views on abortion, Hill was a bad decision that should be overturned. To quote First Amendment scholar and Harvard professor Lawrence Tribe, the case was “slam-dunk simple.” Its ruling: “slam-dunk wrong.”  In April, Protect The 1st reported on two pending cases before the Supreme Court, O’Connor-Ratcliff v. Garnier and Lindke v. Freed, addressing the question of what constitutes a public forum on Facebook. In both lawsuits, public officials blocked criticism from constituents on their social media sites; in both instances, the constituents sued.
Now, the U.S. Supreme Court is set to deliberate the urgent question: When does a personal account become public? This is the first time the Court will address the difference between public and private fora against the backdrop of the digital age. In our Protect The First Foundation amicus brief in O’Connor-Ratcliff, we write: “The state action question in this case implicates two vital First Amendment rights: that of citizens to access government fora, and that of public officials to control with whom and how they communicate when they speak in their private capacities. As this case demonstrates, those rights are in tension when it is not immediately apparent whether a government representative is operating a social media account in her public or private capacity.” The petitioners argue that they should be able to block constituents from their social media profiles, on which they discussed government business, as long as their actions aren’t affirmatively required as one of their government duties and they don’t explicitly invoke state authority. In short, they wish to summon their own First Amendment rights to silence their critics in a public forum. For many years now, Members of Congress have segregated their personal and public accounts. They are correct in doing so, and this situation shows why. The legal issue is at what point does a public official’s actions constitute “state action.” And here, the officials’ social media pages are draped in their status as public servants – even though they began as personal campaign pages. With great regularity, they post about official government business and use their accounts to facilitate their government duties. As such, they cannot then claim that when they operate those accounts they are private actors. Government officials, like everyone else, have First Amendment rights. But they cannot have their cake and eat it too by speaking with the authority of government while erasing the access of their critics to that speech. The fact is that we must – now – delineate the limits and boundaries of social media’s power in the context of public service. If you are a public official, you cannot – must not – be able to silence your critics in a public forum under the auspices of your own First Amendment rights. Sorry. Sometimes you just have to take the heat.  Should Salesforce.com be held liable as a participant in sex trafficking because it sold customer relationship management software to the now-defunct Backpage.com?
Such a ruling would run smack into Twitter v. Taamneh, in which the U.S. Supreme Court made it clear that despite the fact that ISIS terrorists used that popular social media platform to communicate, Twitter could not be held liable as an aider and abettor of terrorism. Holding Salesforce liable for Backpage’s misdeeds would also contradict rulings with similar principles from the 9th Circuit Court of Appeals and the DC Circuit Court of Appeals. These courts, writes Mike Masnick of TechDirt, found that it “would be ridiculous to hold out every service provider for liability just because a drug trafficking, sex trafficking, or terrorist organization used those tools to improve their reach.” But the Seventh Circuit Court of Appeals found otherwise. Backpage was a classified advertising site that was shuttered and began a long saga in the courts after being hit with 100 counts involving prostitution and sex trafficking in 2018. Salesforce, according to the Seventh Circuit, should have somehow known as early as 2013 that it was involved in sex trafficking by selling operational software to this client. Every decent person deplores sex trafficking, just as every decent person condemns terrorism. But it is bad logic and morally confused to extend liability for sex trafficking from bad actors to vendors – people lacking in investigative skills and precognitive ability to see how the law will treat a customer years later. There are clear First Amendment implications in conflating the speech and actions of a customer with those of a vendor. We agree with Masnick – “it would be nice if the Supreme Court told the 7th Circuit to knock it off.”  Jeff Kosseff, associate professor of cybersecurity law at the U.S. Naval Academy, titled his acclaimed book about Section 230, The Twenty-Six Words that Created the Internet. Those exact words:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. Kosseff did not exaggerate. This statute, part of the Communications Decency Act of 1996, protects platforms and websites from any liability contained in third-party posts. Section 230 not only protects Facebook or Twitter (now X) from being sued for libelous posts made by its users, it also protects myriad web-based businesses – from Angi (formerly Angie’s List), to Rate My Professors, to a thousand sites that run reviews of hotels, restaurants, and businesses of all sorts. Without Section 230, a wide swath of U.S. digital commerce would cease to exist overnight. And yet, Justice Clarence Thomas hit a nerve in 2021 when he mused in an opinion that the “right to cut off speech lies most powerfully in the hands of private digital platforms. The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions.” Such questions certainly seemed interesting to lawmakers in Florida and Texas. Texas passed a law that bars companies from removing posts based on a poster’s political ideology. This law was upheld last year by the Fifth Circuit. The Florida law, which would prohibit social media from removing the posts of political candidates, was stricken last year by the Eleventh Circuit. At the time, we wrote that: Cert bait doesn’t get more appealing than this. Consider: A split between federal circuits. Laws that would protect free expression in the marketplace of ideas while simultaneously curtailing the speech rights of unpopular companies. Two similar laws with differences governing the moderation of political speech. The petition for SCOTUS reviewing the Texas and Florida laws practically writes itself. The First Amendment is aimed only at the government. It protects the editorial decisions of social media companies while forbidding government control of speech. But being kicked off X, Facebook, Google, and Amazon would certainly feel like being censored. And there may well be First Amendment implications whenever federal agencies are secretly involved in content management decisions. But if Section 230 is overthrown, what will replace it? In the face of the current circuit split, legal principles get tangled up like fishing lines on a tourist boat. As Kosseff notes in Wired, Americans living under the Fifth Circuit may see drastic alteration of the regulation of internet companies. In the Eleventh Circuit, Section 230 prevails as it is. The resulting confusion is why it is likely the Supreme Court will have to take up a challenge from NetChoice, which represents tech companies. If the Court doesn’t cut this Gordian knot, we could wind up with a Red State internet and a Blue State internet. While the judiciary sorts out its thinking, Congress should act. Protect The 1st continues to press policymakers to look at principles similar to those of the bipartisan Platform Accountability and Consumer Transparency Act, which would require big social media companies to offer clear standards and due process for those who post in exchange for the liability protections of Section 230.  A New York Times op-ed by two U.S. senators offers a bipartisan counter to the power of Big Tech – eliminate the legal liability protections that have been the cornerstone of the internet since 1996, while imposing “an independent, bipartisan regulator charged with licensing and policing the nation’s biggest tech companies.”
The ability to license and police is, of course, the ability to control some of America’s largest social media platforms. If enacted, this measure proposed by Sens. Elizabeth Warren (D-MA) and Lindsey Graham (R-SC) would strip away the ability of minority opinion and contentious views from being heard, while subjecting speech to official, top-down policing by a regulator. The op-ed doesn’t name Section 230, the law that protects platforms that host third-party speech from legal liability. We respect the earnest desire of these two senators to improve the state of online speech, but replacing Section 230 with the vague mandate of a regulator could be profoundly dangerous for the First Amendment’s guarantee of free speech, the lifeblood of democracy. Section 230 restricts the legal liability for illegal acts to the speaker, not the website. It holds those who break the law online accountable for their actions, while holding platforms accountable for preventing serious federal crimes, like posting child abuse sex material. It empowers minorities of all sorts, allowing controversial or unpopular opinions to have their day. Without Section 230, the internet would devolve into a highly sanitized, curated space where any controversial statement or contentious argument would be red penciled. The elimination of Section 230 would take away the vibrant clash of opinions and replace it with endless cat videos and perhaps the regulator’s officially sanctioned views. Many believe, and we agree, that Section 230 needs reform. The bipartisan PACT Act would require platforms to give speakers a way to protest having posts removed, while respecting the First Amendment rights of both companies and speakers, with less risk of government heavy-handedness and censorship.  On July 4th, Judge Terry A. Doughty, Trump appointed judge of the United States District Court for the Western District of Louisiana, issued an opinion and order enjoining listed federal agencies from “urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms.” The decision follows outcries from some conservatives that government agencies are pressuring social media companies to remove or modify content posted by conservative voices. The order was rapidly stayed by the Fifth Circuit Court of Appeals. One can be assured that the debate will continue.
We have questions. The case, Missouri v. Biden, stems from accusations of government censorship and viewpoint discrimination against conservative speech – specifically, posts related to whether vaccines are effective as a COVID-19 treatment, the origins of the COVID pandemic , the efficacy of lockdowns to slow the spread of the disease, and other content. Unsurprisingly, many on the right lauded the ruling as a victory against the administration’s “Orwellian ‘Ministry of Truth’” (quoting Doughty himself). Others decry it as politically driven theater, which could have significant, deleterious consequences on the government’s efforts to stem the flow of mis- or disinformation. Judge Doughty found that the posts in question did not fall within the narrow category of speech that is unprotected by the First Amendment (e.g., incitement to violence). He further cited specific examples of exchanges between the White House and various agencies and social media companies that could reasonably be interpreted as coercive. On the other hand, many reading the same comments could also interpret them as mere requests – intended to promote public health and safety. Herein lies the difficulty. What is clear from this case is that this issue is far from resolved. The Fifth Circuit on July 16th temporarily paused Doughty’s order and agreed to expedite the administration’s appeal. Ultimately that court will decide whether an injunction is appropriate (and, perhaps, another court after that). In the meantime, we are left with those pesky questions. Is government advice to social media companies helpful? The government possesses intelligence gathering capabilities far superior to those of any social media company. Do platforms welcome advice derived from those capabilities about the harmfulness of content? Or does the sharing of information constitute undue pressure? Is this a fact-specific inquiry? Where is the line between violating First Amendment rights and protecting public safety? Should the recipient’s perception matter at all? These questions merit an informed public debate. In our view, the best means of doing so would be to hold public, bipartisan congressional hearings (arguably not achieved by recent hearings held by the House Judiciary Select Subcommittee on the Weaponization of the Federal Government). The witness list for the hearings should prominently feature executives from the social media platforms who can address the questions directly. It’s true that courts make policy all the time, but such critical policy debates should not be resolved by injunction (or by reactive, piecemeal state legislation). A robust discussion at the national level is a far better means of comprehensively parsing the many nuances at play when it comes to social media and free speech. If it is determined that the government is threatening social media platforms, then that’s a problem that must be addressed – by the courts or by Congress, or both. But at the same time, the government must also be able to speak to private actors, including private companies, and especially on issues of public concern. (You might say it’s fundamental to the very concept of governance.) One thing lacking from Judge Doughty’s opinion is any articulable roadmap for distinguishing between legitimate government speech and coercion. We need one. As such, we might urge some of our more enlightened statesmen on both sides of the aisle: it’s time to speak up.  The Supreme Court made the right call on Tuesday when it reversed (7-2) the conviction of a man convicted in Colorado under that state’s anti-stalking laws, establishing in the process a new standard for the criminal prosecution of “true threats.”
While the First Amendment broadly protects speech – including and especially controversial speech – exceptions exist for obscenity, incitement to violence, and other discrete categories. “True threats” constitutes one of those categories. Yet until Tuesday, some judicial disagreement persisted on the question of how to properly evaluate a purported “true threat” – particularly in the online arena. To quote Justice Kagan, “Courts are divided about (1) whether the First Amendment requires proof of a defendant’s subjective mindset in true-threats cases, and (2) if so, what mens rea standard is sufficient.” In this case, petitioner Billy Counterman was convicted of stalking by a Colorado court after he sent repeated online messages to a female musician that caused her to fear for her safety. The court convicted Counterman using an objective test employing a “reasonable person” standard. In other words, the court asked whether a “reasonable person” would interpret Counterman’s messages as threatening. The Colorado court found that they would. On appeal, attorneys for Counterman argued that any determination of whether speech constitutes a “true threat” should take into account the defendant’s intent – i.e. his state of mind (mens rea). The Supreme Court agreed. In a majority opinion authored by Justice Elena Kagan, the Court found that “the State must prove in true-threats cases that the defendant had some subjective understanding of his statements’ threatening nature.” However, according to the Court, the government need not show that the defendant’s purpose was to threaten; instead, they must merely prove that “the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.” This “recklessness” standard, Kagan writes, “offers ‘enough ‘breathing space’ for protected speech,’ without sacrificing too many of the benefits of enforcing laws against true threats.” And it’s a true compromise, too – one where both sides walk away a little unhappy. “The rule we adopt today is neither the most speech-protective nor the most sensitive to the dangers of true threats,” Kagan writes. “But in declining one of those two alternative paths, something more important is gained….” While the majority recognized that some prosecutors may face a higher burden of proof in future true-threats cases, they correctly weighed that burden against the potentially chilling effects of a purely objective test. Kagan writes: “The speaker’s fear of mistaking whether a statement is a threat; his fear of the legal system getting that judgment wrong; his fear, in any event, of incurring legal costs – all those may lead him to swallow words that are in fact not true threats.” Legally, incorporation of the “mens rea” element in true-threats cases has been a long time coming. The Court has gradually built that element over the years in cases like Virginia v. Black and Elonis v. United States. In other words, it’s legally consistent with prior opinions – but it’s also good policy. The American Civil Liberties Union, long an ardent defender of even the most offensive free speech, notes: “[O]ne person’s opprobrium may be another’s threat. A statute that proscribes speech even where the speaker does not intend to threaten, as does the Colorado statute at issue here, runs the risk of punishing protected First Amendment expression simply because it is crudely or zealously expressed.” This is especially true in the context of online speech, which is “often abbreviated, idiosyncratic, decontextualized, and ambiguous.” Statements made on social media platforms can be accessible to impossibly large, diverse, and unpredictable audiences; how they may interpret such speech is anyone’s guess. Thus, the objective test becomes something like a negligence standard – it criminalizes mistakes. Writes the ACLU: “If First Amendment protections are to enjoy enduring relevance in the twenty-first century, they must apply with full force to speech conducted online.” An amicus brief co-authored by the Electronic Frontier Foundation and the Student Press Law Center builds on this point, suggesting that the objective standard could “incorrectly capture a staggering amount of humor, hyperbole, sarcasm, art, and even malicious speech that was never supposed to reach a particular person, and/or never intended to be read as threatening.” Counterman may well be convicted on remand based on the new, subjective standard for true threats. As for the rest of us, we now have a lot more certainty on the extent to which the First Amendment protects even our coarsest civil discourse – particularly in the online arena. We applaud the Supreme Court’s ruling, one that protects all manner of speech that may be critical or harsh or hyperbolic – but non-threatening all the same.  In an amicus brief before the U.S. Supreme Court earlier this year, Protect The 1st told the Court that curtailing Section 230 of the Communications Decency Act of 1996 “would cripple the free speech and association that the internet currently fosters.” Consistent with that recommendation, the Court today declined various invitations to curtail that law’s important protections for free speech.
Joining with former Sen. Rick Santorum, we demonstrated in our amicus brief that Section 230 – which offers liability protection to computer-services providers that host third-party speech – is essential to enabling focused discussions and keeping the internet from devolving into a meaningless word soup. “If platforms faced liability for merely organizing and displaying user content in a user-friendly manner, they would likely remove or block controversial – but First Amendment protected – speech from their algorithmic recommendations,” PT1st declared. We stated that a vibrant, open discussion must include a degree of protection for sponsors of internet conversations. With Congress always able to amend Section 230 if new challenges necessitate a change in policy, there is no need for the Supreme Court to rewrite that law. The Supreme Court had shown recent interest in reexamining Section 230. That could still happen, but the two cases that were before the Court turned out to be weak vessels for that review. On Thursday, the Court declined to consider reinterpreting this law in Gonzalez v. Google and Twitter v. Taamneh, finding that the underlying complaints were weak. The Court neither expressly affirmed nor rejected our approach, leaving these issues open for another day and another case. Protect The 1st will remain vigilant against future challenges to Section 230 that could undermine the freedom of speech online.  The U.S. Supreme Court is set to hear a pair of cases in which local officials blocked criticism from constituents on social media sites. At stake is the question of what constitutes a public forum that must be open to critics and their pesky questions.
In one case, two members of a local school board in San Diego County used Facebook and Twitter accounts to communicate with constituents, inviting them to board meetings, and discussing issues. When two parents kept posting repetitive and lengthy comments critical of the two school board members, the officials blocked them. The parents sued on First Amendment grounds. After all, if these sites were being used as public fora, didn’t they have a right to be heard? A three-judge panel of the Ninth Circuit Court of Appeals considered their argument and ruled in favor of the plaintiff parents. “When state actors enter that virtual world and invoke their government status to create a forum for such expression, the First Amendment enters with them,” wrote Judge Marsha S. Berzon. Now the Supreme Court is set to review that matter and a split between the lower courts in a second case in which the constituent plaintiff lost. In that case, a Michigan man set his Facebook account, stocked full of personal posts, as a page to receive public and unlimited followers. He listed himself on his page as a “public official,” and included some communications about his official business after he later became the city manager of Port Huron, Michigan. But his page had begun, and largely remained, a personal one. When the inevitable constituent-critic emerged, the city manager blocked him. That constituent sued, arguing on First Amendment grounds that he should not be excluded from the page. That lawsuit failed before the Sixth Circuit Court of Appeals, where the ruling was for the defendant city manager. These two cases raise a host of interesting questions. Among them: Does communicating with constituents on official business convert a personal social media account into an official platform open to all? Do repetitive comments from constituents represent spam? If so, is spam speech or can it be blocked? After all, one cannot show up to a city council meeting, seize a microphone, and say the same thing over and over for hours. When a Facebook page is begun for purely personal reasons – showing family picnics, vacations, and birthdays, as in the Michigan case – and later includes some official business, does it become a public forum or does it remain personal? These cases echo a more prominent social media user with a lot more constituents. In 2019, a federal appeals court in New York held that President Trump’s Twitter account was a public forum on which he could not exclude anyone, including his most vociferous critics. That ruling became moot after Trump lost the election. But the question stuck. It had prompted Justice Clarence Thomas to muse about how to apply First Amendment doctrine to social media’s subtle and often invisible power to block, delist and downgrade. These cases will offer the first glimmers of the Court’s evolving doctrine on the limits and responsibilities of social media platforms under the First Amendment. Protect The 1st will report on the oral arguments in these two cases, O’Connor-Ratcliff v. Garnier and Lindke v. Freed, in the fall.  We’ve joined with more than a dozen civil liberties organizations in an open letter warning Congress about the dangers of the Restrict Act, which would give the Secretary of Commerce sweeping powers over virtually all information technology. Some versions of the bill would criminalize speech about “national elections.”
“The scope of the act is enormous,” the coalition letter reads, “and may allow the administrative state to issue regulations affecting telecommunications, cryptocurrencies, press freedoms, and the use of and access to the Internet itself.” The bill would create criminal penalties that carry up to 20 years in prison and up to $1 million in fines, as well as civil asset forfeitures. If enacted, the Restrict Act would necessitate and likely authorize even more domestic spying on Americans than currently occurs, while making every American a potential suspect for communicating the “wrong” idea on the “wrong” platform or equipment. The Restrict Act would turn the Commerce Secretary into the nation’s telecommunications and speech czar. It is loaded with flagrant violations of the First Amendment.  It could not have happened at a worse time for TikTok, the fourth most popular social media platform in America. Just days before TikTok CEO Shou Zi Chew was grilled before the House Energy and Commerce Committee, with calls echoing off the walls of the hearing chamber to ban TikTok in the U.S. market for scraping Americans’ data for China, news broke that the Department of Justice and FBI opened an investigation into the social media platform’s Chinese parent company, ByteDance. Investigators want to know if ByteDance used the app to track the location and movements of American journalists.
According to Emily Baker-White, a Forbes reporter who was herself surveilled by ByteDance, the department and U.S. Attorney for the Eastern District of Virginia have hit the Chinese firm with subpoenas about its purported surveillance of U.S. journalists. If this story holds up, it will likely kill any serious consideration by the U.S. government of the proposal advanced by TikTok to compartmentalize its data inside the United States. As a series of leaks from inside the company show, for all practical purposes TikTok seems to have little independence from its owners. The use of TikTok to surveil American journalists would be an astonishing show of bad faith at a time when the company is pledging transparency and accountability. In the Thursday hearing, Rep. Tim Walberg (R-MI) asked: “Today, do ByteDance employees in Beijing have access to American data?” Chew replied: “We rely on global interoperability, and have employees in China, so yes, the Chinese engineers do have access to global data.” He said data stored in the United States and Singapore is accessed in China only for “business purposes.” As this story unfolds, we look forward to learning what Chinese intelligence believed was so important that it had to surveil U.S. journalists at this sensitive time. Were they following reporters who were speaking to dissidents or whistleblowers inside the company? TikTok’s purported intrusion into journalists’ locations should remind us that confidentiality for sources is the lifeblood of journalism. Without being able to protect a source, journalists would struggle to reveal malfeasance in government and business. The TikTok story should prompt civil libertarians to double down on the need to protect journalists at home – as well as their sources – from the prying eyes of U.S. prosecutors. As Members of Congress debate a ban of TikTok, we recommend that they also debate and pass the PRESS Act, which would bar prosecutors, except in emergency national security circumstances, from requiring the production of the notes and sources of journalists in court. This is a practice that has worked well in 49 states. While there is a big difference between spying on journalists and using lawful domestic means to reveal their sources, the need to protect the independence of a free and unfettered press is unchanged. Why Do Some on the Right and the Left Seem to Lack Basic Understanding of the First Amendment?3/10/2023
 We were relieved to hear Gov. Ron DeSantis repudiate the bill introduced in the Florida legislature that would have required bloggers who write about state-elected officials to register with the state government. The bill, which the American Civil Liberties Union says is “un-American to its core,” will not enjoy the governor’s support or signature. What the news giveth with one hand, however, it taketh with the other.
The Federal Trade Commission is now demanding that, in the wake of Twitter’s release of data about government coordination with its content management, the company must now “identify all journalists” granted access to company records, including the “nature of access granted each person.” FTC also asked if Twitter had conducted background checks on the journalists, among other things. The Wall Street Journal observed: “So here we have a federal agency demanding that a private company disclose its interactions with a free press, including how much it snooped on those reporters. None of this is the business of the government.” It certainly isn’t the business of the Federal Trade Commission, any more than a blogger in Florida should have to comply with a Republican state senator’s proposal that former House Speaker Newt Gingrich called “insane.” First Amendment, folks. Not that hard.  If Florida state Sen. Jason Brodeur gets his way, paid bloggers who cover that state’s governor, lieutenant governor, cabinet, or legislature must register with the state, much as lobbyists do, or face fines that can reach $2,500.
“Paid bloggers are lobbyists who write instead of talk,” Brodeur is quoted in floridapolitics.com. “They both are professional electioneers. If lobbyists must register and report, why shouldn’t paid bloggers?” Brodeur’s point seems to be that if the enumerated First Amendment rights of lobbyists (the right to petition the government for a redress of grievances) can be regulated, why can’t we regulate the rights of bloggers (freedom of speech and the press)? If this sounds reasonable on its face, it isn’t when you look at it closely. In Florida, lobbyists are government relations professionals who are paid to visit legislators to present the views of their corporate, union, NGO, or other special-interest employers. The U.S. Supreme Court has held that government can require such lobbyists to register. Other Floridians can write, petition, or go to their legislator’s office, without any registration or restrictions. That’s called democracy. The same freedom applies to bloggers. They don’t show up at the Capitol on a daily basis. They may be paid or unpaid. They may work for the common good or spread disinformation. They may shed light or start fires. They can disrespect, criticize, ridicule, and skewer state officers – including Sen. Jason Brodeur – because, you see, the First Amendment says that Congress shall make no law “abridging the freedom of speech, or of the press.” And more than two centuries of American law makes it clear these principles apply to government at all levels, from Tallahassee, Florida; to Laredo, Texas; to Sacramento, California, where youth sporting groups have had to go to court to defend themselves against a law that degrades both their First and Second Amendment rights. It is easy to see why some people – and politicians – get upset with commentary from the shadier precincts of social media, especially content subsidized by special interests with partisan, ideological, or personal axes to grind. There is no way to stamp this out; however, that doesn’t justify the far worse problem of censorship. The only solution is to marshal facts, be a good communicator, and be vocal in response. Requiring millions of people who blog about state politicians to register or face fines would be an onerous burden on speech. It would subject political speech to regulation, an impulse far too close to practices in Venezuela, Russia, or China for comfort. And yet, there is increasing interest from the right and the left to find new ways to restrict speech. The 11th Circuit Court of Appeals had to strike down Florida’s social media law that would have placed restrictions on how social media platforms can moderate content. “Put simply, with minor exceptions, the government can't tell a private person or entity what to say or how to say it,” said Judge Kevin Newsom, appointed by President Trump. A court had to hold up several provisions of a Florida law that would have attempted to fine-tune academic speech. Many people agree when you complain that the media and the academy have become unfair or increasingly one-sided. But passing one poorly-crafted, unconstitutional messaging bill after another won’t change anything. Should this bill become law, expect mass civil disobedience from bloggers, including from us. If Florida wants to reduce criticism in the blogosphere, we suggest refraining from proposing and passing unconstitutional laws. That would do more good than trying to regulate free speech.  Former U.S. Senator Rick Santorum today joined with Protect The 1st to urge the U.S. Supreme Court to reject the petitioners’ argument in Gonzalez v. Google that the algorithmic recommendations of internet-based platforms should make them liable for users’ acts.
Santorum and Protect The 1st told the Court that curtailing Section 230 “would cripple the free speech and association that the internet currently fosters.” As a senator, Santorum had cast a vote for Section 230 to send the bill to President Bill Clinton’s desk for signature in 1996. The Protect The 1st amicus brief informed the Court:
The brief described for the Court the harm to society that would occur if the Court were to disregard Section 230’s inclusion of First Amendment-protected editorial judgments. The brief tells the Court:
And there is no need for the Supreme Court to rewrite Section 230: As amici explained, Congress can choose to amend Section 230 if new challenges necessitate a change in policy. For example, Congress recently eliminated Section 230 immunity when it conflicts with sex trafficking laws, and Congress is currently debating a variety of bills that would address specific concerns about algorithm-based recommendations. The Protect The 1st’s brief states: “The judiciary is never authorized to interpret statutes more narrowly than Congress wrote them, but it is especially inappropriate to do so when Congress is already considering whether and how to amend its own law.” Background: This Protect The 1st amicus brief answers the question before the U.S. Supreme Court in Gonzalez v. Google: “Does Section 230(c)(1) of the Communications Decency Act immunize interactive computer services when they make targeted recommendations of information provided by another information content provider?” Th case pending before the Court centers around the murder of Nohemi Gonzalez, a 23-year-old American who was killed in a terrorist attack in Paris in 2015. A day after this atrocity, the ISIS foreign terrorist organization claimed responsibility by issuing a written statement and releasing a YouTube video that attempted to glorify its actions. Gonzalez’s father sued Google, Twitter, and Facebook, claiming that social media algorithms that suggest content to users based on their viewing history makes these companies complicit in aiding and abetting international terrorism. No evidence has been presented that these services played an active role in the attack in which Ms. Gonzalez lost her life. A district court granted Google’s motion to dismiss the claim based on Section 230 of the Communications Decency Act, a measure that immunizes social media companies from content posted by users. The U.S. Court of Appeals for the Ninth Circuit affirmed the lower court’s ruling. The Supreme Court is scheduled to hear oral arguments Feb. 21. CLICK HERE FOR THE AMICUS BRIEF 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.  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 a federal district court upholds the First Amendment rights of a person or organization, can it enforce those rights in the future? The answer by The Protect the First Foundation before the U.S. Court of Appeals for the 11th Circuit is a resounding “yes.”
The Hillsborough Area Regional Transit Authority (HART) of Tampa runs ads on its vehicles and bus shelters but prohibits ads that “promote a religious faith or religious organization.” When Young Israel of Tampa, an Orthodox synagogue, tried to place an ad for its “Chanukah on Ice” event, HART rejected those ads under its no-religion policy. A district court came down on the side of Young Israel on First Amendment grounds and issued a permanent order or injunction forbidding HART from “rejecting any advertisement on the ground that the advertisement primarily promotes a religious faith or religious organization.” HART appealed, arguing that the district court’s injunction was an abuse of its powers and that HART’s advertising policy was constitutional. The PT1st Foundation counter, filed Wednesday evening, demonstrates: “First Amendment rights are fundamental rights essential to every other form of freedom. As a result, First Amendment rights warrant special protection. Because courts cannot enjoin conduct and do not ‘strike down’ unconstitutional laws, a court cannot adequately protect First Amendment interests without including prohibitions against future illegal conduct in its injunction. “Without such preventative relief, governments would be free to repeat the same constitutional violation in the future. Any resolution of this case that fails to prevent future harm does not adequately vindicate the First Amendment.” PT1st believes remedies to violations of the First Amendment should be as enduring as our right to free speech.  It might sound like a trivial question at a time when speech rights are threatened all around the country, but it’s at the forefront of several First Amendment legal battles.
The role and importance of online speech has grown dramatically in the last decade and lots of government broadcasts, outreach, and business is now done through official social media accounts. For example, each President gets his own official Twitter account, through which he can speak to the public. Such accounts have altered the nature of social media and have become the subject of controversy. In 2017, the Knight First Amendment Institute at Columbia University sued President Trump for blocking American citizens on his official Twitter account. They argued that blocking accounts suppresses speech and prevents users from reading official government policy and announcements. The Knight Institute won in both the District Court for the Southern District of New York and the Court of Appeals for the Second Circuit. The Supreme Court vacated the case in 2021 after President Trump was not reelected. A more recent case seeks to argue along the same lines against other official government accounts. (A hat tip to Eugene Volokh of Reason Magazine for detailing the arguments of this case.) Bruce Gilley is a political science professor at Portland State University. Gilley has filed suit against Tova Stabin, the communications manager of the University of Oregon Division of Equity and Inclusion for blocking him on Twitter. The University of Oregon is a public university, meaning its official Twitter accounts are run by the government. Gilley’s complaint reads: “In both cases, the University of Oregon has created the @UOEquity Twitter account to engage with the public and to solicit feedback. Its purpose is to interact with the public and to foster exchange. That is a public forum. Defendant Stabin was and is a state actor acting in the course and scope of her employment when she blocked, and continues to block, Bruce Gilley from the @UOEquity account. Defendant Stabin acted in a viewpoint discriminatory manner when she blocked Bruce Gilley from the @UOEquity Twitter account.” It remains to be seen if other courts will stick to the official business framework that worked so well for the Knight Institute. The Foundation for Individual Rights and Expression (FIRE) deployed it recently when they sent a letter to the Director of Media Services for the New York State Senate requesting that the Senate stop blocking Twitter critics and hiding their tweets. The New York State Senate’s Twitter account frequently blocks or hides criticism of legislation and legislators. The letter reads: “courts across the country have recognized that when a government actor invites public comments on social media, the government actor’s regulation of that online speech is restrained by the First Amendment.” PT1st looks forward to further developments in the state of online speech rights. Additional questions will need to be answered. Would a prohibition on official government accounts blocking other users offer protections to non-Americans? How do we uphold the rights of citizens in an era of online anonymity?  In their haste to place new restrictions on guns, legislators in Sacramento have recently run roughshod over the freedom of speech protected by the First Amendment. This is a byproduct of enacting AB 2571, a law prohibiting the marketing of firearms or related products in a manner that “reasonably appears to be attractive to minors.”
The law is part of a broader series of initiatives by California lawmakers adopted in the name of preventing gun violence in the wake of a series of devastating shootings across the country. While Protect The 1st supports focused initiatives to reduce the criminal use of guns, vague legislation targeting speech about lawful products because they might appeal to a lawful subset of gun users – with at best dubious impact on illegal shootings – infringes on the First as well as the Second Amendment rights of Americans. Among the various problems with California’s new anti-marketing law is that it is overly broad, has serious consequences for lawful gun users in wholesome youth groups and sporting activities, and chills a tremendous amount of legitimate speech in a viewpoint discriminatory manner. For example, the law prohibits “images or depictions of minors in advertising and marketing materials to depict the use of firearm-related products." But many groups, from sporting associations to the Boy Scouts, use such advertising to generate interest in organizations that give youth much-needed structure, companionship, and character-building activities. One such group is the California Grizzlies Junior Rifle Program, “a sports program consisting of youths aged 13-20 and focused on providing leadership development in the training of firearm safety, marksmanship, and competition to encourage personal growth, self-discipline, responsibility, team, and life skills development.” Until recently, the front page of the Grizzlies website featured an image of several youth members sitting together. Now, the entire website is inaccessible and displays a message: “Due to recent California legislation, we are making some updates to our site. We will be back shortly.” California’s new law sharply proscribes the ability of groups like the California Grizzlies to promote their youth organization in the state or to obtain sponsors for its youth sporting events. Indeed, it even seems to restrict the group from selling T-shirts and hats with its name or the name of various events on them. Of course, the law has no impact on groups or marketing that criticizes guns or shooting events, and thus commits the cardinal First Amendment sin of viewpoint discrimination. Ultimately, it curtails such a tremendous amount of speech that it could mean the death of some sports and sporting groups entirely. California is not the only state cracking down on Second Amendment rights by targeting those of the First. In New York, lawmakers have passed a new requirement that citizens seeking gun permits must surrender their social media accounts for review, without probable cause or a warrant for such an intrusive invasion of privacy. Although touted as an attempt to detect missed warning signs about when someone might commit gun violence, the law would give enforcement officials an unprecedented window into the political and religious beliefs and associations of American citizens. The outcome evokes the Philip K. Dick story and Steven Spielberg movie, Minority Report, in which people are arrested not because they have done anything wrong, but because of a prediction that they might do something wrong in the future. New York’s law promises to be just as invasive as Minority Report’s enforcement against “precrime,” but a lot less effective. And such an intrusion is far more likely to be abused for political purposes, as history has repeatedly shown with past efforts by the FBI and other agencies to monitor and track political associations. While legitimate attempts to curtail America’s troubling spate of unlawful gun violence are vital, they can never come at the expense of our Constitutional rights or involve overbroad restrictions on the rights of citizens who have done nothing wrong. Such rules must be more narrowly tailored to protect the rights of all Americans.  Protect The 1st praised the Tenth Circuit Court of Appeals for its reversal last week of a long-standing refusal to acknowledge a First Amendment right-to-record the police when they are going about their official duty. Just a few days before, however, the State of Arizona moved in the opposite direction by placing new restrictions on the right to record.
The new law allows police to charge people with a misdemeanor who record them from within eight feet. The law does make exceptions that include those in a vehicle or enclosed structure. But critics still call the law overly broad and note the importance of citizen recording, especially when police bodycams go on the fritz. The general counsel of the National Press Photographers Association says the law is “unworkable” because moving events like protests can bring journalists in and out of the eight-foot-range. An attorney with the ACLU in Arizona, K.M. Bell, told NPR: “This is content-based restriction, because I can stand three feet away from an officer and play Angry Birds, but I can’t stand three feet away and record them.” Civil liberties advocates say that they will likely challenge the law in court when the first person is charged after the law takes effect on Sept. 24, 2022. |
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