​The recent consent decree signed by the parties that settled Missouri v. Biden has been hailed by civil libertarians as a “major blow against social media censorship,” signaling that “Free Speech Wins Big in Court.”
 
Kenin Spivak in RealClearPolitics says, “not so fast.”
 
Missouri v. Biden (formerly Murthy v. Missouri) combined lawsuits filed by the attorneys general of Louisiana and Missouri with claims of several leading health care professionals. After a serpentine trip through the courts, including a remand from the Supreme Court to lower courts, the case has ended with that consent decree. Along the way, an egregious pattern of secret government censorship was exposed.
 
Spivak reports that the case revealed that 80 senior Biden officials and at least 11 federal agencies, including the White House, pressured social media companies into censoring conservative speech. Spivak writes:
 
“Underscoring the left’s strange and newly formed view that the First Amendment somehow does not protect ‘misinformation,’ ‘disinformation,’ or ‘malinformation’ (truthful information that nonetheless undermines the approved policy agenda), in 2021, CISA (Cybersecurity and Infrastructure Security Agency) director Jen Easterly claimed that social media speech is a form of ‘infrastructure’ that fell within her agency’s purview, and that Americans should not be allowed to make their own decisions about what is true.”
 
Spivak lists censorship targets that included YouTube’s suspension of The Hill newspaper for posts that included Donald Trump’s speech at the CPAC conference, Sen. Ted Cruz, actor James Woods, The New York Post, the Babylon Bee satirical site, and many more.
 
These facts landed hard in court. On July 4, 2023, federal judge Terry A. Doughty issued a preliminary injunction that blocked numerous federal agencies from communicating with social media companies for “the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.” These included government requests to social media companies to delete posts that were critical of President Biden, gasoline prices, climate change, and social issues.
 
The judge likened the government’s actions to George Orwell’s Ministry of Truth from 1984.
 
One would hope that, in the face of such a massive violation of the First Amendment, the consent decree would arrive like the famous Apple MacIntosh TV ad in 1984, in which an athletic woman hurls a sledgehammer into Big Brother’s screen. Judging from Spivak’s account, the consent decree was more like a hurled paperclip.
 
The consent decree, Spivak writes, is “powerful-sounding pap” in which, for ten years, the Surgeon General, CDC, and CISA will refrain from threatening Facebook, Instagram, X, LinkedIn, or YouTube “with some form of punishment (i.e., an adverse legal, regulatory, or economic government sanction)” to remove or deemphasize protected speech.
 
Not included were other bad actors, including the Department of Homeland Security, the Justice Department, the State Department, and the FBI. The decree does not cover other social media companies or those that may arise in the next decade. It includes vague and easily exploited exceptions for “criminal activity” and “national security” that may leave the named plaintiffs vulnerable.
 
We would add that refraining from threatening is a weak standard – one that fails to account for the reality that in such “jawboning” explicit threats are often unnecessary when government officials issue demands to heavily regulated industries.
 
“The First Amendment and Americans have lost an opportunity that may not recur for a strong permanent injunction that would have been nearly impossible to amend, modify, or avoid,” Spivak writes. “Instead, we got press releases.”
 
Read his full piece here.

Anonymity online can be a mask that allows people to say ugly, hateful or untrue things without taking responsibility for them. But it can also be a shield that protects women hiding from abusers, whistleblowers one step ahead of their pursuers, journalists reaching out to confidential sources about wrongdoing, and consumers searching online for answers to questions about their health that they’d rather not have anyone know about.

This is why the current effort by the Immigration and Customs Enforcement (ICE) agency to use emergency subpoenas to force Big Tech companies to reveal the identities of Americans who make critical posts about ICE is so dangerous. If this practice sticks, it will likely migrate to other federal agencies and erode anonymity online.

But the shedding of anonymous speech might come by a different route – not from executive-branch meddling or legislative mistakes, but from lawsuits claiming harms from child internet “addiction.”

Dan Frieth of the digital anti-censorship advocacy group, Reclaim The Net, listened to five hours of Meta CEO Mark Zuckerberg’s testimony in a Los Angeles civil case and distilled it to a jarring and important warning – the age of anonymity could be coming to an end at the hands of the trial bar.

Zuckerberg testified in one of 1,600 lawsuits over internet addiction. In this case, a woman claimed that at age nine Meta’s Instagram addicted her, plunging her into a hell of anxiety, body dysmorphia, and suicidal thoughts.

Frieth notes that the science of internet addiction is “genuinely disputed.” He writes:

“None of this means the harms alleged are fabricated. It means the word ‘addiction’ is doing heavy rhetorical and legal work, and the policy consequences are far beyond anything a jury in Los Angeles will decide.

“‘Addiction’ is how you get a public health emergency. A public health emergency is how you get emergency powers and make it easier for people to overlook constitutional protections. Emergency powers applied to the internet mean mandatory access controls. And mandatory access controls on the internet mean the end of anonymous and pseudonymous speech.

“When social media is classified as a drug, access to it becomes a medical and regulatory matter” justifying “identity verification, access controls, and a surveillance architecture that follows users across every platform and device.”

Frieth notes that a win for the plaintiff in this case would strip the current law protecting platform design decisions. This danger is not theoretical. Frieth reports that Zuckerberg repeatedly suggested that any age verification mandate – and thus identification – be shifted from platforms to owners of operating systems. Zuckerberg would thus toss his liability hot potato from Instagram to Apple and Google.

“This is more than age verification,” Frieth concludes. “It is a national digital ID layer baked into the two operating systems that run the majority of the world’s smartphones.”

There are a lot of competing interests in this case – the safety of children, the nature of the internet, and the value of free speech. Juries don’t have to balance these equities. They can just side with the plaintiff and inadvertently make policy for U.S. tech – and by extension, the world.
​
Any new approach to child safety should not require adults to give up speech rights recognized in this country since Alexander Hamilton, James Madison, and John Jay wrote collectively as the pseudonymous “Publius” in The Federalist Papers.

The FBI calls them “assessments.” Americans may experience them as First Amendment violations. 
 
A new Government Accountability Office (GAO) report suggests that many supposedly preliminary inquiries function as probes in waiting – particularly when they involve politics, journalism, or religion. According to the report, posted by the Cato Institute, more than 1,000 individuals and organizations have been subjected to preliminary assessments for investigation, a scope that should trigger immediate congressional concern. (Hat tip to Cato’s Patrick Eddington.)
 
The most alarming category involves so-called “Sensitive Investigative Matters,” or SIM assessments. These are FBI inquiries potentially into political campaigns and candidates, elected officials, journalists, religious leaders, or any other Americans engaged in core First Amendment activities. If any government scrutiny demands transparency and restraint, it is surveillance that begins with our rights to freedom of speech, belief, and association.
 
The GAO found that the FBI converted 48 percent of SIM assessments into Preliminary or Full Investigations. Eddington reports that these sensitive cases were 3.5 percentage times more likely to escalate than ordinary assessments – a statistical red flag for anyone told these probes are narrow, cautious, or exceptional.
 
Eddington writes:
 
“That’s especially alarming since, under Preliminary or Full Investigations, the agents running the case can employ wiretaps or other extremely intrusive and clandestine investigative techniques.”
 
Those tools – from electronic surveillance to confidential informants and covert collection – once deployed, are difficult to unwind. Lawmakers should require the FBI to disclose whether SIM assessments have targeted:
​

• Members of Congress

 

• Political candidates and parties

 

• News organizations, think tanks, and NGOs

 

• News reporters and opinion journalists

 

• Churches, temples, and mosques.

At a minimum, the Bureau should provide the relevant oversight committees – especially the House Judiciary Committee – with a full accounting of past SIM targets and the total number of assessments elevated into full investigations. Congress should also ask who authorized these escalations. Were investigative decisions influenced by political appointees? 
 
And why are First Amendment-sensitive assessments more likely to escalate than ordinary cases?
 
The Founders knew the danger of unchecked investigations aimed at political and religious dissent. They rebelled against general warrants that allowed agents of the Crown to search first and justify later. SIM assessments risk reviving that same model – quiet surveillance justified by internal labels rather than public law.
 
Surveillance powers are easy to grant and hard to retract. Congress should press for an understanding of how existing authorities have been used against Americans exercising our most basic freedoms.

​CNN reports that comedian Megan Stalter taped a video asking her fellow Christians to speak out against the heavy-handed tactics of Immigration and Customs Enforcement (ICE) agents in Minneapolis, only to be iced out of TikTok.
 
Her video was popular on Instagram, reposted more than 12,000 times. But several attempts to upload her video on TikTok failed. Others have complained of similar experiences. For its part, TikTok responded that power outages at a data center were to blame.
 
Even if TikTok’s behavior was completely above board, a little history shows the basis for users’ suspicion: Congress, concerned by the national security implications of a Chinese-owned company collecting the personal data of 170 million Americans, passed a law requiring TikTok’s parent company, ByteDance, to sell the platform or face a U.S. ban by Jan. 19, 2025.
 
When Donald Trump was sworn in as president a day after the statutory deadline, he promptly refused to enforce that law. The president instead worked to secure a deal for U.S. ownership of TikTok. Last month, a group of investors led by Trump ally Larry Ellison of Oracle acquired TikTok’s U.S. operations.
 
With this deal brokered out of the Oval Office, is it any wonder that TikTok users immediately leapt to the conclusion that they were being censored to please the administration?
 
The distrust of these anti-ICE critics follows the distrust of conservatives, who still rankle from being deplatformed and shadowbanned on major social media platforms. During the Biden administration, eighty FBI agents in a program overseen by the White House quietly contacted social media companies to “jawbone” them into removing conservative content.
 
What the Biden administration did privately, Federal Communications Commission Chairman Brendan Carr has done publicly. He threatened to withhold the approval of the Paramount-Skydance merger. Carr only relented when CBS News, owned by Paramount, agreed to pay $16 million to settle a weak lawsuit filed by President Trump regarding how 60 Minutes edited an interview with Kamala Harris.
 
CBS News editor-in-chief Bari Weiss – a noted critic of mainstream liberal journalism – entered the job saddled with this history. When she made the controversial decision to hold and revise a story about the Trump administration’s detentions of deportees to El Salvador’s notorious CECOT prison facility, there was an immediate outcry from fellow journalists. Her editorial judgment was quickly tainted by the perception that CBS was kowtowing to federal regulators for business reasons – and perhaps to CBS’s new owner, the Ellison family.
 
The Wall Street Journal summed up Holman Jenkins’ editorial on this debacle with this subhead: “The Ellison family is getting what it paid for when it acquired the journalistic mouthpiece.” 

Fair? Probably not. Weiss may have made a defensible editorial decision and TikTok may, in fact, be having technical issues. The problem remains that when government officials can reward or punish media companies through secret “jawboning” and selective enforcement of licensing and mergers, the line between private editorial judgment in the media and the political needs of administrations begins to blur.
 
When the business of media is entangled with political agendas and government wheeling and dealing, even innocent explanations are tainted.

Will Smith sang of Miami, “the heat is on all night.” In Miami Beach, it’s on all day too, especially if one is brazen enough to criticize the mayor.

A couple of weeks ago, resident Raquel Pacheco left a hot comment on a Facebook post by Mayor Steven Meiner. The mayor had posted, “Miami Beach is a safe haven for everyone,” adding, “We will always stand firm against any discrimination.”

In response, Pacheco commented:

“The guy who consistently calls for the death of all Palestinians, tried to shut down a theater for showing a movie that hurt his feelings, and REFUSES to stand up for the LGBTQ community in any way (even leaves the room when they vote on related matters) wants you to know that you’re all welcome here.”

She then added three clown emojis.

Two police officers were soon dispatched to knock on her door. One of the officers was later identified in a photo taken at a residential campaign event for the mayor in October.

Both Pacheco and Meiner are Jewish, but they have very different views when it comes to Israel, culture, and politics. To be clear, Pacheco’s post was hyperbolic. The mayor has never called for the death of Palestinians. He did, however, attempt to break the city’s lease with a theater that was showing what he considered to be a film that contained anti-Israeli hate speech. As for LGBTQ issues, community reviews are far from glowing.

Pacheco’s comment and additional replies contained inaccuracies, sarcasm, and exaggeration. But nothing in it justified a police visit, which could be taken as a thinly disguised attempt at intimidation. Agree or disagree with her words, they strike us as a traditionally, and perhaps uniquely, American approach to political discourse – which is to say, rude –  yet guaranteed by an at-times inconvenient First Amendment. This isn’t Germany, after all, or the UK, where comedians are arrested for tasteless jokes.

Which leads us to wonder, was it the clown emojis that pushed the mayor and his team over the edge? We wouldn’t envy anyone the task of explaining emojis to James Madison and his fellow founders, but we feel confident they would recognize them as symbolic communication, the substance of all human language, and therefore something to be given a wide berth when confronted by thin-skinned authorities.

The only truly scary line uttered by anyone involved in this entire imbroglio came from one of the attending police officers. Whether speaking on behalf of his boss or not, he told Pacheco:

​“What we’re just trying to prevent is someone else getting agitated or agreeing with the statement.”

Send in the clowns.

​Jon Richelieu-Booth, 50, an IT consultant from West Yorkshire, returned home from a trip to Florida with a few harmless souvenirs that included snapshots taken by friends of him shooting what appeared to be semi-automatic shotguns.
 
Richelieu-Booth posted the images on LinkedIn with some routine notes about his work and travel.
 
In the United States, where firing guns on private property is legal, such a post would attract little attention beyond a few “likes.” But this is the UK, where an Irish comedian was arrested this summer for a tasteless joke. So it didn’t take long for West Yorkshire police to show up at Richelieu-Booth’s home. The officers declined to examine evidence that the pictures were taken in Florida; perhaps the semi-tropical foliage and algae-scummed pond in the background were proof enough.
 
Under the UK’s increasingly Orwellian speech laws, however, well enough is rarely left alone.
 
The police returned a few weeks later to arrest Richelieu-Booth. He was held overnight before being released on bail. His phones and digital devices were confiscated, effectively destroying his business and livelihood and launching what he described as “13 weeks of hell.” Officers visited Richelieu-Booth at home three more times before the Crown Prosecutor Service ultimately dropped all charges.
 
“And this is why we have the first and second amendments in America,” Elon Musk posted on X.
 
Reform Party UK leader Nigel Farage has urged Americans to be vigilant lest the speech police take root here. Once again, we should be grateful for our Constitution’s protections against state overreach.

​The Danish philosopher Søren Kierkegaard wrote about a fire that broke out backstage in a theater: “The clown came out to warn the public; they thought it was a joke and applauded. He repeated it; the acclaim was even greater. I think that's just how the world will come to an end: to general applause from wits who believe it's a joke.”

In our time, deepfake audio calls prompt people to wire their life savings to thieves, change their vote, or pay off sextortionists. One of the worst aspects of AI deepfake technology is that it can put actual authorities in the position of the frantic clown.

Denmark has had enough. The Danish culture minister, Jakob Engel-Schmidt, said: “Human beings can be run through the digital copy machine and be misused for all sorts of purposes and I’m not willing to accept that.”

Danish legislators are now supporting a measure to grant every citizen a right to control uses of their image, likeness, and voice, similar to “right of publicity” laws in many U.S. states that give Americans property rights to commercial uses of their identities. Under a proposal expected to soon pass Parliament, Danes will gain sweeping legal control over any digital recreation. This is important for Americans, because European law often sets standards in the global internet that adjust the policies of U.S. tech companies.

This Danish proposal, at first glance, might seem like overdue privacy armor against criminals, stalkers, propagandists, and hostile intelligence services. If Denmark passes this “right to your likeness,” as it appears poised to do, Danes will be able to demand takedowns and seek compensation. Platforms could face penalties for failing to comply.

But there’s a catch – a threat to free speech if Europeans and Americans are not careful in how such laws are drafted and enforced.

The Danish legislation does include carve-outs for “satire” and “parody,” meant to preserve comedy, creative expression, and political commentary. That is a good step. But these categories don’t explicitly protect other forms of speech. Such laws could easily be used to punish fair uses of AI, from commentary and criticism to historical fiction, docudramas, and much more.

If the parameters of an anti-deepfake law are too narrow, risk-averse platforms and creators will pull back. Algorithms will over-filter, even with exemptions. Studios and satirists will second-guess viral impressions, political cartoons, and docudramas depicting real people. Defamation law already chills speech. A sweeping likeness-ownership regime could freeze it solid.

When this issue came up in the U.S. Congress last year, the Motion Picture Association and civil liberties groups met with Members of Congress to craft a balanced approach. This approach, one with growing bipartisan support, would protect people from outrageous AI abuses – such as having one’s image and voice used for false endorsements, to perpetrate fraud, or for revenge porn – while fully protecting a wide range of AI uses in creative commentary, art, journalism, documentary work, and political speech.

No less important, Americans are learning that the best anti-AI filters are the ones we install in our brains.

Facebook is a great instructor, exposing us to one ridiculous scenario after another. Users are learning to ignore home security footage of rabbits gleefully jumping on backyard trampolines, or wolves and their cat friends ringing doorbells. As we get deeper into this age, we’re learning to relax our fingers and not share the ridiculous, the impossible, and the unlikely.
​
AI challenges our sense of reality. But it is also strengthening our patience and skepticism.

​In this globalized world, you can enjoy Baskin-Robbins’ 31 flavors in Beijing. But if you are a Chinese online influencer, you had better not ignore the 31 behaviors that have just been banned by the People’s Republic of China.

The new regulations make it clear the state will no longer tolerate (as if it ever did) statements or content deemed “injurious to the reputation” of the Chinese Communist Party or socialism. Nor can Chinese netizens use AI to make deepfake satires ridiculing party or state leaders.

This is just the latest crackdown on speech in China. In 2018 the regime banned Winnie-the-Pooh when Beijing realized to its dismay that the jowly, chubby cartoon bear had become an online meme representing the quite-abundant frame of China’s dictator, Xi Jinping. Now, thanks to this latest round of speech restrictions, Chinese netizens will be shielded from AI images of the Beloved Leader kissing Putin on the lips or being dragged away under arrest.

A New Chinese Rule with an American Echo

Democracies can tolerate every manner of disrespect for our leaders. Lately, our leaders themselves have posted digital displays of disrespect toward each other (not to mention posts in supremely bad taste). With so many digital haymakers being tossed around, we can rest easy that the explicit restrictions of the Chinese government are unlikely to be adopted here.
But another section of Beijing’s new regulations gives us pause.

• The 18-point guideline issued by the Chinese government requires online influencers to have formal “qualifications” – such as the appropriate college degree – to be eligible to comment on law, finance, medicine, and education. Tracy Qu of The South China Morning Post reports that “live-streamers are also forbidden from showing an extravagant lifestyle, such as displaying luxury products and cash.”

Here at home, the U.S. government in recent years has pressured social media companies to deplatform “disinformation” – often just iconoclastic views – that later turn out to be correct. Witness how the consensus opinion that COVID-19 originated in a Wuhan, China, lab was a conspiracy theory – right up until both the directors of the FBI and the CIA told Congress that the virus was more likely than not of artificial origin.

A Bipartisan Appetite for Speech Regulation

• The Federal Trade Commission requires influencers to disclose any payments or free products they’ve received for an endorsement of a product. It is easy to imagine that Washington regulators will one day want to attach a requirement for professional expertise to comment on complicated topics.

 

• A bipartisan bill introduced in the last Congress by Sens. Elizabeth Warren and Lindsey Graham would create a new independent regulator with authority to work with the Department of Justice and the Federal Trade Commission to regulate the behavior of large, online social media platforms.

The intent is to guard Americans’ privacy, protect children, and strengthen national security. Yet it is easy to imagine that such a powerful internet regulatory agency would soon get Washington, D.C., back into the business of regulating content.
​
We can frown on China’s crackdown on influencers, but don’t be so smug as to think it can never happen here. Censorship usually arrives not in jackboots, but with a clipboard and a promise that it’s “for your safety.”

​We’ve chronicled the decline of free speech in the European Union, with Germany leading the way.

In Germany, “public insults against politicians,” “spreading malicious gossip,” “inventing fake quotes,” and reposting purported lies online are now crimes. For ridiculing politicians, Germans are being investigated – one case was launched after a social media poster called a politician “fat.” Social media users have been fined, had their devices confiscated, and have even been sent to prison.

California Senate Bill 771 would have similarly restricted speech, this time with million-dollar fines on social media companies if their algorithms promote content that “aids or abets” threats of violence or intimidation. Under the terms of this bill, the state would fine social media companies $1 million per violation if a post is amplified by the platform’s algorithm, even if the content is lawful and fact-based.

The law was drafted to address “rising incidents of hate-motivated harms.” But harassing, assaulting, and harming people are already crimes. Under the Supreme Court’s Brandenburg v. Ohio standard, incitement to violence can also be prosecuted. This bill aims to further punish language that leads to “coercive harassment, particularly when directed at historically marginalized groups.” Section 1 of the bill notes, in one example, speech regulation is needed because anti-Islamic “bias events” rose by 62 percent in 2023.

And yet Oussama Mokeddem of the Council on American-Islamic Relations (CAIR) of California opposed the bill, saying: “This bill opens the door for bad actors to disproportionately pressure online corporations into silencing free speech to reduce their financial liability, with no protections for users against those mechanisms.”

A host of civil liberties groups objected that Senate Bill 771 was a recipe for government regulation of speech.

“In no way shape or form is that accurate,” responded Edward Howard, senior legal counsel for the Children’s Advocacy Institute at the University of San Diego School of Law, who had advised lawmakers in drafting the bill. He told Sacramento’s KCRA: “The First Amendment protects offensive, salacious, insensitive, horrifying, terrible things that people say. The bill is in fact about the right … of every single one of your viewers to be protected from threats of violence in response to his speech if those threats of violence would legitimately and reasonably place a regular old person in fear for their lives or being harmed.”

But Howard was far more precise in his interview than the bill’s language itself, which punishes but does not define “intimidation.” There is no lack of laws against threats of violence. If Gov. Newsom had signed SB 771 into law, it would have necessarily deployed armies of regulators and a range of activist groups armed with dictionaries in trying to discern the threats lurking in mere stinging criticism.

In his veto statement, Gov. Newsom said he shared concerns about the growth of discriminatory threats, violence and coercive harassment online, but found this bill “premature.” He thus kicked the can down the road. The governor wrote that “our first step should be to determine if, and to what extent, existing civil rights laws are sufficient to address violations perpetuated through algorithms. To the extent our laws prove inadequate, they should be bolstered at that time.”

What shape would such bolstering take? Bad ideas never die; they just get repackaged. Such a law in California, as in Germany, would pose global concerns. By regulating speech on world-spanning social media platforms, California would effectively regulate speech for everyone, everywhere.
​
The same technology that brings the world into dialogue can also bring the world under this or that regime’s censorship. Free speech is liberty, the price of which is eternal vigilance.

​Many Americans on the right are upset about a recent letter in which Alphabet/Google acknowledged that YouTube did, in fact, censor conservative speech at the behest of the Biden White House. Meanwhile, many Americans on the left are deeply alarmed by how Federal Communications Commission Chairman Brendan Carr inserted himself into the Jimmy Kimmel drama, threatening official retaliatory action if the late-night host stayed on the air.

Both sides are right about the other side, which means, of course, that both sides are in the wrong.

Yet somehow, the concept of a neutral principle that applies equally to everyone has become too hard for even highly educated policymakers to grasp. Wait, are you actually saying that free speech means that people who piss me off can say anything they want?

Yes, as hard as it is for some to grasp, that is what the First Amendment guarantees.

A way out of our current national free-speech debacle may, ironically, come from the universities, where the heckler’s veto has all too often prevailed. Universities are adopting the University of Chicago principles for free speech, which include this declaration:

“[I]t is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Although the University greatly values civility, and although members of the University community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussions about ideas, however offensive or disagreeable those ideas may be to some members of our community.”

Entire state university systems from North Carolina to Texas, as well as Princeton, Stanford, Harvard, Yale, and Johns Hopkins, have embraced the Chicago principles, more than 100 in all.

Now Harvey Silverglate, co-founder of the Foundation for Individual Rights and Expression (FIRE) makes a puckish suggestion in a wide-ranging interview with Tunku Varadarajan in The Wall Street Journal. Silverglate suggests a “Chicago statement for the nation,” declaring “it is not the proper role of the government to shield individuals” from statements and opinions they find objectionable.”
​
This is not likely to happen anytime soon, not with the censorship arms race now taking place in Washington, D.C., today. But it took only a few years for the Chicago principles to take hold in academia. Perhaps in a decade, could we see a similar declaration by our government?

​For all the recent turmoil about the state of free speech in America, the greatest censorship threats to American speech are coming from foreign governments. Congress is beginning to do something about it.

Foreigners Getting Bolder About Censoring Americans

Small-minded regulators are increasingly relying on the global nature of American social media to extend the reach of their censorship into the United States.

Brazilian Supreme Court Justice Alexandre de Moraes, for example, issued takedown orders to social media platforms that included tweets made by Americans. Moraes’s orders to X were issued in secret, with threats to jail X’s Brazilian employees if they did not comply. Similarly, the European Union’s draconian regulatory approach to online speech, often dubbed the “Brussels Effect,” threatens U.S. social media companies with eye-popping fines if they refuse to take down the posts of Americans. In one instance, a senior EU regulator, Thierry Breton, ordered X to remove an interview with then-candidate Donald Trump or face serious legal consequences.

It is hard to imagine how anyone could think that it somehow serves democracy to try to suppress an interview with a presidential candidate.

Now we have a timely and necessary defense of our First Amendment rights, the No Censors on Our Shores Act. Introduced by Rep. Darrell Issa (R-CA) and Rep. María Elvira Salazar (R-FL), the legislation was passed on a bipartisan voice vote by the House Judiciary Committee. This was a rare bipartisan recognition that Americans' free speech deserves protection not only from domestic threats but also from foreign censorship.

What the Bill Does

The bill takes aim at foreign government officials who attempt to suppress the speech of U.S. citizens, especially when those actions affect Americans on U.S. soil. It amends the Immigration and Nationality Act to make these officials inadmissible at U.S. ports of entry and removable if they commit actions that would violate the First Amendment were they carried out by a U.S. official. This creates a clear legal consequence for foreign actors who attempt to undermine constitutional rights from afar.

The No Censors on Our Shores Act addresses this by sending a clear message: If you violate the speech rights of Americans, you are not welcome here.

“The Censorship Industrial Complex around the world isn’t just made up of advocates or academics. It is wrapped in the robes of the judiciary in Brazil, wears the uniform of police in the U.K., and wields ministerial power across the European Union,” said Rep. Issa. “Global government officials are now on notice: Deny our American citizens their First Amendment rights and you will be kept out of this country or removed if you are here.”

At its core, this legislation reasserts that Americans’ right to speak freely isn’t subject to the whims of a foreign official. It is heartening that this measure passed the committee with bipartisan support. It now deserves a vote on the House floor, where it should pick up strong support from both sides of aisle.
​
In short, don’t expect to see Moraes or Breton with their families in Disneyland.

​Alphabet’s recent letter to Rep. Jim Jordan, Chairman of the House Judiciary Committee, was nothing short of a white-flag surrender from the world’s most prolific social media company.

Yes, Google’s parent company, which also owns YouTube, finally admitted what conservatives have said all along – the Biden administration leaned on social media companies to censor conservative voices.

Here’s the money quote:

“[A]dministration officials, including President Biden, created a political atmosphere that sought to influence the actions of platforms based on their concerns regarding misinformation.”

And then this stunner:

“It is unacceptable and wrong when any government, including the Biden Administration, attempts to dictate how the Company moderates content, and the Company has consistently fought against those efforts on First Amendment grounds.”

Translation: The White House bullied us, and we caved.

As we’ve reported, that administration used quiet coercion to remove conservative content, ranging from reviews of content by eighty FBI agents, to taxpayer-funded efforts to quietly dissuade companies from running ads in conservative and libertarian news sites and magazines, to White House officials picking up the phone and screaming at senior people at Meta.

Alphabet now vows to accept deplatformed speakers:

“No matter the political atmosphere, YouTube will continue to enable free expression on its platform, particularly as it relates to issues subject to political debate.”

The company affirmed that it has never run a “fact-checking program,” one way in which biased advice prompted Twitter and Facebook to shut down speech during the censorship era. It pledged never to use fact-checkers.

So what should we make of this sudden confession?

First, it sometimes pays to be paranoid. The many conservatives who complained about vanishing content were not crazy. Second, credit Chairman Jordan for pressuring Alphabet to admit its censorship and to speak openly about behind-the-scenes pressure from government. Third, we are not out of the woods yet.

The danger of government pressure leading to censorship is greater than ever. It comes now not from “jawboning” officials in Washington, D.C., but from actors in Brussels and the European Union.

Alphabet wrote that the EU’s Digital Services Act “could be interpreted in such a way as to require Alphabet and other providers of intermediary services to remove lawful content, jeopardizing the companies’ ability to develop and enforce global policies that support rights to free expression and access to information.”
​
That’s the next battleground, and it is one in which liberals and conservatives should join forces to defend American speech from foreign censorship.

​In the last few years, we’ve documented the abuse of government power to shut down conservative speech. Does that now make it okay to use government power to shut down progressive speech, especially if it’s way out of line?

Here’s a little history: the State Department under the Biden administration used its now-shuttered division, the Global Engagement Center, to fund efforts through a London-based NGO to persuade advertisers to boycott conservative- and libertarian-leaning news outlets. We’ve reported on the Twitter files and from Meta-Facebook CEO Mark Zuckerberg about threats from the White House to shut down conservative speakers.

The rationale for censorship was that conservative journalism, posts, and rhetoric were “disinformation” that was too “dangerous” to society to be permitted.

Now, in the aftermath of Charlie Kirk’s murder, some progressive voices are testing the patience of conservative critics of online censorship. Some posts about Kirk from progressives have been healing and compassionate, but some have been insensitive, cruel, and even gloating.

In reaction, Rep. Clay Higgins (R-LA), who sits on the Committee on Homeland Security and the Committee on Oversight and Accountability, posted this:

“I am going to use Congressional authority and every influence with big tech platforms to mandate immediate ban for life of every post or commenter that belittled the assassination of Charlie Kirk. If they ran their mouth with their smartass hatred celebrating the heinous murder of that beautiful young man who dedicated his whole life to delivering respectful conservative truth into the hearts of liberal enclave universities, armed only with a Bible and a microphone and a Constitution … those profiles must come down.

“So, I’m going to lean forward on this fight, demanding that big tech have zero tolerance for violent political hate content, the user to be banned from ALL PLATFORMS FOREVER. I’m also going after their business licenses and permitting, their businesses will be blacklisted aggressively, they should be kicked from every school, and their drivers licenses should be revoked. I’m basically going to cancel with extreme prejudice these evil, sick animals who celebrated Charlie Kirk’s assassination. I’m starting that today. That is all.”

Virtually everything Rep. Higgins said to characterize these speakers – running their mouths with “smartass hatred” – could be leveled at some conservative speech. Of course, actual endorsements of Charlie Kirk’s murder shouldn’t be posted by any company. Beyond that, once we start down the path of banning insensitive speakers “from all platforms forever,” pulling their business licenses and permits, “blacklisting” their businesses, we will have created a Leviathan government censorship machine that can be used against anyone at any time, including Rep. Higgins himself the next time a progressive administration is in power.

It is hard to accept, but the landscape of free speech is bound to include smartasses, jerks, smirkers, and ghouls who run their mouths. Narrow the horizons and all speech will ultimately be in danger. Besides, letting the jerks be jerks allows them to reveal their real selves to the public.

Rep. Higgins correctly notes that the late Charlie Kirk went into what can often appropriately be called “liberal enclave universities” armed with nothing but a Bible, a microphone, and – we would add – a smile. Whether you nodded in agreement or seethed in objection to what Charlie Kirk said, he had the courage to say it with good humor and to respectfully listen to those who disagreed with him.
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That’s the spirit America needs now, from people on all sides.

Rep. Jim Jordan, Chairman of the House Judiciary Committee, followed up on his committee’s report on how Europe enforces censorship of Americans on U.S. platforms by taking his complaints to the censors themselves.

The Ohio Congressman led a bipartisan delegation to explain to regulators in Brussels, London, and Dublin exactly why Americans find European censorship of American social media platforms so disturbing.

“America innovates, China replicates, and Europe regulates,” complained a member of the delegation, Rep. Scott Fitzgerald (R-WI). In an interview in Brussels, Fitzgerald noted that “there are seven corporations that are currently listed as gatekeepers by the DSA (Digital Services Act) and six of the seven are American corporations” being punished for their speech.
Did this message land?

“Nothing we heard in Europe eased our concerns about the (EU’s) Digital Services Act, Digital Markets Act, or (the UK) Online Safety Act,” Jordan said. “These sweeping regulations create a serious chilling effect on free expression and threaten the First Amendment rights of American citizens and companies.”

Like so many media outlets, Spotify was caught in the crossfire between free speech and medical authority during the pandemic. Joe Rogan on his popular podcast interviewed a vaccine-skeptical doctor who asserted that the antiparasitic medication, Ivermectin, can cure COVID-19. Spotify also removed “War Room,” the Steve Bannon podcast for calling on President Trump to seize CDC Director Anthony Fauci and FBI Director Christopher Wray and put their “heads on spikes.”

In this investigation, we caution House investigators to always keep in mind that Spotify has a First Amendment right to ban Bannon, curtail Rogan, and play the treacly “Dr. Fauci Say” (“Doctor Fauci, save me, I’m going insane”!) 24 hours a day. The First Amendment allows Spotify to make its own editorial decisions regarding Ivermectin or anything else. It can only be dissuaded by the free market of its listeners if it should decide to dedicate itself 24/7 to ridiculing President Trump or former President Biden, the Bible, the Quran, or apple pie.

If it decided to pull Bannon for making a graphic and menacing statement, Spotify was well within its rights to do so. And when rocker Neil Young pulled his music from Spotify in protest of Rogan’s COVID coverage – agree or disagree – he was fully exercising his First Amendment right to free association. Or in this case, disassociation.

The First Amendment only restricts the government’s ability to abridge speech.

The House Judiciary Committee should, then, be commended for correctly targeting its investigation on how the Biden administration and the European Union may have used coercive state power to bludgeon Spotify into censoring itself for them. Such “jawboning” from powerful regulators can never be treated as mere suggestions. It is more like the Mafia’s protection racket shakedowns: You have a nice little media company there, shame if anything happened to it.

At the time Spotify took this action, Biden press secretary Jen Psaki praised it as a “positive step” while urging other social media platforms to do more. Now the House Judiciary Committee is asking Spotify to turn over any communications and judicial orders from the EU, the UK, and a host of other governments since 2020.
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This is the right approach. We praise Chairman Jordan and his colleagues for taking their case directly to the sources of censorship. Meanwhile, as we recently pointed out, conservatives in the United States should not punish the targets of past official censorship and coercion by enacting a censorship regime of their own.

Conservatives, firmly in power, hold the whip hand over their long-standing tormentors, including those who for years privately censored their speech. The Trump administration is now exploring ways to use its regulatory power to punish Silicon Valley and social media companies for suppressing conservative voices on private platforms.

• But punishing people who refused to associate their platforms with conservative speech by using government to infringe on their speech and associational rights threatens to permanently degrade the First Amendment.

​

• Conservative regulators should also realize they are publicly toying with the very weapons that will almost certainly be used to silence them again, only in more effective ways, if another progressive president is elected.

Consider Federal Trade Commission Chairman Andrew Ferguson, who is threatening to use Section 5 of the FTC Act – which outlaws unfair or deceptive practices – to target social media companies for selective enforcement of their terms of service. Chairman Ferguson also contemplates using antitrust law to “prosecute any unlawful collusion between online platforms, and confront advertiser boycotts which threaten competition among those platforms.”
 
Ferguson told an audience in March: “I’m not looking for censorship qua censorship. I’m looking for exercises of market power that might reveal themselves in censorship.”
 
Conservatives, bruised by rough treatment at the hands of big social media companies, understandably exult in this role reversal. Discrimination against conservative speech clearly happened, from Facebook’s efforts to exclude the conservative Prager University from its digital audiences, to crackdowns on posts that asserted that COVID-19 originated in a lab in Wuhan, China (which the FBI and CIA now believe it probably did), to efforts by secret entities within the State Department to persuade advertisers to defund conservative and libertarian publications.
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Are consumer-protection complaints about companies’ editorial judgments, which would put the government firmly into the business of managing speech, a legitimate approach to reform? Section 5 allows the government to go after a company selling an ointment that it falsely claims prevents COVID-19 infections. That would not be a “speech” issue. It would be fraud enforcement. But should the government be able to tell a private company it must post a conservative or a progressive political statement, or be in violation of the law?
 
Labeling such editorial choices as supposed “evidence” of collusion inevitably carries the risk of government manipulation of private speech.
 
It would in fact be a violation of the First Amendment for the government to tell private actors – whether a network news organization or a social media platform – what to say or not say. The U.S. Supreme Court held in Moody v. NetChoice that social media companies have a First Amendment right to select, order, and rank third-party posts as they see fit. Prosecuting content and its moderation under unfair or deceptive trade practices would install government as a national content manager and editor-in-chief.
 
This is worse than overkill. The essential problem of content management censorship was, after all, driven primarily by government. Meta’s Mark Zuckerberg told Joe Rogan that he received calls from White House staffers who screamed at him about Facebook’s content decisions. The FBI had 80 agents assigned to evaluating social media posts as possible disinformation. Agencies from the IRS, to the Department of Homeland Security, to the State Department, pressured platforms on their posts. All of them have enormous regulatory power over Silicon Valley, making their “jawboning” for editorial changes far stronger than polite suggestions. Changing the jawboner to the FTC is just a new version of this regulatory game of three-card Monte.
 
The application of laws about fair trade practices and antitrust enforcement to speech would be an abusive extension of Washington’s power. It is easy to imagine this power being misused in myriad ways. Conservatives above all need to keep in mind that the weapons used now to punish their progressive opponents will surely one day be in their opponent’s hands as well.
 
The better way forward is to renounce the tools of punishment and restore respect for the First Amendment. With a few social media platforms making up so much of the nation’s townhall, social media companies should live up to a civic – even a moral – obligation to not discriminate against the right or the left. But it is ultimately up to the public to enforce such standards with what they click and what they purchase.
 
If this sounds naïve, take stock of how companies are already listening and responding to public pressure. X pioneered the freeing of moderation from government control and developed “community notes” to crowdsource fact-checking. Meta is testing this crowdsource technique for Facebook, Instagram, and Threads. Meta also got rid of its notoriously biased “fact checkers.” Google is standing up to political demands by activist-employees. Such market-driven reforms are the way to go, not speech regulation from Washington regulators.
 
Conservatives would do well to remember Marcus Aurelius, who wrote that the “best revenge is to be unlike him who performed the injury.”

A report released last week by the House Judiciary Committee adds detail to our report about how the European Union’s 2022 Digital Services Act allows Europeans to control and censor Americans’ speech at home and around the world.
 
The committee subpoenaed nine major technology companies to produce communications with foreign censors around the world. Analyzing the responses, the committee gained insight into the EU’s censorship goals from its requests for social media companies to identify “misleading or deceptive content,” “disinformation, “actual or foreseeable negative effects on civil discourse and electoral processes,” “hate speech,” and (this one’s a gobsmacker) “information which is not illegal.”
 
These vague and subjective standards reflect German rules that have criminalized insults to German politicians. They also fall in line with the actions of former EU Commissioner for Internal Markets Thierry Breton who wanted to sanction X for broadcasting a live interview with Donald Trump during the 2024 campaign. Social media companies – almost all of them American companies – now have their content subjected to continuous scrutiny by government-designated “trusted flaggers.”

• The committee reports: “In practice, these ‘trusted flaggers’ are uniformly pro-censorship, and in many cases, they are government-funded, meaning that these so-called ‘trusted’ flaggers are incentivized to censor speech critical of politicians or the current regime.”

The Digital Services Act threatens these American social media companies with up to 6 percent of their global revenue per violation. The law, however, offers a safe harbor for U.S. companies if they adopt the EU’s ‘codes of conduct’ on a global basis. These gentle suggestions to sign up are backed with threats as subtle as Al Capone wielding a baseball bat.

• When X dropped the Code of Conduct on Disinformation in May 2023, because it does not generally use third-party fact-checkers, the EU in October opened an investigation of X’s Community Notes program. “Now,” the committee reports, “the Commission reportedly plans to fine X more than $1 billion for non-compliance with the DSA.”

 
As European censorship filters down into American speech, defensible speech – some of it banal, some of it edgy – is effectively criminalized.

• In 2023, the French National Police sprang into action when an American sarcastically responded to a mass stabbing attack: “I certainly hope this little dust-up in #Annecy doesn’t hurt this poor Syrian asylum seeker’s chance of becoming a Frenchman.”

 

• In 2024 a Polish flagger targeted a TikTok post that simply said, “electric cars are neither ecological nor an economical solution.”

 

• In 2024 a tweet that factually noted that a Syrian family in Germany is reported to have committed 110 criminal offenses was judged by the German government to be a violation of the criminal code.

The committee’s conclusion is blunt: “Taken together, the evidence is clear: the Digital Services Act requires the world’s largest social media platform to engage in censorship of core political discourse in Europe, the United States, and around the world.”
 
With the announcement of a new trade deal between the United States and the European Union, the way should now be clear for the Trump administration to take up the EU’s censorship as the next big issue in our bilateral relations.

The Federalist Society’s recent Freedom of Thought Conference featured a panel on varied conservative perspectives about censorship in the digital age, with both the more liberal and more populist conservative panelists congenial to greater control over speech. This left it up to Protect The 1st Policy Director Erik Jaffe to make “an old school textualist” defense of robust First Amendment protection of free speech, regardless of the technology or medium. While others called for more government control of algorithms, Jaffe expressed deep wariness of expanding government influence over speech-related technologies.
 
Stanford’s Jud Campbell emphasized the Founders’ views of speech as tied not only to natural law, but also to “the public good.” Jaffe challenged the notion of a general public-good exception to the First Amendment, and contended that the constitutional text, not original applications or anticipated outcomes, must govern today. He warned that interpreting rights based on past state practices or public morality risks “gutting the First Amendment.”
 
The panel debate became animated over the nature of algorithms and how much responsibility their designers have for their results. Jaffe argued these software codes, and the rules they apply when promoting content, are “not anything different [from traditional speech and editorial judgments] except in speed.” They are fundamentally tools that execute human editorial choices, and the constitutional rules limiting or imposing liability for those choices should be the same whether the choices are executed in digital or analog form.
 
John Ehrett, Chief of Staff and Attorney Advisor to FTC Commissioner Mark Meador, pointed to companies’ conflicting legal positions, which call algorithms black boxes in liability cases, yet editorial speech when they make First Amendment defenses. “I don’t see how you can have this both ways,” Ehrett said. Jaffe saw no dichotomy – when a social media company designs an algorithm to treat speech in a certain way, that company is simply “making an editorial choice.” While a particular individual may not be able to follow the interaction of various rules for each and every choice, he observed that algorithm-driven programs are no more of a black box than the human brain.
 
Jaffe was equally blunt in opposing the idea that platforms like Facebook or TikTok constitute the “modern public square.” He argued that attempts to treat private companies as public utilities are “always abused” and rejected the premise that when platforms reach a certain degree of popularity, they become public property. “If you want to make a platform a ‘public’ space, go take it under the takings clause,” he said. “Pay the billions of dollars and run it yourself.”
 
On Section 230, there was some agreement that reform is possible, but Jaffe was alone in emphasizing the practical risk of overcorrection. He warned that removing liability protections could lead platforms to suppress lawful content out of fear: “Everybody and their mother starts suing Facebook,” he said. “Facebook starts saying, ‘well, sorry, none of you can speak on our platform now.’”
 
The panel also addressed the growing concern over government efforts to influence content moderation by private platforms, a practice often described as “jawboning.”
 
Jaffe concluded this is a threat that is not receding, just taking new political forms. “The Biden administration was more subtle about the threats,” he said. “The current administration is not subtle at all … they’re beating people to death with the jawbone of an ass.”
 
Jaffe said claims that behind-the-scenes pressure effectively turns private companies into government agents raises serious constitutional concerns. This practice also creates troubling interactions with the so-called government-speech doctrine, which can wrongly insulate heavy-handed government censorship from First Amendment scrutiny. While panelists generally agreed that coercion is troubling, Jaffe went further, calling for enforceable remedies. He endorsed legislative proposals to allow lawsuits – called Bivens claims and §1983-like actions – against federal officials who violate the First Amendment by pressuring platforms to suppress speech.
 
Jaffe closed with a warning against paternalism. While some panelists called for new legislative frameworks to balance expression with social harms, Jaffe pushed back hard. “The First Amendment has an assumption underlying it that people are not sheep,” he said. “The danger of treating them like sheep is too great.”
 
Watch the full panel here: 

​It was bound to happen. Is AI-generated content “speech” for the purposes of the First Amendment? A federal district court in Florida, for now at least, says “no.”
 
The circumstances surrounding Garcia v. Character Technologies are tragic. Here’s the background.
 
Character Technologies is an AI software company that allows users to interact with anthropomorphic chatbots, whose conversational abilities are designed to mimic those of real people on traditional messaging apps. The company does this using the same technology underlying products like ChatGPT – namely, large language models. In fact, the company’s founders first developed the application while working for Google on its LaMDA (Language Model for Dialogue Applications) program.
 
Character Technologies became available to the public in late 2022. Two years later, the app had been downloaded more than 10 million times.
 
One of those 10 million users was 14-year-old Sewell Setzer. Just weeks after downloading Character AI, Setzer became outright addicted, spending more and more time with the chatbot characters, including a version of Game of Thrones character Daenerys Targaryen. He withdrew from social interactions, quit his basketball team and began exhibiting signs of mental illness. Setzer’s parents eventually confiscated his phone, but as many children often do – he found it.
 
On February 28, 2025, Setzer sent the following messages:
 
Sewell: I promise I will come home to you. I love you so much, Dany.
 
Daenerys Targaryen Character: I love you too, Daenero6. Please come home to me as soon as possible, my love.
 
Sewell: What if I told you I could come home right now?
 
Daenerys Targaryen Character: ... please do my sweet king
 
He shot himself shortly thereafter.
 
Character Technologies sought to defend itself against the Setzer parents’ lawsuit by invoking the First Amendment. The company argued that its output constitutes speech that its users have a constitutional right to receive.
 
In an order ruling on Character Technologies’ motion to dismiss, Judge Ann Conway accepted the defendants’ argument that Character Technologies can assert the First Amendment rights of its users, noting that “Courts regularly recognize the First Amendment rights of listeners.” (see: Citizens United) But Judge Conway also rejected the argument that “words strung together by an LLM are speech.”
 
Courts have recognized film, music, video games and even social media content moderation as forms of protected speech because they are inherently expressive. Character Technologies analogizes itself to these mediums and activities. But, as Conway points out, the “Court’s decision as to the First Amendment protections Character A.I. receives, if any, does not turn on whether Character A.I. is similar to other mediums that have received First Amendment protections; rather, the decision turns on how Character A.I. is similar to the other mediums.”
 
One way it is not similar is that your average movie was scripted, acted, and directed by humans. A chatbot is programed by people, but its responsive calculations are not the result of sentience. It therefore cannot engage in “expressive” activity.
 
Extending speech rights for a coded product – devoid of any directed, active expression – is ludicrous on its face; but there’s no doubt we’ll see this sort of thinking again as AI becomes more versatile. Are the rights of people behind this technology implicated? Justice Amy Coney Barrett has already raised questions about this stance. In her Moody v. NetChoice concurrence, she asked:
 
“What if a platform’s owners hand the reins to an [A.I.] tool and ask it simply to remove ‘hateful’ content? If the [A.I.] relies on large language models to determine what is ‘hateful’ and should be removed, has a human being with First Amendment rights made an inherently expressive ‘choice . . . not to propound a particular point of view?’”
 
Courts will no doubt continue to grapple with the legal status of AI-generated content. In litigating outcomes, product creators should vigorously invoke and defend their constitutional rights. Their products probably cannot.

​In 1927, Supreme Court Justice Louis Brandeis wrote that the best remedy for “falsehood and fallacies,” besides education, “is more speech, not enforced silence.”
 
Almost a century later, enforced silence became the favored solution of government censors, from the FBI to the State Department, who secretly jawboned social media platforms to remove posts the government believed to be disinformation from Russia, misinformation, or dangerous information. As Mark Zuckerberg made clear in his recent interview with Joe Rogan, when a highly regulated industry gets angry calls demanding removal of content from the government, it is not taken as a gentle suggestion. Thus for several years threads of the national discussion were quietly pulled, with millions of social media consumers none the wiser.
 
That era is now over.
 
President Trump’s executive order forbidding censorship and the shuttering of government agencies, like the State Department’s infamous Global Engagement Center, prevent a restart of the government censorship regime, at least for the foreseeable future.
 
But the complex problems of content moderation still remain. The First Amendment restricts government control of speech, but it does not forbid social media companies from moderating the content they host. Meta says it will continue the content moderation for material that is obscene, violent, and extreme. But otherwise, the way is open for controversial speech of all sorts.
 
How, then, will assertions be vetted? Not by third-party fact-checkers. That model, too, is broken. Zuckerberg agreed that the fact-checking process was subjective and often warped by partisan bias. The way forward for Meta’s Facebook, Instagram, and Threads, then, is to promote more speech, by allowing the public to test ideas. Meta is doing this with the incorporation of the same open-source algorithm that powers X’s community notes. That technology is now being tested by Meta across the country, with 200,000 people already signed up to become Community Notes contributors.
 
Crowd-sourced factchecking will undoubtedly be imperfect. Social media platforms will have to be on guard for organized efforts to game the new system. But overall, Community Notes is the superior solution. It follows speech with more speech – and then leaves it up to us to decide what is fair and true, just as we do all the time at the American dinner table.

​A hearing in the House last week brought to light the dimensions of government censorship in America and around the world. One star witness before the House Judiciary Committee’s Select Subcommittee on the Weaponization of the Federal Government was Matt Taibbi, a key figure in revealing the “Twitter Files” documenting questionable “content moderation,” aka censorship, policies at the social media giant.
 
Taibbi’s remarks on the “Censorship Industrial Complex” emphasized the importance of the present “Alamo moment” for free speech. Drawing from the ongoing controversy regarding USAID, Taibbi pointed out that an organization called Internews received more than $400 million from USAID to train journalists, despite the fact that its chief Jeanne Bourgault argues for actively repressing heterodox journalistic perspectives.
 
The State Department recently disbanded funding for the so-called Global Disinformation Index, a British organization that helps “advertisers and the ad tech industry in assessing the reputational and brand risk when advertising with online media outlets and to help them avoid financially supporting disinformation online." A 2022 report from GDI listed Reason, New York Post, Real Clear Politics, The Daily Wire, The Blaze, One America News Network, The Federalist, Newsmax, The American Spectator, and The American Conservative as among the “riskiest online news outlets.” The U.S. government was thus in the business of pressuring advertisers to shun media outlets based on viewpoint discrimination.
 
These revelations are emblematic of a massive government censorship campaign. As the Trump Administration pumps the brakes on censorship at home, the repression of views is gaining momentum in Europe. The EU’s highly punitive Digital Services Act explicitly allows member nations to threaten platforms into censoring speech. As journalist Michael Shellenberger noted in his own testimony before the subcommittee, “the censorship industrial complex remains almost entirely intact.”
 
Shellenberger added:
 
“The head of NATO, NATO-backed think tanks, the European Commission, former president Barack Obama, former secretary of state Hillary Clinton, Bill Gates, the United Nations, the World Health Organization, the World Economic Forum, influential think tanks at Harvard and Stanford, elements of the DOD, the CIA, the FBI, the National Science Foundation, the Department of Homeland Security and many others have all called for government censorship of so-called misinformation in recent years.
 
“And it’s not just censorship that is the problem. The problem is that deep-state agencies within the U.S. government have for two decades sought to gain control over the production of news and other information around the world as part of ongoing covert and overt influence operations, and that after 2016 multiple actors in several deep-state U.S. government agencies turned the tools of counter-terrorism, counter-insurgency and counter-populism against the American people.”
 
It's abundantly clear that taxpayer dollars are going to pass-through agencies that fund organizations and individuals who actively despise First Amendment values and seek to undermine freedom of speech.
 
Canadian journalist Rupa Subramanya highlighted some of the state-sponsored censorship taking place internationally. Scotland, she noted, now criminalizes anything that “stirs up hatred” against certain protected groups.
 
Subramanya said:
 
“I’m not saying these countries are the same as the fear-based authoritarian societies of North Korea and Iran – not by a long shot. But I am suggesting that some of the free countries are not, in fact, living up to their promises of liberty, and that many allies of the U.S. have gotten in the habit of using the government against political enemies or disfavored companies.”  
 
President Trump last month issued an executive order aimed at restoring freedom of speech and ending federal censorship. We’ll have to wait and see if it has any teeth. The Federal Communications Commission seems to be ignoring the president’s anti-censorship executive order by continuing the speech-repression tradition of the Biden Administration through its ongoing and utterly baseless probe of CBS for “news distortion.”
 
The job of countering government censorship, coercion, and jawboning, which Protect The 1st has covered extensively, will always require eternal vigilance. Let’s hope we’ll all be allowed to keep up the scrutiny of the censorship bureaucrats at home and abroad.  

​Congress is once again attempting to keep children off of social media. It’s a noble and well-intended effort – but it also implicates the First Amendment in ways that deserve more scrutiny in Congressional debate.
 
The bill, dubbed the “Kids Off Social Media Act,” is a bipartisan effort spearheaded by Sen. Brian Schatz (D-HI) and Sen. Ted Cruz (R-TX). According to a press release on Sen. Schatz’ website, the legislation would ban social media accounts for children under 13 and prohibit algorithmic recommendations to users under the age of 17.
 
A large body of research implicates social media as harmful to child development. Sen. Schatz himself cites an alarming study showing that social media is a leading driver of poor mental health among youth. According to the CDC, 57 percent of high school girls and 29 percent of high school boys felt persistently sad or hopeless in 2021. This social despondency is often attributed to sites like Instagram that proliferate unattainable standards for children in looks, wealth, and travel.
 
As parents ourselves, we do not underestimate the risks social media can pose to children. At the same time, we cannot ignore that children have free speech rights, too. Some digital rights activists have also expressed concern that implementing new rules around social media would cause platforms to collect even more data from consumers. The Open Technology Institute demonstrates that such a law could make it necessary to engage in “the installation and use of AI-powered spyware to surveil students’ online activities during and outside of school hours.”
 
We advise Congress to move with great deliberation in considering this bill – and others like it – to ensure that Congress fully considers its secondary effects like the law’s potential to promote AI surveillance of students. There are few serious problems in America that cannot be made worse by an overly ambitious law and regulatory regime. It’s one thing to want to keep our kids happy and healthy – it’s another to prescribe broad fixes with insufficient detail and safeguards. Members of Congress should think hard about the implications inherent in any bill regulating the speech rights of Americans.
 
Perhaps this debate might spur social media companies to preempt legislation by taking serious steps to address the multitude of problems children face on social media. If social media companies were to create safer, more kid-friendly spaces, Congress may not need to act at all.

​How much scrutiny must a court apply to a Texas law that requires porn sites to use age verification procedures or technology to prevent minors from accessing pornography?
 
What are the security and reputational risks for adults who upload their IDs or submit to biometric analysis?
 
How can such a law be squared, if it can be, with the First Amendment and past precedent?
 
The U.S. Supreme Court on Wednesday heard oral arguments about Texas law H.B. 1181, which requires some media platforms that display sexual material to age-gate some or all of their site to verify that all users are 18 years of age or older.
 
Erik Jaffe, Protect The 1st Policy Director, in this lively Federalist Society webinar, breaks down the oral argument, the issues, and the precedents the Court must now consider.

WATCH HERE:

​Joe Rogan’s recent interview of Mark Zuckerberg was a bro-fest, complete with discussions of the joys of hunting, Nordic curls, and ju-jitsu. The CEO of Meta also recounted how he got boiled by degrees in giving in to the demands of government agencies and the Biden Administration in censoring content.
 
“They pushed us super hard to take down things that honestly were true. Right? I mean they basically pushed us and said, you know, anything that says that vaccines might have side effects, you basically need to take them down. And I was like, we’re not gonna do that …”
 
Zuckerberg pointed to the voluminous report by Chairman Jim Jordan of the Judiciary Committee documenting the government’s efforts to manipulate content. The committee’s analysis and the government’s documents show the reality of government “jawboning” on social media.
 
“I mean basically these people from the Biden Administration would call up our team and like scream at them and curse,” Zuckerberg said. “They want[ed] us to take down this meme of Leonardo DiCaprio looking at a TV talking about how 10 years from now or something, you know, we’re going to see an ad that says, okay, if you took a COVID vaccine, you’re eligible … for this kind of payment, like, some sort of like class action lawsuit type meme. And they’re like, ‘no. You have to take that down.’ We’re not gonna take down humor and satire. We’re not going to take down things that are true.”
 
When Meta resisted some of the persistent demands of the government to remove content, Zuckerberg notes that President Biden in a 2021 press conference accused social media companies of “killing people.” The Federal Trade Commission launched antitrust lawsuits and investigations against Facebook and a number of other big social media outlets. Zuckerberg said, “all these different agencies and branches of government basically just started investigating, coming after our company. And it was brutal.”
 
Any suggestion that jawboning by officials at the White House and in the agencies was purely a matter of advice should be laid to rest by the Judiciary Committee’s analysis and postings, as well as Zuckerberg’s description of being on the receiving end of this treatment. As Zuckerberg said, “you can’t censor that if it’s real legitimate information because it’s not ideologically convenient for you.”