Age-Gating Access To Online Porn Is Unconstitutional

Free Speech

from the we've-done-this-already dept

Texas is one of eight states that have enacted laws that force adults to prove their age before accessing porn sites. Soon it will try to persuade the Supreme Court that its law doesn’t violate the First Amendment. 

Good luck with that. 

These laws are unconstitutional: They deny adults the well-established right to access constitutionally protected speech.

Texas’ H.B. 1181 forces any website made up of one-third or more adult content to verify every visitor’s age. Some adult sites have responded to the law by shutting down their services in Texas. The Free Speech Coalition challenged the law on First Amendment grounds, arguing that mandatory age verification does more than keep minors away from porn — the law nannies adults as well, barring them from constitutionally protected speech. 

The district court agreed with the challengers. Laws regulating speech because of its content (i.e., because it is sexually explicit) are presumed invalid. Under strict scrutiny, the state must show that its regulation is narrowly tailored to serve a compelling government interest. In other words, the government needs an exceptionally good reason to regulate, and it can’t regulate more speech than necessary. 

The case will turn on what level of scrutiny applies. Protecting minors from obscene speech is a permissible state interest, as the Fifth Circuit court established when it applied the lowest form of scrutiny — rational basis review — to uphold the law. But not all speech that is obscene to minors is obscene to adults. Judge Higginbotham, dissenting from the Fifth Circuit’s decision, pointed out that kids might have no right to watch certain scenes from Game of Thrones — but adults do.

In previous cases regulating minors’ access to explicit content, the Supreme Court applied strict scrutiny specifically because the laws restricted adult access to protected speech. Texas hopes to get around decades of precedent by arguing that there is no way that age verification “could reasonably chill adults’ willingness” to visit porn sites. If adults don’t care about age verification, Texas reasons, nothing in the law stops them from viewing sexually explicit material: No protected speech is regulated. 

There’s just one problem: Adults do care about age verification.

H.B. 1181 bars age verification providers from retaining “identifying” information. But nothing in the law stops providers from sharing that same info, and people are rightly concerned about whether their private sexual desires will stay private. That you visited an adult site is bad enough. Getting your personal Pornhub search history leaked along with your government ID is enough to make even the most shameless person consider changing their name and becoming a hermit. 

Texas swears up and down that age verification tech is secure, but that doesn’t inspire confidence in anyone following cybersecurity news. Malware is out there. Data leaks happen. 

A bored employee glancing at your driver’s license as you walk into the sex shop is not the same thing as submitting to a biometric face scan and algorithmic ID verification, by order of the government, before you can press play on a dirty video. Just thinking about it kills the mood, which may be part of the point. 

Texas pretends there’s no difference between the bored bouncer and biometric scans, but if you knew the bouncer had an encyclopedic, inhuman ability to remember every name and face that came through the door and loose lips, well, you wouldn’t go there either. 

Hand-waving away these differences is the kind of thing you only do if you’re highly ideologically motivated. But normal people are very reasonably concerned about whether their personal sexual preferences will be leaked to their boss, mother-in-law, or fellow citizens. Mandatory age verification turns people off of viewing porn entirely, and it chills their free expression. 

Sexual preferences are private and sensitive; they’re exactly the type of thing you don’t want leaking. So, of course, sexual content is a particularly juicy target for would-be hackers and extortionists. People pay handsomely to keep “sextortion” quiet. If you’re worried about your privacy and you don’t trust the age verification software (you shouldn’t), you’re likely to avoid the risk up front. One adult site says only 6% of visitors go through age verification and that even fewer succeed. Thus the chilling effect: even though adult access to porn is technically legal, people are so afraid of having their ID and last watched video plastered across the internet that they stop watching in the first place. 

If the Supreme Court recognizes this and applies strict scrutiny, it will ask whether less restrictive means could protect minors. Back in 2004, the Court tossed out COPA, a law requiring credit card verification to access sexually explicit materials, reasoning that blocking and filtering software would protect minors without burdening adult speech. Today’s filtering software is far more effective than what was available twenty years ago — as the district court found — and, notably, filtering software doesn’t scan adults’ faces. 

Sex — a “subject of absorbing interest to mankind,” as one justice once put it — matters. Adults have the right to sexually explicit speech, free of the fear that their identifying information will be leaked or sent to the state. Texas can and should seek to protect kids without stoking that fear. 

Santana Boulton is a legal fellow at TechFreedom and a Young Voices contributor. Her commentary has appeared in TechDirt. Follow her on X: @santanaboulton. 

Filed Under: 1st amendment, age gating, age verification, free speech, ken paxton, porn, strict scrutiny, supreme court, texas
Companies: free speech coalition

Don’t Be Fooled: Laws like KOSA Are Just Book Banning Democrats Can Get Behind

Free Speech

from the yes-it's-exactly-that dept

It is almost impossible to believe, as the nation stands on the precipice of one of the most important elections in our lifetime, if not the nation’s history, that Democrats would want to stick it to young people, whose enthusiasm and activism they desperately need to prevail in November. But in trying to ram through Congress the so-called “Kids Online Safety Act” (the title is a misnomer, especially given that the law would actually put vulnerable youth in jeopardy by cutting them off from resources and support) this sort of political foot-shooting would seem to be exactly what leading Senate Democrats were determined to make their fellow Democrats do, no matter how much this exhibition of self-defeating political ineptitude would make them all resented in November.

Fortunately, House Republicans inexplicably decided to help Democrats dodge their own bullet by scuttling the bill, at least for now. Hopefully that will afford a chance for clearer minds to prevail and recognize the political insanity of it should it come back to the floor, or any other similar bill percolating through legislatures around the country, many of which inexplicably have Democratic support. As courts are already starting to find, all of them stand to be a First Amendment disaster. But they also stand to be a political one too.

No matter how they are framed, just like book bans, each of these bills ultimately seeks to use government power to unduly infantilize young people, ignore their First Amendment rights, and remove their practical ability to become educated, informed, and socially connected citizens. While some of the worst of these bills may have been dulled a bit in the Senate’s version of KOSA, it still remained a blunt and potent weapon able to cause a lot of harm to young people’s ability to access information online.

Just as book bans are intended to do, laws like these are intentionally designed to cut young people off from a universe of ideas and information. Sure, maybe up until they turn 18 they could still passively watch TV (almost entirely corporately owned, by very few companies), or listen to the radio (do young people even still do that?), or read newspapers and magazines (but only the dead tree versions, if they still exist, because everything digital stands to fall under these laws’ age-restricting requirements, which means young people can forget about reading things like Teen Vogue, or plenty of other digital-only publications). But the richness of the Internet will largely be out of reach.

Furthermore, these bills manage to be even worse than book bans in how they are also inherently designed to harm young people’s ability to communicate online as well, cutting them off from a needed sense of community and opportunities for their own self-expression. None of these outcomes would arrive accidentally; they are indeed the very point of laws like these, to disconnect young people from others’ expression, and others from theirs.

Yet despite this deliberate deprivation somehow Democrats nevertheless seem to expect young people to emerge from the mandatory isolation these laws would impose on their youth as eager supporters of the very same politicians who had sought to keep them in the dark up to then. Such an expectation is beyond naïve. Like with the TikTok ban, laws like KOSA would represent yet another Democrat own-goal taking aim at the very means that political excitement is engendered, including that which has tended to benefit Democrats in particular.

Laws like KOSA seem to reflect the unreasonable belief that at the stroke of midnight on their 18th birthdays young people somehow magically suddenly become qualified to avail themselves of the medium. At least that’s the belief for now, because any law championed to unilaterally ignore First Amendment rights at one age it could similarly be championed to unilaterally ignore them at other ages too. So even if laws like KOSA only dismiss the rights of young people under 18, maybe the next bill proposed by its proponents will strike at the rights of young people up to the age of 21. Or 24. Or 30, etc. Or maybe the next bill after that will work the other way and take First Amendment rights away from people lawmakers now think are too old.

As they stand now laws like these already harm the First Amendment rights of everyone, including all adults, which is yet another reason that bills like KOSA are so toxic to Democrats’ political prospects. They explicitly teach everyone that Democrats don’t care any more about the Constitution than their opponents. For proponents of these bills the First Amendment is a mere triviality that can be ignored whenever politically expedient. Bills like these run roughshod over the First Amendment rights of so many, including everyone who runs a website, who will now be burdened with onerous if not impossible compliance obligations, which is why young people will end up getting cut off from nearly all digital information if they go into force. And also every adult Internet user as well, who would now have to divulge sensitive personal information to be allowed to read or say anything online, irrespective of how the First Amendment is supposed to protect their rights to read and speak anonymously.

And of course it offends the rights of young people themselves, just as they are when books get excised from curricula and removed from libraries, which is why the book bans being pushed by Republican officials are so odious: they are always about cutting people off from ideas and information, Constitution be damned. But there is no reason why it would be bad only when Republicans engage in such censorship and not when Democrats do it too (and with Republican help, of course, as KOSA was only get passed with bipartisan effort).

In fact, if anything laws like KOSA are even worse than book bans, because people are not just getting cut off from the ideas and information that certain government officials don’t like, but potentially ALL ideas and information, including plenty that young minds very much need to grow up into educated adults, well-equipped and ready to vote (including for Democrats!).

The problem, of course, as per usual, is that this rush to “think of the children!” is not thinking about how much what a law is trying to do will instead actually harm them, and what the results of that harm will inevitably be. If the alleged goal of a law like KOSA is to help ensure the minds of the next generation can develop into healthy adults it is indeed an odd policy to pursue, to purposefully starve those minds of informational resources, social connections, and their own expressive outlets. And politically obtuse to think that, once grown, these same young minds won’t remember who left them hungry.

Filed Under: 1st amendment, book burning, free speech, kosa

Justice Alito Almost Messed Up The Internet; Then He Threw A Temper Tantrum

Free Speech

from the doesn't-play-well-with-others dept

It turns out the internet was one Sam Alito petulant tantrum away from being a total disaster. In two key First Amendment cases, Alito was given the majority opinion to write. And, in both of them, his insistence on obliterating the old boundaries of the First Amendment caused other Justices to switch sides – and Alito to act like a spoiled brat.

This year, the Supreme Court session ran later than usual. Usually, they finish up by the end of June, but this year it extended the term over to July 1st. There were, obviously, a bunch of “big” decisions (Presidential immunity! Chevron deference!) that were held to the very end, including the two big internet cases: the NetChoice cases and the Murthy case.

As people awaited the decisions, there was a fair bit of SCOTUSology as court experts (and non-experts) speculated based on the number of decisions written by each Justice (and which months the cases were heard in) as to which Justice would have the majority decisions in remaining cases. I heard from quite a few such experts who expected that Alito would have the majority decision in the NetChoice cases, given that the other Justices all seemed to have majority opinions from February cases, and Alito’s name seemed to be missing.

Some people were surprised because in basically all of the internet cases oral arguments, Alito seemed quite out of step with the rest of the Court (and reality). When the decision finally came out, saying that the lower courts didn’t do the proper analysis for a “facial challenge,” it sent the cases back to the lower courts for a redo. But the majority opinion included some very important commentary about how the First Amendment still applies to social media editorial discretion. The overall ruling was technically a unanimous decision, but some noted that Justice Alito’s “concurrence” read like it had been written to be the majority opinion. It delves deeper into the facts of the case than a concurrence normally would (the majority opinion normally handles that).

Oh, and one other weird thing: in that final week of June, people were confused by Justice Alito not showing up to a couple of decision days, and his absence was never explained. Until now.

CNN now has quite an incredible insider’s tale of how Justice Alito had, in fact, been given the job of writing the majority opinion in the NetChoice cases, but lost it because he tried to push the decision too far into saying that states could regulate content moderation.

Alito, while receptive to the 5th Circuit’s opinion minimizing the companies’ speech interests, emphasized the incompleteness of the record and the need to remand the cases. Joining him were fellow conservatives Clarence Thomas and Neil Gorsuch and, to some extent, Barrett and Jackson.

On the other side was Kagan, leaning toward the 11th Circuit’s approach. She wanted to clarify the First Amendment implications when states try to control how platforms filter messages and videos posted by their users. She was generally joined by Chief Justice John Roberts and Justices Sonia Sotomayor and Brett Kavanaugh.

Alito began writing the court’s opinion for the dominant five-member bloc, and Kagan for the remaining four.

It’s also interesting that Justice Jackson was siding with Alito. During oral arguments, Justice Jackson asked some… odd questions, leading some to worry about how she might come down. The CNN report suggests those fears were legitimate.

Either way, Alito pushed his views too far and caused both Barrett and Jackson to bail out.

But when Alito sent his draft opinion around to colleagues several weeks later, his majority began to crumble. He questioned whether any of the platforms’ content-moderation could be considered “expressive” activity under the First Amendment.

Barrett, a crucial vote as the case played out, believed some choices regarding content indeed reflected editorial judgments protected by the First Amendment. She became persuaded by Kagan, but she also wanted to draw lines between the varying types of algorithms platforms use.

“A function qualifies for First Amendment protection only if it is inherently expressive,” Barrett wrote in a concurring statement, asserting that if platform employees create an algorithm that identifies and deletes information, the First Amendment protects that exercise of editorial judgment. That might not be the situation, Barrett said, for algorithms that automatically present content aimed at users’ preferences.

Kagan added a footnote to her majority opinion buttressing that point and reinforcing Barrett’s view. Kagan wrote that the court was not dealing “with feeds whose algorithms respond solely to how users act online – giving them the content they appear to want, without any regard to independent content standards.”

Barrett’s concerns have been worrying to some, as it suggests that algorithmic recommendations may not be protected by the First Amendment. This would upset a bunch of what people thought was settled law regarding things like search engine recommendations. However, the hope is that if such a case comes before the Court (which it almost certainly will…), that a fuller briefing on the record would clarify that algorithmic recommendations are still speech.

As we noted, Alito’s concurrence reads pretty petulant. It declares the majority’s “First Amendment applies to social media” explanation as “nonbinding dicta.” CNN details that this was him being angry that he lost the majority on that case.

But the key reason he lost control over the decision seems to be that he, unlike the eventual majority, would have sided a lot more with the Fifth Circuit’s ruling, which upended a century’s worth of First Amendment law.

Alito had the backing of only two justices in the end, Thomas and Gorsuch. He expressed sympathy for state efforts to restrict what, in an earlier phase of the Texas case Alito called “the power of dominant social media corporations to shape public discussion of the important issues of the day.”

In his separate July 1 opinion for a minority, Alito pointed up why states might want to regulate how platforms filter content: “Deleting the account of an elected official or candidate for public office may seriously impair that individual’s efforts to reach constituents or voters, as well as the ability of voters to make a fully informed electoral choice. And what platforms call ‘content moderation’ of the news or user comments on public affairs can have a substantial effect on popular views.”

Like Oldham, Alito took jabs at the “sophisticated counsel” who challenged the state regulations.

The same article notes that Alito also lost the majority on another “Fifth Circuit misunderstands the First Amendment” case. The one involving Sylvia Gonzalez, who was retaliated against by the mayor for her efforts to shake up the local government. The Fifth Circuit originally said this was totally fine. Eventually, the Supreme Court sent the case back to the Fifth Circuit to try again.

But again, Alito tried to go too far:

When the justices voted on the case in March, the majority agreed that the 5th Circuit erred in the standard it used. Alito was assigned the opinion.

But as he began writing, he went further than the other justices in his review of Gonzalez’s case. Alito and his colleagues realized he couldn’t “hold five,” as the expression goes, for a majority.

A new majority agreed to dispatch the case with a limited rationale in unsigned opinion. Rejecting the 5th Circuit’s reasoning, the Supreme Court said the 5th Circuit had applied an “overly cramped view” of the court’s precedent for when people may sue for First Amendment retaliation claims. The high court noted that Gonzalez could not show evidence of whether officers handled similar situations differently because her situation, involving the alleged removal of a document, was exceedingly rare.

Alito also wrote a concurrence for that case, but here he went on a long rant basically explaining why even if the Fifth Circuit used the wrong standard, there were lots of reasons why Gonzalez should have lost her case. Basically, if he had written the majority opinion, all of this would have qualified as “nonbinding dicta” under Alito’s own standard. Now, at least, it’s just a concurrence.

But, apparently, because Alito was ticked off that he couldn’t “hold five” in either of these cases, it caused him to take his ball and go home (i.e., just not show up at the Court on decision days):

On June 20, when the chief justice announced the opinion in Gonzalez v. Trevino, Alito’s chair at the bench was empty. Alito missed that day, as a total four opinions were handed down, and the next, June 21, when the justices released five other opinions.

Justices sometimes skip one of these final days of the annual session, but usually there’s an obvious reason for the absence, such as travel to a previously scheduled speech. Court officials declined to provide any explanation.

Alito returned for the final four announcement days of the term, yet sometimes appeared preoccupied. On the last day, when Kagan announced the decision in the NetChoice case, Alito was reading through material he had brought along to the bench.

Poor baby.

In both cases, Alito’s view of the First Amendment seems disconnected from reality and history. And, in both cases, he still had a chance to write the majority opinion (sending both cases down on what is, effectively, technicalities). But, in both cases, he was unable to write a reasonable opinion, causing his colleagues on the bench to jump ship to more reasonable rulings.

And, in response, he decided to just sulk like a teenager who didn’t get his way. In the end, that left us with a much better, more First Amendment supportive majority decision (in both cases). But it’s truly incredible how close we came to bad decisions in each, and how both of those flipped due to Alito’s insistence on pushing his terrible, unsupported ideas about free speech.

Filed Under: 1st amendment, content moderation, free speech, samuel alito, supreme court, temper tantrum
Companies: ccia, netchoice

Journalist Hit With $5,500 Judgment By Italian Court For Mocking Far-Right Politician’s Height

Free Speech

from the cry-more,-fascist dept

Italy continues to push its way towards shitshow as it’s overtaken by far-right, fascism-adjacent politicians. There’s nothing here that signals the country will try to move back towards the center. Having apparently learned nothing from history, the government continues to move further right while still (somehow!) dealing with a “woke” court.

Here’s a brief recap of what recently went down in Italy, as recounted by the Associated Press:

A judge in Milan has ordered an Italian journalist to pay 5,000 euros (nearly $5,500) in damages to Premier Giorgia Meloni for making fun of her height in social media posts.

The judge ruled on Wednesday that two social media posts by journalist Giulia Cortese, who was also handed a suspended fine of 1,200 euros ($1,300), amounted to “body shaming.”

There’s your so-called “wokeism,” far-righters. Check it out: “body shaming.” But was it? Or was it just a politician finding a convenient point of leverage in order to own the libs (or whatever their Italian equivalent is).

The name Giorgia Meloni may ring a bell, even for non-Italian residents. There’s a fierce new strain of nationalism running rampant in Italy, led by none other than Premier Meloni.

Italians who use English and other foreign words in official communications could face fines of up to €100,000 ($108,705) under new legislation introduced by Prime Minister Giorgia Meloni’s Brothers of Italy party.

Fabio Rampelli, a member of the lower chamber of deputies, introduced the legislation, which is supported by the prime minister.

While the legislation encompasses all foreign languages, it is particularly geared at “Anglomania” or use of English words, which the draft states “demeans and mortifies” the Italian language, adding that it is even worse because the UK is no longer part of the EU.

Making foreign words illegal is right up there with ensuring the trains run on time. Meloni’s background suggests she’d like to see the country return to the glory days of inverted, naked corpses of Italy’s top officials displayed in public squares following a string of disastrous military losses.

Need more? This… THIS!.. is the person who somehow found it worth her time to target a journalist for daring to call her “short.”

In 1992, at 15 years of age, Meloni joined the Youth Front, the youth wing of the Italian Social Movement (MSI), a neo-fascist political party that dissolved in 1995.^[1] During this time, she founded the student coordination Gli Antenati (The Ancestors), which took part in the protest against the public education reform promoted by minister Rosa Russo Iervolino.^[16] In 1996, she became the national leader of Student Action, the student movement of the post-fascist National Alliance (AN), the national-conservative heir of the MSI, representing this movement in the Student Associations Forum established by the Italian Ministry of Education.^[17]

[…]

In an interview to the French newscast Soir 3 when she was 19,^[338] she praised Italian dictator Benito Mussolini as “a good politician, in that everything he did, he did for Italy”, ^{[339][340][341][342]} and as the best politician of the last 50 years.^[343] In January 2020, there was some controversy after Meloni and the comune of Verona supported naming a street after Giorgio Almirante; Meloni and the comune also supported giving Liliana Segre, a Holocaust survivor and senator for life, honorary citizenship. Segre said that she and Almirante are incompatible and the comune had to make a choice.^[344][345] In May 2020, Meloni praised Almirante as a “great politician”, as well as “a patriot”.^{[346][347][348]} He was the co-founder of the Italian Social Movement (MSI), who had a long post-war political career until retiring in 1987. During World War II, he was a wartime collaborator as a civil minister of the Italian Social Republic (RSI), a Nazi puppet state,^[349] as well as editor-in-chief of the antisemitic and racist magazine La Difesa della Razza, which published the “Manifesto of Race” in 1938.^{[236][350][351]} As a minister in 2009, Meloni visited Yad Vashem in Israel,^[75] and she has also said as FdI party leader that her party “handed fascism over to history for decades now” and it “unambiguously condemns the suppression of democracy and the ignominious anti-Jewish laws“.^[1]

Whatever her actual height in comparison to the mean, any tallness/shortness is the least of her problems. More directly relevant to the discussion here is this part of her Wiki entry:

Meloni has opposed the 1993 Mancino law [it], a hate speech law.^[13] 

Meloni is fine with disparaging people because of their race, ethnicity, religious beliefs, or nationality. But she’s not fine with being called short by a journalist even though she is on the shorter end of average height scale.

And here’s the other thing: Meloni was apparently more disturbed about being called short than being (accurately) portrayed as a fan of Benito Mussolini.

In October 2021, when Meloni was still in opposition, Cortese posted a digitally altered picture on X, showing the far-right politician standing in front of a bookshelf with an image of Fascist dictator Benito Mussolini in the background.

Meloni reacted on Facebook by saying that the fake image was of “unique gravity” and announced that she would take legal action.

In the exchange that followed, Cortese described Meloni as a “little woman.” She then wrote in a separate post: “You don’t scare me, Giorgia Meloni. After all, you’re only 1.2 meters tall. I can’t even see you.”

The Mussolini pic was of “unique gravity,” but it was the “1.2 meters tall” assertion that got this journalist slapped with a $5,500 fine. And that’s on top of the “suspended” fines, which add another $1,300 to the total.

For her part, Meloni claims she’ll give this money to charity if the judgment is upheld and the journalist’s check clears. I guess we’ll just have to wait and see if that actually happens. Anyone can promise anything weeks or months before litigation is finally complete. But even if Meloni follows through with her donation promise, that doesn’t make any of this any better. This is someone powerful abusing the law to punish a critic (and journalist) for daring to mildly insult her. That doesn’t bode well for the future of a nation that’s already been through this sort of bullshit before.

Filed Under: fascists, free speech, giorgia meloni, italian, italy

The First Amendment: America’s Secret Sauce For Innovation

Free Speech

from the protect-it dept

The First Amendment is America’s secret sauce. Far from a relic of the 18th century, the right to speak freely and question authority is a cornerstone of innovation, which thrives on pushing boundaries and challenging the status quo. This freedom is why the United States consistently out-invents and out-performs other societies that do not prioritize the right to speech. That’s why it’s so disappointing to see attacks on America’s proud tradition of free speech coming from our own policymakers and leading thinkers 

Take, for example, a recent op-ed in the New York Times by former Biden Administration Special Assistant to the President for Technology and Competition Tim Wu. In “The First Amendment is Out of Control,” Wu makes the truly breathtaking argument that the First Amendment not only serves corporate interests, it actually undermines our government. This attack on the cornerstone amendment of our democracy ignores the vital role the First Amendment serves in fostering innovation by ensuring that Americans can criticize the government, try new business models, and lean into creativity and progress.

Consider the booming field of generative artificial intelligence, a technology that facilitates asking and answering questions. American companies lead the way in developing and deploying new generative AI platforms and tools – despite competition from China, which has the advantage of massive state-led investments into AI research, a huge population, and limited privacy protections that allow developers to tap into massive data sets. Our leadership is no coincidence. It stems from an American culture where questioning and debate are encouraged and legally protected.

Critics bash “big tech platforms” for controlling speech, but these platforms have democratized communication more than ever before, and many smaller platforms have risen up behind them to provide even more avenues for speech. For the first time, ordinary citizens can reach millions without needing to own a TV or radio station or convincing a major newspaper to publish their opinions. These platforms have enabled vastly more speech, not less. They give voice to the voiceless and amplify diverse perspectives.

Wu and others have also suggested that the First Amendment undermines national security. This is the same rationale used by tyrants and dictators for quashing speech and jailing opponents and dissidents. It’s also patently false. The First Amendment is the disinfecting sunshine that helps hold the government accountable. It allows not only journalists, but everyday citizens to scrutinize and criticize government actions. It ensures transparency and prevents abuses of power. Fears of “foreign manipulation” through platforms, while certainly a concern, can and should be addressed through targeted laws and regulations rather than efforts to scrap the core principles that underpin free speech rights.

More, the Supreme Court’s recent decisions protecting algorithmic curation by Internet platforms recognize that modern speech takes many forms. Whether it’s a human editor or an algorithm, the essence of expression remains. These decisions reflect an understanding that in the digital age, free speech must adapt to new technologies and modes of communication.

Entrepreneurs and startups thrive in an environment where they can challenge incumbents, propose radical solutions, and address societal needs without fear of censorship. The First Amendment fosters an ecosystem where diverse ideas can clash and collaborate, leading to scientific advancements, artistic expression, and cultural evolution. It ensures that innovations can emerge in a vibrant, grassroots ecosystem where everyone has the opportunity to contribute.

Paring back the First Amendment to make it easier to attack specific companies is a terrible idea. The First Amendment protects corporate speech, and it has been extended to new forms of expression. We should see this broad protection as a feature, not a bug. It ensures that innovation is not stifled by overreaching regulations and that new ideas can flourish.

The First Amendment as it’s applied today is doing exactly what it was intended to do: protecting the freedom to speak, to question, and to innovate. It ensures that power, whether governmental or corporate, can be held in check. This freedom is why America remains a leader in innovation and why we must continue to uphold and defend the First Amendment in its broadest sense.

Michael Petricone is the Senior VP of Government Affairs at the Consumer Technology Association.

Filed Under: 1st amendment, free speech, innovation, tim wu

Judge Says Rapper Needs To Turn Over Any New Rap Lyrics To The Feds

Free Speech

from the g-men-with-first-look-options dept

Serving your time is only part of the bargain. Once released, ex-cons can expect to live life with diminished constitutional rights, at least for as long as they’re on parole or supervised release. (And after that point, they can expect a very uphill road back to anything resembling normal day-to-day life, since a lot of our society seems intent to punish people for their entire lives if they screw up once.)

While these constitutional reductions tend to affect the Fourth Amendment the most — what with warrantless searches and other impositions being the norm — rarely does anyone expect their First Amendment rights to be similarly compromised while on supervised release.

But that’s what has happened to one recording artist after serving 11 years on felony firearm possession charges. Here’s Emma Camp, writing for Reason:

Last week, a federal judge ruled that B.G., a rapper known for the hit 1999 song “Bling Bling,” must give the government copies of the lyrics to any new songs as a condition of his supervised release. While prosecutors can generally place a wide range of otherwise illegal restrictions on released prisoners’ conduct, critics argue this restriction is an unconstitutional prior restraint on speech.

In 2012, B.G., whose real name is Christopher Dorsey, was sentenced to 14 years in prison for illegal gun possession and obstruction charges. After serving 11 years, Dorsey was released in February. In May, prosecutors filed a motion alleging that Dorsey had violated the terms of his bond by publishing songs “where he once again glorifies murder, drug dealing, and threatens those who cooperate with the police.” 

That is some wild stuff. Supervised release often involves warrantless searches meant to find criminal contraband, like illegally owned guns, drugs, or other evidence of criminal activity. This order, however, seems to assume rap lyrics might be criminal activity in and of themselves by giving federal officers first look at B.G.’s future creative works.

This is the sort of thing rap artists deal with all the time. Prosecutors argue their creative works should be entered as evidence against them in criminal cases, even though no prosecutor would, say, try to enter Martin Scorsese’s body of work on the record if they were prosecuting him. It’s a hypothetical, of course, but when it comes to separating criminal intent from creative expression, prosecutors tend to believe poor minorities (from whom most rap music originates) are the words they write, rather than they people they are.

Even wilder, that’s way, way less of an intrusion than the government originally requested.

Prosecutors requested that Dorsey be prohibited from “promoting and glorifying future gun violence/murder and obstructive conduct in his songs and during his concerts.” Last Friday, New Orleans federal judge Susie Morgan denied this request, writing that the condition might be an unconstitutional prior restraint on Dorsey’s speech.

Might? Oh, it definitely would. Fortunately, the judge rejected that proposition but added one of her own, which isn’t a whole lot better. From the federal court order [PDF]:

To address the legitimate concerns expressed by the Government, the Court will impose a special condition that the Defendant provide the United States Probation Office with a copy of the lyrics of any song he writes, in advance of his production or promotion of such song, and that those lyrics be shared with the Government. At that time, the Government may, if it deems necessary and appropriate, file another motion for leave to file a rule to show cause why the Defendant’s conditions of supervised release should not be modified because the Defendant’s conduct is inconsistent with the goals of rehabilitation.

That’s still prior restraint. It may not prevent B.G. from writing lyrics the government will undoubtedly find objectionable, but it will certainly discourage him from doing so because the threat of modifying or revoking his supervised release will always be present. This likely means B.G. will either engage in self-censorship or refuse to abide by these conditions. One means putting his career on hold for another three years. The other means possibly losing what freedom he has.

If I’m in B.G.’s shoes right now, in addition to mounting a legal challenge to this order, I’d be considering my malicious compliance options. If the government wants a copy of my lyrics ahead of time, I’d probably opt for the Lavabit Gambit, which it deployed when the FBI demanded the company hand over its SSL keys in hopes of accessing Ed Snowden’s emails:

Somewhat amusingly, Lavabit tried to comply “by turning over the private SSL keys as an 11 page printout in 4-point type.” The feds complained that “the FBI would have to manually input all 2,560 characters, and one incorrect keystroke in this laborious process would render the FBI collection system incapable of collecting decrypted data.” Poor, poor FBI.

If the probation office needs copies of lyrics, this is how they should get them. But it shouldn’t even come to this. This additional condition should be revoked because the government shouldn’t have first say on how people can express themselves.

Filed Under: 1st amendment, b.g., christopher dorsey, free speech, prior restraint, susie morgan

7 Years And A Supreme Court Visit Later, Court (Again) Rules Cop Can’t Sue Activist Over Violent Acts Committed By Others

Free Speech

from the back-to-what-it-always-should-have-been dept

I can’t even imagine what it must be like to fight an obviously bogus lawsuit for most of a decade. That’s what activist DeRay Mckesson has been dealing with since 2017.

Mckesson participated in a protest in Baton Rouge, Louisiana all the way back in July 2016. At that protest, Officer John Ford (previously known as “John Doe”) was struck by a chunk of cement thrown by a protester. In response to this, the officer not only sued Mckesson but also a Twitter hashtag (#blacklivesmatter) and a social movement (Black Lives Matter).

Almost immediately, his lawsuit was dismissed with prejudice by a Louisiana federal court, which ruled he couldn’t sue hashtags, social movements, or even the person who organized the protest wherein the officer had been injured by someone other than the person he was suing.

That should have been the end of it. But the officer apparently had plenty of money to burn. Decisions were appealed and re-appealed and, unfortunately, the next court in line to handle the officer’s (clearly deficient) complaint was the Fifth Circuit Court of Appeals.

If any appellate court can find a way to keep a cop happy, it’s the Fifth. And so it did that very specific job, reviving the lawsuit in 2019 by reasoning that Mckesson’s decision to lead the protest onto a freeway was a negligent enough action it justified suing him over an injury caused by another protester, even if it didn’t occur during this particular bit of highway blocking.

This went to the Supreme Court, which rejected the Fifth’s (third) attempt to get this right, sending it back to the Fifth, which sent it back down to the federal court in Louisiana with the massive amounts of often-contradictory notes it had compiled during its multiple takes on the lawsuit.

Finally, after seven years of litigation, four visits to the Fifth Circuit Appeals Court, and one trip to the nation’s top court, the district court in Louisiana has issued a ruling [PDF] that brings everything full circle: this lawsuit is bullshit and always has been. (h/t Short Circuit)

Plaintiff John Ford, a Baton Rouge Police Department officer, was on duty at a demonstration in Baton Rouge on July 9, 2016, when he was struck by a heavy object thrown by an unidentified demonstrator. Ford sued Defendant DeRay Mckesson, now the sole remaining Defendant, alleging that Mckesson negligently organized and led the protest and was therefore liable under Louisiana tort law for Ford’s injuries. Now before the Court is Defendant’s Motion for Summary Judgment, which argues that Plaintiff’s action must be dismissed because the summary judgment evidence shows that Defendant did not organize the protest, breached no duty to Plaintiff, and was not the cause-in-fact of Plaintiff s injuries. Plaintiff opposes the Motion. For the reasons that follow, Defendant’s Motion will be granted, and Plaintiffs action will be dismissed with prejudice.

Even if the court was inclined to read the state tort law as capable of covering acts performed by someone other than the person being sued, it would need a whole lot more connective tissue in terms of the defendant’s involvement in the act that injured the officer.

In this case, there’s not even evidence that Mckesson organized the protest, much less led it, and… much less committed any illegal act himself or encouraged others to do so.

That section, entitled “Mckesson organized and led the protest, references a “tweet of the location and time of the protest” that Defendant acknowledged “re-tweet[ing].” The section also cites deposition testimony about the organizing of the protest, in which Defendant said that he did not know the organizers personally, and only met them on the night of the protest.

As for Plaintiff’s own recollection of the protest, he testified that he did not “hear” Defendant giving any orders during the protest, although he heard Defendant “[tell protesters] to come out into the road.” Finally, Plaintiff submitted a video filmed in part by Defendant during the protest. In the five minutes of the video before Defendant’s arrest, Defendant in no way blocks traffic, engages in violence, or gives orders to anyone. Indeed, Defendant appears to be walking in the middle of the protest rather than at the head of it.

Given this, it’s impossible to allow the lawsuit to proceed. Doing so would mean anyone in the general vicinity of any incident or occurrence that might involve (at some point) criminal activity could be sued simply for being near the protest (or whatever) where criminal activity occurred. (All emphasis in the original.)

Although Defendant may have participated in similar protests in other places, none of the specific allegations regarding his role in this protest are supported by the evidence. In other words, Plaintiffs case for causation rests solely on Defendant’s possible presence at other protests and his possible direction of some protestors into the road. The Court will not impose liability on a protest participant for the actions of an unidentified individual under these circumstances.

Hopefully, that’s the end of it. I would have to assume (although IANAL) all appeal options have been exhausted. But this cop has been particularly tenacious in this case, determined to hold perhaps the most recognizable person in this protest at least indirectly responsible for the injury he sustained while policing the protest. But the law doesn’t work that way. It never has. But somehow this lawsuit managed to be reviewed by higher courts five times before ending the way it should have ended years ago.

Filed Under: #blacklivesmatter, 5th circuit, baton rouge, black lives matter, deray mckesson, free speech, louisiana, suing a hash tag, supreme court

Fifth Circuit Is Going To Take Another Swing At Its Extremely Messy Library Book Removal Decision

Free Speech

from the hopefully,-it-won't-get-worse dept

I supposed the court had no choice, but I’m always a little wary when the Fifth Circuit decides to take another look at some litigation, especially when it involves certain amendments like the First. Or the Fourth.

This case, however, is a mess. It began (as far too many do these days) with a supposedly concerned citizen griping about some books they’d likely never even looked at, much less read. Rather than approach the Llano County library directly, they took their complaints to county judge Ron Cunningham. The judge, unbelievably, ordered the library to remove the books, including the (and I’m quoting directly here) “books about butts and farts.”

Llano County Commissioner Jerry Moss also inserted himself into this mess by telling the library director to comply with the apparently unlawful order from the judge, telling her to “pick her battles” and that refusing to comply with the judge’s request would result in “bad publicity.”

Having succeeded with getting “butts and farts” books off the shelves, another resident took a list written by former Texas state rep Matt Krause of books he considered to be “pornographic filth” to the judge, who then ordered the library director to remove all books that “depict any type of sexual activity or questionable nudity.” (Matt Krause is exactly the sort of person you think he is, even if this is all you know about him at this point.)

While that order did not clear the shelves of dozens of romance novels, it did result in the removal of LGBTQ+ content, as well as two books about racism in the United States (Caste; They Called Themselves K.K.K.). These are the sorts of books being challenged and banned all over the US right now because the Party of Free Speech has collectively decided no one should be allowed to learn about endemic racism and/or sexual identity.

This resulted in a lawsuit to void the judge’s order and return these books to the shelves. The lower court agreed with the plaintiffs and ordered the books to be made available again. The county appealed and the Fifth Circuit went to work making a mess of it.

The majority partly agreed with the plaintiffs. It said eight of the 17 pulled books needed to go back on the shelves. A concurring opinion pretty much agreed, but said the majority allowed too many books to be reinstated, taking issue with any of “butts and farts” books due to their (alleged) lack of artistic merit.

I disagree, first, because not all of the books express an “idea” or “viewpoint” in the sense required by the caselaw. I am referring to the items we have needed to label for clarity as the “butt and fart books.” Viewpoints and ideas are few in number in a book titled “Gary the Goose and His Gas on the Loose” — only juvenile, flatulent humor. Perhaps a librarian selected the book believing the juvenile content would encourage juveniles to read. Even if that is so, I do not find those books were removed on the basis of a dislike for the ideas within them when it has not been shown the books contain any ideas with which to disagree.

A longer dissent made better points, even if it didn’t really offer a clear path to victory for either party. It said the majority opinion was unworkable, because it applied subjective standards for book placement/removal that wouldn’t have prevented what happened here. Instead, it would make curation almost impossible and, quite possibly, deprive librarians of any control over book selection.

It also pointed out that removing the subjective standards wasn’t much better, which meant librarians could be forced to carry racist content just as surely as it would require them to carry books detailing racism in the United States. The final call, via the dissent, was this: curating public library content is government speech and, as such, the First Amendment standards do not apply. If we want libraries to do the best they can to serve their communities, librarians must be allowed the discretion to select books and decide which books they’d rather not have on their shelves.

The Associated Press is calling this a victory for Llano County officials, even though it’s nothing more than a short order informing the public this case is going to be reheard.

The decision to rehear the case was a victory for Llano County, whose lawyers argued that there were numerous errors in the June 6 opinion, including the incorrect claim that the books had not been returned the shelves pending appeals.

As much as I dread the Fifth taking another swing at this, it kind of has to. The decision it handed down raised at least as many questions as it answered. The underlying problem — a cadre of close-minded individuals intent on ridding libraries of content they don’t personally like — isn’t going to be addressed, no matter what the en banc court decides.

But the least the court can do on the second pass is take a closer look at the directives issued by the county judge, which has nothing to do with discretion and curation, and everything to do with one branch of the government acting as a censor for a different branch of the government. That’s the bigger issue here. Librarians should be allowed to curate content and they should be responsive to complaints from library patrons. But these patrons didn’t talk to the library director. They went straight to a judge and got the judge to issue orders that overrode the discretion of librarians. And unless that gets addressed, this will become a favorite tool for people who think they should get to decide what content everyone has access to.

Filed Under: 1st amendment, 5th circuit, book ban, free speech, jerry moss, library, llano county, ron cunningham, texas

Journalist Scores $235,000 Settlement From Ex-Police Chief Who Raided Small Town Newspaper

Free Speech

from the justice-is-finally-starting-to-trickle-in dept

An ex-big city cop who blew into a small town under suspicious circumstances to become police chief. A business owner seeking a liquor license who spent a lot of time driving around with a suspended license due to DUI violations. A small town paper that dug into all of these stories and more to the dismay of those featured in their stories. A county prosecutor who denied involvement in a blatantly unconstitutional raid until it became impossible to do so.

All of that would make for a great season of Fargo but it all really happened in Marion, Kansas, a town with a population of only 1,900. The police chief, the county sheriff, the county prosecutor, the business owner, her estranged ex-husband, and the state Bureau of Investigation all factored into this horrendous abuse of power that resulted in two raids by local law enforcement.

The first targeted the local newspaper, the Marion County Record. Its offices were raided and devices were seized from everyone in the building, along with the paper’s computers and servers. Then the home of the paper’s co-owners was raided — a raid that was greeted with outrage by the homeowner/paper owner: 98-year-old Joan Meyer. She died the day after the shocking raid of her home by then-police chief Gideon Cody and his co-conspirators.

Since then, multiple lawsuits have been filed. One was filed by journalist Deb Gruver. The police chief claimed the raid was justified because some vague Kansas computer crime law had been violated when journalists accessed (completely legally, btw) the business owner Kari Newell’s driving records. Deb Gruver did not access those records but she had been digging into Chief Cody’s past, wondering why someone working for the Kansas City PD would take a pay cut to preside over a much smaller department in a tiny rural town.

Gruver’s phone was seized personally by Chief Cody — something caught on an officer’s body camera and featured in Gruver’s lawsuit [PDF].

Chief Cody grabbed the phone out of Gruver’s hand when she told him she needed to call the paper’s co-owner, Eric Meyer (the son of the deceased Joan Meyer).

Also captured on body camera was Chief Cody’s call to Kari Newell, the aggrieved business owner who felt her driving records had been illegally accessed.

Kari Newell answered defendant Cody’s call, saying “hey.”

Chief Cody responded, “hey, honey, we can’t write anything, so…”

Kari Newell responded, “yeah, no, I understand…I just got a message from somebody at the hotel saying that the whole staff of the newspaper’s out on the sidewalk and all the computer equipment’s leaving the building.”

Chief Cody responded, “yeah, surprising how that works, isn’t it?”

Surprising? Not really. That’s just how it works when law enforcement officers or officials feel they’re above the law.

But ex-chief Cody isn’t above the law. However, he’s managed to buy himself out of this lawsuit, as Voice of America reports:

A former reporter for a weekly Kansas newspaper has agreed to accept $235,000 to settle part of her federal lawsuit over a police raid on the paper that made a small community the focus of a national debate over press freedoms.

The settlement removed the former police chief in Marion from the lawsuit filed by former Marion County Record reporter Deb Gruver, but it doesn’t apply to two other officials she sued over the raid: the Marion County sheriff and the county’s prosecutor. Gruver’s lawsuit is among five federal lawsuits filed over the raid against the city, the county and eight current or former elected officials or law enforcement officers.

Gruver’s lawsuit against Marion County Attorney Joel Ensey and Sheriff Jeff Soyez remains in force and it seems unlikely either of those will be able to exit the lawsuit without a settlement or a judgment in favor of Deb Gruver. The amended lawsuit (filed in late June of this year) prompted a pretty quick buyout for Cody and it contains plenty of new damaging information that shows just how deeply involved both the county attorney and county sheriff were involved with these unconstitutional raids.

While it would be nice to believe ex-chief Cody is paying out of his own pocket for this, the city and the city’s insurance company both refused to comment on the settlement, which suggests the town’s residents are actually on the hook for this one as officials seek to distance themselves from Chief Cody and his actions.

A town of 1,900 can’t possibly absorb the sort of monetary damage these actions have generated. And there’s a good chance Marion’s insurance company is going to step away from this as soon as it can, leaving residents in the unenviable position of either being at the mercy of an uninsured government or being asked to dig a little deeper in their pockets to cover the increased premiums.

Filed Under: 1st amendment, david mayfield, eric meyer, gideon cody, journalism, kansas, lawsuit, marion county, marion county pd
Companies: marion county record

Tennessee Woman Scores A Win In Free Speech Lawsuit Filed Over Her ‘Fuck ‘Em Both 2024’ Yard Sign

Free Speech

from the whole-lot-cheaper-to-just-respect-the-Constitution dept

Daniel Horwitz — who has fought plenty of free speech battles for Tennesseans — has secured an extremely quick victory for his client, Lakeland resident Julie Pereira.

According to the complaint [PDF], which was filed June 6 of this year, the city of Lakeland took offense to a sign Pereira had placed in her yard. It was bit of political speech that expressed her opinion about Donald Trump and Joe Biden all in one pithy phrase: “Fuck ‘Em Both 2024.”

Someone in power didn’t like the sign. The city decided it would start fining Pereira by leveraging its sign regulations which forbid a long list of things.

In particular, the City of Lakeland and its Code Enforcement Officer, Defendant Katrina Shields, believe that Ms. Pereira’s Political Sign violates City of Lakeland sign regulations that prohibit “statements of an obscene, indecent, or immoral character which would offend public morals or decency” and “statements, words or pictures of an obscene nature.”

The city believed this sign fell under that laundry list of forbiddables, but it actually doesn’t. Making things worse is the shifting set of restrictions the city applies to signs, based on little more than the city’s perception of what each sign it seeks to regulate actually is.

[U]nder the City of Lakeland’s Municipal Code, signs are regulated differently depending on whether they are “works of art with no commercial message,” “special event signs for community events,” “incidental signs,” “window signs,” “building marker” signs, “changeable copy signs,” “construction signs,” “directory signs,” “identification signs,” “menu board” signs, “model home” signs, “principal ground” signs, “real estate” (but not single-family residential) signs, “residential real estate” signs, “subdivision entry” signs, “temporary signs,” “wall signs” (depending on whether they are nonresidential or residential), “temporary residential yard” signs, “suspended signs,” or—as here—“political signs.”

Political signs are subject to the most restrictions, governing everything from how many can be placed in any area to how long they can remain in place. The city decided this was a political sign (rather than a “work of art” or a “temporary residential yard sign”) and started fining Pereira.

Pereira — under the threat of further enforcement — even neutered her sign in an attempt to placate the unconstitutional desires of city regulators.

She shouldn’t have had to do this, as Horwitz points out in the lawsuit:

This coerced modification has satisfied the Defendants. It does not satisfy Ms. Pereira, though, any more than a jacket bearing the words “F*ck the Draft” would have satisfied Paul Cohen. Cf. Cohen v. California, 403 U.S. 15, 26 (1971).

The lawsuit swiftly followed the incursion on Pereira’s free speech rights (which included nearly $700 in fines). And now a settlement [PDF] has just as swiftly followed this lawsuit. Apparently, all the city needed was a legitimate challenge of its sign statutes and a few minutes to think about it.

Not only will the city be refunding the fines charged to Pereira and covering her legal fees, it has also agreed the law (as applied to Pereira) is unconstitutional. Yeah, it’s a bit of a unicorn. A government has agreed to settle without attaching a clause denying any wrongdoing.

Under Cohen v. California, 403 U.S. 15 (1971), the Plaintiff’s political sign is not obscene, and the Defendants may not lawfully regulate it based on the viewpoint it expresses.

For these reasons, the Court DECLARES UNCONSTITUTIONAL the Defendants’ enforcement action against the Plaintiff for displaying her unredacted political yard sign, a copy of which is set forth in the record at Doc. 1-1. The Defendants are thus PERMANENTLY ENJOINED from taking any further enforcement action against the Plaintiff for displaying her unredacted political yard sign.

That’s the language the city has agreed to. All it needs now is a judge’s signature. And with this win, others in the same city should feel free to let their freak fuck flags fly.

Filed Under: 1st amendment, daniel horwitz, first amendment, free speech, fuck em both, julie pereira, lakeland, tennessee