​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.”

​On Jan. 10 the U.S. Supreme Court will hear oral arguments in TikTok v. Garland to decide whether the First Amendment requires the Court to block the law requiring the social media platform to undergo a forced sale by its Chinese owner, ByteDance, or be shuttered.
 
Many civil liberties organizations have come to TikTok’s defense in recent months, making the point that if the government can silence one social media platform, it can close any media outlet, newspaper, website, or TV channel. And they are right that forcing a private media company to sell or go out of business is a drastic action usually associated with authoritarian rule.
 
President-elect Trump filed an amicus brief with the Court asking the Justices to stay the legislative deadline that falls on Jan. 19, one day before his inauguration. The incoming president wants to be free to negotiate a solution for TikTok that will not require the blunderbuss of a forced sale or closure. His brief seeks “a negotiated resolution that could prevent a nationwide shutdown of TikTok, thus preserving the First Amendment rights of tens of millions of Americans, while also addressing the government’s security concerns.”
 
The president-elect’s brief also contained a nod to the real danger in TikTok’s accumulation of the personal data of its 170 million American users, including 67 percent of U.S. teens. A year-long, bipartisan investigation in the House concluded that TikTok is being used by Beijing to spy on American citizens. The Senate agreed by voting for a bipartisan aid bill that included the “ban-or-sale” measure.
 
The U.S. Court of Appeals for the District of Columbia upheld the law as constitutional, concluding that the measure satisfied strict scrutiny due to the national security necessity of preventing China from secretly collecting the data of United States citizens (and covertly manipulating content, too). As one TikTok official said in a leaked communication, “Everything is seen by China.”
 
As we reported, TikTok also surveils journalists like Emily Baker-White from Forbes. Want a good way to chill speech in America? How about permitting an adversarial nation to spy on reporters and their sources? 
 
With such facts in mind, Judge Douglas Ginsburg, who wrote for the court, declared that the law does not violate the speech rights of users. Nor does it necessarily even curb disfavored speech. Judge Ginsburg wrote:
 
“Content on the platform could in principle remain unchanged after divestiture and people in the United States would remain free to read and share as much [People’s Republic of China] propaganda (or any other content) as they desire on TikTok or any other platform of their choosing.”
 
In short, the lower court has held that the First Amendment should not apply to the corporate subsidiary of a hostile foreign adversary. The D.C. Circuit suggests that since the measure is the narrowly tailored result of considered legislative processes in furtherance of a compelling government interest, it can be allowed.

The court understands that the government could never ban a media outlet for its content. But could it ban an online website that distributes foreign spyware on the computers of its readers? That’s not so far off from what so many have concluded is happening here. Yet forcing the sale or closure of a media outlet is an extreme measure for any democracy to take.
 
The Court will have much to consider. Stay tuned.

​On Thursday, the U.S. Court of Appeals for the Sixth Circuit delivered a stinging rebuke to those who believe social media companies should be treated as common carriers. One of those true believers is Tim Wu, former Biden administration advisor and widely regarded as a thought leader of progressive policy. Wu wrote:
 
“Since its activation, the First Amendment has presupposed an information-poor world, and it focuses near-exclusively on the protection of speakers from government, as if they were rare and delicate butterflies threatened by one terrible monster.”
 
Wu’s quote, in which the monster is the government, comes from a 2018 Michigan Law Review piece entitled “Is the First Amendment Obsolete?” In The New York Times more recently, Wu protests that “liberal as well as conservative judges and justices have extended the First Amendment to protect nearly everything that can be called ‘speech,’ regardless of its value or whether the speaker is a human or a corporation.”
 
The implication here, of course, is that we need smart regulators who can spot the difference between speech that has value, and that which should be discarded. Wu also seems to suggest that corporations – collections of humans that can range from ExxonMobil to the ACLU – shouldn’t have First Amendment rights at all.
 
More than anything, Wu’s conceit is that we should live under a noocracy (rule by the supposed wise, as attested to by their Ivy League degrees). Wu advocates reducing large social media companies to common carrier status, to be regulated by the government.
 
This is all relevant today because it was Wu who coined the term “net neutrality,” a set of rules adopted by the Federal Communications Commission to force all internet service providers to give all content in their pipeline the same priority. The Sixth Circuit in Cincinnati bought none of this when it struck down the FCC’s net neutrality rules.
 
The court’s reasoning was prosaic. Under Loper Bright, a recent Supreme Court opinion that limits (Chevron) deference to government agencies, such sweeping rule-making by the FCC would require authorization by Congress. Transforming social media companies into common carriers to be regulated like railroads or airlines is an act that must be rooted in a statute. Congress has passed no law authorizing common carrier status for social media companies or net neutrality.
 
But issues of grand principle were also protected by the Sixth Circuit. First, the court protected the financial model that incentivizes investors to fund companies like Verizon or Comcast to build out and maintain the national networks of fiber optic cable. Without this incentive, there would be no internet to regulate.
 
Second, and most important, if internet companies become common carriers, then the way in which they handle content can also be regulated. The FCC’s rules would have put speech itself in the hands of regulators. And then the one terrible monster truly would be destroying the butterflies.
 
Protect The 1st salutes the Sixth Circuit for a wise decision that protects speech from those who believe they know which speakers have “value” and which ones don’t.

​President-elect Donald Trump’s nominee for Chairman of the Federal Communications Commission promises he will “smash the censorship cartel.” A current FCC commissioner, Brendan Carr is a seasoned policymaker and scholar of communication law. He is an unabashed promoter of the free market, promising to reduce regulation and “refill America’s spectrum pipeline” to “unleash economic prosperity.”
 
Carr authored the FCC section of Project 2025, which encapsulates what the FCC’s policy efforts are likely to encompass in the coming years. Relevant to the First Amendment is Carr’s approach to Section 230. This is the law that grants social media companies immunity from liability for content produced by third parties, while acknowledging the companies’ right to moderate their sites.
 
Carr believes Section 230 has been expanded and abused to censor conservative and other speech, concluding it “is hard to imagine another industry in which a greater gap exists between power and accountability.” That’s why, in his view, the “FCC should issue an order that interprets Section 230 in a way that eliminates the expansive, non-textual immunities that courts have read into the statute.”
 
Specifically, Carr suggests that the “FCC can clarify that Section 230(c)(1) does not apply broadly to every decision that a platform makes. Rather its protections apply only when a platform does not remove information provided by someone else. In contrast, the FCC should clarify that the more limited Section 230(c)(2) protections apply to any covered platform’s decision to restrict access to material provided by someone else.”
 
What this means, in effect, will be much less immunity for platforms under Section 230(c)(1), broadly interpreted by courts to apply to both distribution and takedown decisions – even though Section 230(c)(2) speaks more directly to the latter. Carr’s proposal is a direct shot at the kind of censorship decisions that have so enflamed conservative circles in recent years, and it means platforms could have substantially less legal protection in such future cases. At the same time, basic publishing and editorial functions (even a hands-off editorial approach), as well as removal of lewd or violent material would likely remain covered under this framework. (For more on the distinction between Section 230(c)(1) and Section 230(c)(2)), we recommend this Congressional Research Service report.)
 
Carr’s writings make frequent appeals to Congress to reform and update the laws governing the internet, eager to work with Congress to harmonize his regulatory approach with the law. Given the role of courts in interpreting rules against the statutes they are based upon, it is hard, however, to predict what this new framework will look like.
 
There’s certainly a scenario where litigation against tech platforms could snowball in a way that harms innovation, consumer experience, and the overall speech climate. Moreover, the First Amendment upholds the right of social media companies to moderate their content. Courts should not allow any rule that compromises their rights. Still, Carr’s effort to carve out more respect for speech by reinterpreting Section 230 is a lighter touch than many legislative proposals.
 
Carr suggests placing transparency rules on big social media platforms – specifically, requiring “platforms to provide greater specificity regarding their terms of service.” We would prefer social media companies to voluntarily take up these rules. Platforms’ moderation decisions should take place in the open, providing clarity to consumers and furthering free expression and association on the handful of sites that have become the nation’s townhall.
 
Carr also advocates for returning “to Internet users the power to control their online experiences,” perhaps through choosing “their own content filters and fact checkers, if any.” At the same time, he concedes that such policies could be seen by some as intruding “on the First Amendment rights of corporations to exclude content from their private platforms.” Carr should heed his reservation. Protect The 1st wholeheartedly supports the speech rights of private companies and opposes external impositions on this fundamental right.
 
Regarding national security, Carr wholeheartedly supports a ban on TikTok, espousing that it provides “Beijing with an opportunity to run a foreign influence campaign by determining the news and information that the app feeds to millions of Americans.” We support the law that requires divestment by China’s ByteDance. With a sale to a U.S. owner, there would be no need for a blanket ban on TikTok that infringes on the speech and associational rights of Americans.
 
Lastly, Carr seeks to re-emphasize the establishment of wireless connectivity for all Americans by freeing up more spectrum and streamlining the permitting process for wireless builds. According to the FCC, 24 million Americans still lack high-speed Internet as of 2024, and that’s 24 million Americans who are less able to exercise their speech rights than their fellow countrymen.
 
Overall, Carr’s focus is to modernize the FCC and promote prosperity by turning to a “pro-growth agenda” over the heavy hand of regulatory decree. “The FCC is a New Deal-era agency,” Carr writes. “Its history of regulation tends to reflect the view that the federal government should impose heavy-handed regulation rather than relying on competition and market forces to produce optimal outcomes.”
 
In short, Brendan Carr promises to be a bold leader at the FCC who aims to break policy logjams. Protect The 1st looks forward to evaluating his proposals when they are fleshed out in January.

​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.

​When 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:
 

• support Nazi ideology;
• advocate for terrorism;
• espouse racism, Islamophobia, or anti-Semitism;
• encourage teenage suicide and self-injury;
• discourage the use of vaccines;
• advertise phony treatments for disease;
• advance false claims of election fraud.”

 
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.

​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.

​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.