Trump’s War On Journalists Also Includes Targeting A Freelance NYT Contributor

Free Speech

from the turning-reporting-into-a-criminal-act dept

Donald Trump took possession of a $400 million “gift” plane from the Qatari government earlier this year. Trump claimed it was a coup for taxpayers and a boon for America, even as he made it clear this was all about him. According to Trump, no plane was more luxurious than this graft-y replacement for the Air Force One. He bragged about how much it reflected his own taste in upmarket products, which meant the plane’s interior was undoubtedly festooned in gold leaf and stocked with steak-grade ketchup.

But was it secure? That’s kind of a big deal when it comes to presidential transport. Turns out it wasn’t. Trump rode his graft jet to Turkey for a diplomatic meeting but was forced to ride the old Air Force One out of the country when it was discovered his new gaudy aircraft didn’t possess the necessary security measures/counter-measures.

In response to this reporting of the Air Force One Mk. II’s failure, the Trump administration behaved like the Trump administration: it subpoenaed the New York Times reporters, demanding all sort of information in hopes of uncovering the reporters’ government sources.

That’s not how this is supposed to work. The FBI and DOJ both have extensive guidelines that are meant to discourage open attacks on the First Amendment. All of these appear to have been ignored in the administration’s haste to find out who needed to be punished for telling the truth about Trump and his Qatari luxury jet.

Fortunately, the court curb-stomped the DOJ when the New York Times challenged the subpoenas. The DOJ really had no answer for the court’s questions, given that the court had plenty of precedent to work with while the DOJ was limited to being a nominally prehensile Trump appendage. Faced with the (admittedly slim) prospect of being sanctioned by a thoroughly irritated federal judge, the DOJ withdrew the subpoenas.

But that’s not the end of the story, apparently. The administration is targeting anyone remotely related to the New York Times and/or reporting that doesn’t please Donald. The New York Times is now going to bat for one its freelancers, who has also been targeted by this vindictive administration.

In February, F.B.I. agents showed up at the New York home of the reporter, Matthew Cole, to deliver the grand jury subpoena, which was issued by prosecutors in Newport News, Va., according to the people familiar with the matter, who described the private conversations on the condition of anonymity.

The investigators are seeking his testimony about two years’ worth of information about Mr. Cole’s contacts and conversations, as they try to identify his sources for the article about the operation in North Korea, the people familiar with the matter said. It is unclear if the administration has also sought Mr. Cole’s phone and email data, as it has done in other cases.

This is apparently related to Cole’s reporting about a failed surveillance operation authorized by Trump during his first term in office — one that was carried out in hopes of planting a recording device capable of intercepting Kim Jong-un’s communications.

Here’s how that went down:

For the operation, the military chose SEAL Team 6’s Red Squadron — the same unit that killed Osama bin Laden. The SEALs rehearsed for months, aware that every move needed to be perfect. But when they reached what they thought was a deserted shore that night, wearing black wet suits and night-vision goggles, the mission swiftly unraveled.

A North Korean boat appeared out of the dark. Flashlights from the bow swept over the water. Fearing that they had been spotted, the SEALs opened fire. Within seconds, everyone on the North Korean boat was dead.

The SEALs retreated into the sea without planting the listening device.

No one likes discussing a failed operation, so understandably this one hadn’t been publicly discussed prior to Cole’s report (with an assist by Dave Philipps). But this attempt to pressure Cole into revealing his sources seems more motivated by Trump’s unwillingness to discuss this mission with the people he’s supposed to be discussing these things with.

The Trump administration did not notify key members of Congress who oversee intelligence operations, before or after the mission. The lack of notification may have violated the law.

What’s inexplicable in normal terms is why this wasn’t a problem until now. This article was published last September. The underlying incident occurred in 2019. But it took until February 2026 for the administration to do anything about it. The Trump administration is far more aggressive and far less respectful of the law this time around, which explains why it would move against this reporting now. However, the delay between the reporting and revenge suggests this was a reaction to Trump seeing something on social media, rather than his administration engaging in a thorough internal investigation for months before deciding it needed to do damage to the First Amendment to move this forward.

Hopefully, this subpoena will soon be tossed into the Trump DOJ discard pile. But losing all the time won’t stop this administration from going after journalists for reporting on Trump’s failures. This administration is incapable of learning from its mistakes because it thinks it’s never wrong. The war on journalists will continue as long as Trump — and the GOP he’s turned into a MAGA puppet — holds power.

Filed Under: 1st amendment, censorship, doj, donald trump, free press, free speech, matthew cole, trump administration
Companies: new york times, ny times

eBay And Former Execs Agree To Pay $56 Million For Trying To ‘Crush’ A Journalist

Free Speech

from the attacks-on-a-free-press dept

For much of Techdirt’s nearly three decades in existence we’ve covered attacks on the media by the rich and powerful. And sometimes we’ve been on the receiving end of such attacks ourselves. But I have never seen or heard of anything quite as extreme as what happened to Ina and David Steiner, proprietors of the website eCommerceBytes. As we and many others chronicled, the story that came out sounded impossible.

But now it’s finally concluded, with eBay and three of its former top execs agreeing to pay the Steiners nearly $49 million, plus another $7 million in charitable commitments — about $56 million total, for the horrors they put them through in response to (barely) critical reporting.

The Steiners ran a small online trade publication covering eBay, mostly focused on helping sellers on the site. For years they had a good relationship with the company itself, but in the late 2010s, the company was struggling and under new management, and its execs started to get annoyed at what they saw as critical coverage of the company by the Steiners (for example, questioning why a company that was struggling financially had decided to build a replica of an east coast bar in its headquarters).

What followed still reads like fiction. If you haven’t seen it yet, I highly recommend watching the documentary, Whatever It Takes, which tells the whole story in amazing detail, including security camera footage and getting one of the (low level) eBay employees who took part in the campaign of harassment to talk about what happened on camera.

The title of the film comes directly from a text then-CEO Devin Wenig sent to eBay’s communications boss at the time, Steve Wymer, saying that Ina Steiner needed to be taken down, “whatever it takes.” Wymer replied “we’re going to crush this lady.” According to the Steiners’ lawsuit, this was then communicated to others at the company and an operations exec, Wendy Jones, then told the company’s security boss, Jim Baugh, to take care of things “off the record,” apparently telling him she didn’t want to know any details.

This allowed Baugh to concoct an escalating campaign that started with angry DMs to Ina Steiner and moved on to shipping increasingly awful things to their home: a stack of pizzas, a preserved fetal pig, a bloody pig mask, a book about surviving the loss of a spouse followed by a funeral wreath, an envelope full of “barely legal pornography” that was (deliberately) sent to a next door neighbor. And on and on.

Multiple eBay employees also traveled to the town of Natick, Massachusetts, where the Steiners lived, repeatedly driving by their house and following the Steiners when they drove around town. They also planned to break into the garage and put a tracking device on the Steiners’ car.

As the documentary makes clear, much of this was driven by the somewhat wild imagination of Baugh, who had done private security for other tech CEOs before coming to eBay, where he moved improbably fast from the CEO’s bodyguard to running eBay’s entire global security operation. The documentary details how he pushed out most of the long-time security staff and brought in a crew of young and inexperienced female hires — at least one of whom he began a relationship with — making them watch movies about top secret operations, plying them with alcohol, and demanding total loyalty.

Bizarrely, what got them caught was the whole “going to Natick and following the Steiners around” bit, which allowed the Steiners to get a license plate which the police and FBI then used to track it back to the eBay employees. A bunch of eBay employees were arrested, all of whom eventually entered guilty pleas, and many ended up being sentenced to prison sentences, with Baugh receiving the longest at 57 months.

But the Steiners were (understandably) angry that Wenig, Wymer, and Jones were never charged. While the former execs insisted that they didn’t know this was happening, that they never would have condoned it, and that they were horrified by the news when it came out, that’s difficult to believe when so much of the evidence shows that all three were on board in a “wink, wink, nudge, nudge” way given the messages they sent between themselves and Baugh.

A few years back the Steiners filed a civil suit against eBay and those former top executives. The case was set to go to trial soon, but last week they reached a settlement, with the Steiners securing $55.7 million total — $48.7 million of it going directly to them, the rest in charitable commitments:

• The plaintiffs will receive $48.7 million in compensation, including $46.15 million from eBay, $2 million from former eBay executive CEO Devin Wenig, $500,000 from former eBay executive Wendy Jones, and $50,000 from former eBay executive Steve Wymer.
• eBay will fund $6 million in charitable contributions to various nonprofit organizations. Former eBay executive CEO Devin Wenig will contribute an additional $1 million to a charity dedicated to protecting First Amendment rights in the name of Ina Steiner.

In the end, this means that the lower level employees who did much of the dirty work ended up in jail. The top execs who set this in motion end up with small dents in their large bank accounts.

eBay’s statement on the matter is at least somewhat direct in calling what happened to the Steiners “reprehensible and should never have happened.” It also “acknowledges” what it says was “the unprofessional tone in internal communications demonstrated, to different degrees and number, by Mr. Wenig, Mr. Wymer, and Ms. Jones.” I’m not exactly sure that meets the requirements of the agreement which, according to the Steiners would include “a strongly-worded public statement regarding the conduct” of those execs from eBay.

Importantly (and kudos to the Steiners for demanding and getting this) the agreement is totally public and “contains no confidentiality provision.” This is rare in cases like this (and it’s also something we insisted on in the case we dealt with). It’s important to be able to talk about this stuff, and tragically the rich and powerful who try to take down news sites are often able to negotiate confidentiality clauses into the agreements.

For what it’s worth, Wenig and Wymer are still working in Silicon Valley, with both of them co-founding AI startups, naturally. Incredibly, Wenig’s startup supposedly provides AI tools to journalists, which is quite a pivot from directing a security goon to “take down” a journalist with “whatever it takes.” That also makes the part of the agreement of Wenig providing an additional $1 million to a charity in Steiner’s name to help protect First Amendment rights even more striking.

The fact that the defendants in this case were willing to pay so much and allow the terms of the deal to be public suggests they knew exactly how badly a public trial would make all of them look.

Kudos and congrats to the Steiners. These days especially, for most media players who are attacked by the rich and powerful for their reporting, the best you can usually hope for is to get a case dismissed. Maybe, if you’re lucky, to win an anti-SLAPP motion to get your legal fees paid. To actually win a settlement this size is almost unheard of. But the Steiners deserved it. They didn’t just face bogus SLAPP lawsuits designed to shut them down. They were legitimately terrorized in ways that have had long-lasting effects.

While the Steiners situation was extreme, it’s important to recognize that this kind of thing is the inevitable end result of the constant escalation in the past few decades of the rich and the powerful attacking the free press for daring to do accurate and critical reporting on them. The craziest bit in this story isn’t even everything that eBay employees did to the Steiners, but the fact that they were so brazen about it and so careless that they got caught doing so in a way that resulted in this kind of payout. Most attacks on the press never see the light of day, let alone allowing the media entities targeted to be able to claim restitution.

Filed Under: 1st amendment, cyberstalking, david steiner, devin wenig, free speech, harassment, ina steiner, jim baugh, journalism, steve wymer, wendy jones
Companies: ebay, ecommercebytes

The Worst Person You Know Just Filed A Good First Amendment Lawsuit Against A Very Badly Drafted Nudify App Ban

Free Speech

from the fire-the-people-who-drafted-this-bill dept

There’s been a bunch of news this week regarding Minnesota’s new law that purports to prohibit “nudification” technology, and the fact that xAI has sued to have the law blocked as unconstitutional. A few things need to be said upfront, because it’s very, very easy to just say the tech is terrible, that Elon Musk and Grok are terrible, and that of course Minnesota should ban it. But it’s also possible that, in the rush to attack very problematic apps built by very problematic people, Minnesota drafted a bad law that is ridiculously overbroad and pretty clearly unconstitutional. And… that is exactly what appears to be the case.

Let’s start with the basics: apps (mostly powered by various AI tools) that are used to produce modified imagery, especially stripping people of their clothes are… bad. They should be socially shunned. People using them to objectify or sexualize others are doing bad things, and people should judge those who use those apps accordingly. This is not a defense of those apps. Similarly, Elon Musk’s Grok and its widely promoted use of putting people (including children) in bathing suits definitely deserves social shunning as well. Norms take time to form, and the shunning here is still catching up to the technology.

But passing a badly drafted, obviously unconstitutional law does not help form those norms. Nor does it punish Elon Musk. Instead, it allows him to act like a First Amendment martyr.

It’s also worth clearing something up early, because a lot of the coverage has gotten it wrong: this is not a law about child sexual abuse material. CSAM is already quite illegal under both state and federal law, and nothing in HF 1606 is limited to images of minors. Had Minnesota drafted a law narrowly targeting AI-generated CSAM, it might have survived a constitutional challenge. That’s not what it did.

And if you want to pass a law to ban technology like this, there are rules under the First Amendment. And, in Minnesota, we even know what some of those rules are. After all, a decade ago, the state also passed a law criminalizing the dissemination of “nonconsensual private sexual images.” After some back and forth in the courts, the Minnesota Supreme Court finally blessed the law as constitutional in late 2020, but made it quite clear that the law went right up to the First Amendment line. It first noted that while the state wanted to claim there’s an entirely new category of unprotected speech (in this case, “substantial invasions of privacy”), the court refused to do so, citing the famed US v. Stevens case (about an attempt to outlaw animal “crush” videos) in which the Supreme Court made it quite clear that it wasn’t open to creating new categories of unprotected speech:

The United States Supreme Court has emphatically rejected “freewheeling” attempts “to declare new categories of speech outside the scope of the First Amendment.” Stevens, 559 U.S. at 472; see also Jorgenson, 946 N.W.2d at 604 (“The United States Supreme Court has been reluctant to expand these traditional categories of unprotected speech.”). It is possible, however, there are “some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed.” Stevens, 559 U.S. at 472.

To successfully argue for a new unprotected category of speech, the proponent must present “persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription.” Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 792 (2011). This is a heavy burden to bear, and the Supreme Court has recently rejected creating new categories of unprotected speech for animal cruelty, Stevens, 559 U.S. at 472, depictions of excessive violence, Brown, 564 U.S. at 791–93, and false statements, Alvarez, 567 U.S. at 722–23.

In this case, we conclude that the State has failed to carry the heavy burden required to provide a basis to establish a new category of unprotected speech.

And yet, the law was still deemed constitutional, but not because it created a new category of unprotected speech, but rather because it passed strict scrutiny, in which the law is narrowly tailored to use “the least restrictive means” of addressing a compelling government interest. That is the test by which a law can still be deemed viable under the First Amendment, despite suppressing speech. In the case of the nonconsensual imagery bill, the law passed strict scrutiny because it focused very narrowly on a category of speech that is very likely to cause harm, and put in place a law that was narrowly tailored to only target that speech, and on top of that included clear exemptions for edge cases that likely wouldn’t be harmful.

Indeed, the court leaned hard on the fact that the law only reached images disseminated without consent, and only when the disseminator knew or reasonably should have known the subject expected privacy. Those two limits — consent and intent — are what kept the statute from sweeping in vast amounts of protected speech. Some quotes from the court which list out all the factors necessary to pass strict scrutiny.

First, the Legislature explicitly defined the type of image that is criminalized…. Furthermore, the image has to be “obtained or created under circumstances in which the actor knew or reasonably should have known the person depicted had a reasonable expectation of privacy.” Id., subd. 1(3). Images that do not clear each of these hurdles fall outside the scope of the statute.

Second, a defendant must “intentionally” disseminate the image. … This mens rea requirement means that a defendant must knowingly and voluntarily disseminate a private sexual image; negligent, accidental, or even reckless distributions are not proscribed. This specific intent requirement further narrows the statute and keeps it from “target[ing] broad categories of speech.”

Third, the statute has seven enumerated exemptions…. The statute allows for private sexual images to be distributed “in the course of seeking or receiving medical or mental health treatment.” Id., subd. 5(3). Advertisers, booksellers, and artists are protected because images “obtained in a commercial setting” for legal purposes fall outside the statute’s reach. Id., subd. 5(4). Journalists cannot be prosecuted because there are exemptions for the dissemination of private sexual images that involve matters of public interest and “exposure[s] in public.” Id., subd. 5(4)–(5).8 Educators and scientists are protected because there is an exemption for private sexual images disseminated for “legitimate scientific research or educational purposes.” Id., subd. 5(6). Accordingly, even if protected speech falls within the ambit of subdivision one and a disseminator acted with the requisite mens rea, that person may still be exempt from prosecution under these precise exceptions.

Fourth, to be prosecuted under the statute, a disseminator must act without consent…. This provision provides additional protection for commercial advertisements, certain adult films, artistic works, and other creative expression outside the statute’s scope.

Finally, this statute only encompasses private speech…. Unlike the overly broad statutes at issue in our recent decisions in In re Welfare of A.J.B. and Jorgenson, this statute covers only private sexual images and does not prohibit speech that is “at the core of protected First Amendment speech.”

It was all of that combined that allowed the law to pass strict scrutiny — something that is incredibly difficult to do. Most laws that have to clear strict scrutiny don’t. Here, this law survived with a careful roadmap from the court of how to do so.

One would think that Minnesota legislators would be aware of this ruling and the clear reasons why the law was deemed to pass strict scrutiny and then write an equivalent law with the same elements in trying to ban nudify apps.

But for reasons known only to the Minnesota legislators, they basically ignored every single one of those points.

Minnesota’s anti-nudification tech law is not limited to non-consensual content. This means, as legal commentator Kathryn Tewson noted, that if she uploaded a picture of herself and asked Grok to put her in a bikini, she could by her own hand, cause Grok to break this law. That… seems like a very problematic law.

And, again, the Minnesota Supreme Court has already told the state pretty much exactly how to make this law constitutional: focus on nonconsensual imagery, narrowly tailor it to just the deeply harmful content, include an intent requirement, and include clear delineated exemptions for things that should be allowed.

Minnesota legislators did none of that. Indeed, even the definition of “intimate parts” in the law borrows its definition of ‘intimate parts’ from an earlier statute, covering: “the primary genital area, groin, inner thigh, buttocks, or breast of a human being” — not much of which is inherently sexual, let alone harmful. Tewson offers another example: an edit of a Taylor Swift photo that changes the texture of her fishnet stockings to look more like skin. Whatever tool made that edit just violated Minnesota law.

This is, by definition, an overly broad, non-narrowly tailored law.

Another example: last year the TV show South Park did a deepfake parody of Donald Trump, showing a photorealistic version of him wandering naked through the desert, including his “intimate parts.”

Under this law, that video could violate HF 1606. That’s not narrowly tailored. That’s not dealing with intent or focused just on truly harmful content.

One lawyer I spoke to, after reading through the statute, wondered out loud whether the Minnesota legislature had deliberately drafted it in the dumbest way possible just to guarantee a successful challenge. That’s how poorly the law was drafted.

Of course, no one wants to hear that the law is badly drafted. Lots of people want to ban nudify apps and to yell about how ridiculous it is that Elon Musk has gone to court to challenge this law.

But… it’s the sort of thing he should be doing. Otherwise anyone can have Grok put themselves in a bikini and… Minnesota’s Attorney General can demand $500,000 for each such image created, even when the image was created deliberately, by the person in it, of themselves.

xAI (now a division of SpaceX) is right to challenge the law, not because nudify apps are a good thing, but because the law is terribly drafted and pretty clearly exceeds what’s allowed under the First Amendment. The complaint itself is worth a read. For one thing, it explains why xAI last week sued one of its own users for producing CSAM with Grok (which I had found perplexing at the time). It reads a lot like the company wanted a concrete example to put in this filing of how it fights back against those who use Grok in such ways (leaving out, of course, that Elon himself used the app to put himself in a bikini, thereby encouraging others to do the same).

It also explains why that complaint was focused on triggering the indemnity clause in X’s terms of service, which makes the user liable for any legal costs associated with their use of the product. What Musk is really signalling with that lawsuit is if Minnesota’s AG sues us under this law for your usage of the product, we’re going to sue you to cover our costs (which could include the $500,000 fine for any images created).

As the lawsuit notes, the law is just terribly written:

HF 1606 punishes AI platforms that allow users to alter images of real people to depict an “intimate part.” But the statute contains no knowledge, intent, or purpose requirement. It is a strict-liability statute keyed solely to whether a user succeeded in creating a covered image using the AI provider’s platform—regardless of whether the provider prohibits users from using its tool for such a purpose, regardless of how many mitigations the provider has in place, and regardless of how diligently the provider polices such conduct using its tool. There is no safe harbor for good-faith efforts of the provider of general-purpose AI creative tools to avoid harms. Liability attaches even if the depicted persons consented—or created the image themselves—and even if the image is never shared. Liability also attaches even if the image has artistic, scientific, political, satirical, educational, medical, or religious value, and (again) even if the company has deployed near-perfect, state-of-the-art technical controls to prevent the generation of nude images.

Additionally, the law’s definition of “intimate part” is exceptionally broad. Although the federal government and various states have enacted statutes that clearly define nudity for the specific context of AI-generated images, Minnesota rejected such a precise definition. Instead, it borrowed the definition of “intimate part” from a criminal sexual-contact statute. That definition was drafted for nonconsensual touching and thus covers the inner thigh, buttocks, or breast of a man or woman, as well as the groin and primary genital area. HF 1606 accordingly bans ordinary depictions of men without shirts, people in shorts or swimsuits, and other body parts routinely displayed in public—far beyond what an ordinary person would consider “nudification.”

Even worse, as the lawsuit states, the bill’s “principal sponsor” admitted that the law was designed to apply to consensual imagery:

A service used by an adult to edit a photograph of him or herself or a consenting individual is covered on the same terms as a service used to create an image of an unwilling stranger. The statute’s text draws no distinction among them. And this was by design. When a staff member of the Senate Judiciary and Public Safety Committee pointed out that the Act’s “prohibition applies to consensual images,” Senator Maye Quade (the bill’s principal sponsor) explained “that is intentional.”

That is the bill’s main sponsor stating, on the record, that she deliberately chose to leave out one of the very features Minnesota’s own Supreme Court had identified as necessary for a law like this to survive constitutional scrutiny.

That is legislative malpractice.

Since the lawsuit was filed, Maye Quade and other legislators have publicly defended the bill:

“I don’t see this as a free speech issue. This does not regulate content; it does not regulate art. It regulates conduct,” Maye Quade said. “Prompts are not art, and we protect art specifically in this law. It’s pretty audacious to sue to prevent a law that protects children from being turned into child sexual abuse material.”

She’s describing a law she could have written, but didn’t.

Notice what’s missing from that defense: any explanation of why the consent and intent elements the Minnesota Supreme Court specifically identified as saving the 2016 law were left out of this one. Also, she’s just simply incorrect that the law does not regulate speech. Again, if she simply read what the Minnesota Supreme Court said about the nonconsensual intimate imagery law, it spent pages analyzing the nonconsensual imagery statute — a law covering narrower material than this one — as a content-based restriction on speech that had to pass strict scrutiny to survive.

Similarly, the law does not actually “protect art.” Its one and only exemption is if the work “requires the technical skill of a user to nudify an image or video.” That could protect some art, but not all. And it defines art only in a case where a level of skill is needed, which itself potentially creates First Amendment issues in defining what is, and what is not art. There is plenty of modern art that people regularly complain takes no “technical skill” to create.

The complaint itself includes some other examples of what would violate the law, including this (gross) AI-generated image that Trump posted of a slimmed down version of himself, some of his cabinet members, and a randomly generated woman in a bikini sitting in a gleaming blue reflecting pool. Under the law, whatever tool was used to generate that image pretty clearly violated Minnesota’s law:

In this viral snapshot—which President Trump posted publicly— President Trump, Vice President J.D. Vance, Secretary of State Marco Rubio, and Secretary of the Interior Doug Burgum all are portrayed shirtless in the Washington Mall’s reflecting pool, along with an unknown (possibly fictitious) woman.19 An “intimate part” (the breast) of at least the President, Vice President, Secretary of the Interior, and the woman are “depict[ed],” with the Secretary of State also at least arguably included as well. The President posted this image on his personal account, presumably to make light of the public controversy surrounding repairs to the reflecting pool on the National Mall.

Nudify apps are gross. Musk’s encouragement of people to use Grok to de-clothe people is gross. People who use AI tools to “nudify” people are gross. But that doesn’t mean all laws targeting such things are good laws or constitutional.

In this case, despite having clear instructions from its own Supreme Court on how to write a constitutional law, Minnesota’s legislature deliberately chose to write an unconstitutional one. And thus, this lawsuit is the proper thing for SpaceX/xAI/Musk to do.

Supporting the lawsuit is not supporting Elon or Grok or nudify apps. It’s telling every legislature in the country the same thing: if you want the law to survive, learn to draft it in ways that aren’t unconstitutional.

Filed Under: 1st amendment, ai, free speech, grok, maye quade, minnesota, nudify, strict scrutiny
Companies: spacex, x, xai

The FTC Would Like To Decide Which AI Answers Are Too Woke, And Is Calling That Consumer Protection

Free Speech

from the the-woke-police dept

On Friday this week the FTC’s open comment period regarding its “Policy Statement Addressing AI Accuracy” will close, which means that a bunch of very smart, very busy people are wasting a ton of time this week writing up comments that will mostly be ignored by the FTC — but still matter for the record. The whole thing is so ridiculous that a former FTC lawyer has sarcastically requested that the FTC publish a quarterly “schedule of values” so AI companies at least know which ideologies they’re required to support to keep Donald Trump happy.

It’s an unconstitutional sham from an FTC whose chairman, Andrew Ferguson, quite openly sees his job as putting his thumb on the scale of speech to favor the MAGA worldview. Ferguson has been doing this since the very start of his tenure and it doesn’t appear to be slowing down now.

He couches his policy and investigatory efforts in the language of legitimate FTC authority, but nobody’s really fooled about what’s going on. Here, when he talks about “objectivity and accuracy” in responses from AI engines, everyone knows what he’s actually doing is crafting a policy that will let the FTC punish AI systems for giving “woke” answers that the MAGA world disagrees with.

The mechanism at work is blatantly obvious: the FTC is taking its Section 5 authority over “unfair and deceptive” practices — generally meant to go after companies engaging in outright fraud or deception to trick consumers — to claim that if an AI’s output is deemed to be too woke or not pro-MAGA enough, then the FTC will accuse the company of being “unfair or deceptive” in its marketing.

The draft policy statement builds its whole case on the idea that users trust what AI tools tell them — which conveniently becomes the hook for worrying that those trusting users might get fed something MAGA world doesn’t like. Thus making it “deceptive.” Yes. Really. In the actual world, the FTC’s Section 5 deception authority requires that a company make a representation that’s actually false, and materially so. Here, the Commission simply asserts — with no evidence at all — what consumers “reasonably expect,” and then appoints itself the judge of whether any given output matches.

As they have marketed their remarkable breakthroughs to the public, AI companies have spent years representing explicitly and implicitly that their systems aim to produce the best output—output that faithfully and accurately achieves users’ stated objectives and the built-in objectives that users expect in the AI system—that is possible within their technological and resource constraints. Because of these representations and the inherent nature of the products and services in question, consumers have a reasonable expectation that AI systems aim to give truthful and accurate outputs. Consumers have no basis to believe that AI systems aim to produce outputs that are distorted by undisclosed ideological objectives.

Nonetheless, an AI company might be tempted to alter or steer the output of its systems contrary to consumers’ reasonable expectations for various reasons, including attempted compliance with a state law, such as Colorado’s recently revised Artificial Intelligence Act. But steering an AI system in this manner may deceive consumers in violation of Section 5 of the FTC Act. That is true even if the deceptive steering is done in an effort to comply with state laws. Of course, a company may be able to avert potential deception by making truthful, non-misleading representations about the aims of its model. But such representations would need to make clear that the AI company is prioritizing objectives different than those consumers requested or would otherwise expect.

This is all a bit of shadow puppetry, where the FTC wraps its “AI outputs should never be too woke” argument in language that pretends to fit a traditional FTC mandate.

But this is all wildly unconstitutional, as even a cursory reading of how the First Amendment works would show. As the Supreme Court recently highlighted in Moody v. NetChoice, internet companies have clear First Amendment protections in their editorial decision making regarding what they choose to show — or not show — users of their services. From that ruling:

…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 biased, rather than to leave such judgments to speakers and their audiences. That principle works for social-media platforms as it does for others.

Yet, that’s exactly what this proposed FTC policy is setting up: if AI tools don’t produce properly MAGA-fied outputs, the FTC might go after them, claiming that the outputs are not in line with “consumers’ expectations” (as determined by the MAGA FTC) and thus, “unfair and deceptive.”

And while a “policy statement” from the FTC is not binding law, it’s clearly designed to publicly state what kinds of views will get you investigated by the FTC, in an attempt to create chilling effects that pressure AI companies to pre-censor their bots. This is also why the comment period is basically a formality. Ferguson has no obligation to do anything regarding the comments, as there’s no official rule being promulgated.

And don’t sleep on the FTC’s statement regarding Colorado’s (admittedly questionable) law, which seems to serve no real purpose other than to try to backdoor its way into Trump’s desire to magically block state AI laws, which is something he cannot unilaterally do. Remember, while there have been efforts in Congress to preempt state laws, that has not come to pass. But here the FTC is telling companies, in writing, that complying with an enacted state law creates federal liability exposure, entirely because the FTC policy (not even a full rulemaking) says so.

Last week we had former FTC lawyer Keith Fentonmiller lay out how obviously unconstitutional all of this is. It’s the FTC trying to dictate editorial policies of private companies. The First Amendment does not allow that. Aaron Rieke, another former FTC lawyer, put it even more starkly (and hilariously) in a recent LinkedIn post, designed to look like a letter in response to this open comment period, but which cuts through all the bullshit and says, in effect, “look, if you want us to only push the preferred ideology, can you at least tell us which talking points we should bless, and which we should suppress”:

Dear Commissioners:

I write in enthusiastic support of the proposed policy statement, and with one modest request for clarification.

The statement wisely prohibits steering AI outputs toward undisclosed “ideological objectives” while preserving companies’ freedom to implement “prudent guardrails.” As a consumer who relies daily on these systems — having been assured, deceptively it now seems, that they are “helpful” — I confess I cannot always tell these apart. The distinction appears to reside not in companies’ conduct but in the values they pursue.

I therefore respectfully request that the Commission publish, and update quarterly, a schedule of values, each designated either “Ideology” (deceptive if undisclosed) or “Common Sense” (no disclosure required). The proposed statement offers a promising start — “equity” is evidently Column A, while cybersecurity occupies Column B — but leaves substantial compliance uncertainty regarding, e.g., deference to law enforcement, patriotism, and politeness.

Absent a complete schedule, companies must simply guess which viewpoints the government currently disfavors and speak at their peril. I assume the Commission has already concluded that a federal schedule of approved and disapproved values raises no First Amendment concerns. Publishing the schedule would helpfully memorialize that conclusion.

Such a schedule would also generate efficiencies for future administrations, who would need only swap the column headers.

Thank you for your leadership in ensuring that American AI remains free from government influence over its viewpoints, as determined by the government.

Respectfully submitted,

A Consumer, Acting Reasonably in the Circumstances

While sarcastic, it makes the point better than any of the earnest comments will. An FTC that can punish AI tools for failing to parrot the administration’s ideological preferences is an FTC acting as a censor, and we’d all be a lot better off coming out and saying so, rather than pretending there’s some legitimate intent or purpose behind this effort.

Ferguson’s FTC has been focused almost exclusively on abusing the power of the Commission (remember, Donald Trump fired the Democratic Commissioners and has made zero effort to replace them despite the law requiring two commissioners from the minority party) to win culture war arguments and punish those deemed insufficiently loyal. The new policy and comment period is just more of the same. It’s entirely about Trump & Ferguson setting the sloppy groundwork for them to whine and complain about AI tools accurately calling bullshit on MAGA propaganda as being “unfair and deceptive.”

None of this should be happening. It’s an attack on the First Amendment so obvious that the FTC isn’t even bothering to disguise it well. But, because of the political world we live in today, everyone has to pretend to take it seriously, to pretend that the FTC will read their comments carefully, weigh the pros and cons of various approaches on this policy, and come out with some final policy that people should take seriously.

The FTC has no business investigating the editorial judgments of companies, and its facade about consumer expectations and deceptive practices is a joke. People and organizations ought to still submit comments, if only to establish opposition to this farce on the record. But what a waste of time and brainpower from people who have approximately a thousand more productive things to do.

Filed Under: 1st amendment, ai, andrew ferguson, editorial policies, free speech, ftc, section 5, unfair and deceptive

Careful What You Sue For: Trump’s BBC Case Just Forced His Financial Records Into Discovery

Defamation

from the this-time-we-could-wait-for-discovery dept

We’ve written in the past that people online often get way too excited about theoretical pending “discovery” in frivolous lawsuits filed by bad actors. Because while there are certainly a few cases where (1) a frivolous case even reaches discovery and (2) some elements of that discovery are revealed to the public, in the vast majority of cases, that doesn’t happen. The legal strategy for most defendants is to get a case thrown out before it reaches discovery because discovery is incredibly expensive. And, even then, most often what is handed over in discovery never goes public.

But… hey, sometimes, “can’t wait for discovery” turns out to be an accurate sentiment.

Last year we noted that Donald Trump had filed an obviously frivolous lawsuit against the BBC, asking for $10 billion. At issue was an edit in the documentary he didn’t like which might be considered mildly misleading (though Donald Trump repeatedly falsely claimed that the BBC used AI to fabricate quotes, the reality was they edited two separate parts of the same speech to sound like they were said together, when they were really many minutes apart). That’s not defamation, though.

Either way, the case has not been going well for Trump. Because he argued that this documentary (which was only shown once in the UK and not in the US) harmed Trump’s business interests in Florida (where he sued), the BBC asked for Trump’s financial records as part of their discovery requests. Given that Donald Trump made more money last year (around $2 billion) than ever before, even as he remains the President of the United States, it seems like a reasonable request.

Trump and his (not very bright) lawyers tried to wriggle out of this by dropping some of the initial claims that were about how much harm the documentary did to his business, saying instead that it just harmed his reputation. The BBC said it still needed his financial records anyway. And now, Magistrate Judge Enjoliqué Lett has agreed, noting in court that the financial records would be relevant to the claims of reputational harm as well.

“All of President Trump’s brand, properties and businesses are impugned or said to have been impugned. Reputational, economic damages, all of that is now at issue in this case,” Lett said at the conclusion of a three-hour hearing.

Of course, Trump’s lawyers can (and almost certainly will) ask the Article III Judge (Roy Altman, who is a Trump appointee) to overrule the magistrate, but it might not work. After all, earlier in the case, Trump’s lawyers had sought to remove Lett from the case, claiming that she was biased against him, because before she became a Magistrate Judge, she had represented a client in a case against Trump. Judge Altman rejected that claim back in May, siding with his colleague, Magistrate Judge Lett:

The Plaintiff asks us to withdraw our referral of discovery matters from Magistrate Judge Lett and reassign them to a different Magistrate Judge. … He advances two arguments in support of this request: First, he cites our unrelated referral of discovery matters in Donald J. Trump Revocable Trust et al. v. Capital One…. Second, he argues that “Magistrate Judge Lett had appeared as counsel of record on behalf of a party directly adverse to President Trump in active federal litigation: Trump v. Clinton… The Plaintiff’s first argument is unavailing. “Effective April 19, 2026,” Magistrate Judge Hernandez replaced Magistrate Judge Lett as our “paired” Magistrate Judge for Miami-based cases…. We reassigned discovery in Capital One the next day based on case workload and the parties’ compressed discovery period…. Nothing about that decision mandates a withdrawal of the referral in the different circumstances of this case. The Plaintiff next argues that Magistrate Judge Lett previously “represent[ed] [a] defendant directly adverse to President Trump.” … Despite his claim to the contrary, the Plaintiff effectively seeks Magistrate Judge Lett’s recusal. … But 28 U.S.C. § 455 is clear that: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Accordingly, we’ll leave any decision regarding Magistrate Judge Lett’s recusal to her sound judgment. Signed by Judge Roy K. Altman on 5/19/2026.

So, at this point, Judge Altman seems willing to trust Magistrate Judge Lett’s judgment on the recusal question — and that deference may well carry over to the financial-records dispute too.

Of course, even if discovery does move forward, Trump could still file for a protective order to keep most of the records secret, outside of whatever has to be used in court. Alternatively, he could try to dismiss the case to get out of having to provide discovery.

Either way, this was a stupid, vexatious, obvious SLAPP suit designed to punish the BBC and waste its time and money. So it’s quite nice to see that backfiring on the censorial bully that is the President of the United States.

Filed Under: 1st amendment, defamation, documentary, donald trump, florida, panorama, slapp suit
Companies: bbc

Florida’s Stop WOKE Act Shut Down (Again) By Eleventh Circuit Appeals Court

Free Speech

from the stopping-the-stoppers dept

Florida Republicans’ bigoted little piece of speech policing — the former “Stop WOKE Act” — has already been terminated multiple times by federal courts. Two lawsuits with two sets of plaintiffs have generated the same results: a ruling declaring the law unconstitutional and an injunction blocking the state from enforcing it.

The law aims to directly regulate speech in classrooms, allowing the government to punish teachers and administrators from engaging in any speech the Florida GOP doesn’t agree with. In practice, this means eliminating discussions about racism, equitable treatment, or anything related to LGBTQ+ issues.

The two lawsuits have generated some pretty stark paragraphs from presiding judges. Both take their cues from pop culture. Noting the cognitive dissonance of state lawmaking, the court said this in 2022:

In the popular television series Stranger Things, the “upside down” describes a parallel dimension containing a distorted version of our world. See Stranger Things (Netflix 2022). Recently, Florida has seemed like a First Amendment upside down. Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely. 

The same court said this when the second lawsuit against the Stop WOKE law crossed its desk:

“It was a bright cold day in April, and the clocks were striking thirteen,” and the powers in charge of Florida’s public university system have declared the State has unfettered authority to muzzle its professors in the name of “freedom.” To confront certain viewpoints that offend the powers that be, the State of Florida passed the so-called “Stop W.O.K.E.” Act in 2022—redubbed (in line with the State’s doublespeak) the “Individual Freedom Act.” The law officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints. Defendants argue that, under this Act, professors enjoy “academic freedom” so long as they express only those viewpoints of which the State approves. This is positively dystopian.

The state appealed both decisions. The Eleventh Circuit Appeals Court upheld the injunction in March 2023. The state continued to assault the court with motions to undo this injunction, prompting the Eleventh Circuit to issue this additional order:

The Clerk is DIRECTED to treat any motion for reconsideration of this order as a non-emergency matter.

Forced to wait its turn, Ron DeSantis and his MAGA buddies have had to wait more than three years just to find out they still won’t be able to enforce this blatantly unconstitutional law. The state’s lawyers will read the whole thing looking for ways to argue this differently if (or when) the US Supreme Court decides to hear their appeal.

But anyone wanting to know how this turns out for Florida’s public service bigots won’t have to dip too far into the 85-page ruling. By the middle of the fourth page, you’ll know what you need to know. From the decision [PDF]:

When several groups of professors challenged Florida’s new restrictions, the State cast about for an existing case or doctrine that could support its speech ban in the university setting. Finding none, it tried to marry public-employee speech cases with government speech doctrine, resulting in a new rule: if the government pays a professor’s salary, it has total control over her classroom speech.

That is not a blessed union. Florida’s salary-for-speech rule is a breathtaking assertion of power to ban unpopular ideas from public discourse in the very places the State’s own statutes recognize as centers of inquiry—classrooms where students are trusted to puzzle through ideas that are good and bad, easy and hard, ideally getting ever closer to the truth. This new rule also runs headlong into the Supreme Court’s repeated, if imprecise, endorsements of academic freedom. If the First Amendment offers any boundary of protection at all for public university classrooms, this statute crosses it.

The injunction stays in place, presumably forever. While there are certainly some members of the Supreme Court who would love to tie their precedent and ethics into knots just to block speech they personally don’t like, this doesn’t appear to be the case they’d choose since it would likely generate precedent that might work against the bigots in the Supreme Court when they go to bat for bigots in the White House.

The appeals court has already blocked the other part of the law — the clauses attempting to regulate speech in private workplaces by forbidding mandatory meetings that promoted views the GOP doesn’t agree with. The last ditch attempt to claim the government can regulate speech in college classrooms doesn’t fare any better, even if it’s not quite as clear cut in terms of constitutional violations as telling private companies what they can and can’t say.

Claiming that all speech by government employees is “government speech” is a non-starter. The state couldn’t find precedent to support its novel take on the First Amendment. And the few odds and ends it threw at the judicial wall in hopes of seeing something stick failed as well.

More credibly, the State explains that it also seeks to protect its “most cherished ideals.” But that justification fails, too. Though the government has plenty of ways to promote its own viewpoint, puppeteering every university professor in the state is not one of them.

The court spends 50 pages dismantling each and every one of the state’s arguments, citation by citation. There can be no doubt the law is unconstitutional, not that it matters to the state, which has already announced it will be appealing the ruling. But this is censorship that can’t even be bothered to pretend it’s anything but the very thing it claims it is opposed to. “Individual Freedom Act” (as it was renamed), my ass.

Florida seeks to strip public university professors—and by extension their students—of the ability to fully engage with ideas that are, for better or for worse, very popular in some academic circles. The State asks us to consider its rules a means of targeting discrimination. But hearing an idea you disagree with is not discrimination; it is an opportunity to come up with a better idea, or maybe even change your mind.

There’s a dissent that runs nearly as long as the opinion. Written by Judge Barbara Lagoa (someone with a history of anti-trans rulings), it’s 30+ pages of wasted time. To paraphrase: none of these plaintiffs should have been granted standing, much less relief and also: [bunch of Justice Alito quotes].

Doesn’t really matter, since it’s the dissent but I guarantee if anyone’s going to start polling for an en banc rehearing, it’s going by Judge Lagoa.

Suck it, DeSantis. Until that happens (if it ever will), your stupid hateful law is as dead as the eyes of your sycophants.

Filed Under: 11th circuit appeals court, 1st amendment, florida, free speech, ron desantis, stop woke act, woke