A First Amendment Legend Eviscerates Brendan Carr With Substance And Style

Free Speech

from the i'd-throw-my-computer-in-a-lake dept

We’ve been covering Brendan Carr’s censorial ambitions for a long time now. When Trump first picked him to chair the FCC, we warned people that the “free speech warrior” branding was a total sham. We later dug into the letter from a massive coalition of 80+ legal scholars, former FCC officials, and civil liberties groups detailing how Carr’s threats fly in the face of the First Amendment. Hell, just this morning Karl wrote about how Carr is still plotting to punish Jimmy Kimmel for mocking President Trump. Meanwhile, Carr has responded to the criticism with smirking emojis and culture-war memes on X, treating the whole thing as performative trolling for an audience of one.

But now, First Amendment lawyer Bob Corn-Revere has published an open letter to Carr that is, frankly, one of the most devastating things I’ve read in years. And you really should go read the whole thing.

While Carr has mostly laughed off or ignored criticism of his many First Amendment violations, a letter from Corn-Revere (beyond the incredible prose of the letter) may hit a bit different given his stature within the First Amendment world. He has famously spent decades fighting in the trenches of the hardest, most politically uncomfortable First Amendment cases in the country. He represented Larry Flynt’s Hustler Magazine in the landmark Hustler v. Falwell case. He defended 2 Live Crew in the obscenity prosecution over As Nasty As They Wanna Be. He was counsel in FCC v. Fox Television Stations, the Supreme Court case that effectively ended the FCC’s broadcast indecency regime. There are many more famous cases on his resume as well. This is someone who has spent his entire career defending speech, including in cases where it was genuinely offensive, deeply unpopular, and legally novel — because that’s what actual First Amendment commitment requires.

Oh, and he served as Chief Counsel to former FCC Chairman James Quello, so he knows how the FCC works from the inside.

So when this person tells Brendan Carr that he has betrayed his professed values, it carries a weight that Carr’s thumbs-down emojis can’t dismiss. The letter opens by pointing to the cautionary tale of Pam Bondi’s sudden firing as Attorney General:

Pam Bondi’s sudden and ignominious end as Attorney General is an important cautionary lesson about what happens to officials in this administration who over-promise in order to curry favor with the man they see as their boss, but who under-perform because of the limits of their authority.

Bondi promised the President she would prosecute his political enemies and failed miserably. The President rewarded her misplaced loyalty by denying her the graceful exit she sought, and instead fired her during a cross-town limo ride to watch a Supreme Court argument.

You have recently threatened to revoke the licenses of broadcasters who air what you call “fake news,” which apparently includes any skeptical reporting about the war in Iran—something you know you cannot do legally.

My advice? Don’t get into a car with the president anytime soon.

That line sets the tone for everything that follows — a pointed warning from someone who’s been inside the institution and watched Carr’s transformation up close, not someone lecturing from a safe distance.

From there, Corn-Revere walks through exactly how Carr has become the precise opposite of the person he used to claim to be, quoting Carr’s own prior statements back at him:

As you may recall, shortly after you were named to head the Federal Communications Commission, I offered you some unsolicited advice in the form of an open letter entitled “A Plea for Institutional Modesty.” I suggested you should be circumspect in your assertions of power over broadcasters because “you don’t have as much power as you may think,” and flexing your regulatory muscles would conflict with both the Communications Act and the Constitution.

But as was clear from your initial acts as chairman and statements you made while campaigning for the job, your quest for political advancement overrode any previous commitment to First Amendment values. Gone were the days when, as a commissioner, you said things like “a newsroom’s decision about what stories to cover and how to frame them should be beyond the reach of any government official, not targeted by them,” or that “inject[ing] partisan politics into our licensing process” is “a deeply troubling transgression of free speech and the FCC’s status as an independent agency.”

I never expected you would heed my gratuitous advice, but had no idea how thoroughly you would betray your former (professed) values. Instead, you emerged as a Bizarro World caricature of yourself, threatening owners of broadcast networks with summer stock Don Corleone impressions and devoting much of your social media activity to jawboning. It is as if you set out to prove that the real mental health crisis in America isn’t about teens on Instagram, but public officials on X.

If someone of BCR’s stature said any of that about me, I might log off the internet forever.

The letter is full of these moments where Corn-Revere combines deep legal knowledge with rhetorical skill matched by very few. Take his description of Carr’s reliance on the long-dormant “news distortion” policy — a regulatory zombie that only exists because the FCC never formally killed it off after eliminating the Fairness Doctrine decades ago:

The news distortion policy is like a phantom limb after the FCC amputated the fairness doctrine—it is not really there in substance, but you still seem to feel you can walk on it.

Your smug social media posts about how broadcasters will be held to their public interest obligations “on your watch” ignores this history, but your claim that “the opposition to holding broadcasters accountable to the public interest comes increasingly from those unfamiliar with longstanding FCC precedent” is even worse, because you know it is a bald-faced lie.

The letter also hammers home a point we’ve made repeatedly: the actual, messy consequences of Carr’s performative bullying, and shows how spectacularly it has backfired over and over again. After Carr strong-armed Disney into suspending Jimmy Kimmel Live:

Protesters picketed outside the gates of the Magic Kingdom, and an estimated 7.1 million people cancelled subscriptions to Disney-owned streaming services Disney+ and Hulu over the controversy—at about twice the usual churn rate.

ABC affiliate group owners Sinclair Broadcasting and Nexstar Media Group, who had business before the Commission, and who dutifully followed your demand, also lost money. It turns out that advertisers will not pay as much for spots during reruns of Celebrity Family Feud as during Jimmy Kimmel Live!, and Sinclair revenue dropped a reported 16 percent for the quarter. Nexstar also suffered losses, although the amounts were not disclosed.

The result? The suspension ended a little more than a week after it began and Kimmel triumphantly returned to the air to his highest viewership in over a decade. Kimmel’s comeback garnered 6.3 million broadcast viewers and roughly 20 – 26 million views on social media within 24 hours.

His attempt to manipulate equal opportunity rules to silence Stephen Colbert went even worse:

In January, you caused the FCC staff to reinterpret whether candidate interviews on certain talk shows were exempt from the equal opportunities rule, reversing decades of precedent.

You apparently were miffed that candidate interviews on certain TV shows did not trigger “equal time” requirements for their opponents under exemptions to the rule Congress adopted in 1959. Yet mysteriously, you said there was no need to apply your reinterpretation to conservative talk radio interviews.

But your main target of this move, Stephen Colbert, outsmarted you. He ridiculed your reinterpretation of the equal opportunities rule on air, and gleefully transmitted his interview with Texas Senate candidate James Talarico on The Late Show’s YouTube channel, which is beyond the FCC’s jurisdiction. The interview got over seven million views overnight (more than three times the on-air viewership), Talarico immediately received $2.5 million in campaign contributions, and won his primary.

Carr’s tactics are unconstitutional and tactically stupid. He keeps creating the very outcomes he’s supposedly trying to prevent — even as some less strong-willed news orgs buckle under his threats or pre-censor themselves to avoid his performative wrath.

But the part of the letter that really sticks with me is the section on Carr’s legal knowledge — specifically, the massive gap between what Carr actually knows and what he pretends to believe. Corn-Revere lays out the full chain of Supreme Court precedent cutting back on the FCC’s assumed authority over broadcast content — and then lands this:

But you know all this. Just as you know the FCC eliminated the fairness doctrine four decades ago, which is the regulatory progenitor of the “news distortion policy” you now love to cite (but only against broadcasts you perceive as critical of this administration).

This matters because it removes the escape hatch of ignorance. When politicians misstate the law, you can at least entertain the possibility they just don’t know better. Carr has been an FCC commissioner for nearly a decade. He practiced communications law. He knows what he’s doing is legally indefensible, and he knows his smug social media posts about “the law is clear” are, as Corn-Revere puts it, “a bald-faced lie.”

The letter ends by looking at what all of this does to Carr’s legacy, and it lands with a quiet brutality that no amount of trolling can deflect:

Your recent appearance before the Conservative Political Action Conference is a prime example, where you explained the president is “winning” against the media by listing several media personalities who have left their jobs, including (as you put it) “sleepy eyed Chuck Todd.” I should not have to remind you of this, but it is a poor and pathetic leader who measures “winning” by what he thinks he has destroyed rather than by what he has managed to build.

And:

As I wrote in my first open letter, selling out your (professed) values represents short-term thinking. I noted that “officials who have tried to muzzle the press for short-term political gain have not been treated well by history,” and “if I were your adviser, this is not how I would want history to remember you.” Now, to the extent you will be remembered at all, it will most likely be mainly as a South Park character.

I wish you had listened.

Carr will likely ignore this, much like he brushed off the coalition letter, his own past statements, and basically every legal guardrail he’s encountered since taking the chair. That’s his whole game — the threats, the memes, the emojis, the audition tape for whatever comes next.

Still, the record is there now, written by someone whose First Amendment track record makes Carr’s look like a cheap Halloween costume. And unlike Carr’s social media posts, this letter will age well.

There’s a lot more in the letter. Go read the whole thing. You won’t regret it, even if Brendan Carr would likely wish to censor it like he wishes to censor Jimmy Kimmel.

Filed Under: 1st amendment, bob corn-revere, brendan carr, donald trump, fcc, free speech, jimmy kimmel, news distortion

Brendan Carr Cooking Up New Sham Investigation Of Jimmy Kimmel

Free Speech

from the a-comedian-made-me-cry dept

As the boss of the country’s media and telecom regulators, there’s plenty of corporate malfeasance and corrupt shenanigans Brendan Carr could be targeting on any given day at the country’s biggest media and telecom companies. But because Carr’s never been all that interested in the public interest, he’s once again spending his time trying to hurt a comedian who made fun of our unpopular president.

After an embarrassing failure at his attempt to censor Jimmy Kimmel for criticizing Donald Trump last year, Policyband notes that Carr is cooking up a new inquiry to ensnare Kimmel. This time, Carr is pretending he cares about financial conflict of interests, and is looking to “revisit” long‑standing conflict‑of‑interest rules for broadcasters (and Kimmel):

“A lot of people don’t know this, but there’s conflict‑of‑interest rules that apply to broadcasters, both personal financial, but also personal political,” he said. Carr — who had a blow up with Kimmel last September over the comic’s comments about Charlie Kirk’s assassination — did not mention Kimmel by name. But he really did not need to because of the existence of a conflict of interest complaint pending against the host of Jimmy Kimmel Live! (via an ABC station) at the FCC.”

It’s been abundantly clear that the Trump administration is one giant, lumbering financial conflict of interest, though obviously Carr’s not actually interested in any equal application of financial conflict of interest rules. Instead, he’s leveraging FCC rules to single out Kimmel and a $23,000 payment Kimmel made to Democrat Adam Schiff’s campaign a year before Schiff appeared on Jimmy Kimmel Live!

Trump’s friend Larry Ellison has already taken out one late night TV host, Stephen Colbert, who was abruptly fired by CBS. Now Trump continues to try and leverage his lapdog at the FCC to find new and creative ways to make life difficult for any remaining late night hosts, tramping the First Amendment at every and any opportunity.

Carr is the same guy who recently (and illegally) ignored any remaining media consolidation limits to help his friends at right wing TV broadcasters merge, something only scuttled after court intervention. Whether it’s a conflict of interest inquiry, a free speech complaint, or cybersecurity “reforms,” absolutely nothing Carr does is in good faith; something our press struggles to make evident.

The exception has been outlets like Wired, which recently reported that a right wing activism group, the Center for American Rights (CAR), had direct access to Carr, bypassing all standard staff interactions. CAR was integral in helping Carr shape some of his hollow complaints against Kimmel and ABC in relation to his abuse of the antiquated FCC “equal time” rule.

With that bogus censorship effort thwarted, Carr has moved on to creatively crapping all over the First Amendment in equally creative, but likely equally fruitless ways.

Filed Under: 1st amendment, abc, brendan carr, censorship, fcc, financial conflict of interest, free speech, jimmy kimmel, sham investigation, trump
Companies: abc, disney

Oh Look, The MAGA FTC Built The Censorship Industrial Complex It Was Screaming About

Free Speech

from the pretty-sure-that's-censorship dept

We’ve been covering the Trump administration’s escalating campaign against NewsGuard for a while now. It started with the House Oversight Committee’s absurd investigation of the company for the crime of expressing opinions about news reliability. But then there was the FTC’s burdensome fishing expedition and blocking of the merger of two advertising giants — Omnicom and IPG — unless they stopped working with NewsGuard. That one prompted NewsGuard to sue the agency. Now the FTC, joined by a coalition of eight red states, has finished the job, getting the three other “big” ad agencies to agree not to use NewsGuard (or the Global Disinformation Index).

That means every single one of the five major advertising agency holding companies in the United States has now been successfully pressured by the federal government to stop using NewsGuard’s ratings. All of them. Entirely because NewsGuard expressed opinions about conservative news outlets that some powerful people found inconvenient.

I seem to recall some fairly dramatic freakouts from supposed ‘free speech absolutists’ about government pressure on media organizations constituting a massive First Amendment crisis. Strange that none of those people are speaking up about this. Many seem downright supportive.

I also seem to recall that in NRA v. Vullo, just two years ago, the Supreme Court said that government employees are not allowed to threaten companies not to do business with others because of disfavored opinions. The MAGA crowd celebrated that ruling. And now they’re doing the exact same thing that Vullo was accused of, except even more directly.

The United States government has successfully prevented a private journalism organization from doing business with the entire major advertising industry. All because NewsGuard expressed opinions about the reliability of news sources, and some of those opinions hurt the feelings of conservative media outlets — most notably Newsmax.

The FTC is leaning hard on an extraordinarily stretched interpretation of antitrust law to pull this off. The FTC’s complaint alleges that the three remaining major ad agencies — WPP, Publicis, and Dentsu — colluded through trade associations to establish common “brand safety” standards, and that this collusion constituted an illegal restraint of trade under the Sherman Act. Since they’d already gotten the other two, Omnicom and IPG, to agree to stop using NewsGuard as a condition of their merger approval, the full set is covered.

FTC Chairman Andrew Ferguson, who promised when he took the job to “end politically motivated investigations” (he meant Lina Khan’s, not his own), offered some truly rich language in the press release:

“The ad agencies’ brand-safety conspiracy turned competition in the market for ad-buying services on its head,” said Chairman Andrew N. Ferguson. “The antitrust laws guarantee participation in a market free from conduct, such as economic boycotts, that distort the fundamental competitive pressures that promote lower prices, higher quality products and increased innovation.

“As we explain in our complaint, the brand-safety agreement limited competition in the market for ad-buying services and deprived advertisers of the benefits of differentiated brand-safety standards that could be tailored to their unique advertising inventory,” he continued. “This unlawful collusion not only damaged our marketplace, but also distorted the marketplace of ideas by discriminating against speech and ideas that fell below the unlawfully agreed-upon floor. The proposed order remedies the dangers inherent to collusive practices and restores competition to the digital news ecosystem.”

The ‘marketplace of ideas’ — that’s a fun phrase to invoke while using government regulatory power to prevent private companies from subscribing to a journalism ratings service because you don’t like what the ratings say. Ferguson is claiming to restore the marketplace of ideas by directly removing a participant from it.

Strip away the out-of-context, ominous-sounding internal email quotes, and the complaint describes something far less scandalous than the FTC wants you to believe.

The advertising industry, through trade associations (the 4As’ Advertiser Protection Bureau and the World Federation of Advertisers’ GARM initiative), developed common standards for what kinds of content advertisers might not want their brands associated with. This is a practice that has existed in advertising forever — brands don’t want their logos next to terrorist recruitment content, pornography, or content promoting illegal activity. That’s what “brand safety” means. The industry then expanded those standards over time to include categories like “misinformation” — and, in doing so, some individual agencies chose to use NewsGuard’s ratings, among other tools, to help implement those standards.

The complaint makes this sound terrifying through selective quoting. The most dramatic bit is this, from GARM, cautioning participants about discussing their coordination publicly:

The first rule of Fight Club is: You do not talk about Fight Club. The second rule of Fight Club is: You do not talk about Fight Club.

That’s a colorful quote! But it’s also a joke. Fairly obviously. What it describes — trade associations encouraging discretion about internal industry discussions — is routine. What matters is whether the underlying conduct is actually anticompetitive in a way the Sherman Act cares about. And that’s where the complaint falls apart. This was about setting brand safety standards. Not about preventing competition.

In a real antitrust case involving a cartel, you’d see competitors agreeing to fix prices, divide markets, or restrict output to inflate profits at consumers’ expense. What the FTC describes here is companies subscribing to the same third-party ratings service and incorporating it into their own, independent brand safety strategies. That’s like saying five banks are running an illegal conspiracy because they all use FICO scores and independently decided not to lend to borrowers with scores below 600. Common inputs don’t equal coordinated outputs. The FTC’s own complaint includes evidence of the agencies competing on brand safety — a Publicis executive explicitly strategized about creating a better brand safety guide than WPP’s, and recommended distributing it only internally to maintain competitive advantage:

She further recommended, with emphasis, “only distribut[ing] this internally and for clients,” not putting it “publically on our website as GroupM [WPP] did.”

That’s competition. That’s exactly what a market without collusion looks like. Companies see what their rivals are doing, and try to do it better.

The complaint acknowledges that the Interactive Advertising Bureau itself recognized that “Advertising quality is in the eye of the beholder” and recommended “a nuanced approach rather than blocking entire content categories or keywords.” The agencies were, in fact, trying to develop exactly such nuanced approaches — and the evidence the FTC presents shows them debating and disagreeing about how to handle “misinformation” as a category. One agency executive described the topic as “complicated and important” and suggested tabling it. Others had “a ton of back and forth discussion” and were “close, but not 100% there.” This is just what happens when industry participants work through a difficult issue. It can look an awful lot like what the FTC calls conspiracy if you strip away enough context and squint hard enough.

The real tell, however, is the remedy. If the FTC genuinely believed the problem was anticompetitive coordination between ad agencies, the remedy would be straightforward — “stop coordinating and compete independently on brand safety standards.” Make your own decisions. Develop your own tools. Compete.

That’s not what the consent decree says. Instead, the order will “ensure that each of the biggest U.S. advertising agencies are prevented from engaging in agreements that would set common brand safety standards or restrict advertising based on biased and politically motivated criteria.” And in the Omnicom/IPG merger conditions, the language was even more explicit: The merged company was prohibited from using any service that “reflects viewpoints as to the veracity of news reporting and adherence to journalistic standards or ethics.”

That is entirely about punishing companies that ranked conservative news sources as untrustworthy. It’s about punishing speech.

The government is prohibiting private companies from using services that express viewpoints about the veracity of news reporting. That’s a content-based restriction on speech, imposed through regulatory coercion, targeting specific viewpoints the government disfavors. In any other context, the people pushing this would call it censorship — because that’s exactly what it is.

And we know this remedy was specifically tailored to target NewsGuard because Newsmax told us so. As we covered when NewsGuard filed its lawsuit against the FTC, when the original Omnicom/IPG merger conditions didn’t quite capture NewsGuard, Newsmax swooped in to fix that. As detailed in the lawsuit:

Newsmax was not subtle about its aim. Its fourteen-page letter mentioned NewsGuard more than a dozen times. Newsmax echoed Chairman Ferguson’s repeated statements that NewsGuard’s reviews and ratings of news sources based on journalistic standards were “biased” because some conservative­-leaning websites and publications scored poorly.

Not content to rely on the official FTC comment process, Newsmax took to the internet to lobby Chairman Ferguson, members of Congress, and the President. In posts on X directed to Chairman Ferguson, Newsmax asserted the FTC’s proposed order was inadequate because it “makes no mention of ‘censorship’ or ‘targeting conservatives’ and ‘[f]ully allows Omnicom to use left-wing NewsGuard.”

The FTC, in its own press release, stated that it revised the order “in response to public comments,” though the only significant revision that matched a public comment was that one from Newsmax about NewsGuard. They didn’t revise the order in response to the First Amendment scholars and free speech organizations who submitted comments pointing out the obvious constitutional problems. Only in response to Newsmax whining about NewsGuard calling out their failures in journalistic behavior.

The government regulatory agency changed its order at the direction of a media company that was mad about its review score. And now has applied the same framework across the entire industry.

This whole pattern — the origin story of this campaign — deserves emphasis because it exposes the mechanism. NewsGuard, founded by Steven Brill and Gordon Crovitz (the former publisher of the Wall Street Journal, which makes the “woke leftist” framing particularly absurd), rates news sources based on disclosed journalistic criteria. Even if you disagree with NewsGuard’s criteria, it’s still just… their opinion. Their speech. Some conservative outlets scored poorly. Those outlets complained to sympathetic politicians. Those politicians launched investigations. The FTC chair, who had already publicly stated he intended to use the FTC’s “tremendous array of investigative tools” and “coercive power” to make companies “Do what we say,” sent NewsGuard a sweeping subpoena for essentially every document the company had ever produced — including reporters’ notes and sources — while refusing to even tell NewsGuard what law it allegedly violated. Then the FTC used its merger review authority to ban NewsGuard’s biggest potential customers from doing business with it. And now, with this latest action, the ban extends to every major ad agency in the country.

As NewsGuard’s lawsuit put it:

By accusing NewsGuard of providing “biased” evaluations of news sites, Chairman Ferguson has inverted the relationship between the government and the First Amendment. NewsGuard is a private business that offers assessments of the quality of news sites based on disclosed journalistic criteria. As a matter of law, NewsGuard cannot be a censor. But by asserting FTC control over the market for NewsGuard’s services, Chairman Ferguson has embraced the censor’s role.

This claim that critical speech of favored individuals or organizations is “censorship” is at the heart of the modern GOP’s entire approach to “free speech.” Private companies expressing opinions they don’t like? Censorship. The government using regulatory power to punish private companies for expressing those opinions? Restoring the marketplace of ideas. Up is down. Speech is censorship. Censorship is freedom.

And just to put a final bow on the cynicism here: this complaint was filed in the Northern District of Texas, Fort Worth Division. If that court sounds familiar, it’s because it’s the favored venue for conservative forum-shopping, home to Judge Reed O’Connor, who has been the go-to jurist for everything from challenges to the ACA to Elon Musk’s SLAPP suit against Media Matters. The FTC almost certainly chose this seemingly random venue because they know exactly what kind of judicial scrutiny they’ll face, which is to say: none worth worrying about.

The Commission vote on this action was 1-0-1. Because, remember, Donald Trump illegally fired the two Democratic FTC members and has made no real move to replace them. All that’s left is Chairman Ferguson and the also problematic Mark Meador, who recused himself from this vote. In other words, this “vote” was simply Ferguson agreeing with himself, approving what amounts to a government-imposed blacklist of a journalism company, backed by the attorneys general of eight states, all for the offense of expressing opinions about news quality that some powerful people found inconvenient.

For the record: I’ve been somewhat critical of NewsGuard’s methodology in the past. To me, their rating system has real limitations, and I think people should take any individual rating with appropriate skepticism. In response to me saying that, some at the company have expressed their own displeasure about my criticism of their methodology. But that’s kind of the whole point. My criticism of NewsGuard is more speech. NewsGuard’s ratings are more speech. Advertisers choosing whether or not to use those ratings are exercising their own rights. Every layer of this is speech and association, all the way down. The one layer that has no business being here is the federal government deciding which speech-about-speech private companies are allowed to subscribe to.

The party that spent years screaming about the “censorship industrial complex” — a supposed conspiracy between government and private entities to suppress disfavored speech — just built an actual censorship apparatus targeting a journalism organization. They used a tortured antitrust theory as the weapon, out-of-context trade association emails as the pretext, and a hand-picked court as the rubber stamp.

And they did it all while claiming to defend free speech.

Filed Under: 1st amendment, andrew ferguson, antitrust, censorship, ftc, journalism, opinions, ratings, vullo
Companies: dentsu, garm, global disinformation index, ipg, newsguard, newsmax, omnicom, publicis, world federation of advertisers, wpp

War As A Pretext: Gulf States Are Tightening The Screws On Speech—Again

Free Speech

from the the-war-on-speech-during-war dept

War does not only reshape borders. It also reshapes what can be seen, said, and remembered. 

When governments invoke “misinformation” during wartime, they often mean something simpler: speech they do not control. Since the escalation of conflict between the United States, Israel, Iran, and related spillover attacks in the Gulf, several governments have intensified efforts to silence dissent and restrict the flow of information.

Journalism under pressure

For journalists, the space to operate—already constrained in much of the Gulf—is narrowing further. Across the region, several countries (including the UAE, Qatar, and Jordan) have restricted access to conflict areas, warned of legal consequences for publishing footage, and drawn red lines around wartime reporting. These measures weaken independent coverage, elevate official narratives, and make it harder for the public to get an accurate account of events on the ground.

Reporters Without Borders has documented an intensifying crackdown on journalists across Gulf countries and Jordan, including restrictions on reporting, legal threats, and heightened risks for those who deviate from official narratives. This aligns with the broader warning from the UN that repression of civic space and freedom of expression has significantly deepened across the region during the war.

Criminalizing speech, one post at a time

For ordinary internet users, the restrictions are just as severe. Since February, hundreds of people have reportedly been arrested across the region for social media activity linked to the war. In many Gulf states, the legal infrastructure enabling this is already well-established: expansive cybercrime and media laws criminalize vaguely defined offenses such as “spreading rumors,” “undermining public order,” or “insulting the state”. In wartime, these provisions become catch-all tools: flexible enough to apply to nearly any form of dissent.

In Bahrain, authorities have reportedly cracked down on people who protested or shared footage of the conflict online. The Gulf Centre for Human Rights has reported 168 arrests in the country tied to protests and online expression, with defendants potentially facing serious prison terms if convicted.

In the UAE, authorities have arrested nearly 400 people for recording events related to the conflict and for circulating information they described as misleading or fabricated. Police have claimed this material could stir public anxiety and spread rumors, and state-linked reporting has described the crackdown as part of a broader effort to defend the country from digital misinformation.

Saudi Arabia has also intensified restrictions, issuing a statement on March 2 banning the sharing of rumors or videos of unknown origin, and issuing a campaign discouraging residents from taking or posting photos. The campaign included a hashtag that reads “photography serves the enemy.” Journalists have been prevented from documenting the aftermath of airstrikes on the country. Kuwait, Qatar, and Jordan have adopted similar restrictions on wartime imagery and reporting.

Qatar’s Interior Ministry has arrested more than 300 people for filming, circulating, or publishing what the ministry deemed to be misleading information. Taken together, these measures show how quickly wartime speech is being folded into existing legal systems designed to punish dissent.

The regional playbook

What’s striking is how consistent these measures are across different countries. As we recently wrote, governments across the broader region have enacted sweeping cybercrime and media laws over the past fifteen years, which they are now putting to use. Across different countries, the same tools are being used: existing laws, fresh bans on sharing wartime imagery, and tighter restrictions on journalists and reporting. The vocabulary changes slightly from place to place, but the logic is the same: national security, public order, rumors, and social stability are justifications for control.

This is not just a series of isolated incidents. It is a regional playbook for silencing critics and narrowing the public record. Gulf states have long relied on censorship and surveillance; the war has simply made those methods easier to justify and harder to challenge.

From “digital hopes” to digital control

As we’ve documented in our ongoing blog series, digital platforms were once seen—at least in part—as spaces that could expand public discourse in the region. But as we’ve also argued, those early “digital hopes” have given way to systems of regulation and control. 

The current crackdown is a continuation of that trajectory, not a temporary departure from it. States are not just reacting to the war; they are leveraging it to consolidate long-standing ambitions to dominate the digital public sphere.

It may be tempting to see these measures as temporary, but emergency powers—like the one enacted in Egypt following the 1981 assassination of Anwar Sadat that lasted for more than three decades—have a way of sticking around. Legal precedents that are set during wartime often become normalized—or reinvoked during times of crisis, as occurred in 2015, when France brought back a 1955 law related to the Algerian War of Independence amidst the Paris attacks.

And the stakes are high. As we’ve seen in Syria and Ukraine, regulations and platform policies can cause wartime human rights documentation to disappear. When journalists are constrained and eyewitness footage is criminalized, accountability is weakened. And when arrests become widespread, people learn to self-censor.

Protecting freedom of expression in times of conflict is a requirement for accountability, not a concession to disorder. When people can document, report, and share information freely, it becomes harder for abuses to be hidden behind official narratives. Even in wartime, the public interest is best served by defending the space to tell the truth, not by silencing speech.

Reposted from the EFF’s Deeplinks blog.

Filed Under: bahrain, free speech, gulf states, internet, journalism, qatar, saudi arabia, uae, war

The FAA’s “Temporary” Flight Restriction For Drones Is A Blatant Attempt To Criminalize Filming ICE

Free Speech

from the speech-suppression dept

The Trump administration has restricted the First Amendment right to record law enforcement by issuing an unprecedented nationwide flight restriction preventing private drone operators, including professional and citizen journalists, from flying drones within half a mile of any ICE or CBP vehicle.

In January, EFF and media organizations including The New York Times and The Washington Post responded to this blatant infringement of the First Amendment by demanding that the FAA lift this flight restriction. Over two months later, we’re still waiting for the FAA to respond to our letter.

The First Amendment guarantees the right to record law enforcement. As we have seen with the extrajudicial killings of George Floyd, Renée Good, and Alex Pretti, capturing law enforcement on camera can drive accountability and raise awareness of police misconduct.

A 21-Month Long “Temporary” Flight Restriction?

The FAA regularly issues temporary flight restrictions (TFRs) to prevent people from flying into designated airspace. TFRs are usually issued during natural disasters, or to protect major sporting events and government officials like the president, and in most cases last mere hours.

Not so with the restriction numbered FDC 6/4375, which started on January 16, 2026. This TFR lasts for 21 months—until October 29, 2027—and covers the entire nation. It prevents any person from flying any unmanned aircraft (i.e., a drone) within 3000 feet, measured horizontally, of any of the “facilities and mobile assets,” including “ground vehicle convoys and their associated escorts,” of the Departments of Defense, Energy, Justice, and Homeland Security. Violators can be subject to criminal and civil penalties, and risk having their drones seized or destroyed.

In practical terms, this TFR means that anyone flying their drone within a half mile of an ICE or CBP agent’s car (a DHS “mobile asset”) is liable to face criminal charges and have their drone shot down. The practical unfairness of this TFR is underscored by the fact that immigration agents often use unmarked rental cars, use cars without license plates, or switch the license plates of their cars to carry out their operations. Nor do they provide prior warning of those operations.

The TFR is an Unconstitutional Infringement of Free Speech

While the FAA asserts that the TFR is grounded in its lawful authority, the flight restriction not only violates multiple constitutional rights, but also the agency’s own regulations.

First Amendment violation. As we highlighted in the letter, nearly every federal appeals court has recognized the First Amendment right of Americans to record law enforcement officers performing their official duties. By subjecting drone operators to criminal and civil penalties, along with the potential destruction or seizure of their drone, the TFR punishes—without the required justifications—lawful recording of law enforcement officers, including immigration agents.  

Fifth Amendment violation. The Fifth Amendment guarantees the right to due process, which includes being given fair notice before being deprived of liberty or property by the government. Under the flight restriction, advanced notice isn’t even possible. As discussed above, drone operators can’t know whether they are within 3000 horizontal feet of unmarked DHS vehicles. Yet the TFR allows the government to capture or even shoot down a drone if it flies within the TFR radius, and to impose criminal and civil penalties on the operator.

Violations of FAA regulations. In issuing a TFR, the FAA’s own regulations require the agency to “specify[] the hazard or condition requiring” the restriction. Furthermore, the FAA must provide accredited news representatives with a point of contact to obtain permission to fly drones within the restricted area. The FAA has satisfied neither of these requirements in issuing its nationwide ban on drones getting near government vehicles.

EFF Demands Rescission of the TFR

We don’t believe it’s a coincidence that the TFR was put in place in January 2026, at the height of the Minneapolis anti-ICE protests, shortly after the killing of Renée Good and shortly before the shooting of Alex Pretti. After both of those tragedies, civilian recordings played a vital role in contradicting the government’s false account of the events.

By punishing civilians for recording federal law enforcement officers, the TFR helps to shield ICE and other immigration agents from scrutiny and accountability. It also discourages the exercise of a key First Amendment right. EFF has long advocated for the right to record the police, and exercising that right today is more important than ever.

Finally, while recording law enforcement is protected by the First Amendment, be aware that officers may retaliate against you for exercising this right. Please refer to our guidance on safely recording law enforcement activities.

Republished from the EFF’s Deeplinks blog.

Filed Under: 1st amendment, drones, faa, filming police, free speech, ice, temporary flight restriction

Trump Threatens CNN For Very Basic Reporting On His Shitty, Unpopular War

Free Speech

from the this-is-all-extremely-stupid dept

In case you’ve been asleep, what appears to be an increasingly mentally unstable Donald Trump has further destabilized the middle east with a war nobody asked for or wanted. Most U.S. media coverage of Trump’s disastrous Iran war hasn’t been great, but they’ve still occasionally managed to communicate the pointlessness of the endeavor to the electorate (which speaks more of the unpopularity of the war than their reporting chops).

Trump recently announced a “cease fire” with Iran (which apparently isn’t even a cease fire), but refused to state what the conditions of the cease fire or long term peace actually are. The Iranian Security Council issued a list of ten demands that, if agreed to, would leave Iran in a stronger position than when this whole idiocy started:

Some news outlets, like CNN, simply reported directly on what Iran had claimed. This, as you might expect, upset Donald Trump and his top FCC censor Brendan Carr, who are now threatening an “investigation” of CNN for simply repeating what was publicly stated:

Not mentioned (of course) is the fact that Fox News also reported the Iran statement, yet avoided being called out by the president:

Trump later would issue another statement over at his right wing propaganda website, calling for criminal action against CNN (and CNN only), while making up a whole bunch of nonsense (he may or may not believe is actually true):

Trump’s sensitivity here suggests they’re well aware that a massive, superior military has been getting dog-walked by Iranians because Trump and his advisors were too stupid to understand modern, cheap drone warfare and how shipping in the Straight of Hormuz actually worked. The shipping logjam is driving up gas prices and making life difficult for Republicans ahead of the midterms.

There is, of course, absolutely zero basis for any meaningful criminal action against CNN here of any kind that wouldn’t be laughed out of court on free speech grounds. As we’ve seen with corporate media that doesn’t mean they won’t still capitulate embarrassingly, but so far CNN is standing its ground. As it should, since again, all it did was report on an Iranian statement in a very basic way alongside dozens of other news outlets.

The bigger threat, as I keep noting, is CNN’s looming acquisition by Larry Ellison as part of the Paramount Warner Brothers merger. CNN under current management is already very friendly to right wing ideology (see its enthusiastic platforming of MAGA bullshitter Scott Jennings). Under Ellison’s ownership (see: Bari Weiss at CBS) there’s little doubt CNN will be converted into yet another Trump agitprop network.

At which point, Trump will move on to threatening any remaining U.S. corporate media outlets that haven’t either embarrassingly capitulated or been purchased by a right wing billionaire. This is, as I keep repeating, an exact copy of Victor Orban’s autocratic media policy in Hungary, which involves having party-loyal oligarchs buy up all corporate media outlets and pummel the public with propaganda while the government strangles what’s left of real, independent reporting just out of frame.

Filed Under: brendan carr, donald trump, first amendment, free speech, iran, iran war, journalism, reporting, straight of hormuz, trump
Companies: cnn

Trump Attacks On Public Media Blocked By Judge (But It’s Too Little, Too Late)

Free Speech

from the assholes-who-like-to-destroy-things dept

A federal judge has ruled that President Trump’s executive order last year defunding PBS and NPR violated the First Amendment, and has issued a permanent injunction insisting that executive branch agencies cannot enforce it. But the ruling may come too late to save what was left of U.S public media.

The original executive order resulted in Congress obliterating the entire Corporation for Public Broadcasting (CPB) budget of $1.1 billion for fiscal years 2026 and 2027. With no money left to function, the CPB voted to dissolve itself last January. PBS noted this week that the Trump EO resulted in mass layoffs and the destruction of kids’ programming before Congress even acted:

“Trump’s executive order immediately cut millions of dollars in funding from the Education Department to PBS for its children’s programming, forcing the system to lay off one-third of the PBS Kids staff.”

In his ruling, US District Court for DC Judge Randolph Moss highlighted how the Trump administration completely made up any justification for the cuts, ignoring the First Amendment and violating the law:

“The Federal Defendants fail to cite a single case in which a court has ever upheld a statute or executive action that bars a particular person or entity from participating in any federally funded activity based on that person or entity’s past speech. Perhaps that is because neither Congress nor any prior Administration has ever attempted something so extreme, or perhaps it is because any prior effort to do so has failed. But the most obvious reason is that any such individual ban, based on past speech, would almost certainly constitute the type of retaliation that the First Amendment prohibits.”

NPR CEO Katherine Maher lauded the ruling, even though it comes too late to save much of U.S. public media:

“Today’s ruling is a decisive affirmation of the rights of a free and independent press — and a win for NPR, our network of stations, and our tens of millions of listeners nationwide. The court made clear that the government cannot use funding as a lever to influence or penalize the press, whether as a national news service or a local newsroom.”

As we’ve noted previously, right wingers and authoritarians loathe public broadcasting because, in its ideal form, it untethers journalism from the often perverse financial incentives inherent in our consolidated, billionaire-owned, ad-engagement based corporate media. A media, if you hadn’t noticed, that is easily bullied, cowed, and manipulated by bad actors looking to normalize, downplay, or validate no limit of terrible bullshit (see: CBS, Washington Post, the New York Times, and countless others).

One of the lasting harms of the cuts will be to already struggling local U.S. broadcasting stations. While NPR doesn’t really take all that much money from the public anymore (roughly 1% of NPR’s annual budget comes from the government), the CPB distributed over 70 percent of its funding to about 1,500 public radio and TV stations.

Many of those news stations operated in places where quality, local news is difficult if not impossible to find. Local papers have usually either closed or been purchased by soulless hedge funds that are buying papers, stripping them for parts, and hollowing out and homogenizing their coverage. Or “local news” is dominated by right wing propaganda pseudo-journalism broadcasters like Sinclair Broadcasting.

U.S. “public broadcasting” was already a shadow of the true concept after years of being demonized and defunded by the right wing, so even calling hybrid organizations like NPR “public” is a misnomer. Still, the underlying concept remains an ideological enemy of authoritarian zealots and corporations alike, because they’re very aware that if implemented properly, public media can provide a challenge to their war on informed consensus (I’d recommend Penn State professor Victor Pickard’s writing on the subject).

Filed Under: executive order, first amendment, illegal, journalism, media, public media
Companies: npr, pbs

Supreme Court Shrugs Off Opportunity To Save The First Amendment From The Fifth Circuit’s Antipathy

Free Speech

from the rights-are-for-people-who-never-need-to-invoke-them-I-guess dept

The Supreme Court’s latest recap of its relative inactivity (Trump administration “emergency” appeals aside) has delivered yet more evidence of this court’s indifference to rights violations committed by the government. Other cases involving alleged rights violations that should have — at the very least — been handed over to jury for further consideration were tacitly blessed by the top court in the land by its refusal to grant certori.

This one — involving the retaliatory arrest of an independent journalists by cops who didn’t like her reporting — is yet another miscarriage of justice by a Supreme Court whose majority simply won’t take cases that might force it to hold the government accountable for its actions.

This case has bounced up and down the judicial ladder for more than a half-decade. Laredo, Texas native/independent journalist Priscilla Villarreal has been live streaming and reporting via Facebook under the name “Lagordiloca” for several years. Laredo PD officers don’t like her because she asks them questions they don’t like answering and films them when they’re performing traffic stops and arrests.

After Villarreal published information about a Border Patrol officer who had committed suicide, the Laredo PD worked with local prosecutors to have her arrested. All Villarreal had done was ask a PD employee to confirm information she’d already obtained. The PD responded by opening an internal investigation to oust the employee that had responded to Villarreal’s queries. Then it decided the only way for justice to be done was to arrest the person who had merely received confirmation (via a law enforcement employee) she already had in her possession.

Prosecutors claimed Villarreal’s acquisition and publication of this information violated a state law forbidding people from profiting from “misuse of official information.” To support this claim, the prosecutors claimed Facebook clicks were a form of “profit.” To date, no other citizen has ever been prosecuted under this law that was clearly written to prevent government employees from profiting from information only government employees might have access to.

The local judge immediately tossed the bullshit charges immediately after they were presented to her in court. Somehow, the district court managed to look past the obvious First Amendment violations to give the officers immunity. The Fifth Circuit’s first pass reversed this, with Judge Ho making it clear there’s no way any reasonable officer would have thought arresting a journalist simply for asking questions didn’t violate the Constitution.

This is not just an obvious constitutional infringement—it’s hard to imagine a more textbook violation of the First Amendment.

Then things got weird. A couple of judges in the minority thought this shouldn’t stand and started making noise. The Fifth Circuit agreed to an en banc hearing and reissued this opinion with a new dissent written by Chief Judge Priscilla Richman, along with some additional commentary by Judge Ho about how far removed from sanity Richman’s dissent was.

Two years later, it handed down its second take. And the majority somehow came to the conclusion that it’s okay to engage in retaliatory arrests as long as you can find any criminal statute at all to support the arrest. According to Judge Jones, Villarreal should have either limited herself to official channels or challenged the law itself in court, rather than ask a government employee to verify information Villarreal already possessed.

This was appealed. Eight months later, the Supreme Court sent it back down to the Fifth Circuit for yet another pass, instructing it to apply the Trevino standard. That standard is fairly simple: if a law is rarely, if ever, enforced but somehow shows up conveniently to do the cops’ dirty work when they want to retaliate against a person they don’t like, there’s a good chance this selective application is an established violation of rights. In this case, prosecutors had never used this law to charge anyone ever.

The Fifth Circuit’s third pass — again written by Judge Edith Jones — said the Trevino factor just didn’t matter. If the law was on the books (even if it had never been enforced), it was justification enough for the arrest. And even if that arrest violated the Constitution, the officers should still be given qualified immunity because how could they have known that arresting the only person ever charged with this crime in its 23 years of existence might somehow be unconstitutionally retaliatory?

Now that we’re caught up, this is how it ends for Priscilla Villarreal:

The petition for a writ of certiorari is denied.

There’s a dissent written by Justice Sotomayor that’s even lengthier than my preamble. It’s worth reading, though, and it starts with this admonishment of the majority’s refusal to write this obvious wrong:

It should be obvious that this arrest violated the First Amendment. Yet the Fifth Circuit held that the officials were entitled to qualified immunity, and now Villarreal is left without a remedy. The Court today makes a grave error by declining to hear this case.

The nation’s top court has decided the Laredo PD and local prosecutors can walk away cleanly from a series of extremely obvious rights violations. And in doing so, it emboldens them (and others) to engage in future retaliatory arrests of journalists they don’t like.

The Supreme Court majority is apparently willing to pretend rights don’t exist when it’s convenient to do so, just like the officers whose actions it tacitly blesses with this particular inaction. Sotomayor drills down on this, rubbing the majority’s nose in its deliberate dismissal of constitutional rights:

[T]he Fifth Circuit found that the officials reasonably believed that they had probable cause to arrest Villarreal for violating §39.06(c). Id., at 385–390. Not so. Just like an individual cannot be convicted of a crime for engaging in First Amendment activity, it is axiomatic that a probable cause determination cannot be based on such protected activity either.

[…]

It necessarily follows that when an arrest is based on protected First Amendment activity, that activity cannot constitute probable cause and support adverse police action. All reasonable officers know this.

[…]

Here, it is hard to conceive of a more obvious constitutional violation than arresting a journalist who, in searching for corroboration, simply asks a government source for information. That is the essence of many journalists’ jobs. The arrest does not somehow become reasonable, and constitutional, merely because an unconstitutional application of a statute authorizes it.

All we have is the dissent. All Villarreal has is knowledge Laredo PD officers and local prosecutors will be digging through the state statutes to find something else to charge her with the next time her reporting pisses them off. The Supreme Court issued a short, clear instruction to the Fifth Circuit, telling it to apply a specific legal standard. Instead, the Fifth Circuit — led by the consistently awful Judge Edith Jones – sidestepped this instruction on its way towards granting the officers qualified immunity. And that deliberate refusal to engage with the Supreme Court’s specific instructions has now been ignored by the same court that strongly hinted the Fifth Circuit got this wrong. It’s a shrug that lets the general public know exactly where it stands: at the bottom of the national organization chart with no layers of protection between them and government officials who seek to do them harm.

Filed Under: 1st amendment, 4th amendment, 5th circuit, laredo pd, police misconduct, priscilla villarreal, qualified immunity, retaliation, supreme court

Free Speech Experts: Jonathan Haidt’s Moral Panic Is As Old As Democracy Itself

Free Speech

from the moral-panics-are-profitable dept

We’ve been saying for years now that Jonathan Haidt’s crusade against social media and kids is a moral panic dressed up in academic robes, and that the evidence simply does not support the sweeping claims he’s been making. A new piece in the Wall Street Journal by Jacob Mchangama and Jeff Kosseff drives that point home with a framing that cuts straight to the absurdity of it all: this fear of new ideas “corrupting the youth” is literally as old as democracy itself.

In 399 BCE, Socrates was put on trial before a jury of some 500 of his fellow Athenians. The indictment accused him of impiety and added, “Socrates is…also guilty of corrupting the youth.” Despite the Athenian democracy’s commitment to free and equal speech, Socrates was found guilty and sentenced to death.

Two and a half millennia later, democracies are still deeply concerned about dangerous ideas corrupting the youth. This time, the target isn’t dangerous philosophy but an increase in teen mental-health issues blamed on social media.

Mchangama and Kosseff are particularly well-positioned to make this argument (and are both former Techdirt podcast guests). Mchangama’s prior book, Free Speech: A History from Socrates to Social Media, traced the full arc of free speech battles across civilizations, and the two of them have a forthcoming co-authored book, The Future of Free Speech, on the global decline of free speech protections. Meanwhile Kosseff’s three previous books all cover related free speech territory: The Twenty-Six Words that Created the Internet, Liar in a Crowded Theater, and The United States of Anonymous. These are people who have spent their careers studying exactly these patterns — the recurring cycle of moral panic, political opportunism, and the quiet erosion of rights that tends to follow.

Their piece walks through the problems with both the evidence and the policy responses that have sprung from Haidt’s work. On the evidence:

In 2024, a review of the scientific literature by a committee at the National Academies of Sciences, Engineering, and Medicine had found that despite some “potential harms,” the review “did not support the conclusion that social media causes changes in adolescent health at the population level.” A 2026 longitudinal study in the Journal of Public Health reached a similar conclusion. 

We covered these studies at the time, noting that they were far from the only such studies to go hunting for the alleged evidence of inherent harms to children using social media — and coming up empty. It is amazing how little attention these studies get compared to Haidt’s book. So it’s good to see Mchangama and Kosseff call them out.

They also highlight what gets lost when you reduce this to a simple “social media = bad” story:

“Social media has the potential to connect friends and family. It may also be valuable to teens who otherwise feel excluded or lack offline support,” according to the National Academies of Science report. It also highlights the possible benefits of online access for “young people coping with serious illness, bereavement, and mental health problems” as well as opportunities for learning and developing interests. 

That point is especially important for vulnerable teenagers whose offline environments may be isolating or hostile. This is why comparing social media to tobacco is questionable: The scientific consensus on smoking’s harms is unanimous and no one claims smoking has benefits. Neither is true for social media.

This is consistent with what experts told TES Magazine last fall — actual researchers in the field described Haidt’s work as “fear” rather than science, said they couldn’t believe a fellow academic wrote it, and pointed out basic logical flaws in his causal claims. It’s also consistent with what I found in my own detailed review of the book when it came out two years ago, where the cherry-picked data, the ignored contrary evidence, and the policy proposals based on gut feelings rather than research were all on full display.

What makes this even worse than a standard “well-meaning but wrong” situation is a study we wrote about earlier this year showing that the social media “addiction” narrative itself may be more harmful than social media. Researchers found that very few people show signs consistent with actual addiction, but every time the media amplifies stories about social media addiction, more people claim they’re addicted. And that belief makes them feel helpless — convincing them they have a pathological condition rather than habits they could simply change.

In other words, the moral panic is doing the exact same thing it accuses social media of doing: making people anxious, helpless, and convinced they can’t control their own behavior.

The cost of being wrong here is that parents, politicians, and schools ignore the real causes of teen mental health struggles: poverty, the closure of youth services, reduced access to mental health care, and the erasure of community support systems. And the cost is that kids who genuinely rely on online communities — LGBTQ+ youth, kids with chronic illnesses, kids in hostile home environments — lose a lifeline. Mchangama and Kosseff make the same point, and now we can see the policy consequences playing out in real time.

And it goes even further. As Mchangama and Kosseff note, authoritarian governments are already using the “protect the children” framework as cover for broader censorship:

Authoritarian and illiberal states provide a grim window into how the protection of children can be weaponized to suppress dissent. In 2012, Russia enacted an internet blacklist law, with the stated intention of protecting children from harmful content. The law laid the groundwork for Russia’s heavily censored “Red Web” that now entirely prohibits many foreign social-media platforms.

The same goes in Indonesia which this month announced a ban on social media for those under 16. But Indonesia is also a country that has used the pretext of child protection to block and censor gay social networking apps and content.  

It’s a remarkable blind spot for those pushing Haidt’s arguments. They never seem to consider that these are the exact same tools authoritarian governments use to silence marginalized voices. You would think that politicians championing this book — particularly Democrats who claim to care about civil liberties and LGBTQ rights — might pause when they see Russia and Indonesia deploying identical justifications.

And yet politicians across the spectrum continue to treat Haidt’s book like scripture, despite an overwhelming expert consensus that his claims don’t hold up.

Mchangama and Kosseff close with what should be obvious, but apparently still needs to be said:

Democracies have always worried about dangerous ideas corrupting the young. Intellectuals and lawmakers should absolutely be concerned about how and when our children navigate social media. But they should also be concerned about whether, in our rush to protect our children, we are building an infrastructure of surveillance and censorship that will ultimately threaten the hard-won freedoms we want future generations to enjoy.

Speech is powerful. Ideas have consequences. But we protect such speech from legal liability for that very reason. The power of speech to change minds and influence people is exactly why those in power are so often afraid of it and looking to tamp it down. It’s also why Mchangama and Kosseff can tie the urge back all the way to Socrates.

Every generation gets its moral panic. Every time, someone insists “this time it’s different.” Every time, the evidence eventually catches up and the panic looks ridiculous in retrospect. The tragedy is how much damage gets done in the meantime — to kids who lose a real lifeline, to free expression, to privacy, and to the actual causes of teen suffering that never get addressed because everyone was too busy blaming the latest app.

The verdict from the people who actually study this stuff has been clear for a while now. Maybe it’s time for politicians to put down Haidt’s book and pick up the actual research.

Filed Under: free speech, jacob mchangama, jeff kosseff, jonathan haidt, moral panic

Hegseth’s War On Anthropic Encounters The First Amendment

Free Speech

from the yet-another-unanticipated-defense dept

The expression, “to make a federal case out of something” usually describes making a bigger deal out of something than it should be. But in the case of Anthropic and Hegseth, Trump, and the Department of Defense*, this federal case is actually quite simple: what the government defendants did to Anthropic is beyond the bounds of anything the law or Constitution would allow. It didn’t require some complicated analytical parsing to see the problem with the Administration’s behavior, and the remedy is straightfoward: there’s now an injunction depriving that behavior of any effect (albeit stayed for seven days).

But the government is only restrained as to what it did that was actually illegal. Importantly, the injunction clarifies that to the extent that the government could lawfully stop working with Anthropic, it remained fully able to divorce itself. From the full paragraph on the last page of the preliminary injunction order itself articulating what has been restrained:

This Order restores the status quo. It does not bar any Defendant from taking any lawful action that would have been available to it on February 27, 2026, prior to the issuances of the Presidential Directive and the Hegseth Directive and entry of the Supply Chain Designation. For example, this Order does not require the Department of War to use Anthropic’s products or services and does not prevent the Department of War from transitioning to other artificial intelligence providers, so long as those actions are consistent with applicable regulations, statutes, and constitutional provisions.

As the decision justifying the injunction explains, this case wasn’t about whether and how DOD could use Anthropic and whether Anthropic could have a say in how it was used, which was the issue underpinning the contract dispute between the two. Had it been, then the DOD could have simply walked away from the product. The problem is that the government didn’t just stop doing business with Anthropic; it went further, and it is those actions that broke the law.

The question here is whether the government violated the law when it went further. After Anthropic went public with its disagreement with the Department of War, Defendants reacted with three significant measures that are the subject of this lawsuit. First, the President announced that every federal agency (not just the Department of War) would immediately ban Anthropic from ever having another government contract. That would include, for example, the National Endowment for the Arts using Claude to design its website. Second, Secretary Hegseth announced that anyone who wants to do business with the U.S. military must sever any commercial relationship with Anthropic. That would mean a company that used Claude to power its customer service chatbot could not serve as a defense contractor. Third, the Department of War designated Anthropic a “supply chain risk,” a label that applies to adversaries of the U.S. government who may sabotage its technology systems. That designation has never been applied to a domestic company and is directed principally at foreign intelligence agencies, terrorists, and other hostile actors. [p.1-2]

And the court counts several ways that the government’s actions were likely illegal. At minimum, Anthropic suffered a due process violation for not having notice and an opportunity to respond to the government’s sudden supply chain risk designation, which threatened a cognizable liberty interest the Fifth Amendment protects. (“The record shows that the Challenged Actions threaten to cripple Anthropic by not only stripping it of billions of dollars in federal contracts and subcontracts but also by labeling it as an adversary to the United States and ending its ability to have any commercial relationship with any company that might want to do business with DoW.”) [fuller analysis p.24-29]

The “supply chain risk” designation was also likely “both contrary to law and arbitrary and capricious.” On the first point, there are two statutory paths for designating a vendor a supply chain risk, and this case addressed just one of them—the other will be addressed by the DC Circuit. But it found the government’s claim it was using the statutory authority properly to be wanting: First, Anthropic’s conduct did not meet the statutory definition of a supply chain risk.

On the record before the Court, Anthropic’s conduct does not appear to be within the definition of “supply chain risk” in Section 3252. Section 3252 defines a supply chain risk as limited to “the risk that an adversary may sabotage, maliciously introduce unwanted function, or otherwise subvert . . . a covered system.” 10 U.S.C. § 3252(d)(4). Assuming without deciding that a domestic company can be an “adversary,” the plain text of the statute is directed at covert acts or hacks, not overt positions taken during contract negotiations. Indeed, it is difficult to understand how one could sabotage, maliciously introduce an unwanted function, or subvert an information technology system by publicly announcing usage restrictions or insisting on such restrictions in conversations with DoW. Defendants appear to be taking the position that any vendor who “push[es] back” on or “question[s]” DoW becomes its “adversary.” (Dkt. No. 128 at 41.) That position is deeply troubling and inconsistent with the statutory text. [p.30-32]

And second, those procedural rules the government blew off to invoke the statute, such as the need to notify Congress first, actually mattered. Despite what the government argued at oral argument, that the Congressional notification requirements were only for the benefit of Congress, the court found that they were important safeguards Congress had built into the statute to prevent its abuse and therefore non-optional. (“Section 3252 and its enabling regulations create institutional safeguards—which the Secretary must complete before making a designation—to ensure that its designation is applied properly. The Supply Chain Designation failed to comply with these mandated procedural safeguards.”) [see analysis p.32-34].

In addition, the designation itself was likely arbitrary and capricious. As the court noted early in its decision (emphasis added):

The Department of War provides no legitimate basis to infer from Anthropic’s forthright insistence on usage restrictions that it might become a saboteur. At oral argument, government counsel suggested that Anthropic showed its subversive tendencies by “questioning” the use of its technology, “raising concerns” about it, and criticizing the government’s position in the press. Nothing in the governing statute supports the Orwellian notion that an American company may be branded a potential adversary and saboteur of the U.S. for expressing disagreement with the government.[p. 2; further analysis p.35-37 (“In sum, the contradictory positions, the procedural defects, and the rushed process following a public declaration of the foreordained conclusion all indicate that the actions were arbitrary and capricious.”)]

And then there is the problem at the heart of the matter: that it appears the government is trying to punish Anthropic for daring to criticize it, and that sort of retaliation for speech violates the First Amendment.

The record supports an inference that Anthropic is being punished for criticizing the government’s contracting position in the press. In their announcements, the President and Secretary Hegseth called Anthropic “out of control” and “arrogant,” describing its “sanctimonious rhetoric” as an attempt to “strong-arm” the government. The Department of War’s records show that it designated Anthropic as a supply chain risk because of its “hostile manner through the press.” Punishing Anthropic for bringing public scrutiny to the government’s contracting position is classic illegal First Amendment retaliation. [p.2]

And it violates the First Amendment not only by impinging on Anthropic’s right to speak, but everyone else, who is now deterred from speaking out as well, even on matters of public concern like ethical use of AI, given that the government is now inflicting consequences on those who speak in ways it doesn’t like. To the court, the government’s action looks clearly retaliatory. (“The record shows that Defendants’ conduct appears to be driven not by a desire to maintain operational control when using AI in the military but by a desire to make an example of Anthropic for its public stance on the weighty issues at stake in the contracting dispute.”) [p.19]. A retaliation claim can succeed when (1) the plaintiff was engaged in constitutionally protected activity, (2) the defendant’s actions would “chill a person of ordinary firmness” from continuing to engage in the protected activity, and (3) the protected activity was a substantial motivating factor in the defendant’s conduct—in other words, that what the defendant did was intended to chill speech, and here the court found all these prongs met. [p.20].

On the first, Anthropic was publicly staking out a position on what deployments of Claude are currently unsafe and what rights Anthropic has to allow Claude’s use by the government only with certain safety restrictions, which the court found to be a matter of public concern and thus protected by the First Amendment. (“[T]he record shows that Anthropic and its CEO, Dario Amodei, are a loud and influential voice regarding the capabilities, risks, and safe uses of AI technology.”) [p.20]. As to the second, there was plenty of evidence of speech being chilled:

Anthropic has submitted evidence that the Challenged Actions threaten to cripple the company and chill public debate. See supra Section II.G. Several amicus briefs support this conclusion. A group of 37 individuals working on AI technology assert that the Challenged Actions “chill[] professional debate on the benefits and risks of frontier AI systems and various ways that risks can be addressed to optimize the technology’s deployment.” (Dkt. No. 24-1 at 8.) An industry group of “values-led investors” warns that the Challenged Actions chill speech necessary to allow them to direct their investments to support the “principles and values” they care about. (Dkt. No. 77-1 at 12.) In short, the Challenged Actions easily qualify as ones which would chill a person of ordinary firmness from continuing to engage in further protected speech amici in the case showed how everyone’s speech was being chilled by what the government had done.[p.21]

And as for the third, the government’s behavior clearly resulted from displeasure with Anthropic’s views and the desire to relinquish them.

Secretary Hegseth expressly tied Anthropic’s punishment to its attitude and rhetoric in the press. He stated that “Anthropic delivered a master class in arrogance.” (Dkt. No. 6-21 at 2.) Referring to Anthropic and Amodei, he further stated: “Cloaked in the sanctimonious rhetoric of ‘effective altruism,’ they have attempted to strong-arm the United States military” through their “corporate virtue-signaling” and “Silicon Valley ideology.” (Id.) “Anthropic’s stance is fundamentally incompatible with American principles.” (Id.) The President described Anthropic as “radical left, woke company” and its employees as “leftwing nut jobs,” who “made a DISASTROUS MISTAKE trying to STRONG-ARM the Department of War.” (Dkt. No. 6-20 at 2.) Read in context of these repeated references to rhetoric and ideology, the term “strong-arm” in the Presidential Directive and the Hegseth Directive appears to be characterizing Anthropic as applying public pressure. […] These specific references to Anthropic’s viewpoint and public stance are direct evidence of what motivated Defendants’ decision-making.[p.21-22]

And the government’s defense—that Anthropic’s “contracting position” is conduct, not speech entitled to First Amendment protection, and that Anthropic’s refusal to accept DOD’s terms was what prompted the government’s actions—was unavailing.

First, without reaching the question of whether private contract negotiations alone could constitute protected activity under the First Amendment, the record shows that Anthropic engaged in protected speech when it took public the parties’ contracting impasse and the reasons behind its refusal to agree to DoW’s terms. (See, e.g., Dkt. Nos. 6-7, 6-18.) As already explained, Anthropic’s views on this matter fall within the heart of what the First Amendment protects: “subject[s] of general interest and of value and concern to the public” and “of legitimate news interests.” See Snyder, 562 U.S. at 452–53 (citation omitted). Therefore, to the extent Anthropic publicly discussed its “contracting position,” that speech is protected by the First Amendment.

Next, Defendants argue that even if Anthropic’s public statements constitute protected speech, the contract dispute—not Anthropic’s speech—was the motive and “but for” cause of the Challenged Actions. (Dkt. No. 96 at 22–24.) They point out that although Anthropic and Amodei have long advocated for AI safety, Defendants took the Challenged Actions only after Anthropic refused to remove its usage restrictions. But Defendants’ own actions belie the notion that Anthropic’s contracting position is what drove the Challenged Actions. Anthropic had imposed its usage restrictions from the beginning of DoW’s use of Claude Gov, and no one had ever suggested that this indicated that Anthropic was untrustworthy or a potential saboteur. To the contrary, Anthropic passed extensive vetting at that time and was praised by the government, which had made arrangements to expand the company’s role. It was only when Anthropic publicly discussed its dispute with DoW that Defendants criticized its rhetoric and ideology and adopted the punitive measures at issue.[p.22-23]

Throughout the decision the court observes that if the dispute here were just over the contract, then surely the government would have just stopped using Claude. But it didn’t just do that; it did more. And that more is now enjoined. The February 27 Presidential Directive from Trump “ordering all federal agencies to cease use of Anthropic’s technology” is to have no effect, nor is any agency action (by any agency,** not just the DOD), taken in response to it. No one in the Trump Administration (Anthropic had named pretty much every agency as defendants, so that’s basically how it boils down) may “issu[e] or maintain[] any guidance, directive, communication, or instruction to any officer, employee, contractor, or agent, in furtherance of or implementing the Presidential Directive” or “tak[e] any other action to implement, effectuate, or further the purposes of the Presidential Directive.”

Meanwhile, Hegseth and the DOD are also enjoined from “implementing, applying, or enforcing in any manner” what the court referred to as the Hegseth Directive, issued later on February 27, designating Anthropic a “Supply-Chain Risk to National Security” and “directing that no contractor, supplier, or partner doing business with the United States military may conduct commercial activity with Anthropic.” Nor can it implement, apply, or enforce anything in the March 3 letter DOD sent notifying Anthropic of the supply chain designation and the associated determination formalizing that designation under 10 U.S.C. § 3252. Hegseth and the DOD are also enjoined from “[f]rom issuing or maintaining any guidance, directive, communication, or instruction to any officer, employee, contractor, or agent, in furtherance of or implementing the Hegseth Directive or the Supply Chain Designation [and from] taking any other action to implement, effectuate, or further the purposes of the Hegseth Directive or the Supply Chain Designation.”

* No, it’s not the “Department of War” as unfortunately both parties and even the court called it, for reasons that elude. Perhaps Anthropic feared it would pull a Trump-friendly judge and need to speak the Administration’s language in order to be treated fairly, but such was not the case, at least in this piece of the case in the Northern District of California—maybe it will be different in the second piece of the case in the DC Circuit. But it’s not clear why the court had to humor them; it applies law, and the law, as passed by Congress to create, name, and fund the agency, calls it the Department of Defense, with Hegseth having been appointed to a specific job called the “Secretary of Defense.” If Congress wanted it to be called the “Department of War” it could have named it thus, but it found there were tangible policy reasons not to when it in fact changed its name to the DOD instead. It typifies the Trump Administration’s typical indifference to any law that might happen to govern any of its behavior to ignore it and Congress’s authority to pass it by unilaterally trumping Congress’s wishes and rename it, but no one else needs to indulge yet another of their abuses of power by humoring their choice.

** The Executive Office of the President is not bound by the injunction directly, despite being a named defendant. Nevertheless, “[l]ike all other persons, EOP is barred from acting for, with, by, through, or under authority from any enjoined Defendant, or in concert or participation with any enjoined Defendant, in any manner inconsistent with the preliminary injunction order.” [p.42]

Filed Under: 1st amendment, defense department, dod, free speech, pete hegseth, supply chain risk
Companies: anthropic