Protect The 1st filed a brief urging the U.S. Supreme Court to hear a case in which a public school teacher was terminated over a search of her old retweets of social media memes. While a seemingly small case, it could have outsized influence over the speech rights of millions of Americans. The case involves a public schoolteacher, Kari MacRae, who was hired by the Hanover High School in 2021. Months before, MacRae had been a candidate for the local school board in this Massachusetts town. At that time, she had shared and liked on her TikTok account several memes and videos poking fun at “woke” ideology. (You can decide for yourself what you think of MacRae’s reposted memes, highlighted in this Boston.com article.) Hanover High learned of the unearthing of MacRae’s old TikTok reposts from local media. It then placed MacRae on administrative leave to conduct a 14-day investigation. The school then fired her. MacRae sued for wrongful termination and the violation of her rights only to lose in federal district court and then on appeal before the U.S. First Circuit. In our view, the First Circuit misapplied a framework that if not reviewed and overturned by the Supreme Court, will leave the speech rights of government employees – 15 percent of the U.S. workforce – at risk. The Supreme Court has already held in Garcetti v. Ceballos (2006) that when government “employees are speaking as citizens about matters of public concern,” they “must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” The First Circuit instead embraced a “balancing” standard between personal rights and public responsibilities. Protect The 1st responds: “Framed in Garcetti’s terms, this case asks whether government employers, to ‘operate efficiently and effectively,’ must have carte blanche to punish their employees not for what they are now saying, but for anything they have ever said – even before they were hired. If the First Amendment means anything in this context, the answer to that question must be no. An alternative holding would silence prospective government employees lest their speech, whenever it was made, could later be cited as a reason to destroy their careers.” We warn that if the First Circuit’s standard were adopted broadly, “fully protected speech could lose its protection with time – an untenable proposition.” Protect the 1st also told the Court: “… that in a world where many people spend their lives online, a rule that anything they say there can later be the impetus for their termination from government employment would impose an unconscionable burden on the right to speak on issues of public concern: It would chill pre-employment speech at the front end and give a modified heckler’s veto to bad actors at the back end.” We urge the Supreme Court, which has taken up few First Amendment cases so far in this term, to grant the petition and reverse the First Circuit’s erroneous ruling. The nation’s two presidential candidates sometimes seem at a loss to understand or appreciate the First Amendment, which protects religious expression and freedom of the press, among other forms of speech. Case in point: when Vice President Kamala Harris was asked this week in an NBC interview if she would support a religious exemption for physicians on abortion, she flatly rejected any such “concession.” The Democratic nominee for president spoke about the “basic freedom” of a woman to control her own body, while rejecting the idea that a physician in a white surgical gown should have control over the actions of his or her own hands. Let’s be clear what we’re talking about – the Harris position would pull the medical licenses of men and women of faith for declining to personally perform abortions. Never mind that this country has no lack of physicians willing to perform that procedure. Contrast the vice president’s stance with the Democrats of New Mexico, where last year Gov. Michelle Lujan and her fellow Democrats in the legislature took a commendable step to improve a law they championed to make sure it observes the religious freedom of physicians. That law is the Elizabeth Whitefield End-of-Life Options Act, which went into effect in 2021. The law required doctors who objected to administering fatal drugs to a patient to refer them to a physician who would. Gov. Lujan and her allies in the New Mexico legislature heard the outcry from physicians of faith and responded with courage to correct their law to observe the religious freedom of expression. Why can’t Harris follow that example? Then there is former President Trump, who has been littering the airwaves with threats to pull the broadcast licenses of ABC and then CBS for disputes over their fact checks and editorial decisions. News flash: Networks don’t have broadcast licenses. Their local affiliates do. News organizations don’t need a “license” to practice journalism. Anyone can do it. Again, it’s called the First Amendment. Contrast the Republican nominee’s frequent threats with those of his Republican predecessors. Presidents Reagan, Bush and Bush complained about media bias, but each of them found artful ways to counter it. The first President Bush forcefully rejected the contentions of CBS’s Dan Rather on air, then the allies of the second President Bush discredited him so badly that Rather eventually resigned from CBS. The presidential father and son did so by exercising their First Amendment rights, without resorting to threats of censorship. Yet listening to our candidates today, we have to ask: is rubbishing the First Amendment the new normal in American presidential politics? At the very least, the current state of the presidential debate points to the urgency of restoring civics education that imparts a classical understanding of our Constitution. California holds the unique position of being both the most innovative state in the union and perhaps the most ignominious when it comes to government overreach. Take a recent law that passed the California State Legislature back in September: AB 2839, which targets election misinformation, and which is now enjoined pursuant to a federal court order. AB 2839 takes aim at “materially deceptive” communications distributed within 120 days of an election and up to 60 days after one. Specifically, the law states that “[a] person, committee, or other entity shall not…with malice, knowingly distribute an advertisement or other election communication containing materially deceptive content” of a candidate “portrayed as doing or saying something the candidate did not do or say if the content is reasonably likely to harm the reputation or electoral prospects of a candidate.” The law permits any recipient of the content to file suit against the content creator. In an era in which many voters hold legitimate concerns about AI, deepfakes, bots, and other methods of digital manipulation, the impulse to use whatever means necessary to protect election integrity is not entirely misguided. AB 2839 goes way too far. Like many such laws, AB 2839 “lacks the narrow tailoring and least restrictive alternative that a content-based law requires under strict scrutiny.” Its broad sweep, writes Judge John Mendez, “does much more than punish potential defamatory statements since the statute does not require actual harm and sanctions any digitally manipulated content that is ‘reasonably likely’ to ‘harm’ the amorphous ‘electoral prospects’ of a candidate or elected official.” For instance, as written, the law could subject the creator of any candidate deepfake to civil liability – even if it “does not implicate reputational harm.” As Mendez points out, New York Times v. Sullivan long ago addressed the issue of deliberate lies about the government, which are constitutionally protected. To the extent speech conduct targets public figures or private individuals, remedies like “privacy torts, copyright infringement, or defamation” already exist. As such, it is entirely unnecessary to separately target speech occurring within an electoral context, which is “a content-based regulation that seeks to limit public discourse.” Beyond the legal implications, it practically opens the floodgates to all manner of politically motivated censorship. Parody is perhaps the most likely victim of AB 2839’s reach. The plaintiff, Christopher Kohls, runs a YouTube channel steeped in political satire. And, while the law does contain a carveout exempting such content, it requires a written disclaimer "no smaller than the largest font size of other text appearing in the visual media." In other words, it would render Kohls’ content unwatchable. Judge Mendez writes, “Supreme Court precedent illuminates that while a well-founded fear of a digitally manipulated media landscape may be justified, this fear does not give legislators unbridled license to bulldoze over the longstanding tradition of critique, parody, and satire protected by the First Amendment. YouTube videos, Facebook posts, and X tweets are the newspaper advertisements and political cartoons of today, and the First Amendment protects and individual’s right to speak regardless of the new medium these critiques may take.” We’ll be watching this case closely should the Golden State decide to appeal. An important analysis from Real Clear Investigations probes the extent to which censorship abroad threatens the First Amendment here at home. Writer Ben Weingarten asks whether foreign demands that domestic media companies operating abroad comply with those nations’ often far more censorial legal requirements will lead in turn to more censorship here at home. The preponderance of the evidence suggests bad news for fans of the First Amendment. Weingarten points specifically to the European Union’s Digital Services Act, which imposes content moderation standards that far exceed what would be considered constitutional in the United States. For example, companies doing business in the EU must combat “illegal content online,” which includes the disfavored rhetoric like “illegal hate speech.” Writes Weingarten: “Platforms also must take ‘risk-based action,’ including undergoing independent audits to combat ‘disinformation or election manipulation’ – with the expectation those measures should be taken in consultation with ‘independent experts and civil society organisations.’ The Commission says these measures are aimed at mitigating ‘systemic issues such as … hoaxes and manipulation during pandemics, harms to vulnerable groups and other emerging societal harms’ driven by ‘harmful’ but not illegal content.” What’s more, investigations pursuant to the DSA can result in fines of up to 6% of annual global revenue, a potential outcome likely to give companies like X and Facebook pause when considering whether to comply with the invasive oversight of European bureaucrats and NGOs serving as arbiters of the appropriate. Then there’s the question of whether social media companies that agree to the EU’s demands are likely to run parallel services – for example, a DSA compliant version of X and another that is consistent with the requirements of the First Amendment. Elon Musk seemed willing to abandon Brazil after that country banned X for failing to de-platform the account of former president Jair Bolsonaro. (Though Musk’s company is now very much back in business there.) But the EU is a much bigger market with a lot more monetizable users. As Weingarten documents, the punishment of media companies abroad for speech that is well within the bounds of the First Amendment is a growing trend – not just in the EU but also in countries like the UK and Australia. And Weingarten reserves no small amount of criticism for the Biden Administration’s silence – and even capitulation – in the face of such foreign censorship. Bills like the No Censors on our Shores Act, which could “punish foreign individuals and entities that promote or engage in the censorship of American speech,” offer one potential solution to foreign censorship creep. So do articles like Weingarten’s, which provide a much-needed diagnosis of our speech-related ailings and failings. Former senator and presidential candidate John Kerry said the quiet part out loud in recent comments before the World Economic Forum.
In answer to a question regarding critics of climate change, Kerry responded vigorously, saying: “You know, there’s a lot of discussion now about how you curb those entities in order to guarantee that you’re going to have some accountability on facts, etcetera. But look, if people only go to one source, and the source they go to is sick, and, you know, has an agenda, and they’re putting out disinformation, our First Amendment stands as a major block to be able to just, you know, hammer it out of existence.” We at Protect the 1st are no critics of the climate change debate, which is important. But we cast a critical eye at those who would minimize First Amendment protections to silence their opposition. Kerry said, "Democracies around the world now are struggling with the absence of a sort of truth arbiter, and there’s no one who defines what facts really are." With all respect to Kerry, we’re a hard pass on a Ministry of Truth. The free exchange of ideas, even bad ideas, is essential for an informed discourse. The First Amendment ratified first for a reason. The founders recognized that the right to speak, free of government interference, is the foundational rule of a democracy. Before anything else, free speech is the one principle that all Americans should know – and cherish – by heart.
That many Americans don’t understand the First Amendment is regrettably not surprising, given the erosion of what used to be called civics education in our public schools. What is shocking is how America’s political leaders – tasked with defending the Constitution – are showing a lack of basic understanding of the First Amendment. In the vice-presidential candidates’ debate, Gov. Tim Walz told his opponent Sen. J.D. Vance: “You can’t yell ‘fire’ in a crowded theater. That’s the test. That’s the Supreme Court test.” Too bad J.D. Vance, Yale Law School graduate, didn’t take the opportunity to correct this widespread misperception. Gov. Walz’s reference came from an opinion written by Justice Oliver Wendell Holmes in Schenck v. United States, which upheld the conviction of one Charles Schenck under the Espionage Act for distributing flyers appealing to draft age men to resist induction into World War One. Justice Holmes upheld the man’s conviction. In peacetime, Holmes wrote, such criticism can be allowed. In wartime, however, criticizing the government of the United States is akin to his metaphor of “falsely shouting fire in a theater.” (Popular imagination later added “crowded” to this quote. Sixties activist Abbie Hoffman offered his own memorable twist, defining free speech as having the right to “shout ‘theater’ in a crowded fire.”) Thus, Justice Holmes declared, opposition to America’s war effort justified “a clear and present danger” test for speech. Schenck went to prison and criticism of the war became a crime. Gov. Walz seems unaware that in 1969 the Supreme Court in Brandenburg v. Ohio overturned this “clear and present danger” test. It narrowed the exception to language meant only to direct or incite “imminent lawless action.” The Brandenburg standard protects all speech – even what any fair person would call “hate speech” – so long as it does not call for imminent violence. Another remark from John Kerry, former U.S. Senator and Secretary of State, also garnered a lot of criticism about the need to “curb” some media entities. He told an audience at the World Economic Forum: “But look, if people only go to one source, and the source they go to is sick, and, you know, has an agenda, and they’re putting out disinformation, our First Amendment stands as a major block to the ability to be able to just, you know, hammer that out of existence.” Some have defended Kerry by saying he was merely explaining to an audience with foreigners that the First Amendment prevents the government from blocking disinformation, in this instance about climate change. TechDirt’s Mike Masnick writes: “He appears to be explaining reality to a questioner from the audience who wants to suppress speech.” Perhaps. But then Kerry immediately pivoted to the need to “win the ground, win the right to govern, by hopefully winning enough votes that you’re free to implement change.” What else could that mean but a landslide election that could justify government “hammering” unapproved speech out of existence? Finally, there is Donald Trump. In the recent presidential debate, ABC News factchecked Trump, but not Vice President Harris. Still, Trump’s response to this biased treatment gives us pause. Donald Trump said of ABC News: “To be honest, they’re a news organization – they have to be licensed to do it. They ought to take away their license for the way they did that.” No, no and no. No, you don’t have to have a license to be a news organization. All you need is a printing press or a broadcast studio. No, ABC News does not need a broadcast license – the FCC grants those to local stations, not to networks. And no, you cannot punish a news organization for legal content. Politicians of all stripes need to understand that biased reporting, hateful comments, and “disinformation” are all protected speech. There is no “they” who can take away someone’s license to speak. And any attempt to regulate social media content that is or is not “disinformation” is to inevitably create a Ministry of Truth. The generous space the First Amendment leaves for speech still allows laws that curb incitement to violence, defamation, false advertisement, and obscenity. For almost two and half centuries, Americans have left it to juries to decide such cases within strict guidelines. Let’s leave it that way. In the meantime, perhaps all candidates for federal office would do well to check out this excellent video from Publius No. 86. The recent wave of government actions against social media platforms — from Brazil’s suspension of X to France’s charges against Telegram’s CEO — reveals a downward global trend in official respect for free speech in the digital age. Framed as efforts to protect public safety, national security, or the democratic process, governments around the world are increasingly bold in controlling what can be said and who can speak online.
While some actions target harmful content, many governments (including, as Meta CEO Mark Zuckerberg attests, our own) risk outright censorship that stifles dissent and restricts access to information. Exhibit A is Brazil, in which the Supreme Court, led by Justice Alexandre de Moraes, ordered a nationwide block on X, formerly Twitter, after the platform refused to appoint a legal representative in the country. This decision follows confrontations over X’s refusal to remove content and block accounts linked to “disinformation” and “extremism” – even though some of the blocked accounts are those of a Brazilian senator and prominent critics of the current administration. X’s Elon Musk understandably is concerned that such “regulation” could be used to censor dissent and control public discourse. So he refused to appoint a legal representative who almost surely would be arrested and prosecuted. Justice de Moraes frames his efforts as a battle against misinformation, citing X's failure to comply with directives as evidence of its disregard for Brazilian law. But Elon Musk, a "free speech absolutist," correctly portrays these actions as overreach by an authoritarian judge. France recently charged Telegram CEO Pavel Durov with failing to prevent illicit activities on his platform. Some argue that pressure from the U.S. Congress and Biden Administration for TikTok to divest from its Chinese parent company is also censorship, though many (Protect The 1st included) have concerns about TikTok’s threats to the data privacy of 170 million Americans and national security. What is clear is that governments are more aggressively regulating platforms they see as threats to public order or sovereignty. Each presents a mix of justifications and overreach. Brazil's crackdown on X is seen by some as necessary to safeguard democracy, while others view it as an overreaction that threatens rights. France’s prosecution of Durov is an overreach if it criminalizes encryption and undermines privacy. Concerns over the data practices of TikTok, its parent ByteDance, and the Chinese government are legitimate, while cracking down on perceived “Chinese-friendly” content would be a clear First Amendment issue. It is true that social media platforms wield considerable power to shape public discourse and influence the conduct of elections; however, methods to counter these threats risk stifling dissent, restricting information, and setting dangerous precedents for censorship. For example, targeting Starlink, Musk's satellite internet provider, for X’s fines seems excessive. Similarly, arresting Durov risks conflating the platform with the actions of Telegram’s users. Is there a better path? Regulators should focus on transparency, accountability, and due process rather than outright bans. Overregulation risks losing a vibrant, open digital space where even controversial ideas can be freely exchanged. If not carefully calibrated, efforts to protect will become efforts to suppress. It won’t be easy, but democratic governments must both defend against illegal content and protect principles of free speech and the robust sharing of information – even when that information is deemed to be wrong. Earlier we compared the First Amendment records of Sen. J.D. Vance and Gov. Tim Walz, finding the two vice presidential candidates problematic with notable bright spots.
So how do the two candidates at the top of the ticket compare on defending speech? Answer: Even more problematic, but also with some bright spots. Vice President Kamala Harris As a U.S. Senator, Harris in 2017 co-sponsored an amendment with her fellow Californian and leading Democrat, the late Sen. Dianne Feinstein, that would have required federal agencies to obtain a probable cause warrant before the FISA Court could allow the government to review the contents of Americans’ emails. Protecting Americans from warrantless surveillance of their private communications concerning personal, political, and religious lives is one of the best ways to protect speech. As a senator, Harris also defended the First Amendment rights of social media platforms to moderate their content. This is not surprising given that she was from California and big tech is one of her best backers. The Washington Post reports that Karen Dunn, one of Google’s top attorneys in against the Biden administration’s antitrust case, is a top Harris advisor. This closeness suggests a danger that a Harris administration might lean heavily in support of using friendly relations with big tech as a backdoor way to censor critics and conservative speech. Consider that Harris once called for the cancellation of former President Donald Trump’s then-Twitter account, saying: “And the bottom line is that you can’t say that you have one rule for Facebook and you have a different rule for Twitter. The same rule has to apply, which is that there has to be a responsibility that is placed on these social media sites to understand their power … They are speaking to millions of people without any level of oversight or regulation. And that has to stop.” Why does it have to stop? Americans have spoken for two centuries without any level of oversight or regulation. You might find the speech of many to be vile, unhinged, hateful, or radical. But unless it calls for violence, or is obscene, it is protected by the First Amendment. When, exactly, did liberals lose their faith in the American people and replace it with a new faith in the regulation of speech? Worse, as California Attorney General, Harris got the ball rolling on trying to force nonprofits to turn over their federal IRS Form 990 Schedule B, which would have given her office the identities of donors. Under Harris’s successor, this case went to the U.S. Supreme Court. Protect The 1st was proud to submit an amicus brief, joined with amici from a coalition of groups from across the ideological spectrum. We demonstrated that the likely exposure of donors’ identities would result in various forms of “cancellation,” from firings and the destruction of businesses, to actual physical threats. A Supreme Court majority agreed with us in Americans for Prosperity Foundation v. Bonta in 2021 that the same principle that defended Alabama donors to the NAACP extends to all nonprofits. The Biden-Harris administration has also been mum on worldwide crackdowns on speech, from a Brazilian Supreme Court Justice’s cancellation of X, to hints from the French government that this U.S.-based platform might be the next target after the arrest of Telegram CEO Pavel Durov. Former President Donald Trump This is a harder one to judge. It’s long been said that Donald Trump wears better if you turn the sound off. On the plus side, President Trump took a notably strong approach in supporting surveillance reform. A victim himself of illicit surveillance justified by the FBI before the FISA Court with a doctored political dossier and a forged document, President Trump was sensitive to the First Amendment implications of an overweening surveillance state. To his credit, he nixed the reauthorization of one surveillance authority – Section 215, or the so-called “business records provision.” During the pandemic, Trump issued guidance in defense of religious liberty. He said: “Some governors have deemed liquor stores and abortion clinics essential but have left out churches and houses of worship. It’s not right. So I’m correcting this injustice and calling houses of worship essential.” He backed up his defense of religious liberty by appointing three Supreme Court Justices – Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh – who have been strong defenders of religious liberty. But turn the sound back on and you will hear Donald Trump call the American press “the enemy of the people.” Call the media biased, corrupt, in the bag for the Democrats, whatever you like … but “enemy of the people?” Trump’s rhetoric on the media often edges toward physical hostility. As president, he mocked a CNN reporter who was hit with a rubber bullet while covering the 2020 riots in Minneapolis. “Remember that beautiful sight?” Trump asked. At a time when journalists are under threat in America and around the world, this is a decidedly un-American way to confront media bias. Donald Trump has also called for a loosening of the libel laws to allow elected officials to more easily pursue claims against journalists without having to meet the Supreme Court’s “actual malice” standard. We agree that there is room for sharpening libel law in the age of social media amplification, but allowing wealthy politicians to sue news outlets out of business would be one effective way to gut the First Amendment. So what should we conclude? Both Harris and Trump have mixed records. Both have taken bold stands for speech. Both have treated the opposition as so evil that they do not deserve legal protections. Both seem capable of surprising us, either by being more prone to censorship or to taking bold stands for free speech. Whatever your political leanings, urge your candidate and your party to lean on the side of the First Amendment. We’ve already heard a lot of rowdy speech from the two vice-presidential candidates, Democratic Minnesota Gov. Tim Walz and Republican U.S. Sen. J.D. Vance. Would they be as generous in applying the First Amendment to others as they do to themselves?
Tim Walz, who, despite correct opinions regarding the tragedy of Warren Zevon being left out of the Rock and Roll Hall of Fame, hasn’t been as on the money when it comes to which types of speech are protected and which are not. In 2022, Walz said on MSNBC: “There's no guarantee to free speech on misinformation or hate speech, and especially around our democracy. Tell the truth, where the voting places are, who can vote, who's able to be there….” As PT1st senior legal advisor Eugene Volokh points out in Reason: “Walz was quite wrong in saying that ‘There's no guarantee to free speech’ as to ‘hate speech.’ The Supreme Court has made clear that there is no ‘hate speech’ exception to the First Amendment (and see here for more details). The First Amendment generally protects the views that the government would label ‘hateful’ as much as it protects other views.” Legal treatment of misinformation is more complicated. In United States v. Alvarez, the Supreme Court held that lies “about philosophy, religion, history, the social sciences, the arts, and the like” are largely constitutionally protected. Libel, generally, is not – though, in a defamation case, a public official can only succeed in their claim if they can show that a false statement was published with “actual malice” – in other words, “with knowledge that it was false or with reckless disregard of whether it was false or not.” Categories of intentional misinformation that are patently not protected include lying to government investigators and fraudulent charitable fundraising. Walz may be on firmer ground when it comes to lies about the mechanics of voting – when, where, and how to vote. Thirteen states already ban such statements. As Volokh writes, “[I]f limited to the context that Walz seemed to have been describing – in the Court's words, ‘messages intended to mislead voters about voting requirements and procedures’ – Walz may well be correct.” On freedom of religion, Walz’s record as governor is concerning. During the pandemic lockdowns, the governor imposed particularly harsh restrictions on religious gatherings, limiting places of worship to a maximum of ten congregants, while allowing retailers to open up at 50 percent capacity. An ensuing lawsuit, which Walz lost, resulted in an agreement granting religious institutions parity with secular businesses. Walz also signed a law prohibiting colleges and universities that require a statement of faith from participating in a state program allowing high school students to earn college credits. As the bill’s sponsor conceded, the legislation was intended in part to coerce religious educational institutions into admitting students regardless of their beliefs – diluting their freedom of association. That controversy is currently being litigated in court. Little wonder the Catholic League declared that “Tim Walz is no friend of religious liberty.” The Knights of Columbus might agree – at least as pertains to the broader ticket. In 2018, during the federal judicial nomination hearing for Brian Buescher, then-Sen. Kamala Harris criticized the organization for its “extremist” (read: traditional) views on social issues. Harris also sponsored the “Do No Harm” Act, which would have required health care workers to perform abortions in violation of their religious beliefs. Regarding Vance, the former Silicon Valley investor is hostile to the speech rights of private tech companies (who certainly enjoy the same First Amendment protections as any other person or group). In March, the senator filed an amicus brief in support of the State of Ohio’s lawsuit against Google, which seeks to regulate the company as a common carrier. In his brief, Vance argues Google’s claim that it creates bespoke, curated search results that directly conflict with its past claims of neutrality. Sen. Vance writes: “[Google’s] functions are essentially the same as any communications network: it connects people by transmitting their words and exchanging their messages. It functions just like an old telephone switchboard, but rather than connect people with cables and electromagnetic circuits, Google uses indices created through data analysis. As such, common carrier regulation is appropriate under Ohio law.” Vance’s argument creeps in the direction of Texas and Florida laws that seek to regulate social media companies’ internal curation policies. Both laws were found wanting by the Supreme Court. The Court in a strongly worded remand on both laws wrote: “[I]t is no job for government to decide what counts as the right balance of private expression – to ‘un-bias’ what it thinks is biased, rather than to leave such judgments to speakers and their audiences.” Yet Vance also attempts to “un-bias” social media platforms, leaving little to no room for independent curatorial judgment. On the plus side, Vance has cosponsored numerous bills aimed at curtailing government censorship, including the “Free Speech Protection Act,” which prohibits government officials from “directing online platforms to censor any speech that is protected by the First Amendment.” He also sponsored the PRESERVE Online Speech Act, which would force social media companies to disclose government communications urging the censoring or deplatforming of users. As the election season progresses, we can hope for more clarity on the candidates’ positions regarding our First Amendment freedoms. It is already clear, however, that both candidates are far from purists when it comes to protecting other people’s speech. The European Union’s Digital Services Act is an object lesson in how laws that purport to prevent the spread of “misinformation” and “disinformation” are destined to turn regulators into little tyrants.
Thierry Breton, European Commissioner for the Internal Market, is threatening Elon Musk and his social media company X with legal consequences if he airs his interview with former President Donald Trump. In a letter to Musk, Breton wrote that X must see to it that “all proportionate and effective mitigation measures are put in place regarding the amplification of harmful content in connection with relevant events, including live streaming, which, if unaddressed, might increase the risk profile of X and generate detrimental effects on civic discourse and public security.” In other words – don’t let Europeans hear the unfiltered words of a former U.S. president and major party nominee, or the EU will sanction your business. This is so breathtakingly – unselfconsciously – Orwellian that it almost reads as parody. Yes, much of what Donald Trump says – about the size of the crowds being drawn by his opponent, Vice President Harris, suggesting that AI was used to make them seem larger – could be fairly characterized as misinformation or disinformation. Or just plain silly. The so-called “missile gap” that dominated the U.S. election in 1960 was also patently untrue. Today, claims made by the vice president that the U.S.-Mexico border is closed and secure could be characterized in the same light. So undoubtedly could statements made by French President Emmanuel Macron or German Chancellor Olaf Scholz. Indeed, politicians of all political stripes and national origins stretch or distort the facts so regularly that fact-checking politicians (and, in turn, the fact-checkers) has become an ever-increasing part of journalism and an important part of the public debate. It must not become the business of regulators to make their own determination of what is true or not true in a political campaign and then censor statements made by candidates. We cannot allow government to cut up democratic debate into little sanitized snippets where bureaucrats and politicians in positions of power get to create their own narrative and punish anyone who strays from the orthodoxy. Let Thierry Breton be a lesson to all the scolds in this country who want to give Washington similar powers. They would rob the voters of their ability to make up their own minds and substitute a sanitized, government-approved narrative that the public could challenge only at its peril. That would be a truly “detrimental effect on civil discourse.” Many free speech advocates were disappointed by the U.S. Supreme Court’s opinion Murthy v. Missouri, which could have defined the limits of government “jawboning,” or informal coercion of social media platforms’ content management. The opinion turned out, instead, to be a procedural kicking of the can down the road. True to form, the FBI followed up on this opening by announcing it will continue to highlight misinformation and disinformation for social media companies during the election season. The good news is that the FBI is now at least committed to keeping the public somewhat informed about government communications with private tech companies.
Murthy v. Missouri involved well-supported allegations of covert efforts by the government to influence social media content moderation during the Covid-19 pandemic. Under pressure from federal and state actors, social media companies engaged in widespread censorship of disfavored opinions, including those of medical professionals commenting within their areas of expertise. As we wrote of that opinion, “When pressure to moderate speech is exerted behind the scenes – as it was by 80 FBI agents secretly advising platforms what to remove – that can only be called censorship.” Yet the Supreme Court ultimately declined to rule on the merits of the case, finding that the plaintiffs’ grievances against the government were too attenuated to constitute standing. With the 2024 presidential election on the horizon – and with it the likelihood of disinformation efforts by U.S. adversaries abroad – the issue of government jawboning and content moderation is back in a big way. According to a recent memo issued by the Department of Justice, the FBI “will resume regular meetings in the coming weeks with social media companies to brief and discuss potential [Foreign Malign Influence or FMI] threats involving the companies' platforms.” The government promises to develop new policies to “ensure that the public is aware that DOJ’s sharing of information with social media companies about potential FMI threats to national security, including election interference, is undertaken pursuant to carefully calibrated protocols that protect First Amendment rights.” The plan also calls for an explicit promise that the FBI will tell social media companies that it is offering an advisory opinion. It will not, we are told, compel them to act. The FBI’s specific plans for keeping Americans informed of its efforts are anemic, but a sign of progress. The plan references making new standard operating procedures public and accessible online, as well as creating a new website to “collect and highlight in a single location relevant resources, guidance, and other materials …” We’ll have to wait and see just how comprehensive such a repository can be against the backdrop of national security. Still, the FBI is at least moving in the direction of transparency. We’ve long held that transparency has always been the missing link in the government's approach to its communications with social media platforms. We won’t rest until misinformation or disinformation is identified publicly, rather than through the quiet direction of social media platforms. Flagging posts on the FBI’s open website would respect the public's intelligence, the principle of free expression, while showcasing how democracy works. The government's role should be clear and open, fostering an environment where informed decisions are made before the public. Ideally, content moderation decisions might look something like context annotations that offer some degree of explanation for why a particular post might be flagged or removed. That way, Americans can see for themselves why a decision was made – and whether it related to an actual Foreign Malign Influence effort versus a fringe or disfavored opinion put forth by someone’s eccentric uncle. None of this reduces the need for the Supreme Court – or Congress – to establish a rule by which we can all live when it comes to communications between the government and tech platforms on content. In the meantime, we can only hope that the controversy sparked by recent litigation will eventually lead to actual transparency. California, known for its progressive values and innovation, is increasingly becoming a battleground over the regulation of speech. The state's regulatory, political, and educational bodies are systematically encroaching on the fundamental right to free expression, attempting to manage and control speech in ways that undermine the First Amendment in the schools and among businesses.
When California sets a precedent, the implications for free speech rights across the country are profound, warranting close scrutiny and robust debate. Yet in California, recent actions reflect a shift towards control and censorship, challenging this essential liberty. Consider the legal battle involving X Corp., formerly known as Twitter. The company has been fighting against surveillance and gag orders that infringe on X’s First Amendment rights while also threatening the Fourth and Sixth Amendment rights of its users. When the government demands access to personal data stored by companies like X Corp. and then issues Non-Disclosure Orders (NDOs) to keep this secret, it coerces companies into acting as government spies, unable to speak to their users about the breaches of their privacy. This case highlights a broader pattern in California's legislative and judicial landscape. One recent law, California Bill AB 587, mandates that social media companies disclose their content moderation practices. Legal scholar Eugene Volokh has argued that this law pressures companies to engage in viewpoint discrimination, reveal their internal editorial processes, and do the government's bidding in managing speech. How would that be different from requiring newspapers to explain their editorial decisions to the government? These laws and regulations are often claimed to be justified as necessary for combating hate speech, misinformation, and harassment; however, they impose significant burdens on companies and threaten to stifle free expression. A court recently ruled against X Corp. in its attempt to block the law requiring it to disclose to the government the internal deliberations of its content moderation policies. While transparency in moderation practices might seem beneficial, the forced disclosure could lead to state-enforced censorship and coercion of private editorial processes, undermining the very principles of free speech the First Amendment is meant to protect. The state's approach to managing speech extends beyond digital platforms. In a recent disturbing case, an elementary school disciplined a first grader for drawing a benign picture with the phrase “Black Lives Matter.” Being young and probably unaware of the larger sensitivities, this elementary school child added: “any life.” The school promptly disciplined the child without telling her parents. This overreaction reflects a broader problem with educational institutions, driven by a hypersensitivity to the perceived (or mis-perceived) demands of political correctness, that end up punishing even innocent expressions of empathy and solidarity. A federal court's support for the school's actions further highlights the precarious state of free speech rights in educational settings, from elementary school up to graduate school, law school, and medical school. California's aggressive stance on speech regulation also manifests in its legal battles over the Second Amendment. A controversial state law tried to impose attorney's fees on plaintiffs challenging gun restrictions even if they win their case, but lose any small portion of their claims. This tactic aims to deter legal challenges and silence dissent, directly contravening First Amendment rights. The law’s similarity to a Texas statute targeting abortion challengers underscores a worrying trend of using financial penalties to stifle constitutional challenges. These cases collectively illustrate a dangerous trajectory in California's approach to managing speech. The state's efforts to regulate and control various forms of expression, whether online, in schools, or through legal deterrents, represent a direct assault on the First Amendment. The complexities and nuances of speech, inherently messy as they are, cannot and should not be sanitized by governmental oversight. Fortunately, the U.S. Supreme Court remains a bulwark against regulations violating the First Amendment. The Court’s decision in AFP v. Bonta, which struck down California's requirement for non-profit organizations to disclose their donors, was a significant victory for free speech. The Court recognized that such disclosure requirements pose a substantial burden on First Amendment rights, particularly by exposing donors to potential harassment and retaliation. This case reinforces the principle that anonymity in association is crucial for protecting free expression and dissent. In the recent NetChoice opinion, a majority of the Court gave a ringing endorsement of editorial freedom, even while sending the case back for a more detailed review of the laws. We remain optimistic the Supreme Court will likewise rein in California’s antagonism toward the First Amendment if, and when, it has the opportunity. The recent session of the U.S. Supreme Court will likely be remembered for two major rulings implicating fundamental separation of powers doctrine: Trump v. United States, establishing presumptive immunity from prosecution for official presidential acts; and Loper Bright Enterprises v. Raimondo, dispensing with the long-established “Chevron Two Step” granting deference to a federal agency’s interpretation of statutes. In both instances, the Court reaffirmed our constitutional system of checks and balances, including protection against encroachment on the powers and privileges of one branch of government by another.
Against the backdrop of those headline-dominating developments, the Supreme Court also took on several important First Amendment cases, with results that were constitutionally sound. Below are the highlights – and summaries – of the Court’s First Amendment jurisprudence released in recent weeks. Food and Drug Administration v. Alliance for Hippocratic Medicine In a unanimous ruling, the Supreme Court rejected a challenge to the Food and Drug Administration’s regulation of the abortion drug mifepristone. Little noticed by the media, the Court’s opinion also firmly nailed down the conscience right of physicians to abstain from participating in abortions and prescribing the drug. Writing for the Court, Justice Kavanaugh said that the Church Amendments, which prohibit the government from imposing requirements that violate the conscience rights of physicians and institutions, “allow doctors and other healthcare personnel to ‘refuse to perform or assist’ an abortion without punishment or discrimination from their employers.” From now on, any effort to restrict or violate the conscience rights of healers will go against the unanimous opinion of all nine justices of the U.S. Supreme Court. Vidal v. Elster The Supreme Court, in another unanimous decision, overturned a lower court ruling that found that the U.S. Patent and Trademark Office’s denial of an application to trademark a phrase including the name “Trump” violated the filer’s First Amendment rights. Writing for the Court, Justice Thomas wrote that “[o]ur courts have long recognized that trademarks containing names may be restricted.” But such trademark restrictions, while “content-based” must be “viewpoint neutral.” This opinion prevents commercial considerations to scissor out pieces of the national debate. While the decision rejected a novel First Amendment claim to a speech-restricting trademark, it affirms sound First Amendment principles and protects the speech of all others who would discuss and debate the virtues and vices of prominent public figures. The Court was right to refuse the endorsement of a government-granted monopoly on a phrase about a presidential candidate. NRA v. Vullo NRA v. Vullo – yet another unanimous opinion – cleared the way for the National Rifle Association to pursue a First Amendment claim against a New York insurance regulator who had twisted the arms of insurance companies and banks to blacklist the group. Maria Vullo, former superintendent of the New York State Department of Financial Services, met with Lloyd’s of London executives in 2018 to bring to their attention technical infractions that plagued the affinity insurance market in New York, unrelated to NRA business. Vullo told the executives that she would be “less interested” in pursuing these infractions “so long as Lloyd’s ceased providing insurance to gun groups.” She added that she would “focus” her enforcement actions “solely” on the syndicates with ties to the NRA, “and ignore other syndicates writing similar policies.” The Court found for the NRA, writing that, “[a]s alleged, Vullo’s communications with Lloyd’s can be reasonably understood as a threat or as an inducement. Either of those can be coercive.” The Supreme Court’s opinion vacates the Second Circuit’s ruling to the contrary and remands the case to allow the lawsuit to continue. As the Court wrote, “the critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries.” And we wholeheartedly agree – censorship by proxy is still government censorship. Moody v. NetChoice In one of two cases involving the nexus of government and social media, the Court seemed to punt on making a final decision on the constitutionality of laws from Florida and Texas restricting the ability of social media companies to regulate access to, and content on, their platforms. Many commentators believed the Court would resolve a split between the Fifth Circuit (upholding a Texas law restricting various forms of content moderation and imposing other obligations on social media platforms) and the Eleventh Circuit (which upheld the injunction against a Florida law regulating content and other activities by social media platforms and by other large internet services and websites). The Court’s ruling was expected to resolve the hot-button issue of whether Facebook and other major social media platforms can depost and deplatform. Instead, the Court found fault with the scope and precision of both the Fifth and the Eleventh Circuit opinions, vacating both of them and telling the lower courts to drill down on the varied details of both laws and be more precise as to the First Amendment issues posed by such different provisions. The opinion did, however, offer constructive guidance with ringing calls for stronger enforcement of First Amendment principles as they relate to the core activities of content moderation. The opinion, written by Justice Elena Kagan, declared that: “On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.” Murthy v. Missouri In what looked to be a major case regarding the limits of government “jawboning” to get private actors to restrict speech, the Court instead decided that Missouri, Louisiana, and five individuals whose views were targeted by the government for expressing misinformation could not demonstrate a sufficient connection between the government’s action and their ultimate deplatforming by private actors. Accordingly, the Court’s reasoning in this 6-3 decision is that the two states and five individuals lacked Article III standing to bring this suit. A case that could have defined the limits of government involvement in speech for the central media of our time was thus deflected on procedural grounds. Justice Samuel Alito, in a fiery dissent signed by Justices Clarence Thomas and Neil Gorsuch, criticized the punt, calling Murthy v. Missouri “one of the most important free speech cases to reach this Court in years.” Fortunately, NRA v. Vullo, discussed above, sets a solid baseline against government efforts to pressure private actors to do the government’s dirty work in suppressing speech the government does not like. Later cases will, we hope, expand upon that base. Secret communications from the government to the platforms to take down one post or another is inherently suspect under the Constitution and likely to lead us to a very un-American place. Let us hope that the Court selects a case in which it accepts the standing of the plaintiffs in order to give the government, and our society, a rule to live by. Gonzalez v. Trevino Protect The 1st has reported on the case of Sylvia Gonzalez, a former Castle Hills, Texas, council member who was arrested for allegedly tampering with government records back in 2019. In fact, she merely misplaced them, and was subsequently arrested, handcuffed, and detained in what was likely a retaliatory arrest for criticizing the city manager. In turn, Gonzalez brought suit. Gonzalez’s complaint noted that she was the only person charged in the past 10 years under the state’s government records law for temporarily misplacing government documents. In 2019’s Nieves v. Bartlett, the Supreme Court found that a plaintiff can generally bring a federal civil rights claim alleging retaliation if they can show that police did not have probable cause. The Court also allowed suit by plaintiffs claiming retaliatory arrests if they could show that others who engaged in the same supposedly illegal conduct, but who did not engage in protected but disfavored speech, were not arrested. The U.S. Court of Appeals for the Fifth Circuit threw out Gonzalez’s case, finding that she would have had to offer examples of those who had mishandled a government petition in the same way that she had but – unlike her – were not arrested. The Supreme Court, by contrast, found that, “[a]lthough the Nieves exception is slim, the demand for virtually identical and identifiable comparators goes too far.” The Court thus made it a bit easier for the victims of First Amendment retaliation to sue government officials who would punish people for disfavored speech. The controversy will now go back to the Fifth Circuit for reconsideration. *** While the Court avoided some potentially landmark decisions on procedural grounds, and offered a mixed bag of decisions concerning plaintiffs’ ability to obtain redress against potential First Amendment violations, the majority consistently showed a strong desire to protect First Amendment principles – shielding people and private organizations from government-compelled speech. NetChoice v. Texas, FloridaWhen the U.S. Supreme Court put challenges to Florida and Texas laws regulating social media content moderation on the docket, it seemed assured that this would be one of the yeastiest cases in recent memory. The Supreme Court’s majority opinion came out Monday morning. At first glance, the yeast did not rise after all. These cases were remanded back to the appellate courts for a more thorough review.
But a closer look at the opinion shows the Court offering close guidance to the appellate court, with serious rebukes of the Texas law. Anticipation was high for a more robust decision. The Court was to resolve a split between the Fifth Circuit, which upheld the Texas law prohibiting viewpoint discrimination by large social media platforms, while the Eleventh Circuit upheld the injunction against a Florida law regulating the deplatforming of political candidates. The Court’s ruling was expected to resolve once and for all the hot-button issue of whether Facebook and other major social media platforms can depost and deplatform. Instead, the Court found fault with the scope and precision of both the Fifth and the Eleventh Circuit opinions, vacating both of them. The majority opinion, authored by Justice Elena Kagan, found that the lower courts failed to consider the extent to which their ruling would affect social media services other than Facebook’s News feed, including entirely different digital animals, such as direct messages. The Supreme Court criticized the lower courts for not asking how each permutation of social media would be impacted by the Texas and Florida laws. Overall, the Supreme Court is telling the Fifth and Eleventh to drill down and spell out a more precise doctrine that will be a durable guide for First Amendment jurisprudence in social media content moderation. But today’s opinion also contained ringing calls for stronger enforcement of First Amendment principles. The Court explicitly rebuked the Fifth Circuit for approval of the Texas law, “whose decision rested on a serious misunderstanding of the First Amendment precedent and principle.” It pointed to a precedent, Miami Herald Publishing Co. v. Tornillo, in which the Court held that a newspaper could not be forced to run a political candidate’s reply to critical coverage. The opinion is rife with verbal minefields that will likely doom the efforts of Texas and Florida to enforce their content moderation laws. For example: “But this Court has many times held, in many contexts, that it is no job for government to decide what counts as the right balance of private expression – to ‘un-bias’ what it thinks is biased, rather than to leave such judgments to speakers and their audiences.” The Court delved into the reality of content moderation, noting that the “prioritization of content” selected by algorithms from among billions of posts and videos in a customized news feed necessarily involves judgment. An approach without standards would turn any social media site into a spewing firehose of disorganized mush. The Court issued a brutal account of the Texas law, which prohibits blocking posts “based on viewpoint.” The Court wrote: “But if the Texas law is enforced, the platforms could not – as they in fact do now – disfavor posts because they:
So what appeared on the surface to be a punt is really the Court’s call for a more fleshed out doctrine that respects the rights of private entities to manage their content without government interference. For a remand, this opinion is surprisingly strong – and strong in protection of the First Amendment. Murthy v. Surgeon General: Supreme Court Punts on Social Media Censorship – Alito Pens Fiery Dissent6/26/2024
The expected landmark, decision-of-the-century, Supreme Court opinion on government interaction with social media content moderation and possible official censorship of Americans’ speech ended today not with a bang, not even with a whimper, but with a shrug.
The Justices ruled 6-3 in Murthy v. Missouri to overturn a lower court’s decision that found that the federal government likely violated the First Amendment rights of Missouri, Louisiana, and five individuals whose views were targeted by the government for expressing “misinformation.” The Court’s reasoning, long story short, is that the two states and five individuals lacked Article III standing to bring this suit. The court denied that the individuals could identify traceable past injuries to their speech rights. In short, a case that could have defined the limits of government involvement in speech for the central media of our time was deflected by the court largely on procedural grounds. Justice Samuel Alito, writing a dissent signed by Justices Clarence Thomas and Neil Gorsuch, implicitly criticized this punt, calling Murthy v. Surgeon General “one of the most important free speech cases to reach this Court in years.” He compared the Court’s stance in this case to the recent National Rifle Association v. Vullo, an opinion that boldly protected private speech from government coercion. The dissenters disagreed with the Court on one of the plaintiffs’ standing, finding that Jill Hines, a healthcare activist whose opinions on Covid-19 were blotted out at the request of the government, most definitely had standing to sue. Alito wrote: “If a President dislikes a particular newspaper, he (fortunately) lacks the ability to put the paper out of business. But for Facebook and many other social media platforms, the situation is fundamentally different. They are critically dependent on the protections provided by §230 of the Communications Decency Act of 1996 … For these and other reasons, internet platforms have a powerful incentive to please important federal officials …” We have long argued that when the government wants to weigh in on “misinformation” (and “disinformation” from malicious governments), it must do so publicly. Secret communications from the government to the platforms to take down one post or another is inherently offensive to the Constitution and likely to lead us to a very un-American place. Let us hope that the Court selects a case in which it accepts the standing of the plaintiffs in order to give the government, and our society, a rule to live by. William Schuck writing in a letter-to-the-editor in The Wall Street Journal:
“The world won’t end if Section 230 sunsets, but it’s better to fix it. Any of the following can be done with respect to First Amendment-protected speech, conduct and association: Require moderation to be transparent, fair (viewpoint and source neutral), consistent, and appealable; prohibit censorship and authorize a right of private action for violations; end immunity for censorship and let the legal system work out liability. “In any case, continue immunity for moderation of other activities (defamation, incitement to violence, obscenity, criminality, etc.), and give consumers better ways to screen out information they don’t want. Uphold free speech rather than the prejudices of weak minds.” The House Energy and Commerce Committee recently held a hearing on a bill that would sunset Section 230 of the Communications Decency Act within 18 months. This proposed legislation, introduced by Chair Cathy McMorris Rodgers and Ranking Member Frank Pallone, aims to force Big Tech to collaborate with Congress to establish a new framework for liability. This push to end Section 230 has reopened the debate about the future of online speech and the protections that underpin it.
Section 230 has been a cornerstone of internet freedom, allowing online platforms to host user-generated content without being liable for what their users post. This legal shield has enabled the growth of vibrant online communities, empowered individuals to express themselves freely, and supported small businesses and startups in the digital economy. The bill’s proponents claim that Section 230 has outlived its usefulness and is now contributing to a dangerous online environment. This perspective suggests that without the threat of liability, platforms have little incentive to protect users from predators, drug dealers, and other malicious actors. We acknowledge the problems. But without Section 230, social media platforms would either become overly cautious, censoring a wide range of lawful content to avoid potential lawsuits, or they might avoid moderating content altogether to escape liability. This could lead to a less free and more chaotic internet, contrary to the bill’s intentions. It is especially necessary for social media sites to reveal when they’ve been asked by agents of the FBI and other federal agencies to remove content because it constitutes “disinformation.” When the government makes a request of a highly regulated business, it is not treated by that business as a request. This is government censorship by another name. If the government believes a post is from a foreign troll, or foments dangerous advice, it should log its objection on a public, searchable database. Any changes to Section 230 must carefully balance the need to protect users from harm with the imperative to uphold free speech. Sweeping changes or outright repeal would stifle innovation and silence marginalized voices. Protect The 1st looks forward to further participation in this debate. Facebook’s independent oversight board is now considering whether to recommend labeling the phrase “from the river to the sea” as hate speech. The slogan – often considered antisemitic – serves as a pro-Palestine rallying cry that calls for the creation of a unified Palestinian state throughout what is currently Israeli territory. What would happen to the millions of people who live in Israel today is, post Oct. 7th, the crux of the controversy.
However one feels about that phrase and its prominent, often uninformed, use by courageous keyboard warriors, it is appropriate that any debate about censoring it takes place in the open. This is particularly important for what is still a central social media platform, Facebook. Like X/Twitter, Instagram, and a few other media platforms, Facebook is an important venue for robust public debate. And while these private companies have every First Amendment right to moderate speech on their platforms on their own terms, because of their size and centrality we believe they nonetheless ought to be as open as possible about how they approach content moderation. Like all prominent thought leaders – individuals and companies alike – they can play an important role in reinforcing societal norms on matters of free expression, even if not legally obliged to do so. Still, at the end of the day, it’s their call. And make a call they did. According to the company, Meta analyzed numerous instances of posts using the phrase “from the river to the sea,” finding that they did not violate its policies against “Violence and Incitement,” “Hate Speech” or “Dangerous Organizations and Individuals.” This in contrast with the U.S. House of Representatives, which recently passed a resolution last month, 377-1, condemning the slogan as antisemitic. The House has a right to pass resolutions. But the opinions and sentiments of the government should not inform, and constitutionally cannot control, what we see on our news feeds. Already, we see too many instances of federal influence over social media platforms’ internal decisions, apparently done behind the scenes and always backed by an implied and sometimes expressed threat of coercion for highly regulated tech companies. Such government “censorship by surrogate” is inappropriate and inconsistent with the First Amendment. That’s why Protect the 1st opposes laws in Florida and Texas that would regulate how social media platforms police their own content. It’s simply not the place of government to use its power and influence to pressure private companies to remove posts or tell them how to make editorial choices. In this same spirit, we urge any decisions by Facebook to remove content to be done with full transparency, especially when that content is of a political nature. No law requires this, nor should it, but transparency is a sensible approach that provides clarity to consumers and reformers about societal norms regarding free expression and association. Hats off to Meta for allowing its advisory board to review and to potentially overrule its decision. Sometimes it seems as if the left and the right are in a contest to see which side can be the most illiberal. With each polarity defining the other as a “threat to democracy,” restrictions on political opponents are rationalized away as a necessary act of public hygiene. Recent events in Europe, from Budapest to Brussels, should serve as a warning to Americans who want to use police power to make their opponents shut up.
In December, the U.S. State Department warned that a new Sovereign Defense Authority law in Hungary “can be used to intimidate and punish” Hungarians who disagree with Prime Minister Viktor Orbán and his ruling party. No less an observer than David Pressman, the U.S. ambassador in Budapest, said: “This new state body has unfettered powers to interrogate Hungarians, demand their private documents and utilize the services of Hungary’s intelligence apparatus – all without any judicial oversight or judicial recourse for its targets.” So how are left-leaning critics responding to the rise of the Europe right? By also using intimidation to shut down speech. In Brussels, police in April acted on orders from local authorities by forcibly shutting down a National Conservatism conference. This event, which was to host discussions among European conservative figures, including Prime Minister Orbán and former Brexit champion Nigel Farage, was terminated hours after it began. The cited reasons for the closure included concerns over potential public disorder linked to planned protests. Such a policy, of course, gives protesters pre-emptive veto power over controversial speech, backed by the police. The conference had earlier faced official meddling to prevent the selection of a venue. Initial plans to host the event at the Concert Noble were thwarted due to pressure from the Socialist mayor of Brussels. Subsequently, a booking at the Sofitel hotel in Etterbeek was canceled after local activists alerted that city’s mayor, who pressured the hotel to withdraw its support. Finally, the organizers settled on the Claridge Hotel, only to encounter further challenges including threats to the venue’s owner and logistical disruptions orchestrated by local authorities, culminating in the police blockade that effectively stifled the conference. The good news is public response to the shutdown of the National Conservatism conference was vocal and critical. Belgian Prime Minister Alexander De Croo voiced a strong objection, stating that such bans on political meetings were unequivocally unconstitutional. British Prime Minister Rishi Sunak also responded that canceling events and de-platforming speakers is damaging to democracy. The closure in Brussels is particularly ironic given the city's status as the capital of the European Union, a supposed bastion of liberal democratic values. The forced closure, threats to cut electricity, and the barring of speakers are tactics that betray a fundamental disrespect for democratic norms. What transpired was a scenario more befitting a "tinpot dictatorship," as Frank Füredi, one of the event's organizers, put it. Speech crackdowns seem to be a European disease. This aggressive move to silence a peaceful assembly under the guise of preventing disorder echoes the same illiberal impulses driving Scotland's Hate Crime and Public Order Act. That law broadly criminalizes speech under the expansive banner of “stirring up hatred.” Americans would do well to look to Europe to see what cancellation and criminalization of speech looks like. As the cities and campuses of the United States face what promises to be a hot summer of protest over Gaza, Americans need to keep a relentless focus on protecting speech – even speech one regards as heinous – while preventing tent city invasions, vandalism, and violence that compromises the rights of others. Can a government regulator threaten adverse consequences for banks or financial services firms that do business with a controversial advocacy group like the National Rifle Association? Can FBI agents privately jawbone social media platforms to encourage the removal of a post the government regards as “disinformation”?
As the U.S. Supreme Court considers these questions in NRA v. Vullo and Murthy v. Missouri, a FedSoc Film explores the boundary between a government that informs and one that uses public resources for propaganda or to coerce private speech. (“Nice social media company you have there. Shame if anything happened to it.”) Posted next to this film, Jawboned, on the Federalist Society website is Protect The 1st’s own Erik Jaffe, who in a podcast explores the extent to which the government, using public monies and resources, should be allowed to speak, if at all, on matters of opinion. Is the expenditure of tax dollars to push a favored government viewpoint a violation of the First Amendment rights of Americans who disagree with that view? Jaffe thinks so and argues why this is the logical conclusion of decades of First Amendment jurisprudence. Furthermore, when the government tells a private entity subject to its power or control what the government thinks it ought to be saying (or not saying), Jaffe says, “there’s always an implied ‘or else.’” And even the government’s own public speech often has coercive consequences. As if to underscore this point, Jawboned recounts the story of how the federal Office of Price Administration during World War Two lacked the authority to order companies to reduce prices but did threaten to publicly label them and their executives as “unpatriotic.” That was a very real threat in wartime. Imagine the “or else” sway government has today over highly regulated firms like X, Meta, or Google. In short, Jaffe argues that a line is crossed when “the power and authority of the government” is invoked to use “the power of office to coerce people.” But it also crosses the line when the government uses its resources (funded by compelled taxes and other fees) to amplify its own viewpoint on questions being debated by the public. Such compelled support for viewpoint selective speech violates the freedom of speech of the public in the same way compelled support for private expressive groups and viewpoints does. Click here to listen to more of Erik Jaffe’s thoughts on the limits of government speech and to watch Jawboned. Now that the bill to force the sale of TikTok has passed the U.S. Senate, and its signature by President Biden is certain, Protect The 1st as a First Amendment organization must speak out.
We believe the bill – soon-to-be-law – is reasonable. Many of our fellow civil liberties peers make the valid point that if the government can silence one social media platform, it can close any media outlet, newspaper, website, or TV channel. We would oppose any such move with forceful public protest. But this is a compelled divestiture, which seems like the least restrictive way to protect the speech rights of TikTok’s American users while protecting their data. TikTok’s content is not the issue. The issue is one of ownership and operations. The fundamental problem, of course, and the problem that gave rise to this legislation, is that TikTok is obligated by Chinese law to share all its data with the People’s Liberation Army, the military wing of the Chinese Communist Party. Under President Xi Jinping, Beijing has crushed democracy in Hong Kong, and silenced a newspaper – Apple Daily – while imprisoning its publisher, Jimmy Lai. Xi’s regime also frequently expresses malevolent intentions toward the United States. It arms Russia’s imperialist war to conquer Ukraine, a democracy. And it frequently advertises its own imperialist plan to conquer Taiwan, another democracy. It doesn’t make sense to treat a publication utterly beholden to a regime that shutters newspapers, imprisons publishers, and supports wars on democracies as if it were just another social media platform. Caution is warranted. A crisis between the United States and China is growing increasingly likely. TikTok gives China the means to dig into the private data of 150 million Americans, including families with parents working in the U.S. military, government, and business. To mandate a sale to an owner outside of China would begin the protection of Americans’ data, while allowing TikTok to remain the popular and vivid platform that people enjoy. For more background on this issue, check out this recent PT1st post. Lindke v. Freed The U.S. Supreme Court is set to address several critical free-speech cases this session related to speech rights in the context of social media. One of those questions was recently settled, with the Court ruling on whether an official who blocks a member of the public from their social media account is engaging in a state action or acting as a private citizen. Answer: It depends on the context.
Writing for a unanimous Court in the case of Lindke v. Freed, Justice Amy Coney Barrett reaffirmed that members of the public can sue a public official where their actions are “attributable to the State” (consistent with U.S.C. §1983). In order to make that determination, the Court issued a new test, holding that: “A public official who prevents someone from commenting on the official’s social-media page engages in state action under §1983 only if the official both (1) possessed actual authority to speak on the State’s behalf on a particular matter, and (2) purported to exercise that authority when speaking in the relevant social-media posts.” This is a holistic analysis, consistent with the Protect The 1st amicus brief filed in O’Connor-Ratcliff v. Garnier. We argued that “no single factor is required to establish state action; rather, all relevant factors must be considered together to determine whether an account was operated under color of law.” That case, along with the Court’s banner case, Lindke v. Freed, is now vacated and remanded for new proceedings consistent with the Court’s novel test. When, as the Court acknowledges, “a government official posts about job-related topics on social media, it can be difficult to tell whether the speech is official or private.” So the Court set down rules. A state actor must have the actual authority – traced back to “statute, ordinance, regulation, custom, or usage” – to speak on behalf of the state. However, should an account be clearly designated as “personal,” an official “would be entitled to a heavy (though not irrebuttable) presumption that all of the posts on [their] page were personal.” In Lindke v. Freed, the public official’s Facebook account was neither designated as “personal” nor “official.” Therefore, a fact-specific analysis must be undertaken “in which posts’ content and function are the most important considerations.” As the Court explains: “A post that expressly invokes state authority to make an announcement not available elsewhere is official, while a post that merely repeats or shares otherwise available information is more likely personal. Lest any official lose the right to speak about public affairs in his personal capacity, the plaintiff must show that the official purports to exercise state authority in specific posts.” When a public official blocks a citizen from commenting on any of his posts on a “mixed-use” social media account, he risks liability for those that are professional in nature. Justice Barrett writes that a “public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.” It's always been good policy to keep official and private accounts separate. The public must be able to have access to government-issued information, whether through a social media account or a public notice posted on the door of a government building. Moreover, citizens should be able to speak on issues of public concern, whether through Facebook or in a public square. Officials – presidents and former presidents included – should take note. A video depicting a recent interaction between an Oklahoma woman and three FBI agents has become a Rashomon-style meditation on the power of perception, with advocates and activists from across the ideological spectrum drawing their own object lessons from it. Review the video and you will see that the underlying issue at hand is fundamentally about the speech rights of an American citizen.
Here are the facts: Early in the morning of March 19, Rolla Abdeljawad of Stillwater, Oklahoma, answered her front door to find three FBI agents. Their purpose: To discuss some of the Egyptian-American’s Facebook posts. Abdeljawad is critical of Israel’s actions in the Gaza Strip. According to Washington Post, she regularly refers to Israel as “Isra-hell” and calls the Israeli Defense Forces “terrorist filth.” What she has not done is advocate for violence. You may find her posts unfair, but they do not rise to the level of a First Amendment exception, such as a true threat. Abdeljawad proved herself savvy regarding her civil rights. She recorded her interaction with the FBI agents, in which they can be heard claiming that Facebook “gave us a couple of screenshots of your account.” "So we no longer live in a free country, and we can't say what we want?" Abdeljawad responded. “No, we totally do. That's why we're not here to arrest you or anything," replied another agent. “We do this every day, all day long. It's just an effort to keep everybody safe and make sure nobody has any ill will.” (Emphasis added.) The implication here is that the FBI undertakes door-knocking expeditions “every day, all day long” to grill civilians about their protected speech online so no one has “ill will.” If someone is not calling for violence, as is the case here, there is no reason for a visit from the FBI. After all, such a visit by armed agents will never be taken as a benign consultation. It can’t help but have a chilling effect on speech. According to a report from Reason, “Meta's official policy is to hand over Facebook data to U.S. law enforcement in response to a court order, a subpoena, a search warrant, or an emergency situation involving ‘imminent harm to a child or risk of death or serious physical injury to any person.’” Clearly, judging from Abdeljawad’s encounter with the FBI, that policy can be misconstrued or ignored entirely. Law enforcement should never be harassing rank-and-file citizens over protected speech. Abdeljawad’s lawyer, Hassan Shibly, posted the video of the interaction across platforms with some good advice for others who may find themselves with unwanted visitors with FBI badges and spurious questions:
Americans should not accept as routine government agents coming to our homes to question us about opinions they find abrasive. There is no federal bureau of civil discourse, nor should there be in a First Amendment society. The recent House passage of a bill to force the sale of TikTok from its Chinese parent company – or suffer an outright ban – triggers obvious questions about the First Amendment. Many of our fellow civil liberties organizations have come to TikTok’s defense, making the point that if the government can silence one social media platform, it can close any media outlet, newspaper, website, or TV channel.
They point to many of TikTok’s strongest critics, who accuse it of pushing China’s line on sensitive issues and dividing Americans in what promises to be an especially heated election season. But our civil liberties allies remind us that the First Amendment protects all speech, no matter how divisive, even if it echoes foreign propaganda. That is fine as far as it goes, but there are other issues beyond the First Amendment in the TikTok debate. Here is where we break ranks with some of our peers: We see real danger in TikTok’s accumulation of the personal data of its 150 million American users, and 67 percent of U.S. teens – and how TikTok’s influence could harm the First Amendment by threatening the freedom of the press and the speech of users. After reviewing results from a year-long, bipartisan investigation, the House concluded that TikTok is being used by Beijing to spy on American citizens. TikTok’s parent company, ByteDance, has had a notorious relationship with the Chinese Communist Party (CCP). As we wrote last year, the Department of Justice and FBI have been investigating ByteDance over CCP access to Americans’ data. 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. The company’s data policies have led multiple states to ban the app on state employee devices. It would be a flagrant violation to ban a newspaper for its content. But what if a hostile power deliberately manufactured newspapers with arsenic dye, toxic to the touch? In such a case, First Amendment issues would be irrelevant. ByteDance is compelled by Chinese law to share all its data with the Beijing government, and its military and intelligence agencies. Senators should determine whether the toxicity of the threats posed by TikTok's data practices and its relationship with the CCP necessitate action. This is not the first time the United States has forced a Chinese company to divest a social media platform. In 2020, the Committee on Foreign Investment in the United States raised the alarm about Kunlun Tech’s acquisition of Grindr, a popular LGBTQ dating app. The app already had a poor reputation for data security, but the committee was reportedly worried that the Chinese government could use personal data from the app to blackmail U.S. citizens, including government officials. The committee gave Kunlun a deadline by which it had to sell Grindr, and the app was sold back to an American owner. Forcing a media outlet to sell or go out of business is a drastic action, not to be undertaken lightly. But as the Senate debates, we should keep in mind that there are issues at stake in the TikTok controversy that go beyond the First Amendment. The U.S. Supreme Court heard oral arguments Monday in Murthy v. Missouri, a case addressing the government's covert efforts to influence social media content moderation during the Covid-19 pandemic. Under pressure from federal and state actors, social media companies reportedly engaged in widespread censorship of disfavored opinions, including those of medical professionals commenting within their areas of expertise.
The case arose when Missouri and Louisiana filed suit against the federal government arguing that the Biden Administration pressured social media companies to censor certain views. In reply, the government responded that it only requested, not pressured or demanded, that social media companies comply. Brian Fletcher, U.S. Principal Deputy Solicitor General, told the Court it should “reaffirm that government speech crosses the line into coercion only if, viewed objectively, it conveys a threat of adverse government action.” This argument seems reasonable, but a call from a federal agency or the White House is not just any request. When one is pulled over by a police officer, even if the conversation is nothing but a cordial reminder to get a car inspected, the interaction is not voluntarily. Social media companies are large players, and an interaction with federal officials is enough to whip up fears of investigations, regulations, or lawsuits. In Murthy v. Missouri, it just so happens that the calls from federal officials were not just mere requests. According to Benjamin Aguiñaga, Louisiana’s Solicitor General, “as the Fifth Circuit put it, the record reveals unrelenting pressure by the government to coerce social media platforms to suppress the speech of millions of Americans. The District Court which analyzed this record for a year, described it as arguably the most massive attack against free speech in American history, including the censorship of renowned scientists opining in their areas of expertise.” At the heart of Murthy v. Missouri lies a fundamental question: How far can the government go in influencing social media's handling of public health misinformation without infringing on free speech? Public health is a valid interest of the government, but that can never serve as a pretense to crush our fundamental rights. When pressure to moderate speech is exerted behind the scenes – as it was by 80 FBI agents secretly advising platforms what to remove – that can only be called censorship. Transparency is the missing link in the government's current approach. Publicly contesting misinformation, rather than quietly directing social media platforms to act, respects both the public's intelligence and the principle of free expression. The government's role should be clear and open, fostering an environment where informed decisions are made in the public arena. Perhaps the government should take a page from Ben Franklin’s book (H/T Jeff Neal): “when Men differ in Opinion, both Sides ought equally to have the Advantage of being heard by the Publick; and that when Truth and Error have fair Play, the former is always an overmatch for the latter …” Protect The 1st looks forward to further developments in this case. |
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