Law Clinic Forced To Drop Police Records Lawsuit, Citing Conflict Of Interest Because… It’s Also Subject To Public Records Laws

Free Speech

from the weird-non-flex dept

None of this makes sense. At least, not when you attempt to reconcile what’s being said with the university’s actions. It makes more sense later. But we’ll get to that in a moment.

A non-profit called the Atlanta Police Foundation, which claims to be interested in building a better relationship between Atlanta’s police and the people they police, decided to go the other direction recently by coughing up more than $100 million for a new law enforcement training center.

The planned center soon acquired a less-than-flattering nickname: “Cop City.”

This proposal was greeted with plenty of civil and not-so-civil opposition:

On March 5, 2023, protesters threw large rocks, bricks, Molotov cocktails, and fireworks at police officers, and destroyed various construction vehicles.^[4][2] Hours later, police raided the nearby South River Music Festival and detained 35 people, alleging that vandals had hidden in the crowd.^[18] Twenty-three people were arrested and charged with domestic terrorism, although arrest warrants did not present evidence of violence or property damage.^[18] Of the arrestees, one was from France, one was from Canada, and two were residents of the state of Georgia.^[2][16][19] Only one of the 23 arrestees was offered bond: a lawyer for the Southern Poverty Law Center, who had only been there for observation and because of this was freed on a $5,000 bond.^[20]

By May, prosecutors had charged more than 40 protesters with domestic terrorism,^[21] a move that Human Rights Watch called an “attempt to smear protesters as national security threats”.^[22]

At a May 2023 public meeting, Atlanta City Council members faced record-setting public opposition to a vote providing $31 million for the Cop City project. At the time, the project had received $60 million of corporate funding and was several months delayed.^[23] On May 31, a SWAT team arrested three organizers of a bail fund that had supported protesters with bail and legal defense. Those arrested were charged with money laundering and charity fraud.^[24][25] That same month, developers finished clearing the site of all existing vegetation and debris in preparation for construction.^[26]

Kind of a mess. In between all the highlights, there’s the reality. A non-profit decided it would (partially) fund a training center for cops on abandoned land (that once contained a prison). Residents were far less keen on this idea. One of the members of the anti-“Police City” group was shot and killed by Atlanta cops (a recently fired weapon allegedly carried by the man was found at the scene). Lots of protesters were arrested, possibly on trumped up charges. Some people claiming to be supportive of protesters were arrested on fraud charges.

The whole thing is a mess, and it’s still pretty messy. That would explain the public interest in police records detailing anything about “Cop City,” the PD’s relationship with the Atlanta Police Foundation, the city’s communications with both of the previously listed entities, the PD’s interest in anti-Cop City protesters, as well as anything related to its protest policing tactics, the shooting of one of the protesters, the claims that multiple protesters were engaged in “domestic terrorism,” and the investigation/arrests of those charged with money laundering and fraud.

It just makes sense that the University of Georgia’s law school would be somehow involved in all of this. Its First Amendment law clinic sought a bunch of police records related to “Cop City.” As is almost always the case when it comes to public records requests, the law clinic is now involved in litigation seeking to force other government agencies to relinquish requested documents.

What doesn’t make sense is the university pulling the plug on this specific portion of the law clinic’s work. Neither does the excuse it made for this narrowly targeted shut down of important public records efforts. Here’s Timothy Pratt, reporting for The Guardian:

Dean Peter B “Bo” Rutledge gave the order to clinic director Clare R Norins within weeks of the clinic’s February announcement that one of its attorneys would be representing the digital news outlet Atlanta Community Press Collective, or ACPC, and the Chicago-based digital transparency research organization Lucy Parsons Labs in a lawsuit against the police foundation. Both groups filed the suit after making numerous queries to the organization under Georgia’s open records act, only to be ignored.

Ed Vogel, a researcher at Lucy Parsons Labs and a plaintiff, called the timing of the decision “alarming”, adding that Rutledge “has a responsibility to be completely transparent about why it was made”.

It’s a completely justifiable question. Why would a university that had previously given the law school and law clinic free rein to request records and litigate if necessary suddenly decide this was no longer acceptable? The plaintiff is correct: the university had an obligation to be “completely transparent” about this sudden change of course.

Unfortunately, this ain’t it. And it appears Dean Rutledge put law clinic director Clare Norins in the unenviable position of doing the dean’s dirty work for him:

Norins told plaintiffs in a 5 April Microsoft Teams meeting that the law school clinic was stopping all open records work because the school itself “is subject to open records requests, thus creating a conflict of interest”, said Matt Scott, an editor at the ACPC.

That’s not a conflict of interest. The university retains its own counsel, rather than using law clinic legal reps, during public records litigation. Even if Clare Norins was doing double duty, it still wouldn’t be conflict of interest because one set of litigation was being pursued against an outside government agency and any litigation rising out of the school’s refusal to hand over requested records would be defensive and obviously would not involve the same party (the Atlanta PD) the law clinic legal rep was engaged in litigation against.

This explanation is bullshit. And that’s made extremely clear by additional reporting by The Guardian’s Pratt:

The police foundation’s attorney in the lawsuit is Harold Melton, a former Georgia supreme court chief justice who graduated from UGA and now teaches at the school.

There’s your conflict of interest. If anyone should be commanded to step back, it should be the professor who’s currently defending the non-profit, rather than the school, in litigation brought by the school against the foundation. If anyone’s conflicted, it’s this guy. And his efforts run contrary to the overriding concern: the public interest. He’s trying to keep records out of the public’s hand, all while collecting a taxpayer-funded paycheck from the school while doing double-duty as a (presumably paid) legal rep for the Police Foundation.

This further statement — this time made by the dean himself — doesn’t offer any more clarification.

Rutledge later sent the Guardian a statement asserting that the move was “part of ongoing efforts to align the First Amendment Clinic’s activities more closely with the institution’s educational mission”.

That makes no sense. Part of educating potential lawyers about the First Amendment is engaging them in activities that involve the First Amendment, like public records requests and their ensuing lawsuits. Telling them to stop doing this sort of thing perhaps more “closely aligns” the law school’s First Amendment clinic with the University of Georgia’s “educational mission,” but only if the “mission” involves less “education” and more implicit instruction on the ins and outs of the good ol’ boy system.

Filed Under: 1st amendment, conflict of interest, cop city, peter rutledge, public records
Companies: atlanta police foundation, lucy parsons labs, university of georgia

The First Amendment Gives You The Right To Lie, Even With AI

Free Speech

from the can't-take-the-first-amendment-out-of-ai dept

While the celebrity-driven allure of the Scarlett Johansson voicealike story might be an easier headline grab, it is in the dark arts of election dirty trickery where you’re more likely to find the kinds of election misinformation concerns that have an impact on society. Indeed, experts have been warning for some time that fake text, images, video and audio generated by artificial intelligence are increasingly less likely to be the stuff of science fiction and more likely to be part of our discourse.

It seems that 2024 might be the year of an inflection point which signals the worries are no longer hypothetical. The most egregious example is a warning from across the pond, when just days before an election last fall, an AI audio recording of Progressive Slovakia’s leader Michal Simecka surfaced. In this fake conversation with a journalist, he was boasting about rigging the election (which he ended up losing). In India, social platforms and WhatsApp groups are being flooded with generative AI featuring endorsements from dead people, jailed political figures, and Bollywood stars.

And in the U.S. during this presidential election cycle, we’ve already seen examples of AI fakes circulating online: photos of Donald Trump with his arms around friendly Black women at a party, photos of Trump hugging and kissing Dr. Anthony Fauci circulated by the Ron DeSantis campaign, and the voice of Joe Biden telling New Hampshire voters in a robocall not to show up for the Democratic primary. This week, the FCC proposed mandatory labeling of AI-generated content in political ads on television and radio.

Gone are the halcyon days of 2019, when a mere video editing trick slowed down Nancy Pelosi’s speech in a janky attempt to make her seem drunk. With so many klaxons sounding as a flourishing misinformation culture on social networks collides with real advances in creating AI fakes, the natural question would be what to do about it. The solution from state legislatures seems to be simple: target and ban deepfakes and synthetic content in elections. But these laws not only risk running afoul of free speech protections, they also attempt to solve the problem without dealing with the larger problems of our civic information infrastructure that makes fake media flourish.

Despite their popularity, laws banning synthetic and generative AI content almost certainly violate the First Amendment. That’s the result of a study we conducted this spring – “The Right to Lie with AI?” – as 11 states passed some version of them or bills banning or limiting synthetic media in campaigns in the 2023-24 sessions, according to tracking by the National Conference of State Legislatures. 

Bills that ended up not passing in other states presented troubling alternatives as well and offer a warning about the directions synthetic election content bans could go. The Georgia House passed a bill that made AI imitations of politicians a felony with a minimum 2-year prison sentence, though the bill was tabled by the Senate in March even after one legislator taunted the bill’s opponents with AI-generated audio of them supposedly endorsing the bill. 

Our analysis looked at the various provisions in this new wave of laws and proposals, as well as the earliest versions of them, the latter of which includes anti-deepfake laws passed by California and Texas in 2019. As of yet, we have been unable to find any evidence that those or other laws have been enforced, nor have they been challenged in court. But they present problematic free speech issues in light of the Supreme Court’s decision in U.S. v. Alvarez in 2011, in which the Court struck down the federal Stolen Valor Act and reaffirmed the First Amendment’s protection of a speaker’s right to lie unless they create some other legally cognizable harm.

As Jeff Kosseff detailed in his new book “Liar in a Crowded Theater,” the First Amendment has long protected false speech, even if (or especially when) that speech is about political campaigns. While the accused Alvarez was just lying about having served in the military, lower courts applying Alvarez have gone on to strike down false campaign speech laws in Ohio, Minnesota, and Massachusetts over the past decade, finding uniformly that these laws (a) triggered review under the strict scrutiny standard, a heavy burden for the state to meet to defend a speech restriction, (b) address a compelling state interest in fair elections enough to satisfy strict scrutiny, but (c) nevertheless were not narrowly tailored to serve those interests, thus failing the strict scrutiny review. In every one of the cases, citing Alvarez, the court found that the least restrictive means to address false political speech is “counterspeech” – that is, the speech should be rebutted in the marketplace of ideas with true speech. 

The courts also found practical issues with the laws, which essentially triggered investigations or caused disruption in the weeks before elections occurred – or even after early voting had begun – in a way that could not be resolved in a meaningful way. The inevitable outcome of complaints under false political speech laws would be dirty tricks and gamesmanship, rather than more truthful campaign advertising. And if you think triggering politically-motivated investigations in the days running right up to an election isn’t that big of a deal, Hillary Clinton would like a word.

Similar issues plague the current wave of laws, which include provisions such as:

• Electioneering: Basically, these provisions ban use of deepfakes or AI-generated photos, audio, or video in a certain time period before an election, such as a 30-day ban on “deep fake videos” in Texas or the 90-day ban on use of AI in election speech in new laws in Minnesota and Michigan. Time limits outlawing speech before an election were frowned upon in the Supreme Court’s 2010 decision in Citizens United, and as noted above, it is unlikely any challenge brought in such a short timeframe before an election could be resolved in a meaningful way by the time votes are being cast. These are likely unconstitutional. And they are also likely practically unworkable, with the spread of disinformation online far outpacing any court or agency’s ability to investigate and remedy misdeeds.
• Injunctive relief: Despite decades of First Amendment jurisprudence disfavoring gag orders and injunctions as remedies, every law we reviewed allowed complainants to seek injunctions to stop spread of the speech or perhaps to mandate labeling of political speech as AI-generated. Because these laws are generally enforceable by anybody – in California, any registered voter can file a complaint, and in Michigan, possible complainants include the attorney general, any candidate claiming injury, anyone depicted in an ad, or “any organization that represents the interests of voters likely to be deceived” by the manipulated content” – it is not hard to imagine a regular march to the courthouse by campaigns or aggrieved voters to seek hearings and gags on ads by candidates they don’t like in the run-up to Election Day. Again, because false political speech is broadly protected by the First Amendment, it is unlikely any such gag or injunction would survive a challenge. 
• Satire, parody, news media uses: Most legislatures carved out exceptions for areas receiving First Amendment protection already, perhaps noticing the flaws inherent in trying to regulate political speech. These savings clauses exempt classic categories recognized by the Supreme Court, such as humorous depictions of the like protected in Hustler v. Falwell, as well as legitimate news media coverage of AI and deepfakes – which would be necessary in debunking them, part of the counterspeech noted above. Also, in recognition of the broad protection of political speech in New York Times v. Sullivan, some states such as California require a showing of “actual malice” – that is, publishing something knowingly false or acting with reckless disregard for the truth – for movants to prevail. Even so, these laws are probably overbroad and unenforceable, but laws without savings clauses such as these are especially problematic.
• Mandatory disclaimers or disclosures: If any of these deepfake/AI provisions are likely to stand, it likely would be requirements that make it mandatory to label such content, something common to most of the state laws we reviewed. For instance, Michigan requires “paid political advertisements” to include language that the advertisement “was generated in whole or substantially by artificial intelligence,” with special details about how the disclosure must be made depending on whether the advertisement was graphic (including photo and video) or audio, with fines of $250 for a first offense and up to $1,000 for additional infractions. Idaho’s “Freedom from AI-Rigged (FAIR) Elections Act,” enacted in 2024, made labeling an affirmative defense, in which people accused of using synthetic media can rebut any civil action by including a prominent disclosure stating “This (video/audio) has been manipulated” as detailed in the law. The Supreme Court has upheld disclosure and labeling provisions in election laws in Citizens United and Buckley v. Valeo, finding these were not overly burdensome on political speech. 

What we found is state legislators often were trying to outlaw ads that use deepfakes or AI, in this case by using the same template they have used to try to ban false political advertising in the past. And that false advertising template has failed, time and again, when challenged in courts. Outside of mandatory labeling, these laws likely would not survive their first attempt to prosecute someone or to enjoin an ad that runs afoul of the law. Imagine, for example, DeSantis campaign staffers – or DeSantis himself, even – having to fend off criminal prosecution because someone texted or posted a manipulated image of Donald Trump during the Republican primaries. As broad as these laws are written, that would be a possibility.

These laws also seem to be the unsurprising result of a moral panic about AI and deepfakes in elections that has captivated legislators’ attention and motivated them to do something, even if that something violates the First Amendment. And this is despite the fact that as of yet, none of these fakes have actually worked. The DeSantis campaign photos, the RNC’s fake dystopian future video, and the fake Biden robocall were all caught and debunked quickly and broadly by political opponents and news media.

As we were finalizing this project, a headline in the Washington Post caught our attention: “Deepfake Kari Lake Video Shows Coming Chaos of AI in Elections.” But in reality, there was no chaos. The video was a ploy by a journalist for the Arizona Agenda to show the potential harm of AI-generated videos, depicting Lake saying “Subscribe to the Arizona Agenda for hard-hitting real news… And a preview of the terrifying artificial intelligence coming your way in the next election, like this video, which is an AI deepfake the Arizona Agenda made to show you just how good this technology is getting.”

As David Greene noted for EFF in 2018 – we don’t need new laws about deepfake and AI speech, because we’ve already got them. This includes bans on falsely pretending to be a public official, or civil laws regarding right of publicity, defamation, and false light, that have developed over the past century to combat harmful false speech (a category that includes political speech).  

Beyond the First Amendment issues with the AI laws, the bans are an attempt to deflect from the fact that our leaders can’t agree on a pathway toward a more healthy information ecosystem. In that sense, another way to see the rise of AI and synthetic fakes is that their existence is not the thing to fix but rather a symptom of something much more broken: our civic information infrastructure.

“Sunshine is the best disinfectant” is the phrase many communication law students learn about the First Amendment, and indeed it is a nod to the democratic ideal that the solution to bad speech is good speech. What is challenging about synthetic fakes in 2024 is not that they exist, but rather that it’s questionable whether we have the technology and platforms in place to give good speech its proper ability to act as a meaningful check against the torrent of synthetic content that can drown out truth as a matter of volume. And the consequences to democracy if we don’t figure out a workable solution could be devastating.

Synthetic fakes enter our discourse as part of a troubled information sphere. The classic paradigm is truth grappling with error, in the words of John Milton. In a media context, that means speech platforms that offer us the ability to discern truth by weighing claims and using our reason to decide, first individually and then collectively. But this idea of a speech marketplace has been able to thrive in part because we long had well-regarded sources that were devoted to using their gatekeeping and agenda-setting power to make sure the discourse was populated with a common set of verified information, and that these sources operated in a distribution scarcity environment that gave their words a type of weight and power.

Thirty years ago, this old setup was thriving. But the rise of self-publishing first, social networks second, and now generative AI has created parallel speech platforms that unlike journalism are not business-dependent on truth-telling in the public interest. The conservative radio host using Facebook to spread AI-generated images of Trump being friendly with Black citizens said he wasn’t a journalist or pretending that they were real or accurate, just that he was a “storyteller.”  

Coupled with the decimation of local news and the teetering business model for many national outlets, synthetic fakes as a matter of being platformed and as a matter of volume have the ability to drown out the dwindling outlets that decades ago would have been a powerful counterweight to false speech.

Banning fakes could be seen then as more than merely a bad – and likely unconstitutional — idea. Synthetic media and deepfakes are a symptom of a larger problem of our crumbling information environment and the lack of will from tech platforms to finally admit they are in the political discourse business and act as guardians of democratic self-governance. If censorship is off the table because of the First Amendment’s protections for lying, then tech platforms have to step up and play the role that journalists have long played: to create with technical solutions and good internal policy a place where the public knows it can find truth in the form of verified facts. 

Technical solutions such as Meta labeling AI content in advance of the upcoming U.S. elections and companies working to create a watermarking system for AI images represent good starts. But these become cat-and-mouse games until the companies both creating AI products and those hosting AI content frame policy through the reality that democracy is in deep trouble if it becomes the realization of Steve Bannon’s famous maxim that the way to win is to “flood the zone with shit.”

What this means is getting off the sidelines by not treating this as merely an engineering problem but also a social problem that they have helped create and in the spirit of good citizenship must help us solve. Tech companies and the broader public cannot afford to rely on lawmakers to fix this, not when their only passable ideas seem to be laws that violate free speech rights.

Chip Stewart is an attorney, media law scholar, and professor of journalism at Texas Christian University. He can be found at @medialawprof.bsky.social. Jeremy Littau is an associate professor at Lehigh University whose research focuses on digital media and emerging technology. He can be found at @jeremylittau.bsky.social 

Filed Under: 1st amendment, ai, deepfakes, elections, free speech, moral panic, synthetic media

TikTok Users Challenge Court To Save Their Favorite App

Free Speech

from the dance-challenge? dept

Who has a stronger case that the TikTok ban is unconstitutional? TikTok itself… or its users? We may find out, as both are trying.

Last week, TikTok officially filed a petition to challenge the Constitutionality of the TikTok ban law. I’ve heard a few people say that they don’t believe TikTok has that strong of a case (I, personally, disagree), but that TikTok’s users might have a stronger argument.

Well, they’re going to try, as a group of TikTok users have now filed a similar petition in the DC Circuit focused solely on the First Amendment issue (the only real issue that impacts them). You may recall that some Montana-based TikTok users filed a similar lawsuit in that state to contest the Montana ban, which succeeded. This new case on behalf of users is filed using the same law firm, Davis Wright Tremaine, and some of the same lawyers as the case in Montana.

In Montana, the two cases (TikTok itself and its users) were effectively merged into a single case before one judge. It’s unclear if the same thing will happen here. As this case claims, for users of TikTok, the US government is interfering with their own expressive rights by effectively banning the space in which they prefer to publish their content:

Petitioners are among the 170 million Americans who create, publish, view, interact with, and share videos on TikTok. They rely on TikTok to express themselves, learn, advocate for causes, share opinions, create communities, and even make a living. Although they come from different places, professions, walks of life, and political persuasions, they are united in their view that TikTok provides them a unique and irreplaceable means to express themselves and form community. They bring this lawsuit to preserve their First Amendment rights and the rights of countless others, which are threatened by the Protecting Americans from Foreign Adversary Controlled Applications Act, Pub. L. No. 118-50 (Apr. 24, 2024).

The Act bans TikTok unless its owners divest the platform in a manner that is infeasible, as the company has stated and as the publicly available record confirms. The Act thus promises to shutter a discrete medium of communication that has become part of American life, prohibiting Petitioners from creating and disseminating expressive material with their chosen editor and publisher—and from receiving such material from others.

This extraordinary restraint on speech violates the First Amendment. In supporting the Act, lawmakers claimed that TikTok “manipulate[s]” American minds and disseminates “propaganda” that would “use our country’s free marketplace to undermine our love for liberty.” But it is the Act that undermines the nation’s founding principles and free marketplace of ideas. The First Amendment to our Constitution precludes Congress from censoring speech because of its content, viewpoints, editorial practices, or identity of speakers or publishers.

I’ve seen some push back on this, claiming that there is no “right” to access TikTok, and that the users are still free to post their content elsewhere. But that makes no sense. The government can’t shut down a newspaper publisher and say that it’s okay because Americans can get their news from elsewhere.

The case details how each of the eight petitioners use TikTok and would be harmed by the site being blocked. The petitioners have a wide variety of backgrounds and experiences, and you can tell that some were chosen to appeal to certain, let’s say… constituencies… on the Supreme Court. I mean…

Petitioner Christopher Townsend lives with his family in Philadelphia, Mississippi. He served in the U.S. Air Force for six years as a cryptologic language analyst. Townsend is now a well-known hip hop artist and founded an organization dedicated to promoting biblical literacy by quizzing individuals on their knowledge of stories from the Bible. Townsend shares videos of these light-hearted and informative biblical quizzes with his 2.5 million TikTok followers. He also uses the app to share his music, which addresses topics such as his religion, patriotism, and political views. Because of the Act, Townsend faces losing the platform on which he is able to express his beliefs and share his spirituality and music with the world.

Petitioner Steven King lives in Buckeye, Arizona. King has used TikTok since 2019 to create humorous content about his daily life and spread awareness about LGBTQ pride, self-confidence, and sober living. King also derives immense satisfaction and enjoyment from using his ingenuity to create content on the app for his 6.8 million followers—and seeing this content reach the kind of audience that finds it most compelling. His content has deeply resonated with the public, some of whom ask King questions on TikTok about his experience coming out as gay in Arizona and his 28-year loving relationship with his husband. This community—which King has been unable to find on other social media and entertainment platforms—means the world to him.

Something for everyone!

The complaint also highlights how some of the other alternatives out there just aren’t equivalent for the petitioners:

In fact, all of the Petitioners have tried using other social media apps, with far less success. For example, King has 6.8 million followers on TikTok, but only about 137,000 on Facebook. Sexton has 2.2 million followers on TikTok, but only about 44,000 on Instagram. Townsend has 2.5 million followers on TikTok, but only about 298,000 on Instagram. Firebaugh has more than 430,000 followers on TikTok, but only about 22,000 on Instagram. Martin has one million followers on TikTok, but only about 10,000 on Instagram. Spann has over 760,000 followers on TikTok, but less than 10,000 on Instagram. Tran’s company has 138,000 followers on TikTok, but less than 2,000 followers on Facebook. And Cadet has 126,000 followers on TikTok, but less than 7,000 on Instagram.

As for the actual First Amendment claim, it’s pretty straightforward:

The Act regulates “speech” under the First Amendment by singling out and effectively banning a medium of communication—TikTok—that Petitioners (and other Americans) use to engage in protected expression, prohibiting them from sending and receiving information they are entitled to communicate.

The Act erects an unconstitutional prior restraint by banning protected speech on TikTok and by empowering the President to pre-approve who may publish and edit TikTok’s service and, in turn, the speech Petitioners wish to disseminate on that platform.

The Act regulates on a content-, speaker-, and viewpoint-basis. The law is content- and speaker-based because it expressly bans TikTok but exempts other companies based on the type of content those companies’ apps publish. The law is also content-, speaker-, and viewpoint-based because it prohibits operation of TikTok’s current content recommendation system by its current editors, preventing Petitioners from using their chosen editor and publisher to engage in protected communication. From the standpoint of the First Amendment, this restriction is no different from prohibiting American freelance writers from submitting articles to The Economist, or American musicians from disseminating songs through Spotify. The Act further regulates speech based on its viewpoint because it is motivated by a disfavored view of the ideas that are, or could be, expressed or promoted on TikTok.

Indeed, the petition makes clear that this isn’t even like most other challenges of laws where the test for strict scrutiny of regulating speech is a very high bar. Here, they claim the bar should be even higher than strict scrutiny.

The Act for all these reasons bears a heavy presumption of unconstitutionality—more stringent than even strict scrutiny—and fails even intermediate scrutiny. The government cannot ban a medium for communication because it believes that medium is used to transmit foreign “propaganda” or other protected content. Nor does the government have any actual, non-speculative evidence that banning TikTok in its current form enhances Americans’ data security, or that its ban is narrowly tailored to accomplish that objective. The fact that the Act is paired with other federal legislation restricting how data brokers may share and sell American user information to certain foreign entities underscores that the ban is not narrowly tailored.

This is the key point I keep raising when people insist that the TikTok ban is fine. There are always two arguments, and neither make much sense. If the concern is propaganda, too bad. The 1st Amendment protects propaganda. If the concern is data privacy/national security, well, then you have to show some actual evidence to support that claim (and also, maybe, pass a comprehensive privacy bill that applies to everyone instead?)

So neither is an acceptable justification.

The Act is unconstitutionally overbroad because it bans an entire medium of communication and all the speech communicated through that medium, even though, at the very least, the vast majority of that speech is protected and not otherwise subject to suppression.

Unless declared invalid and enjoined, the Act will unlawfully deprive Petitioners of their rights under the First Amendment, inflicting immediate and irreparable harm.

The argument here is simpler and more straightforward than the argument that TikTok itself is making, and is (not surprisingly) designed to cut to the heart of the matter before the court. I expect the DOJ will make all sorts of handwavy claims that the divestiture demand has no impact on speech and do as much to minimize the “ban” part for a failed divestiture.

Either way, we’re off to the races. Not just directly from TikTok, but from the service’s users as well. I hope they post the oral arguments to TikTok.

Filed Under: 1st amendment, dc circuit, doj, merrick garland, tiktok ban, tiktok users
Companies: bytedance, tiktok

Israel Shows It Has Nothing To Fear From International Coverage Of Palestine Conflict By Kicking Al Jazeera Out Of The Country

Free Speech

from the I-guess-we'll-just-have-to-take-the-state-media's-word-for-it dept

Wars, conflicts, domestic dust-ups, whatever you want to call them… they’re sensitive situations, easily made worse by even the most mild fluctuations in the political climate or the public temperament.

And while I’m completely aware there’s no enshrined rights protecting journalism on par with the First Amendment in Israel, this latest turn of events does the country’s government no favors… especially when it’s already on the losing end of a lot of battles in the court of public opinion.

Israeli authorities raided a Jerusalem hotel room used by Al Jazeera as its office after the government decided to shut down the Qatari-owned TV station’s local operations on Sunday, an Israeli official and an Al Jazeera source told Reuters.

Video circulated online showed plainclothes officers dismantling camera equipment in a hotel room, which the Al Jazeera source said was in East Jerusalem.

Prime Minister Benjamin Netanyahu’s cabinet shut down the network for as long as the war in Gaza continues, saying it threatened national security.

This is the sort of thing that happens almost everywhere when the domestic situation starts to get a bit war-ry. Having blacked its own eye several times — not the least of which was the apparent “targeted” killing of international aid workers providing food for Palestinians on the other side of Israel’s siege tactics — the Israeli government apparently won’t be allowing this particular non-Israeli news agency from criticizing it while enjoying the relative safety of a Jerusalem hotel room.

As usual, the excuse used for ejecting foreign journalists is a favorite of any country whose government wants to oust critics, dissidents, or unfriendly journalists: “national security.”

Certainly Al Jazeera’s coverage has been critical, but no more so than plenty of other news agencies. Its recent exposure of even more abuse of Israeli-crafted spyware by a questionable government customer couldn’t have helped, but Israel’s domestic news agencies have been doing this for years, helping contribute to the worldwide woes suffered (deservedly so!) by malware merchants like NSO Group and Candiru.

This decision to boot Al Jazeera was the result of a concerted effort that required a vote from the members of the Israeli government cabinet. According to Prime Minister Benjamin Netanyahu, the vote was “unanimous.”

And it’s not as though Al Jazeera’s hands are completely clean, either. Accusations that its journalists cohabitate and collaborate with members of Islamic extremist groups have dogged the new outlet for years. There have been several accusations over the past several months that Al Jazeera journalists are not only embedded with Hamas, but apparently acting as operatives. (Of course, most of these accusations tend to come from governments irritated with Al Jazeera reporting, rather than sources with little to gain from silencing apparent critics.)

But there’s no reason to believe the journalists staying in Jerusalem were involved with anything more than providing ongoing coverage of the Israel-Palestine conflict. And this ousting by the Israeli government hasn’t earned it any international accolades. Instead, it has been met with united criticism from other governments as well as news agencies around the world.

Given the circumstances of this ejection, it looks far more like the Israeli government wants to wrest control of the conflict narrative. If it had any genuine concerns about Al Jazeera, it had plenty of time to address them before it became the subject of international criticism for its actions and tactics in this latest flare-up in hostilities. The timing here says this is just opportunistic and completely unmoored from any legitimate national security concerns. But when all you have is a war, everything looks like a “national security threat.”

Filed Under: free speech, gaza, israel, journalism, palestine
Companies: al jazeera

Raging Ignorantly At The Internet Fixes Nothing

Free Speech

from the old-men-of-media dept

Jann Wenner, the creator of Rolling Stone magazine, was certainly an early supporter of free speech. But he seems to have reached grumpy old man status, that allows him to whine about free speech online, mostly by not knowing shit about anything.

Writing for Air Mail, a publication by Graydon Carter (another Grumpy Old Man of Media™), Wenner has a facts-optional screed about Section 230, which has done more for free speech than Wenner ever did.

First off, Wenner gets the purpose and history of Section 230 backwards. Like exactly 100% backwards. This is the kind of thing any fact checker would catch, but who needs fact checkers here?

The original conceit behind Section 230 was that tech companies were not publishers of content but merely providers of “pipes”—innocent high-tech plumbers!—and so should be treated like Con Edison or the telephone company. In reality, they are pipes, publishers, monopoly capitalists, spy networks, and a whole lot more all bundled together.

This is literally the opposite of the “conceit behind Section 230.” The entire conceit was that they are publishers, but because they’re publishers that allow anyone to publish and (mostly) only do ex post moderation, it made no sense at all to hold them liable as traditional publishers, who review everything ex ante.

It has never meant that the service providers were intended to be mere “pipes” or neutral conduits. Indeed, it was always intended to be the exact opposite. The whole intent of Section 230, in the words of its authors, was to enable sites to moderate more easily, by knowing they wouldn’t be liable for what they missed.

This is well known to anyone (i.e., not Wenner or anyone who edited his work at Air Mail) who understands the history of Section 230, which is that it was in response to the ruling in Stratton Oakmont v. Prodigy. In that case, a judge found that, because Prodigy moderated (in an effort to keep its forums “family friendly”), it could be held liable for anything that remained up.

Reps. Chris Cox and Ron Wyden realized what a mess that would be for free speech. What internet service would be willing to freely host speech if they could get sued for anything they allowed to be posted, even if no one reviewed it? Thus, Section 230 was written to enable websites to (1) host content freely without having to carefully review each and every piece of content and (2) moderate freely, without facing liability for both the decisions and non-decisions.

Note that nothing in there has anything to do with being a “pipe.”

This is why Section 230 has been such a boon for actual free speech. It makes it possible for internet services to host third-party speech without having to review every bit of content for legal liability, while still retaining the necessary editorial control to remove what they dislike, without facing liability.

To be fair, Wenner is not the only one to make this false assumption. Starting about six years ago, it became common in mostly ignorant MAGA circles to assume that this was what Section 230 meant. I believe Senator Ted Cruz was the first to make this category error, but it has been repeated many times since then.

That’s no excuse for Wenner to repeat the mistake, though.

Unfortunately, the rest of the article is almost entirely based off of this false premise, and thus makes no sense at all.

Wenner uses this framing to suggest that Section 230 unfairly benefited the internet over magazines. He claims that magazines were bastions of free speech because they could be liable for defamation.

Under the banner of the First Amendment, I sent out my warriors—Hunter S. Thompson, Richard N. Goodwin, P. J .O’Rourke, William Greider, and Matt Taibbi, among others—to cover national affairs and a dozen presidential elections. They took wild liberties in their prose, but we diligently observed the rules about truth and malice—the price of free speech.

In my 50 years leading Rolling Stone, I had one major journalistic failure, when we neglected to rigorously vet a story about an alleged sexual assault at a University of Virginia fraternity house in a long investigative piece on the broader epidemic of rape on college campuses. It was singularly my worst moment as an editor.

Around this time, the rapidly declining profitability of Rolling Stone and the magazine industry as a whole made it clear that the Internet platforms had become a threat, against which we were helpless. They had limitless resources, technical skills beyond our understanding—and governmental exemption from obeying the libel laws.

But again, Wenner is fundamentally confused. The issue on the internet is not that defamation law no longer applies, it’s just a question of who it applies to. The law for both the internet and for a paper publication is that the party actually responsible for the violative statement is responsible.

No one sued a library that carried Rolling Stone for the defamatory UVA rape story. They sued Rolling Stone itself. If someone defames someone on the internet, it’s the person who actually is responsible for the speech who gets sued, rather than the “library” that hosts the content. And a physical library is not a “pipe” either. They still retain their editorial freedom of determining which works to allow and not allow on their shelves.

Wenner then bizarrely and legally illiterately tries to discuss the NetChoice cases before the Supreme Court. He notes that with the laws in Texas and Florida limiting moderation, the folks in those states fear that platforms will “disproportionately squelch conservative speech,” and claims that this is true (even though studies actually have shown the reverse — who needs facts?).

Wenner suggests that Section 230 “must now be thrown out,” without realizing how massively this would attack free speech online. He implicitly seems to recognize that social media would die under this plan, but doesn’t understand what would actually happen:

So how can we keep the social-media pipes open while enforcing rules against libel and willful disregard of the truth? Let people publish their sickest fantasy or The Protocols of the Elders of Zion on their own blogs and Web pages. (They can’t hide behind Section 230.)

I mean, sure, it would be great if more people posted content to their own blogs and websites, but without 230 who will host those blogs and websites, Jann? Because the only reason we have web hosting companies and cloud services is because the hosters of that content know they’re protected thanks to Section 230. They’re “the library” in this scenario.

So if you do away with Section 230, hosting companies will also disappear, and it will be a lot harder to have your own blog or website.

Wenner seems to think he’s got the path around that idea, but again, he doesn’t seem to understand what he’s talking about. He suggests that maybe 230 should disappear only for algorithmically recommended content:

But when commercial public platforms decide to recirculate, amplify, and empower such stuff by algorithm or human selection, then they must obey the law, whatever the cost, like every other publisher in the U.S.

This idea is often raised by people who have never actually had to think through the details and tradeoffs of these solutions. First, it would make search engines ridiculously dangerous to run. Any algorithmic recommendation could face liability? Search engines are recommendation algorithms.

Similarly, the main purpose of these algorithms these days is to diminish the reach of the people posting “their sickest fantasy or The Protocols of the Elders of Zion.” Without algorithmic recommendations, people see more disinformation and more false information. Rather than improving access to truthful information, getting rid of the algorithm makes that more difficult.

Section 230’s theoretical purpose—to shelter the Internet in its infancy—was served long ago. Today, the Captains of the Internet hardly need shelter.

Again, that’s not its purpose, theoretical or otherwise. Its purpose was to make sure that companies would be willing to host speech at all. And we still need that today or else we end up with way less speech.

(Along with the gun industry, tech is one of the few businesses in America that has immunity from product-safety laws.)

This is just false. Tech remains very, very much liable under product safety laws. The only area where internet (not “tech”) sites are immune is for liability based on third-party speech. Wenners problem (among many other misunderstandings) is not understanding the difference between first party and third-party speech.

Just as magazine publishers for years have absorbed proportionately higher expenses for research, fact-checking, and libel review in their operating budgets, the tech companies can foot the bill to monitor their legal risk.

But, Jann, you just said that without 230 everyone would be forced to publish on their own blogs and web pages. They wouldn’t be posting on social media any more because without Section 230, social media companies aren’t going to be open to hosting such content anymore.

Also, Section 230 protects all websites for third-party content, not just Google and Meta. Perhaps they can afford the expenses described here, but every other website and service provider could not. Smaller communities would immediately shut down. If anything, it would give more power to the largest tech companies and make it impossible for smaller ones to crop up.

And maybe, just maybe, a fact checker would have caught this bit of nonsense as well:

The F.C.C. was established in part to allocate what were once thought to be finite broadcast wavelengths (a purpose long since made moot by technological innovation), and for decades the government has overseen the broadcast industry, issuing renewable licenses and requiring public-affairs content. It’s time for the F.T.C., which supposedly regulates Silicon Valley, to catch up with the 21st century.

It’s not even clear what he’s asking the FTC to do here. Yes, the FCC was established to handle the licensing of scarce public spectrum. But, as Wenner notes, that doesn’t apply to the internet, where there isn’t a limit on space. So what does he want the FTC to do here? Create licenses? That would violate the First Amendment he claims to hold so dear at the opening of the article.

This just seems to be blind rage at successful internet companies for being successful.

He makes that clear in the very next paragraph:

But the press has been decimated by the tech companies. They essentially stole the intellectual property we created with little in the way of compensation, re-purposing it as free giveaway content and selling it at massive discounts to our advertisers.

I often hear this from media folks, but it’s utter nonsense. What was “stolen”? The content was not taken or repurposed in any way. Media orgs chose themselves (for good reason!) to move online, and all that the successful internet companies did was provide free distribution. They provided links, which drove traffic. If Wenner was so bad at running a media org that he couldn’t take that free distribution and free circulation and make money off of it, that’s on him. Not the internet companies.

If you misdiagnose the problem, you come up with dumb solutions. This whole piece is just misguided, mistargeted rage from a media old-timer, past his prime, who is mad at the new thing without understanding why.

I get that there are many reasons to be mad about elements of the internet. But Wenner is raging ignorantly, mistaking the underlying factors, misstating the nature of the law, and therefore offering “solutions” that make matters worse, not better.

For all his glorified nostalgia for the “heydays of American Journalism” through “spirited, sane, and fact-based” journalism, his column here is none of those.

Filed Under: 1st amendment, defamation, free speech, jann wenner, liability, section 230

Appeals Court: Just Because Speech Provokes Negative Reactions Doesn’t Mean It’s Not Protected

Free Speech

from the maybe-address-the-people-that-are-handling-the-speech-poorly dept

The best response to speech you don’t like is more speech. It definitely isn’t whatever the hell happened here. And that not only includes the Seattle Police Department’s decision to go after the person being physically harassed by other protesters, but the actions of the protesters themselves, whose physical aggression somehow encouraged police officers to start violating the First Amendment.

It’s a mess. Fortunately, this decision [PDF] from the Ninth Circuit Appeals Court cleans it up. (h/t Courthouse News Service)

The plaintiff is Matthew Meinecke, a self-described “street preacher” who lives in Seattle. On June 24, 2022, Meinecke showed up at a pro-choice protest of the Supreme Court’s Dobbs decision. According to Meinecke, he held up a sign, read from the Bible, and handed out Christian literature.

This didn’t go well for him, according to his allegations.

Protestors surrounded Meinecke after about an hour. One protestor seized Meinecke’s Bible. Meinecke retrieved another Bible from his bag and continued reading aloud. Another protestor grabbed hold of—and ripped pages from—the new Bible.

Things then escalated. Meinecke was then carried across the street by protesters. He immediately returned to where he had been standing. He was once again accosted by these protesters, who took things even further.

While people gathered on the street, however, some approached Meinecke, knocked him down, and took one of his shoes.

That’s when the Seattle PD, which had officers on the scene already due to the pro-choice protest, decided to get involved. The two parties dispute what officers actually told the street preacher. He maintains they told him to go somewhere where no one could hear or see him. The city’s lawyers claim the officers simply told Meinecke to go back across the street to where the protesters had deposited him earlier. Either way, he refused to comply and was arrested for obstruction, mainly this part of the city statute: “[i]ntentionally refuses to cease an activity or behavior that creates a risk of injury to any person when ordered to do so by a police officer.”

Meinecke appeared to be the only person at risk of injury, but I guess that counts under the law since it says “any person.” Despite this, he was held for two hours at the PD, but ultimately was never booked or charged.

Two days later, Meinecke did pretty much the same thing while attending the city’s PrideFest. And that incident pretty much ended up the same way.

Eventually, PrideFest attendees noticed Meinecke’s presence. As the district court found, they began “dancing near him, holding up a flag to keep people from seeing him,” and making “loud noises so he could not be heard.” According to his complaint, “a couple of attendees stood close to Meinecke and howled and barked like dogs, and mocked Meinecke, while he read passages from the Bible. Meinecke did not engage with them.” Another individual poured water on Meinecke’s Bible. Meinecke kept reading aloud.

After a couple of hours, more PrideFest attendees gathered around Meinecke and began yelling. This attracted the attention of about ten law enforcement officers, who asked Meinecke “to move to a public area located outside the park.” Meinecke declined and continued to read from his Bible. A PrideFest attendee shouted at the officers, demanding Meinecke’s removal. The officers then told Meinecke “that they were imposing a ‘time, place, and manner’ restriction on him and ordered him to leave the park.” Again, Meinecke declined to leave. The officers told
Meinecke “that he was posing a risk to public safety,” and they again demanded he leave the park. Meinecke told the officers that he was not in any danger. The officers then arrested Meinecke for obstruction.

This time, however, he was booked, charged, and released on bond. He sued the city, its PD, and the officers involved in his arrests. While Meinecke is seeking an injunction, he is not challenging the constitutionality of the law itself… just the way it was enforced against him in particular.

The Appeals Court agrees with Meinecke. These two arrests were clear violations of his First Amendment rights.

Meinecke does not bring a facial challenge to the Seattle obstruction ordinance under which he was arrested. It makes little difference to our analysis, however, that the ordinance is facially neutral. If a facially neutral statute “as read by officers on the scene[] would allow or disallow speech depending on the reaction of the audience, then the ordinance would run afoul of an independent species of prohibitions on content-restrictive regulations, often described as a First Amendment-based ban on the ‘heckler’s veto.’” Ctr. For Bio-Ethical Reform, Inc. v. Los Angeles Cnty. Sheriff Dep’t, 533 F.3d 780, 787 (9th Cir. 2008). The City’s enforcement actions against Meinecke are content-based heckler’s vetoes. Our precedent on this point is clear: “The prototypical heckler’s veto case is one in which the government silences particular speech or a particular speaker ‘due to an anticipated disorderly or violent reaction of the audience.’” Santa Monica Nativity Scenes Comm.[…]

It is apparent from the facts, including the video available from police body cameras, that the Seattle police directed Meinecke to leave the area because of the reaction his Bible-reading provoked at the Dobbs and PrideFest protests.

That’s now how it works. The hecklers don’t get to set the government’s agenda. The city argued that’s not what actually happened — that officers responded to the people responding to Meinecke’s speech with harassment, violence, and theft by deciding Meinecke was the real problem here. The city claimed this was nothing more than the usual “time, place, and manner” restrictions governments can apply when it engages in constitutional regulation of speech.

But that’s the thing: this isn’t that. This is the other thing, as the Appeals Court points out:

[I]ncanting the words “time,” “place,” and “manner” over a content-based restriction does not transmute it into one that is content neutral. The evidence in the record is indisputable that the officers curbed Meinecke’s speech because of the potential reaction of the listeners.

The city also argued that the officers’ commands would have merely inconvenienced Meinecke, rather than silenced him. Ta-da! No First Amendment violation! Wrong again, says the court:

Even assuming that the officers simply instructed Meinecke to cross the street, their directions burdened Meinecke’s speech. Meinecke had a right, just as those participating in the anti-Dobbs rally or the celebration of PrideFest, to use public sidewalks and streets for the peaceful dissemination of his views. Like the petitioners in McCullen, Meinecke “hands out literature” and “engages in conversation and answers questions” about Christianity. The evidence is even clearer as to the officers’ restrictions during PrideFest. The district court recognized that the officers “ordered him to leave the park” altogether. When the police single out a nonthreatening speaker for discipline, the government is simply choosing sides in the debate and using the obstruction statute to enforce its choice.

Back it goes to the lower court with an order to grant Meinecke’s request for an injunction. And, hopefully, this ruling will deter officers from making the same mistake in the future. As the Appeals Court notes in the decision, the officers had plenty of options when handling these two altercations and chose the worst option both times. If the city wants to enforce its obstruction statute it can still do that. It just can’t do it in a way that violates constitutional rights. And the government should never side with the hecklers and carry out their veto for them.

Filed Under: 1st amendment, 9th circuit, matthew meinecke, protestors, seattle, seattle police

Judge Slams Ken Paxton’s Attack On Media Matters’ Free Speech Rights

Free Speech

from the absolute-free-speech-suppressor dept

The First Amendment has won again, this time against another pretend “free speech absolutist” (Texas Attorney General Ken Paxton) in his attempt to punish someone for their free speech. Perhaps Ken Paxton will have to learn about the First Amendment in these remedial legal ethics education classes he’s required to take as part of closing out the criminal charges he was facing for years.

You may recall that after fake free speech absolutist Elon Musk got all pissy at Media Matters’ use of its own free speech rights to point out the fact that they were able to find ads on ExTwitter from giant companies appearing next to the accounts of literal neo-Nazis, a couple of pandering state Attorneys General decided they’d use the power of their states to punish Media Matters.

The whole thing is incredibly stupid, but just to set the stage, Musk started whining about how unfair it was that Media Matters found and wrote about the ads. Trump advisor Stephen Miller tweeted that he thought state AGs should investigate Media Matters for their article, and both Paxton and Missouri’s Andrew Bailey jumped up to do so.

Paxton sent a civil investigatory demand (CID) as a sort of fishing expedition, demanding Media Matters hand over a ton of internal documents. Media Matters responded by going to court, initially in Maryland, but then quickly moved to DC (after the judge in Maryland suggested that was the proper venue) and asked the court to protect it from this obviously ridiculous, retaliatory attack. The attack was clearly designed to create chilling effects to stop any sort of investigatory reporting on what was happening to ExTwitter.

On Friday, Judge Amit Mehta did a complete and total takedown of Paxton’s bullshit censorial attack on Media Matters’ speech. The whole thing is worth a read. Paxton argued that the DC court has no jurisdiction over his Texas-based investigation. This is a bit ironic, given that Paxton is at the same time claiming jurisdiction over Media Matters despite it being in DC, not Texas.

Turns out, Paxton screwed himself here (such a good lawyer, huh?) by hiring a process server to deliver the CID in DC, thereby making the jurisdiction question a lot easier:

First, the court finds that Defendant invoked the benefits and protections of the District’s laws when he “caused” service of the CID in the District of Columbia “through a professional process service.” Def.’s Opp’n, Decl. of Ass’t Att’y Gen. Levi Fuller, Ex. 1, ECF No. 26-1, ¶ 3 [hereinafter Fuller Decl.]. Courts have found that the hiring of a process server creates an agency relationship between the attorney and process server, and that relationship establishes the attorney’s presence in the jurisdiction to satisfy the “minimum contacts” requirement. See Schleit v. Warren, 693 F. Supp. 416, 419–20 (E.D. Va. 1988) (so holding under Virginia law); Balsly v. W. Michigan Debt Collections, Inc., No. 11-cv-642-DJN, 2012 WL 628490, at *5–7 (E.D. Va. Feb. 27, 2012) (same); Hamilton, Miller, Hudson & Fayne Travel Corp. v. Hori, 520 F. Supp. 67, 70 (E.D. Mich. 1981) (so holding under Michigan law). Courts also have held that a person who arranges for personal delivery of process in a State “purposely avail[s] themselves of the privilege of serving process in [the State].” Hori, 520 F. Supp. at 70. As one court has put it: “it [is] reasonable to conclude that a lawyer who knowingly serves abusive process in a jurisdiction . . . is ‘purposely avail[ing] himself of the privilege of conducting activities within the forum State.’” Schleit, 693 F. Supp. at 422–23 (quoting Luke v. Dalow Indus., Inc., 566 F. Supp. 1470, 1472 (E.D. Va. 1983)). Defendant’s hiring of a process server in the District of Columbia to effect service on Media Matters therefore created the requisite jurisdictional contacts with the District. See Smith v. Jenkins, 452 A.2d 333, 335 (D.C. 1982) (“Generally an agency relationship results when one person authorizes another to act on his behalf subject to his control, and the other consents to do so.”) (citations omitted).

Maybe they can teach that in Paxton’s remedial classes as well.

The judge also notes the irony of Paxton claiming to be able to enforce Texas law in DC but then not to be subject to a DC court himself:

Defendant promised to “vigorously enforce” the Texas DTPA against Media Matters for “fraudulent acts” with no apparent connection to Texas. Branch Decl., Ex. B at 13. His issuance of the CID had the effect of chilling Plaintiffs’ expressive activities nationwide, which deprived D.C. residents access to Plaintiffs’ reporting. The national implications of Defendant’s actions were compounded by his calling upon other Attorneys General to investigate Media Matters. See id., Ex. C, at 17. Thus, like the New Jersey Attorney General in Grewal, Defendant “projected himself across state lines and asserted a pseudo-national executive authority” that makes exercising jurisdiction over him reasonable and does not offend principles of federalism.

Having shown that Paxton has done enough that the DC Court has jurisdiction over him, the court takes on Paxton’s claim that his CID presents no injury to Media Matters (try not to laugh). Judge Mehta points out how ridiculous this claim is by basically saying, “dude, do you even know how the First Amendment works?”

Where, as here, a plaintiff brings a claim of First Amendment retaliation, “the injury-infact element is commonly satisfied by a sufficient showing of self-censorship, which occurs when a claimant is chilled from exercising his right to free expression.” Edgar v. Haines, 2 F.4th 298, 310 (4th Cir. 2021), cert. denied, 142 S. Ct. 2737 (2022) (quoting Cooksey v. Futrell, 721 F.3d 226, 235 (4th Cir. 2013)) (internal quotation marks omitted); see also Twitter, 56 F.4th at 1174 (citing Edgar, 2 F.4th at 310); Cooksey, 721 F.3d at 236 (finding justiciable injury where a state official informed plaintiff that she had “statutory authority” to seek an injunction against him if he did not edit his diet-advice website and plaintiff alleged “speech-chilling uncertainty about the legality of private conversations and correspondence”). The chill must be “objectively reasonable.” Edgar, 2 F.4th at 310 (quoting Benham v. City of Charlotte, 635 F.3d 129, 135 (4th Cir. 2011)).

Through sworn affidavits, Plaintiffs have demonstrated the profound chilling impact that the CID has had on its news operations and journalistic mission. Media Matters’ Editor-in-Chief, Benjamin Dimiero, declares that the CID has “dramatically changed [his] team’s editorial processes[.]” Pls.’ Mot., Decl. of Benjamin Dimiero in Supp. of Pls.’ Mot., Ex. 4, ECF No. 4-4, ¶ 16 [hereinafter Dimiero Decl.]. Dimiero describes a “new culture of fear” amongst Media Matters staff about research and reporting. Id. For example, he avers that the editorial team and leadership now engage in “greater internal scrutiny and risk calculation” when approaching stories that they otherwise would have published after their normal vetting process, such as stories about media coverage of the Defendant’s anti-abortion actions in Texas. Id. Dimiero further states that other stories, such as one concerning content moderation decisions made by X, “may go unreported on entirely.” Id. “There is,” he says, “a general sense among our team and organization that we must tread very lightly[] and be careful not to cross lines that would jeopardize our work or our employees’ safety . . . because of concern that certain reporting could make us a target for further retaliation.”

According to Dimiero, since Defendant announced the investigation, “Media Matters’s editorial leaders have pared back reporting and publishing, particularly on any topics that could be perceived as relating to the Paxton investigation.” Id. ¶ 17. Absent the CID, Media Matters would have coordinated follow up research and reporting on Hananoki’s November 16 Article, as well as the one that appeared the next day. Id. ¶ 18. Media Matters, for instance, “received several tips from people who have seen advertisements for prominent brands placed alongside extremist content,” but has limited the scope of its reporting on the subject “for fear of additional retaliation.” Id. Furthermore, Media Matters otherwise would have published at least two additional articles on the topics of Hananoki’s reporting, but his team withheld them due to concerns of further legal action. Id. ¶ 19. Writers have expressed concerns that their investigations could serve as the basis for retaliatory legal action and that their work product might be subject to investigative demands. Id. ¶ 22; see also Padera Decl. ¶¶ 23–24 (same). Media Matters’ leadership and editorial team have since assumed a more significant role in publishing decisions, which “has significantly slowed down [their] editorial and publication process.” Dimiero Decl. ¶ 21. Media Matters has been taking these steps out of fear of retaliation, not out of legitimate concerns about fairness or accuracy

I can relate, having been sued for my accurate reporting myself. The mental toll that such a lawsuit has on your reporting is very real, even when (arguably especially when) you know that your reporting was 100% solid. It’s incredibly chilling that you can still end up in court, facing ruinous liability, even when you do everything right.

From there, Judge Mehta moves on to the likelihood of success for Media Matters. He notes he only needs to do so for the First Amendment issue, which are pretty obvious and very easy.

Defendant’s investigation of Media Matters is “retaliatory action sufficient to deter a person of ordinary firmness in plaintiff’s position from speaking again[.]” Aref, 833 F.3d at 258. Defendant makes no contrary argument, Def.’s Opp’n at 23, so the court treats as conceded the sufficiency of Plaintiffs’ proof as to this element, see Day v. D.C. Dep’t of Consumer & Regul. Affs., 191 F. Supp. 2d 154, 159 (D.D.C. 2002) (“If a party fails to counter an argument that the opposing party makes in a motion, the court may treat that argument as conceded.”); see also Wannall v. Honeywell, Inc., 775 F.3d 425, 428 (D.C. Cir. 2014) (“[I]f a party files an opposition to a motion and therein addresses only some of the movant’s arguments, the court may treat the unaddressed arguments as conceded.”)

Still, the court explains why Plaintiffs prevail regardless. “[T]he threat of invoking legal sanctions” is sufficient to deter protected speech. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67 (1963). So, too, is the “threat of administrative and judicial intrusion into newsgathering and editorial process” that arises from official process and its possible enforcement. United States v. LaRouche Campaign, 841 F.2d 1176, 1182 (1st Cir. 1988) (internal quotation marks omitted). The Texas Code authorizes the Attorney General to seek restraint of future conduct and the imposition of civil penalties of up to $10,000 per violation in a Texas state court if he has “reason to believe” Plaintiffs violated the DTPA. Tex. Bus. & Com. Code § 17.47(a), (c). He also can seek to have Plaintiffs held in contempt in Texas state court for not complying with the CID. Id. § 17.62(c). These potential punitive consequences, as well as possible judicial intervention to enforce the CID, make Plaintiffs’ claim of chilled expression objectively reasonable.

There is more. “The compelled production of a reporter’s resource materials can constitute a significant intrusion . . . [that] may substantially undercut the public policy in favor of the free flow of information to the public[.]” United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980). The CID seeks such records. It demands “internal and external communications . . . regarding Elon Musk’s purchase of X,” X’s CEO “Linda Yaccarino,” and Hananoki’s November 16 Article, as well as external communications with “employees and representatives of X” and the various companies that were the subject of the November 16 Article for a three-week period. Branch Decl., Ex. A, at 11. The compelled disclosure of such “research materials poses a serious threat to the vitality of the newsgathering process.” Shoen v. Shoen, 48 F.3d 412, 416 (9th Cir. 1995). And, of course, Plaintiffs’ actual self-censorship in response to the announced investigation and the CID “provides some evidence of the tendency of [Defendant’s] conduct to chill First Amendment activity.” Hartley v. Wilfert, 918 F. Supp. 2d 45, 54 (D.D.C. 2013) (quoting Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005)). The court need not repeat that uncontested evidence here.

Also, Paxton apparently didn’t even try to defend non-censorial reasons for opening the investigation:

To establish causal link, “[i]t is not enough to show that an official acted with a retaliatory motive and that the plaintiff was injured—the motive must cause the injury. Specifically, it must be a ‘but-for’ cause, meaning that the adverse action against the plaintiff would not have been taken absent the retaliatory motive.” Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019). Defendant’s initial press release establishes that Defendant opened an investigation of Media Matters in response to its protected media activities. Branch Decl., Ex. B, at 13. Also, Defendant’s description of Media Matters as a “radical anti-free speech” and “radical left-wing organization” and his encouraging of other Attorneys General to look into Media Matters’ reporting is evidence of retaliatory intent….

Defendant has not responded to Plaintiffs’ causation evidence. See Def.’s Opp’n at 22–23. Notably, he has not submitted a sworn declaration that explains his reasons for opening the investigation. By remaining silent, he has conceded the requisite causal link

It seems quite possible that Ken Paxton is a terrible lawyer.

Paxton also claimed that Media Matters’ voice wasn’t chilled because the org had continued to speak out in defense of its reporting. But, as the court notes, that’s not how any of this works. At all.

Defendant also contends that it is “factually untrue” that Media Matters has had its expression chilled, citing television appearances by Media Matters’ President, in which he has defended the organization’s reporting and “doubled down” on the accuracy of the X images contained the November 16 Article. Def.’s Opp’n at 24; Fuller Decl., Exs. E & F, at 24–39. But this argument asks too much of Plaintiffs. They “need not show that the government action led them to stop speaking ‘altogether,’” only that it would be “likely to deter a person of ordinary firmness from the exercise of First Amendment rights.” Edgar, 2 F.4th at 310 (quoting Benham 635 F.3d at 135). Therefore, the fact that Media Matters’ President has publicly defended its work does not mean that Plaintiffs have not suffered irreparable harm.

End result: preliminary injunction barring Paxton from enforcing his CID.

Of course, now we’ll have to see what happens in Missouri, where AG Andrew Bailey (who also pretends to be a free speech warrior while trying to suppress the speech of others) not only sent a CID, but immediately sued Media Matters in Missouri. He claims that Media Matters’ decision to go to court to block Paxton’s CID meant that they would refuse to bow down to his demands as well. That, of course, puts that case in a local Missouri court. But one hopes that this ruling will help clarify the First Amendment issues for that court as well.

Still, chalk one up for actual free speech and the First Amendment: Ken Paxton has had his attempt to retaliate against Media Matters for its speech smacked down, as was richly deserved.

Filed Under: 1st amendment, andrew bailey, chilling effects, cid, dc, elon musk, free speech, ken paxton, retaliation, texas
Companies: media matters

Bureau Of Prisons Seeking To Criminalize Social Media Access By Inmates

Free Speech

from the fuck-these-particular-Americans,-I-guess dept

I guess being incarcerated isn’t dehumanizing enough. Being treated like barely sentient meat deserving of any abuse perpetrated by guards or other inmates just isn’t enough oppression, apparently.

This country talks a big game about rehabilitation and “paying your debt to society,” but when it comes to the day-to-day business of incarcerating people at a rate that exceeds most totalitarian states, the supposed leader of the free world treats millions of US citizens as sub-humans unworthy of even basic niceties.

Everything has a literal cost attached to it and whatever communications prisons allow comes with a huge price attached. Per minute costs for phone calls far exceed what’s charged by even the most monopolistic phone service provider. Every bit of entertainment is similarly exorbitantly priced, even when inmates are using services that are free to use on the outside.

Rights are necessarily diminished when serving time, but what few rights are still there to be exercised are in constant threat of being further restricted. The privilege of being allowed to remotely interact with people who aren’t fellow prisoners is now on the chopping block, thanks to a new proposal from the federal government’s Bureau of Prisons (BOP).

A proposed change to U.S. federal prison rules that would punish inmates for using social media or directing others to do so on their behalf could infringe on the free speech rights of people who advocate for incarcerated people, activists say.

Civil liberties advocates are facing a Monday deadline to push the federal Bureau of Prisons (BOP) to back away from the proposed change, included in a planned overhaul of its disciplinary rules for the more than 155,000 inmates in its custody.

Federal inmates are already banned from using cell phones and are restricted from accessing the Internet.

While a separate part of the BOP’s plan would also make it an infraction to use social media to commit a crime, the bureau does not explain why it wants to punish inmates over the use of social media more broadly.

The commenting period for the proposal closed April 1. Fortunately, this doesn’t mean the BOP is free to move ahead with expanded criminalization of social media use. But even though the BOP told Reuters it has not moved forward with expanded restrictions, the proposal makes it clear the BOP isn’t all that interested in compromise with those opposed to this effort.

It offers a small parade of horribles its presents as evidence that all use must be restricted and/or subjected to increased penalties because some prisoners abuse the privilege.

If the prison facility acquiesced upon discovering that an inmate’s Facebook account was being operated to convey content from the inmate himself, it would open the door to inmates communicating with a virtually unlimited number of individuals. Those Facebook contacts could include other confined inmates, gang members with whom the inmate may be affiliated with and prohibited from contacting, or perhaps more disturbingly victims of the inmate’s crimes or other individuals who may be subject to deliberate intimidation by the inmate (or by the inmate’s contact who controls the account, harassing the victim in effective anonymity). The uncontroverted evidence indicates that administrators have determined, in their sound discretion, that permitting inmates to maintain Facebook accounts through third parties would jeopardize the security and order of the facility and would circumvent established policies regulating communication that enhance prison security…

That conflicts with the earlier part of the proposal, where the BOP states it simply wants to increase the severity level of punishment if social media access is used to commit criminal acts or encourage others outside of the prison to carry out criminal acts on inmates’ behalf.

And that would be fine, considering prisons not only monitor internet use, but also have complete control over it. Lots of stuff that might be linked to criminal activity is already subject to existing rules. But the paragraph above suggests inmates should not be allowed access at all because some access by some prisoners might be linked to criminal acts. The example posted by the BOP itself simply says it has a problem with social media use that might “convey content from the inmate himself.”

That’s not going to fly under the First Amendment, even the very limited version of this right that can be exercised by federal inmates. For now, the proposal is still just a proposal. But, given what’s written here, there can be little doubt the BOP intends to move forward with this, no matter what inmates, their loved ones, and civil rights groups have to say about it.

Filed Under: 1st amendment, bureau of prisons, free speech, social media

Elon Finally Finds A Government He’s Willing To Stand Up To: When The Censorship Demands Target His Political Allies

Free Speech

from the it's-not-principles-when-it-only-helps-your-buddies dept

Over the last few years, Elon Musk has repeatedly said that his definition of free speech means “that which matches the law.”

He says this whenever anyone calls out that he’s not actually the free speech absolutist he claims to be. He regularly and expeditiously caves in to censorship demands, without any protest, from authoritarian governments in places like India and Turkey. When those governments demand Musk remove speech of government critics, his response is to do so immediately (and in the case of India, globally) while insisting that nothing can be done, he’s just following the laws.

However, there’s now a big story brewing in Brazil. Supreme Court Justice Alexandre de Moraes is demanding the removal of content that was spreading nonsense in support of former President Jair Bolsonaro. This is regarding the Brazilian equivalent of the January 6th storming of the Capitol in the US, when Bolsonaro supporters stormed the Brazilian Congress on January 8, 2023.

ExTwitter originally agreed to take down the content, but Musk reversed that decision.

That’s a post from ExTwitter’s global affairs team saying at 2:52pm on April 6th:

X Corp. has been forced by court decisions to block certain popular accounts in Brazil. We have informed those accounts that we have taken this action. 

We do not know the reasons these blocking orders have been issued.  We do not know which posts are alleged to violate the law. 

We are prohibited from saying which court or judge issued the order, or on what grounds. 

We are prohibited from saying which accounts are impacted.  We are threatened with daily fines if we fail to comply. 

We believe that such orders are not in accordance with the Marco Civil da Internet or the Brazilian Federal Constitution, and we challenge the orders legally where possible.

The people of Brazil, regardless of their political beliefs, are entitled to freedom of speech, due process, and transparency from their own authorities. 

Less than one hour later, Musk announced the decision was lifted.

To be absolutely clear: I applaud this decision by Musk to finally stand up to a nonsense, censorial government demand. It’s about time he did so. It’s just notable that he only seems to have done it when it came in support of Jair Bolsonaro, a right-wing extremist. And it never happens when the demands are coming from right-wing extremist governments.

It’s almost as if Musk’s support of free speech is highly conditional. Which is the same thing as saying he’s not a free speech supporter at all. He simply supports those he aligns with politically and pushes back against those he disagrees with politically.

For what it’s worth, we’ve highlighted Brazil’s slip-sliding down the slope of censorship before. We mentioned this very Alexandre de Moraes, back when he was a government minister. Indeed, de Moraes has built up a reputation as a censorial asshat. So I’m glad that someone is pushing back. But it sure does seem quite selective by Musk.

When he says “we follow the laws of the country,” it’s noteworthy when he follows through on that, and when he suddenly pretends to take a stand for free speech.

Meanwhile, Musk made sure to play to his fans who believe he’s always willing to stand up for free speech. He did this by directly replying to de Moraes on ExTwitter asking why he was demanding so much “censorship” in Brazil (de Moraes’ tweet has nothing to do with any of this).

In response, de Moraes announced an “investigation” into Musk.

Musk has said that he will continue to fight this, even if it means having to pull out of Brazil altogether:

If, as Musk says, “principles matter more than profit,” then how does he square that with the fact that he was willing to comply basically everywhere else? Remember, a study from last year found that Elon complied with over 80% of government takedown requests, significantly up from the around 50% under the old regime.

So, seriously, it’s great that Elon is fighting this one particularly problematic judge. But the fact remains that he caves basically everywhere else and throws up a nonsense “we believe in complying with the laws.” Except in this case.

That’s not principles. It’s supporting friends. Which is anything but being a free speech supporter.

Filed Under: alexandre de moraes, brazil, censorship, elon musk, free speech
Companies: twitter, x

Supreme Court Does Not Go Far Enough In Determining When Government Officials Are Barred From Censoring Critics On Social Media

Free Speech

from the the-test-is-too-broad dept

After several years of litigation across the federal appellate courts, the U.S. Supreme Court in a unanimous opinion has finally crafted a test that lower courts can use to determine whether a government official engaged in “state action” such that censoring individuals on the official’s social media page—even if also used for personal purposes—would violate the First Amendment.

The case, Lindke v. Freed, came out of the Sixth Circuit and involves a city manager, while a companion case called O’Connor-Ratcliff v. Garnier came out of the Ninth Circuit and involves public school board members.

A Two-Part Test

The First Amendment prohibits the government from censoring individuals’ speech in public forums based on the viewpoints that individuals express. In the age of social media, where people in government positions use public-facing social media for both personal, campaign, and official government purposes, it can be unclear whether the interactive parts (e.g., comments section) of a social media page operated by someone who works in government amount to a government-controlled public forum subject to the First Amendment’s prohibition on viewpoint discrimination. Another way of stating the issue is whether a government official who uses a social media account for personal purposes is engaging in state action when they also use the account to speak about government business.  

As the Supreme Court states in the Lindke opinion, “Sometimes … the line between private conduct and state action is difficult to draw,” and the question is especially difficult “in a case involving a state or local official who routinely interacts with the public.”

The Supreme Court announced a fact-intensive test to determine if a government official’s speech on social media counts as state action under the First Amendment. The test includes two required elements:

• the official “possessed actual authority to speak” on the government’s behalf, and
• the official “purported to exercise that authority when he spoke on social media.”

Although the court’s opinion isn’t as generous to internet users as we had asked for in our amicus brief, it does provide guidance to individuals seeking to vindicate their free speech rights against government officials who delete their comments or block them outright.

This issue has been percolating in the courts since at least 2016. Perhaps most famously, the Knight First Amendment Institute at Columbia University and others sued then-president Donald Trump for blocking many of the plaintiffs on Twitter. In that case, the U.S. Court of Appeals for the Second Circuit affirmed a district court’s holding that President Trump’s practice of blocking critics from his Twitter account violated the First Amendment. EFF has also represented PETA in two cases against Texas A&M University.

Element One: Does the official possess actual authority to speak on the government’s behalf?

There is some ambiguity as to what specific authority the Supreme Court believes the government official must have. The opinion is unclear whether the authority is simply the general authority to speak officially on behalf of the public entity, or instead the specific authority to speak officially on social media. On the latter framing, the opinion, for example, discusses the authority “to post city updates and register citizen concerns,” and the authority “to speak for the [government]” that includes “the authority to do so on social media….” The broader authority to generally speak on behalf of the government would be easier to prove for plaintiffs and should always include any authority to speak on social media.

Element One Should Be Interpreted Broadly

We will urge the lower courts to interpret the first element broadly. As we emphasized in our amicus brief, social media is so widely used by government agencies and officials at all levels that a government official’s authority generally to speak on behalf of the public entity they work for must include the right to use social media to do so. Any other result does not reflect the reality we live in.

Moreover, plaintiffs who are being censored on social media are not typically commenting on the social media pages of low-level government employees, say, the clerk at the county tax assessor’s office, whose authority to speak publicly on behalf of their agency may be questionable. Plaintiffs are instead commenting on the social media pages of people in leadership positions, who are often agency heads or in elected positions and who surely should have the general authority to speak for the government.

“At the same time,” the Supreme Court cautions, “courts must not rely on ‘excessively broad job descriptions’ to conclude that a government employee is authorized to speak” on behalf of the government. But under what circumstances would a court conclude that a government official in a leadership position does not have such authority? We hope these circumstances are few and far between for the sake of plaintiffs seeking to vindicate their First Amendment rights.

When Does the Use of a New Communications Technology Become So “Well Settled” That It May Fairly Be Considered Part of a Government Official’s Public Duties?

If, on the other hand, the lower courts interpret the first element narrowly and require plaintiffs to provide evidence that the government official who censored them had authority to speak on behalf of the agency on social media specifically, this will be more difficult to prove.

One helpful aspect of the court’s opinion is that the government official’s authority to speak (however that’s defined) need not be written explicitly in their job description. This is in contrast to what the Sixth Circuit had, essentially, held. The authority to speak on behalf of the government, instead, may be based on “persistent,” “permanent,” and “well settled” “custom or usage.”  

We remain concerned, however, that if there is a narrower requirement that the authority must be to speak on behalf of the government via a particular communications technology—in this case, social media—then at what point does the use of a new technology become so “well settled” for government officials that it is fair to conclude that it is within their public duties?

Fortunately, the case law on which the Supreme Court relies does not require an extended period of time for a government practice to be deemed a legally sufficient “custom or usage.” It would not make sense to require an ages-old custom and usage of social media when the widespread use of social media within the general populace is only a decade and a half old. Ultimately, we will urge lower courts to avoid this problem and broadly interpret element one.

Government Officials May Be Free to Censor If They Speak About Government Business Outside Their Immediate Purview

Another problematic aspect of the Supreme Court’s opinion within element one is the additional requirement that “[t]he alleged censorship must be connected to speech on a matter within [the government official’s] bailiwick.”

The court explains:

For example, imagine that [the city manager] posted a list of local restaurants with health-code violations and deleted snarky comments made by other users. If public health is not within the portfolio of the city manager, then neither the post nor the deletions would be traceable to [his] state authority—because he had none.

But the average constituent may not make such a distinction—nor should they. They would simply see a government official talking about an issue generally within the government’s area of responsibility. Yet under this interpretation, the city manager would be within his right to delete the comments, as the constituent could not prove that the issue was within that particular government official’s purview, and they would thus fail to meet element one.

Element Two: Did the official purport to exercise government authority when speaking on social media?

Plaintiffs Are Limited in How a Social Media Account’s “Appearance and Function” Inform the State Action Analysis

In our brief, we argued for a functional test, where state action would be found if a government official were using their social media account in furtherance of their public duties, even if they also used that account for personal purposes. This was essentially the standard that the Ninth Circuit adopted, which included looking at, in the words of the Supreme Court, “whether the account’s appearance and content look official.” The Supreme Court’s two-element test is more cumbersome for plaintiffs. But the upside is that the court agrees that a social media account’s “appearance and function” is relevant, even if only with respect to element two.

Reality of Government Officials Using Both Personal and Official Accounts in Furtherance of Their Public Duties Is Ignored

Another problematic aspect of the Supreme Court’s discussion of element two is that a government official’s social media page would amount to state action if the page is the “only” place where content related to government business is located. The court provides an example: “a mayor would engage in state action if he hosted a city council meeting online by streaming it only on his personal Facebook page” and it wasn’t also available on the city’s official website. The court further discusses a new city ordinance that “is not available elsewhere,” except on the official’s personal social media page. By contrast, if “the mayor merely repeats or shares otherwise available information … it is far less likely that he is purporting to exercise the power of his office.”

This limitation is divorced from reality and will hamstring plaintiffs seeking to vindicate their First Amendment rights. As we showed extensively in our brief (see Section I.B.), government officials regularly use both official office accounts and “personal” accounts for the same official purposes, by posting the same content and soliciting constituent feedback—and constituents often do not understand the difference.

Constituent confusion is particularly salient when government officials continue to use “personal” campaign accounts after they enter office. The court’s conclusion that a government official “might post job-related information for any number of personal reasons, from a desire to raise public awareness to promoting his prospects for reelection” is thus highly problematic. The court is correct that government officials have their own First Amendment right to speak as private citizens online. However, their constituents should not be subject to censorship when a campaign account functions the same as a clearly official government account.

An Upside: Supreme Court Denounces the Blocking of Users Even on Mixed-Use Social Media Accounts

One very good aspect of the Supreme Court’s opinion is that if the censorship amounted to the blocking of a plaintiff from engaging with the government official’s social media page as a whole, then the plaintiff must merely show that the government official “had engaged in state action with respect to any post on which [the plaintiff] wished to comment.”  

The court further explains:

The bluntness of Facebook’s blocking tool highlights the cost of a “mixed use” social-media account: If page-wide blocking is the only option, a public of­ficial might be unable to prevent someone from commenting on his personal posts without risking liability for also pre­venting comments on his official posts. A public official who fails to keep personal posts in a clearly designated per­sonal account therefore exposes himself to greater potential liability.

We are pleased with this language and hope it discourages government officials from engaging in the most egregious of censorship practices.

The Supreme Court also makes the point that if the censorship was the deletion of a plaintiff’s individual comments under a government official’s posts, then those posts must each be analyzed under the court’s new test to determine whether a particular post was official action and whether the interactive spaces that accompany it are government forums. As the court states, “it is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts.” This is in contrast to the Sixth Circuit, which held, “When analyzing social-media activity, we look to a page or account as a whole, not each individual post.”

The Supreme Court’s new test for state action unfortunately puts a thumb on the scale in favor of government officials who wish to censor constituents who engage with them on social media. However, the test does chart a path forward on this issue and should be workable if lower courts apply the test with an eye toward maximizing constituents’ First Amendment rights online.

Originally posted to the EFF Deeplinks site.

Filed Under: 1st amendment, blocking, criticism, free speech, lindke v. freed, o'connor-ratcliffe v. garnier, politicians, social media, supreme court