Appeals Court: Ban On Religious Ads Is Unconstitutional Because It’s Pretty Much Impossible To Define ‘Religion’

Free Speech

from the not-the-separation-of-church-and-state-to-founders-intended dept

Things become heated and tangled when it comes to free speech, religion, and the government’s attempt to control either of these things. Government entities tend to feel the best way to avoid the appearance of favoring any religion is to stay out of it completely.

A wise move by the government, but not the best move when it comes to free speech. The Hillsborough (FL) Area Regional Transit Authority (HART) has a policy that prohibits the placing of ads on its vehicles and property that “primarily promote a religious faith or religious organization.” The policy sounds pretty normal until you take a closer look at it.

That’s what the Eleventh Circuit Appeals Court has done, affirming the lower court’s ruling that this policy violated the plaintiff’s (Young Israel of Tampa) First Amendment rights. The advertisement Young Israel sought to place on HART property informed riders of the organization’s annual “Chanukah on Ice” event. It looked like this:

HART rejected the proposed ad outright. Young Israel appealed the decision, leading to a HART’s general counsel stating the ad might be ok once the menorah was removed, calling it a “religious-based icon.” Young Israel refused, stating the menorah was essential to the ad and the Jewish faith. HART responded by citing its policy again. Young Israel sued.

The lower court granted Young Israel a permanent injunction against the enforcement of this policy, stating that it was unconstitutional. The Eleventh Circuit [PDF] affirms this decision, for the most part.

In its appeal, HART asks us to overturn the district court’s summary judgment order and hold that its policy prohibiting advertisements that primarily promote a religious faith or religious organization is a permissible content (i.e., subject-matter) regulation of a nonpublic forum, and does not constitute improper viewpoint discrimination. We decline to answer this question of first impression—which has generated a small circuit split—because we affirm the district court’s alternative ruling that HART’s policy, even if viewpoint neutral, is unreasonable due to a lack of objective and workable standards.

It’s that last sentence that makes this decision extremely interesting, especially since there are likely dozens, if not hundreds, of government entities in the Eleventh Circuit that have similarly worded policies.

The biggest problem with this policy is that it doesn’t clearly define “religion,” which means advertisers can’t possibly know what is or isn’t permitted. Making things worse, HART itself doesn’t even know what is or isn’t permitted under this policy.

Significantly, HART acknowledges that “there is no specific training or written guidance to interpret its . . . policy.” Laurie Gage, an employee of HART’s advertising contractor, testified that, outside of HART’s written policy itself, there are no guidance documents, advisory opinions, or other materials available to help her implement or interpret the policy.

[…]

HART concedes that its policy allows “different people in the same roles [to] have different methodologies.” Although HART says that it is “not part of [its] practice” to review organizational websites to determine if an advertisement is primarily religious, Ms. Gage testified that she might review a religious organization’s website to determine if an advertisement is primarily religious depending on “[w]hat was going on with [her] day.” She explained that the application of the policy varies based on her understanding of the symbolism in an advertisement as religious. For instance, an advertisement featuring an image of Jesus Christ would result in her asking the organization whether it wanted to “pursue” the matter further, because she knows that “Jesus Christ is associated with religion.” But if she “didn’t know that,” “then [she] probably wouldn’t have a conversation, and [she] would just submit [the matter] to HART.”

In other words, religion is in the eye of whatever beholder is currently handling HART’s advertisement requests. If that person is only familiar with some religions, they might approve religious ads (in violation of policy) simply because they’re not familiar with the subject matter.

That’s a problem, says the Eleventh Circuit. And it’s a problem that doesn’t have a solution other than forbidding government entities from refusing to run ads government employees view as religion-based. The application of this policy by HART has been anything but sound and reasonable.

The concern about inconsistent application of the policy is not conjectural. As the district court explained, HART rejected an advertisement from St. Joseph’s Hospital based on information that the Hospital was “[f]ounded as a mission by the Franciscan Sisters of Allegany,” but said it would accept the advertisement if the Hospital used the name of its parent company, Baycare. Yet HART ran advertisements from St. Leo University—the oldest Catholic institution of higher education in Florida (established in 1889 by the Order of Saint Benedict of Florida)—without any changes because St. Leo is an “institution of higher learning, not a religious organization.” By that logic, why wasn’t St. Joseph’s Hospital considered a medical institution rather than a religious organization?

HART’s erratic application of its policy mirrors the problems identified by the Supreme Court in Mansky, 138 S. Ct. at 1891, and demonstrates that it is not capable of reasoned application. HART’s reference to some undefined abstract guidance that might have been (but was not) provided is insufficient to establish reasonableness. “

The concurrence digs even deeper into this. Judge Newsom says the problem isn’t just the ban on religious advertisements, the problem is the term “religion” is impossible to define with enough clarity to allow the government to regulate it without violating the Constitution.

The majority opinion says that the word “religious” has a “range of meanings.” That’s true, but colossally understated. Closer to the mark, I think, is the majority opinion’s recognition that the term “religious” is “inherent[ly] ambigu[ous].” Pretty much any criterion one can imagine will exclude faith or thought systems that most have traditionally regarded as religious.

Consider, for instance, one definition of “religious” that the majority opinion posits: “‘[h]aving or showing belief in and reverence for God or a deity.’” That, as I understand things, would eliminate many Buddhists and Jains, among others. Or another: “‘[b]elief in and reverence for a
supernatural power or powers as creator and governor of the universe.’” Again, I could be wrong, but I think many Deists and Unitarian Universalists would resist that explanation. And so it goes with other defining characteristics one might propose. Belief in the afterlife? I’m pretty sure that would knock out some Taoists, and presumably others, as well. Existence of a sacred text? My research suggests that at least in Japan, Shintoism has no official scripture. Existence of an organized “church” with a hierarchical structure?Neither Hindus nor many indigenous sects have one. Adherence to ritual? Quakers don’t. Existence of sacraments or creeds? Many evangelical Christians resist them. A focus on evangelization or proselytizing? So far as I understand, Jews typically don’t actively seek to convert non-believers.

Relatedly, what truly distinguishes “religious” speech from speech pertaining to other life-ordering perspectives? Where does the “religious” leave off and, say, the philosophical pick up? Is Randian Objectivism “religious”? See Albert Ellis, Is Objectivism a Religion? (1968). My gut says no, but why? How about “Social Justice Fundamentalism”? See Tim Urban, What’s Our Problem?: A Self-Help Book for Societies (2023). Same instinct, same caveat. Scientology? TM? Humanism? Transhumanism? You get the picture.

Given this, it would seem impossible to enforce policies restricting “religious-based” ads in any public area. If the term can’t be clearly defined, it subjects protected expression to subjective interpretations by government employees, which means any decision reached cannot be considered “reasonable” under the Constitution. So far, only HART is directly affected by this decision. But given what’s been handed down here, I would expect more constitutional challenges of state and local policies in the near future.

Filed Under: 11th circuit, 1st amendment, advertisements, chanukah on ice, florida, free speech, hart, religion, young israel

Colorado Journalist Says Fuck Prior Restraint, Dares Court To Keep Violating The 1st Amendment

Free Speech

from the one-finger-salutes-are-also-protected-speech dept

Most courts recognize prior restraint as a First Amendment violation. Most courts. Not all. And the lower you go on the judicial organization chart, the more likely you are to run into a judge who doesn’t seem to realize the Constitution exists.

The problem for people being sued in state and county courts is that it’s not a whole lot cheaper to get sued there. It’s definitely more of a hassle, especially when judges at this level are, generally speaking, seemingly less informed about [re-reads article] decades of precedent that renders their orders unconstitutional.

A Colorado journalist recently found himself on the receiving end of an unconstitutional gag order. But rather than play by the court’s unconstitutional rules/rulings (and waste his own time/money in the process), the journalist continued to gather documents and report on them, daring the court to continue ignoring the First Amendment. Here’s Seth Stern, reporting for the Columbia Journalism Review.

One Colorado journalist, Justin Wingerter of the Denver business-news outlet BusinessDen, isn’t standing for it. He’s refusing to comply with a prior restraint ordering him to return records that the court itself released. 

The ordeal arose from a case between the founders of a college-sports site called CaptainU and a company that bought the site and allegedly hadn’t made good on the purchase price. Judge Kandace Cecilia Gerdes of the District Court of Denver County granted the plaintiffs’ request to suppress filings that they said contained confidential and proprietary information. 

Wingerter submitted an open-records request for the documents, and the court clerk’s office complied. That prompted Judge Gerdes to issue an order on Nov. 30 demanding that Wingerter return the documents and destroy electronic copies. She also threatened to hold him in contempt if he disobeyed. Contempt of court is punishable by fines or jail time—though it’s questionable whether a judge has authority to hold in contempt a journalist who isn’t in their courtroom or a party to a case before the judge.

First off: lol. You can certainly order someone to destroy their own copies of digital documents. But you cannot (logically and legally) order someone to “return” PDFs, nor expect that they won’t be shared by others who have downloaded/shared these documents. An order like this is performative: it won’t change anything but it lets the person targeted by them know the judge is (ineffectually) angry and willing to cross even more constitutional lines.

The order issued by Judge Gerdes is even stupider than what’s shown above. As Stern reports, the order also bans Wingerter from obtaining copies of filings from this case without her explicit permission — an order that says public access to court filings and/or the state’s public records laws are not considered legal in her specific court.

Wingerter could have taken the easier (but more expensive!) way out. He could have filed motions to have the gag order lifted and engaged in further litigation to ensure he could continue to gather documents and report on them. But Wingerter went the other way: he decided the court was so wrong there was no reason to stop doing what he was doing.

Instead of pleading with the court to reverse course, Wingerter filed a “notice of reason for noncompliance” on Dec. 1. BusinessDen then published his report on the sealed records three days later. 

“We don’t feel that the judge has the power of prior restraint,” Wingerter said. “So we didn’t see any reason to stop the reporting process. We just continued doing our jobs.”

Wingerter is correct. From what’s been observed here, prior restraint is unconstitutional. And courts are not supposed to hand down unconstitutional orders. The end result was Wingerter informing [PDF] the court it could go fuck itself. He would not stop gathering documents and/or reporting on them. The ball is in the court’s… um… court. And that means the court must now say something constitutional that justifies this intrusion on his First Amendment rights.

Wingerter and his legal reps give Judge Gerdes far more respect than she deserves in this motion:

Movants respectfully request that Your Honor reconsider the Order Re: Requests for Suppressed Filings entered on November 30, 2023 (“Order”). The Order requires that “all documents obtained by any media outlet, including but not limited to those obtained by Justin
Wingerter of BusinessDen, shall be returned to the Court by hand-delivery, specifically Courtroom 275 (1437 Bannock St., Denver, CO 80202), by 4:00 p.m., on November 30, 2023.” It further states that “[a]ll electronic copies of said documents shall be permanently deleted from servers as well. Failure to do so will be considered contempt of this Court’s order.” And it further states that it is “ordered that any future attempt by any person/entity to obtain copies of filings in this case without the Court’s prior written order so authorizing disclosure will be considered a contempt of court.”

The order does not purport to prohibit publication of the information Mr. Wingerter lawfully obtained from the Court, nor could it do so consistent with the Constitution. Nevertheless, the Order, by requiring imminent return of physical documents and destruction of the information in its electronic form, appears designed to inhibit the media from reporting on that information. It also restricts the media (and everyone else) from engaging in lawful information-gathering activities. It is therefore unconstitutional under both the First Amendment to the United States Constitution and article II, section 10 of the Colorado Constitution. Accordingly, Movants respectfully decline to comply with the Order and urge the Court to vacate it.

IANAL, but I would have opened with “This order is unconstitutional and we refuse to comply with it. Your move, your honor.” I probably would have closed with that as well, serving Judge Gerdes’ court with a two-sentence motion. Then again, I’m not a lawyer. And my own money/time/freedom isn’t on the line here.

If the court system has a problem with Wingerter obtaining this information, it’s the court system violating the order, rather than the journalist. If Judge Gerdes wants to reshape the state court system via an unconstitutional order, she’s going to swiftly find out that’s not within her purview.

Mr. Wingerter obtained access to these court records simply by asking the Court for them. He submitted an open records request to the Court through an online form. This is ordinary, lawful, news-gathering activity. The Order purports to elevate such lawful activity, should it occur again by him or anyone else, to an offense punishable by contempt. But when the government makes information publicly available, whether on purpose or by mistake, it gives “implied representations of the lawfulness of dissemination.”

This is not a “close case.” This is not an unexplored margin of First Amendment law. This is not a novel set of circumstances where the court must make a ruling on first impressions. This is a violation of long-held and long-established law, court precedent, and the US Constitution itself. And, since it’s such a flagrant violation of all these things, Wingerter is completely in the right and fully justified telling the court (respectfully) he won’t be complying with its unconstitutional demands.

As CJR sees it, there’s no reason to play litigation footsie with judges who are clearly in the wrong. Sure, journalists and others should understand they do face the risk of being fined or jailed no matter how wrong the court is, but they also should feel free to blow off obviously unconstitutional orders to avail themselves of their rights. And the word “rights” is key: these are guaranteed. A court’s inability to respect them is secondary.

They say it’s better to ask for forgiveness than permission. But journalists don’t need either to publish government records. Outlets like BusinessDen should be commended for not stooping to ask. And the next censored news outlet should seriously consider doing the same.

That’s the lesson here. When you’re clearly in the right, there’s no reason to pretend courts and judges are worthy of deference. State your case clearly and dare them to make the next move. That’s the only way they’re going to learn from these mistakes. And the sooner you expose a judge who thinks the Constitution only applies to people who’ve never been charged with crimes or had a civil suit brought against them, the sooner that judge can be spotlighted, shamed, and (hopefully) encouraged to exit the judiciary.

Filed Under: 1st amendment, colorado, journalism, judge kandaces gerdes, justin wingerter, prior restraint, public records, transparency
Companies: businessden

Free Speech Experts Realizing Just How Big A Free Speech Hypocrite Elon Is

Free Speech

from the free-speech-means-something dept

On Monday, Elon Musk tweeted “To fear parody or criticism is a sign of weakness.”

If true, then this is Elon admitting to an astounding level of weakness. I mean, we’ve been chronicling for nearly two years now how Elon Musk talks a good game on free speech, but at every opportunity he’s had, he has not embraced actual free speech. Instead he’s worked hard to silence or punish those who say things critical of himself. This includes filing ridiculous lawsuits against two vocal critics.

But it’s way more than that. It’s become quite clear that Elon — especially — cannot handle criticism. If fearing criticism is a sign of weakness, Elon is among the weakest people I’ve ever come across.

And yet, incredibly, there are still lots of people insisting that he’s a “free speech absolutist” or that he bought Twitter to “bring free speech back.” Nothing has been further from the truth.

Thankfully, more actual free speech experts are coming to this conclusion. Trevor Timm, founder and executive director of the Freedom of the Press Foundation, has written a piece for the Guardian calling out Musk, noting that he’s “become the world’s biggest hypocrite on free speech.”

Timm and I both agree that the old Twitter could have done a much better job with its content moderation efforts, in a manner that is supportive of free speech, but Musk hasn’t even done that.

But that’s not what Musk, the self-proclaimed “free speech absolutist”, has created. He’s built a system that is the exact opposite of what he espouses, more arbitrary and more opaque than the old Twitter he relentlessly criticized – or Facebook or Instagram or any other social media platform, for that matter. And he uses his power to retaliate against his critics more than anyone this side of Donald Trump.

This is actually a key point. Even if you hated the way old Twitter moderated (and I criticized the company regularly), the simple fact is that Elon Musk’s setup is way worse. He’s still banning people, just much more arbitrarily and often based on his own whims. This is what people — falsely — accused the old Twitter of doing. But now Musk is doing it on a regular basis.

The only area in which he’s become open is in bringing back nonsense peddlers, grifters, and people spreading hate and bigotry (and then promoting their nonsense). You can argue that platforming and promoting hatred and nonsense is “pro-free speech” but eventually you end up with the Nazi bar reputation, and most of the more interesting and valuable speech moves elsewhere. It should be no surprise that ExTwitter’s traffic has been dropping since his takeover.

But, the free speech problems go much deeper. As we pointed out after Musk’s takeover, Twitter’s former exec leadership team took a strong pro-actual free speech stance in regularly fighting governments around the world. Musk, on the other hand has regularly caved to two-bit authoritarians around the world, agreeing to pull content down whenever they demand. Timm calls this out as well:

While his content moderation decisions get the most attention, what he has done behind the scenes is arguably worse. He gutted Twitter’s stellar legal department, which regularly stuck up for users’ actual free speech rights in court and attempted to protect their anonymity when powerful entities would sue to expose them. And then, after Musk’s first six months at the helm, Twitter went from challenging a good number of legal orders against its users to complying with 100% of them!

Timm also highlights how, at Musk’s push, state Attorneys’ General have started “investigating” Musk’s enemies for their vocal criticisms, which is the most obvious of 1st Amendment violations.

What makes matters worse is that some Republican state attorneys general – perhaps seeking favor in order to later fill their campaign coffers from the richest man in the world – are trying to piggyback on Musk’s enemy of the week. Texas attorney general Ken Paxton opened an “investigation” into Media Matters and the Missouri attorney general is following suit.

You don’t need to be a fan of Media Matters to see how this would be incredibly chilling if the shoe was on the other foot. Imagine if George Soros attempted to bankrupt every rightwing website that accused him of being behind various leftwing plots, as those sites do on almost a daily basis.

Of course, none of this is a surprise to anyone who’s followed Musk. When Musk first announced his plans to buy Twitter, we pointed that he had a long history of punishing people for speech he disliked. That included employees and even customers. Historically, Musk has shown that his instincts are deeply, deeply anti free speech. And Timm sees that as well:

Of course, this was all entirely predictable. At his own companies, Musk forces employees to sign restrictive non-disparagement agreements. He has tried to destroy whistleblowers. Tesla even once reportedly tried to get its customers to sign NDAs to get their cars repaired. There is no indication his professed principles are genuine.

Both Timm and I agree that it would actually be great if Elon were a principled free speech supporter, who understood what that term actually meant. However, Elon has shown by his actions for years (even before he purchased Twitter and renamed it) that he not only does not understand free speech, but that he is deeply antagonistic to its fundamental principles.

Elon Musk’s support of free speech isn’t just non-existent and hypocritical, but it’s actually giving free speech a bad name. It’s increasingly become an epithet. People mock those who actually support free speech, and push for greater restrictions on free speech. Musk and others like to blame the “woke mind virus” or some such nonsense, but the reality is that it’s hypocrites like Musk that encourage that sort of disrespect for the principles of free speech, because all the see is that the people who are the loudest going around talking about how they support free speech are a bunch of liars and hypocrites, quick to throw those principles out the window the second someone points out the emperor has no clothes.

Yesterday Elon Musk said that to fear criticism is a sign of weakness. Over the last few years, he’s proved that he’s Exhibit A.

Filed Under: elon musk, free speech, hypocrisy, hypocrite, trevor timm
Companies: twitter, x

No Love For The Haters: Illinois Bans Book Bans (But Not Really)

Free Speech

from the trading-compelled-speech-for-prior-restraint? dept

Across the nation, bigoted politicians (of the Republican variety, almost exclusively) are trying to punish and silence content and expression they don’t like.

It’s not like it’s even a close question about who’s doing this and why. A slew of bills targeting drag shows and LGBTQ+ writing have been tossed into legislatures all over the nation. Some of those have become law. Most of those that have become law have been challenged in court — challenges often followed swiftly by injunctions prohibiting their enforcement.

But that hasn’t stopped a very motivated, very ignorant subset of politicians from continuing to push laws that threaten civil liberties. And — win or lose — it hasn’t stopped a very determined, extremely minute subset of individuals from trying to make the United States a worse place to live for anyone who isn’t straight and white.

The Washington Post has published a series of articles on book bans and book challenges based on public records it has obtained. What politicians love to portray as a groundswell movement representing a majority of the nation are actually just the psychotic actions of extremely shitty people with far too much time on their hands.

According to an analysis by the Post, 60% of book challenges made in the 2021-2022 school year came from the same 11 adults. […] The majority of objections were on books authored by or about LGBTQ+ people or people of color. 

None of these people are worried whether or not children might have access to books like, say, Mein Kampf or The Protocols of the Elders of Zion or even the super-sexed up compositions of a dozens of romance novelists. Nope, the publications these 11 people (and the politicians who cater to them) are concerned with deal with certain topics these people would rather children had no knowledge of.

Nearly half of the challenges in The Post’s database, 43 percent, targeted titles with LGBTQ characters or themes.

[…]

Thirty-six percent of targeted books featured characters of color or dealt with issues of race and racism. Of the top 10 most challenged books in The Post’s database, five fell into this category: George M. Johnson’s “All Boys Aren’t Blue,” Toni Morrison’s “The Bluest Eye,” Jonathan Evison’s “Lawn Boy,” Ashley Hope Pérez’s “Out of Darkness” and Angie Thomas’s “The Hate U Give.”

The good news is that none of this shit is going to fly in Illinois. A bill [PDF] signed by Governor JB Pritzer last year took effect January 1st. It’s a ban on book bans, and it means the tactics deployed by the 11 people noted above (along with groups like Moms for Liberty) won’t be nearly as effective in Illinois as they have been elsewhere.

The new law contains a statement of intent from state legislators:

It is further declared to be the policy of the State to encourage and protect the freedom of libraries and library systems to acquire materials without external limitation and to be protected against attempts to ban, remove, or otherwise restrict access to books or other materials.

It sounds pretty good until you look at the text of the law, which leaves it up to publicly-funded libraries to fight back against censorship with no guarantee the state of Illinois will always have its back. The law ties state funding to ban resistance at the library level — something that can easily be overridden by future laws that might, say, tie funding to complying with state or local-level book bans.

In order to be eligible for State grants, a library or library system shall adopt the American Library Association’s Library Bill of Rights that indicates materials should not be proscribed or removed because of partisan or doctrinal disapproval or, in the alternative, develop a written statement prohibiting the practice of banning books or other materials within the library or library system.

Cool, I guess. If the legislative intent is just “Hey, don’t ban books or we’ll take your money,” mission accomplished. Sure, this might make it easier for libraries to reject book challenges by pointing challengers to the law that ties funding to open access to content. On the other hand, adopting a private party’s “bill of rights” isn’t going to protect the state’s libraries from being forced to cooperate with book bans handed down by state or local politicians.

To actually protect libraries against current and future enemies, the state needs to codify this prohibition of book bans at the state level. And it should do this. There’s no reason it shouldn’t. Protecting libraries from future book bans isn’t going to turn libraries into vast repositories of pornography. All it’s going to do is protect libraries (and their users) from content bans the next time the prevailing political winds shift.

Sure, this makes it slightly more difficult for state pols to enact book bans that target public libraries by tying their funding to these stipulations. But those most likely to push statewide book bans don’t really care whether or not people have free access to published works. All that matters to them is that certain works dealing with certain subject matter written by certain people won’t be available to anyone who doesn’t have cash on hand to purchase these works.

Nice try, Illinois. But try harder. This is barely better than nothing at all.

Filed Under: 1st amendment, book bans, free speech, illinois, jb pritzker, libraries

Because The Fifth Circuit Again Did Something Ridiculous, The Copia Institute Filed Yet Another Amicus Brief At SCOTUS

Free Speech

from the deja-brief-number-two dept

It was a busy December for the Copia Institute (and me), even just at the U.S. Supreme Court. In addition to filing (along with Bluesky and Mastodon admin Chris Riley) an amicus brief supporting NetChoice and CCIA in their combined cases, we also filed another one challenging the bizarre injunction imposed by the Fifth Circuit preventing the Biden Administration from communicating with technology companies.

Unlike in the NetChoice cases, where we supported their position, in this case, now captioned as Murthy v. Missouri, we filed in support of neither party. As we noted in our brief, we agree with the Biden Administration that the injunction is invalid and needs to be dissolved. But the interests that the Administration is seeking to vindicate – its own – are not the same as the interests we were trying to advance – namely everyone else’s, which this injunction threatens, even though no platform was ever a party to the litigation. It is also theoretically possible that the executive branch of the government could at some point exceed its constitutional bounds to pressure how others exercise their expressive rights. We disagree with the plaintiffs in this case that the executive branch so overstepped here, but would agree that if it did happen there should indeed be some remedy. But we filed this brief because no suitable remedy could ever look anything like what the Fifth Circuit came up with. Far from protecting anyone’s First Amendment rights, the Fifth Circuit itself instead became the state actor itself attacking them.

This case is separate from the NetChoice cases, but the issues raised in all of them are similar. The NetChoice cases address whether those who run Internet platforms have their own First Amendment rights in how they run them. We argued in those cases, and have argued all along, that the answer must be yes, and that just like a newspaper can choose what articles to run a platform operator must be free to choose what user expression to facilitate or moderate away. And just because some platforms are run by entire companies shouldn’t change that analysis; the same freedom that someone like Chris Riley as an individual has to run his platform as he personally wishes shouldn’t be extinguished just because lots of individuals have gotten together to decide how to run their platform together.

But that expressive freedom is violated by the Fifth Circuit’s injunction in at least two big ways. One way is similar to how the states of Florida and Texas have tried to attack that editorial freedom at issue in the NetChoice cases. In all these cases, how platforms operate their sites is ending up subject to government control. In the NetChoice cases it is by the states themselves, seeking to override the platforms’ discretion via statutes, whereas in this case it is by the courts, through the use of the injunction that inherently shapes how platforms can do their moderation. The effect in all these cases is the same: platforms are no longer free to run their sites as they see fit; instead their choices are being constrained by government interference.

Because here the upshot to the injunction is that platforms can no longer make moderation decisions if those decisions happen to agree with those ever expressed to them by someone in the executive branch of the federal government. Platforms must therefore either make their decisions in an information vacuum, without any input from agencies that may have expertise in the subject the platforms might have wanted to consult, or, in the wake of any consultation, they can only choose to do the opposite of what the agency might have suggested. Per the Fifth Circuit, any consultation would otherwise inherently taint the decision and make it something the platforms can no longer freely choose to act in accordance with.

But the injunction doesn’t just violate platforms expressive rights to operate their sites as they see fit; it also chills their petitioning rights. The petitioning right exists in large part because democracy depends on the people being able to communicate their will to those who represent them. But this injunction interferes with the ability of the public to talk to their government by inhibiting government officials from engaging in those conversations.

And they are so inhibited even if the platforms want to have those conversations. As we pointed out in the brief, the Fifth Circuit had an infantilizing view of platforms, as if it could not imagine any reason that a platform would have for engaging with executive branch agency expertise except in order to receive instructions for how to moderate in accordance with executive branch wishes. It could not conceive that a platform might want to, say, inquire with an agency with expertise in vaccines as it sought to develop a good moderation policy on medical disinformation, or one with expertise in election security when trying to develop a moderation policy addressing disinformation in that area. In the Fifth Circuit’s view all such conversations were inherently corrupt and for no other purpose than to immediately conscript the platform to do the executive agency’s bidding. And so, thanks to the injunction, platforms no longer get to have those conversations, no matter how much they would want to have them.

But if all the above wasn’t bad enough, there was another problem with the Fifth Circuit decision that we highlighted in our brief, relating to the plaintiffs and the court finding standing to even entertain their claims, let alone grant an injunction based on them. This case was weird because it was brought by an unholy alliance of both private plaintiffs and state plaintiffs. As explained above, the private plaintiffs should not have been entitled to injunctive relief by the courts: even if their rights had been violated – and as we explained in the brief, they had not been – the court shouldn’t be able to remedy a rights violation by violating the rights of someone else. But for the court to have granted the state plaintiffs, Louisiana and Missouri, standing to bring their claims against the platforms represented its own constitutional horror. After all, as states, these plaintiffs are themselves state actors. And these state actors wanted to be able to force platforms to exercise their expressive rights as they preferred. Unlike Texas and Florida in the NetChoice cases, which tried to do it themselves, here Louisiana and Missouri tried to use the courts to do it. And, bizarrely, the courts let them.

Worse, by crediting the idea that these states had their own First Amendment rights (as states!) to be vindicated in this litigation, the Fifth Circuit validated the proposition that the states were somehow entitled to co-opt platforms to advance their own speech interests. But such co-opting is not what the First Amendment allows. As we reminded the Supreme Court, its own decision in 303 Creative made clear that states did not have the power to force platforms to favor certain speech. But by allowing Missouri and Louisiana to advance claims challenging how platforms exercised their speech rights, the Fifth Circuit handed these states the very power the Supreme Court just last year reminded that they did not have.

Filed Under: 1st amendment, coercion, content moderation, free speech, jawboning, louisiana, missouri, murthy v. missouri, petitioning rights, vivek murthy

Millions Of People Are Blocked By Pornhub Because Of Age Verification Laws

Free Speech

from the it’s-not-about-losing-access-to-pornhub dept

On January 1, 2024, the parent company of Pornhub.com geo-blocked adult users in the states of Montana and North Carolina. Aylo, the site’s corporate parent, said they did so in protest to laws these states adopted requiring adult platforms to verify their users’ ages through various age-check tools.

This isn’t the first time Aylo geo-blocked IP addresses from an entire U.S. state. Utah, Virginia, Mississippi, and Arkansas were the first states to be blocked. Despite an age verification statute, Texas isn’t geo-blocked because Aylo’s owned properties — among other adult firms — are currently locked in litigation with Attorney General Ken Paxton. Louisiana was the first state in the union to implement an age verification statute exactly one year ago, January 2023, after the legislature passed the law in 2022. 2024 will be just as aggressive, with more states proposing these bills.

About 63.8 million Americans live in jurisdictions where mandatory age-gating for pornography website access is the law. That is a little over 19 percent of the entire U.S. population. Six of the eight states — 29.61 million people — are geo-blocked by Pornhub. Louisiana isn’t geo-blocked, but the Aylo-owned sites have lost significant web traffic in that digital space since adopting an age verification tool that integrates with Louisiana’s digital wallet mobile application. 29.61 million is about 9 percent of the entire U.S. population. Nearly one in five Americans have to comply with an age verification law in order to access porn sites. Nearly one in ten Americans cannot access Pornhub, one of the world’s most popular adult entertainment platforms, without a VPN.

It’s important to note, that this has nothing to do with the fact that people can’t watch porn on a particular platform. Rather, it has everything to do with the fact that state legislatures that are predominantly controlled by authoritarian control freaks are forcing their worldview on people in violation of the First Amendment. That’s the issue here. 

Despite ongoing litigation, the Free Speech Coalition, Aylo, and other parent companies of the largest pornography platforms in the world made a case that these one-sided age verification laws — referred to as “copycat” bills in the adult industry press — violate the civil liberties of adult users and companies producing or distributing consensual age-restricted materials online. In a report I produced for AVN.com, age verification is “an infringement on the First Amendment rights of adults who are consensually accessing online pornography.” When First Amendment rights for porn are stripped, First Amendment rights for everything else are stripped. Millions of people are having their rights trampled. It may seem trivial to some, but having the ability to see porn on the internet is just as important as looking up Bible verses or watching conservative TV.

Michael McGrady covers the legal and tech side of the online porn business, among other topics. He is the politics and legal contributing editor for AVN.com.

Filed Under: 1st amendment, adult content, age verification, free speech, geo-blocking, montana, north carolina, porn
Companies: aylo, pornhub

Federal Court Says First Amendment Protects Engineers Who Offer Expert Testimony Without A License

Free Speech

from the look-who's-(capable-of)-talking-(without-fear-of-being-fined) dept

Regulatory agencies can often be an essential part of day-to-day life, preventing people from engaging in activities they have no expertise in — something that could potentially endanger a lot of people. But they can also be overbearing brutes whose only concern is whether or not they’ve managed to extract as much money as possible from people who are experts in their field but have no desire to pay for the privilege of utilizing their skills.

In Oregon, a sequence of events involving an “unlicensed” engineer who had things to say about traffic light timing resulted in the state licensing board apologizing to Mats Jarlstrom for (expertly) saying things the government didn’t want to hear. Jarlstrom’s ended up with a complete win, with his (unlicensed) research on yellow light timing making it clear cities were putting people in danger by shortening yellow light times for the sole purpose of increasing revenue via traffic citations.

A similar thing is happening in North Carolina. Retired engineer Wayne Nutt was told by the North Carolina Board of Examiners and Surveyors to stop offering his expert opinion on engineering matters, even though he was fully qualified to do so. The only thing he was missing was a permission slip from the state board in the form of a professional engineer’s license.

Nutt refused. He decided to sue instead, represented by the Institute for Justice. He has obtained his first victory, in the form of a federal court decision [PDF] that says his expert opinion is protected by the First Amendment and cannot legally be silenced by the state. (via Volokh Conspiracy)

Here’s Nutt’s background:

Nutt worked as a chemical engineer from 1967 to 2013. He never obtained a professional engineering license because he qualified to practice engineering under the industrial exception of the licensing requirement in North Carolina. A portion of his responsibilities involved overseeing the design, construction, and repair of building trench systems to manage both stormwater and potential chemical spills at his work facility. As a result, he developed expertise in hydraulics, fluid flow, and piping systems.

Since his retirement, he has continued using his expertise to support the efforts of various local interest groups. He has testified to the Wilmington City Council regarding the flaws he identified in a development proposal’s traffic impact study. He has also testified about an error he discovered in a development plan’s calculation of the capacity of a stormwater detention pond. His opinion and recommendations led to meaningful changes in the design of those projects.

A long career followed by an unpaid career in public service. None of this was a problem until Nutt tried to offer his expert testimony in a 2020 lawsuit against the county government over allegedly negligent storm drain design that had contributed to additional flooding during Hurricane Florence.

At that point, the government had had enough of Nutt and his expert interloping. The government’s lawyers said allowing Nutt to testify in this case would “constitute the unauthorized practice of engineering.” It made an attempt to silence him by sending him an email suggesting he would be breaking the law if he chose to offer his testimony, leading off by informing him he was not even legally allowed to refer to himself as an “engineer.”

The Board sent an email, explaining that an unlicensed individual cannot publicly use the term “engineer” in their descriptive title or offer testimony likely to be perceived by the public as “engineering advice.” The Board also provided a position statement–the focus of Nutt’s claim–warning that “testimony impacting the public,” including “expert witness testimony on engineering … matters in the courtroom … or during depositions” and testimony based on “engineering education, training or experience,” requires licensing. The statement also indicated that expert reports are also “evidence of the practice of the profession.” The Board stated that it “has proceeded against unlicensed individuals … for the unlicensed practice of engineering.”

Nutt testified anyway. The irritated board responded with some “per our previous email” saber rattling. Then the expert witness testifying for the government filed a formal complaint against Nutt, accusing him of engaging in unlicensed engineering. A couple of months later — following an “investigation” by the state board, Nutt received another email informing him he had broken the law and that he would likely be fined/cited if he insisted on offering his expert opinion during litigation involving the government.

The court says the emails and the threats they contained are enough to both show standing and demonstrate Nutt has a reasonable fear of prosecution if he continues to offer his expert opinion on engineering matters.

The state tried to moot the lawsuit by claiming the board was no longer pursuing any action against Nutt because the case he testified in had been dismissed. Not good enough, says the court. And stop pretending you didn’t do the things you did while that litigation was still a going concern. (Emphasis in the original.)

At oral argument, the Board argued that Nutt should no longer reasonably expect prosecution for providing engineering testimony as an expert witness because it has not tried, and will not try, to prohibit Nutt from testifying as an expert witness. But the Board has tried to prohibit Nutt’s speech. Moreover, renouncing its pre-filing enforcement position, while denying the true nature of its past practices, does not “make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”

In hopes of exiting this lawsuit, the state dug its own hole with a combination of contradictory assertions and concessions to certain arguments made by Nutt. It all adds up to a First Amendment violation.

As mentioned above, Nutt seeks a judgment declaring that the Act, as interpreted and enforced, violates the First Amendment, both on its face and as applied to him and others similarly situated. He also seeks a permanent injunction allowing him and others similarly situated to testify about topics that require engineering knowledge without first obtaining an engineering license. The Board has conceded on paper and at argument that it will not enforce the Act to prohibit Nutt and others similarly situated from testifying on engineering matters.

As explained above, this concession does not render the parties’ dispute moot. It does,however, make clear that the Board does not contest Nutt’s core claim. Namely, the prohibition on unlicensed expert engineering testimony violates the First Amendment. Therefore, in light of the parties’ positions, the court will accept that claim as applied to Nutt. The court will also enjoin the Board from enforcing the Act against Nutt for testifying about topics that require engineering knowledge without first obtaining an engineering license.

The court acknowledges that the licensing program helps protect the public by ensuring those offering engineering services are actually capable of performing that job competently. But telling qualified engineers they’re not allowed to speak publicly about these matters without the permission of the board violates their rights. The government is always free to seek to have testimony from unlicensed engineers thrown out of court or otherwise seek to have this testimony blocked from admission. What it can’t do is pursue criminal proceedings against engineers for speaking.

At its core, this case concerns the extent to which a law-abiding citizen may use his technical expertise to offer a dissenting perspective against the government. Stating that dissent required the speaker to use his expertise in several ways. He had to do some math. He had to apply recognized methodologies. He even had to write a report memorializing his work. Some of that work may plausibly be considered conduct. But it ends up providing him the basis to speak his mind. Thus, although the government may properly exercise its interests in policing the use of technical knowledge for non-expressive purposes, those interests must give way to the nation’s profound national commitment to free speech in this case. At the very least, the government had to show that it seriously considered less restrictive alternatives before targeting pure speech. The government failed to meet its obligations under the First Amendment.

That’s pretty cut and dry. The board is still welcome to regulate the act of engineering. But it has no business regulating their speech.

Filed Under: 1st amendment, engineering license, expert witness, license, north carolina, wayne nutt

Sending Cops To Search Classrooms For Controversial Books Is Just Something We Do Now, I Guess

Free Speech

from the bigots-sure-love-them-some-fascism dept

Thanks to politicians (including a former president) being overly willing to scratch the bigoted itch of a voting bloc that appears to prefer the brutal caress of fascism to the freedoms of a democratic republic, far too many state and local legislators are crafting and enacting laws designed to relegate a whole lot of the nation to the lower echelons of society.

These are people who believe they’re Norman Rockwell characters residing in disturbingly lit Thomas Kinkade houses. They believe they have the moral high ground, if only because they say weird stuff about God while going about government business. They claim they’re worried about the children. But they don’t actually care about the children. They only care whether this supposed concern can be leveraged to demean and destroy people they don’t like.

The same people who claimed to care so much about children that they worked tirelessly to enact abortion bans are the same people that would rather see underprivileged children go hungry than accept federal funding for food programs. They believe children should be discouraged and destroyed if they question the status quo being erected by this disturbing group of politicians — ones who appear to believe the road to hell is paved with open minds.

All over the nation we’re seeing book bans targeting (almost exclusively) LGBTQ+ writers and/or content. We’re seeing expansions of existing obscenity laws to cover artistic performances by and for LGBTQ+ people.

And now, in Massachusetts, we’re seeing something we haven’t seen elsewhere. At least not yet. But, rest assured, this definitely won’t be the last time we see something like this:

Someone called the police last Friday.

About a book.

What happened next outraged the school community and left them in disbelief.

After the complaint, Great Barrington police and the Berkshire District Attorney’s Office began investigating whether the illustrated novel, “Gender Queer” by Maia Kobabe, was inappropriate content for an eighth grade classroom at W.E.B. Du Bois Regional Middle School.

The book was made available as a resource by an English teacher.

The new thing isn’t some idiot thinking the best way to handle a complaint about a book is to call the cops. No, the new thing we (in the royal sense) definitely shouldn’t be doing is what happened during the course of this investigation that never should have been initiated in the first place.

After the call came in, Police Chief Paul Storti notified Peter Dillon, superintendent of the Berkshire Hills Regional School District, that police were investigating the complaint and referring it to the DA’s Office.

After school let out, Principal Miles Wheat escorted a plainclothed town police officer to the classroom to investigate the potential crime of “obscenity.”

The search failed to turn up the supposedly “obscene” book. The officer (who has not been identified) left empty-handed. Later that same day, the district attorney’s office told the school the investigation was closed and that any questions about whether the book was appropriate for eighth graders was something the school itself needed to address, which is what should have happened in the first place.

When the Great Barrington PD received this complaint, they should have told the caller to take it up with the school. What it definitely should not have done is open an investigation. It very fucking definitely shouldn’t have sent an officer to a classroom to search for the book.

More details continue to emerge as The Berkshire Eagle digs into this:

The plainclothed police officer who entered an eighth grade classroom to search for a book wore a body camera and recorded the incident, leading to more legal questions and concerns. 

The American Civil Liberties Union and other free speech advocates say they are alarmed by the recording, as well as the entire Dec. 8 incident that took place after classes let out at W.E.B. Du Bois Regional Middle School.

They also say they cannot recall any instances of police going to a school to search for a book. Schools and libraries have internal procedures for book challenges. 

As for the school district, it has issued an apology for not handling this better.

“Faced with an unprecedented police investigation of what should be a purely educational issue, we tried our best to serve the interests of students, families, teachers and staff. In hindsight, we would have approached that moment differently. We are sorry,” the letter said.

I guarantee this sort of thing won’t remain an anomaly. There are groups being formed for the sole purpose of raising challenges targeting LGBTQ+ content and creators. They’re the sort of people who complain about being “censored” when they’re kicked off social media services but are more than willing to truly censor others by getting the government involved every time they come across content they don’t like. Those who don’t lack the self-awareness to recognize this hypocrisy simply don’t care how they come across or what they do, just as long as it hurts the people they hate.

Filed Under: 1st amendment, berkshire hills regional school district, book banning, books, gender queer, great barrington, libraries, massachusetts, miles wheat, obscenity, paul storti, peter dillon, police, school libraries, schools, w.e.b. du bois regional middle school

Utah Finally Sued Over Its Obviously Unconstitutional Social Media ‘But Think Of The Kids!’ Law

Free Speech

from the but-why-won't-you-think-of-the-children dept

Last year, we wrote a bunch about how the Utah legislature was rushing through a bill to destroy the internet by claiming they were doing it “for the children.” There were all sorts of obvious problems with the bill, and even though it was clearly unconstitutional, Utah Governor Spencer Cox not only signed it, but literally dared people to sue the state over the bill (somewhat ridiculously, he made sure to stream the signing of the bill on all of the websites he was looking to hinder with the bill).

And then… nothing. Oddly, while many of us expected a lawsuit, none appeared. Lawsuits had been filed to block other laws, such as those in Texas, Florida, California, Arkansas, New York, and more… but nothing about the Utah bill, which was one of the most high profile. A few months ago I even started a blog post asking why no one had sued Utah yet, but never got around to finishing it. A few weeks back there was a report that once Utah’s legislature goes back into session in early 2024, that the sponsor of the bill, state Senator Mike McKell, would be offering amendments to the law, because he knows it’s unconstitutional, and he was trying to “inoculate” the bill from the inevitable lawsuit.

And, then, finally, last week NetChoice (which has filed many of the other challenges to state bills) announced that it had finally sued Utah over the bill.

Our company, NetChoice, is dedicated to protecting American values online. Today, we are suing the state of Utah to stop this package from going into effect in March. We have already won successful challenges against California and Arkansas for trying to impose similar restrictions.  

It doesn’t have to be this way. NetChoice has been repeatedlyspeaking with Utahlawmakers about these problems since the two laws, SB 152 and HB 311, were introduced in the legislature. States like Florida and Virginia have passed bills that embrace a positive approach for digital literacy. Unfortunately, Utah’s government took a path that seizes control of the online experience from parents, disregards the importance of education, sidelines the state’s vibrant creator economy, compromises data security and violates constitutional rights. 

“NetChoice believes that families equipped with educational resources are capable of determining the best approach to online services and privacy protections for themselves. With NetChoice v. Reyes, we are fighting to ensure that all Utahns can embrace digital tools without the forceful clutch of government control,” said Chris Marchese, Director of the NetChoice Litigation Center. “Now that these tools are prominent in our lives and important for our economy, young people should learn how to harness their power while developing healthy and safe habits.”

The complaint is worth reading. It lays out in pretty clear ways how obviously unconstitutional the bill is:

At the outset, the entire Act violates the First Amendment and the Due Process Clause because it depends on a vague and content-, speaker-, and viewpoint-based definition of a regulated “social media company.” § 13-63-101(9). Through a series of vague definitions and exceptions with arbitrary thresholds, the Act singles out some Internet websites for regulatory burdens based on, among other things, the content they disseminate. The same speech may be heavily regulated—or not regulated at all—based on who is speaking, what is being said, and what website it is being said on. For instance, YouTube must comply with the Act’s burdensome requirements. But Netflix is exempted, under at least three exceptions: (1) as a “streaming service”; (2) as a service “where the predominant or exclusive function is . . . entertainment”; and (3) as a service that does not allow users to “upload posts.” § 13-63-101(10)(a)(ii), (b)(i)(C), (b)(i)(D). As another example, X (formerly known as Twitter), Bluesky, Gab, and Truth Social all allow users to discuss the issues of the day and share similar content. But while X must comply with the Act, Bluesky, Gab, and Truth Social are exempted under the law’s arbitrary 5-million account threshold. § 13- 63-101(9)(a). Nextdoor appears to be covered by the Act, but if it restricted its community’s discussions to “public safety,” it would not be. § 13-63-101(10)(b)(i)(I). Minors must secure parental consent (and adults and minors would need to verify their ages) to engage in “interactive gaming” on Facebook, but not on websites like Roblox “where the predominant or exclusive function is . . . interactive gaming.” § 13-63-101(10)(b)(i)(F). Anyone searching for a new job on a covered website must jump through similar age-verification hurdles (and minors must secure parental consent), but not on websites providing “career development opportunities.” § 13-63-101(10)(b)(i)(J). These are just some of the nonsensical consequences of the Act’s multiple content-, speaker-, and viewpoint-based distinctions. Those distinctions all give rise to strict scrutiny, which the Act cannot satisfy. That alone is a sufficient basis to enjoin Defendants from enforcing the Act.

Other issues with the bill, like those in other states, is the effective requirement to age verify all visitors, which multiple courts have noted is, by itself, a clear 1st Amendment violation (not to mention a privacy problem). Also, its prohibition on showing “personalized” content to kids is ridiculous on multiple levels, including that if you can’t personalize content to kids, then… um… how do you remove content that is inappropriate for children from their feeds?

There’s a lot more in there as well. The Utah bill is so over-the-top obviously unconstitutional that I’m still confused as to why it took this long to sue. I had assumed the lawsuit would come pretty fast, though the fact that the bill wasn’t even set to go into effect until March of 2024 may have made it seem not as urgent. I heard a few rumors that not all of the big tech companies wanted to fight the bill, and some were willing to go along with Utah’s law because they know they can handle it while others cannot (take a guess where I got that idea from…). But, thankfully, NetChoice has finally stepped up to challenge this law.

There are so many bad ideas in this legislation that this is an important challenge and one worth following closely. While much of the case revolves around the 1st Amendment, there is also an important bit about Section 230 pre-emption in there. As you’ll recall, Section 230 pre-empts state laws from putting liability on interactive computer services for third party speech because, that would lead to an impossible situation for websites. But the states keep ignoring this with these laws, and this case calls that out:

Section 230 provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). Section 230 preempts “inconsistent” state laws. Id. § 230(e)(3). The Tenth Circuit has held that “§ 230 forbids the imposition of publisher liability on a service provider for the exercise of its editorial . . . functions.” Ben Ezra, 206 F.3d at 986 (citation omitted).

Covered member websites are “interactive computer services” and disseminate “information provided by another information content provider.” 47 U.S.C. § 230(c)(1), (f)(2). Indeed, the “prototypical service qualifying for this statutory immunity is an online messaging board . . . on which Internet subscribers post comments and respond to comments posted by others.” FTC v. Accusearch Inc., 570 F.3d 1187, 1195 (10th Cir. 2009).

Advertisements on these websites can be created and posted on the websites by third parties, including both third-party advertisers and users of the websites who may use or include “advertising” in their user-generated content. In some cases, this may be as simple as a creator mentioning a new movie or book in a piece of user-generated content. In all such cases, such advertisements are “information provided by another information content provider.” 47 U.S.C. § 230(c)(1).

Section 230 protects websites’ decisions to publish (or not to publish) third-party advertisements—whether those ads are paid content placements or user-generated content. It would be “inconsistent” with Section 230(c)(1), id. § 230(e)(3), to impose liability on websites for “display[ing]” third-party advertisements to minors, § 13-63-103; see, e.g., Calise v. Meta Platforms, Inc., 2022 WL 1240860, at *3 (N.D. Cal. Apr. 27, 2022). Moreover, Section 230 preemptsrequirements to proactively “monitor third-party content.” HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676, 682 (9th Cir. 2019); Airbnb, Inc. v. City of Boston, 386 F. Supp. 3d 113, 123 n.11 (D. Mass. 2019) (similar). Such requirements would unlawfully “treat[]” websites “as the publisher or speaker of . . . information provided by another information content provider.” 47 U.S.C. § 230(c)(1).

Hopefully, the court in Utah recognizes the problems of this law the way courts in (most) other states have also called out these unconstitutional laws.

Meanwhile, NetChoice moved almost immediately for a preliminary injunction blocking the law from going into effect. As the motion makes clear, moral panics happen with all sorts of new media, and that doesn’t make it okay to limit access to those new forms of communication:

New mediums of expression continually emerge, evolve, and reinvent the ways that we speak and engage. Yet governments too often try to regulate those new mediums, fearing that widespread adoption may be harmful. A common refrain among lawmakers is that the nature of a new technology requires limiting minors’ access to the protected speech, ideas, and content available via these mediums because new channels of expression may endanger or harm our youth

The Supreme Court has consistently rejected State control of the mediums minors use to access speech—such as “dime novels,” “[r]adio dramas,” “movies,” “comic books,” “television,” “music lyrics,” or “video games”—as contrary to the First Amendment. Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 797-98 (2011). Moreover, the Supreme Court has made clear that minors “are entitled to a significant measure of First Amendment protection” and that the State lacks “a free floating power to restrict the ideas to which children may be exposed.” Id. at 794 (cleaned up). Those protections apply with particular force when laws impeding minors’ access to speech may also affect adults’ access to speech. See Ashcroft v. ACLU, 542 U.S. 656, 667 (2004); Reno v. ACLU, 521 U.S. 844, 882 (1997); NetChoice, LLC v. Bonta, 2023 WL 6135551, at 13 (N.D. Cal. Sept. 18, 2023); NetChoice, LLC v. Griffin, 2023 WL 5660155, at 21 (W.D. Ark. Aug. 31, 2023).

The Utah Social Media Regulation Act should likewise be rejected as an unconstitutional attempt to regulate minors’ ability to access, speak, hear, share, and otherwise engage in protected speech. Social media websites allow minors and adults alike to “engage in a wide array of protected First Amendment activity on topics as diverse as human thought.” Griffin, 2023 WL 5660155, at *5 (cleaned up). 1 Yet the Act requires a content-, viewpoint-, and speaker-based subset of covered websites to, among other things: verify all users’ ages, obtain parental consent before allowing minors to hold accounts, obtain information about minors’ and parents’ identities, and block minors’ access to these websites during a 10:30 p.m. to 6:30 a.m. curfew. §§ 13-63-102, -105. 2 But the Act exempts dozens of categories of comparable websites that disseminate the same or similar speech. The Act’s bans and restrictions also impede adults’ ability to access and engage in protected speech on covered websites. Decades of First Amendment precedent prohibit all of this.

Hopefully this will be quickly granted — the looming March deadline when the law goes into effect creates some element of time pressure — but like all these laws, I assume there will be a long appeals process as well.

Filed Under: 1st amendment, free speech, michael mckell, protect the children, sean reyes, social media regulation act, spencer cox, utah
Companies: netchoice

The EU’s Investigation Of ExTwitter Is Ridiculous & Censorial

Free Speech

from the bureaucrats-should-not-be-determining-speech-policy dept

People keep accusing me of criticizing Elon Musk because I “hate” him. But I don’t hate him, nor do I criticize him out of any personal feelings at all, beyond thinking that he often is hypocritical in his decision making, and makes decisions that defy common sense and logic. But when he does the right thing, I’m equally happy to call it out positively.

And while I’ve seen some people cheering on the EU’s new investigation of ExTwitter under the DSA (Digital Services Act), I think it’s extremely problematic and hope that Elon fights it. As we’ve explained, the DSA — while more thoughtful and careful in its approach than most US legislation about social media — remains a tool that can be abused for censoring speech.

Supporters of the DSA kept insisting to me that it would never be used that way, while wink-wink-nudge-nudging that if it didn’t magically stop ill-defined bad content online then it had somehow failed.

And thus, it was quite notable when the EU’s unelected technocrat enforcer, Thierry Breton, started threatening ExTwitter and other Silicon Valley companies earlier this year. The most notable thing was that Breton lumped together illegal content (which the sites are required to take down) and “disinformation,” which (in theory!) they’re not required to take down, but are supposed to have some form of best practices for responding to.

Breton lumped the two together, falsely suggesting that websites were required to remove disinformation under the DSA, which would be quite problematic, given that there is no agreed upon definition of disinformation, and often there are extremely conflicting beliefs about what is and what is not disinformation.

And, yet, this new investigation seems focused on exactly that, among other things:

• The effectiveness of measures taken to combat information manipulation on the platform, notably the effectiveness of X’s so-called ‘Community Notes’ system in the EU and the effectiveness of related policies mitigating risks to civic discourse and electoral processes.

This feels extremely heavy handed and really none of the EU’s business. Community Notes, while not a replacement for a full trust & safety effort, is a really unique and worthwhile experiment (and one that I’d like to see other sites implement as well). How exactly does one judge the “effectiveness” of the system and how is that the EU’s business?

Similarly, this seems really sketchy as well:

• A suspected deceptive design of the user interface, notably in relation to checkmarks linked to certain subscription products, the so-called Blue checks.

I mean, yes, Elon fucked up the whole “blue check as a marker of authority” concept by selling them, rather than using it as part of an actual verification system, but again, calling it “deceptive design” seems like a ridiculous statement, and suggests that the EU now feels it’s reasonable to critique product choices by companies.

Even if we think Elon’s choices around this were dumb and wholly counterproductive, that really shouldn’t be for the government to step in and decide.

And, of course, by kicking off this investigation over such silly things, it really undermines what might be legitimate concerns and areas of investigation, making the whole process — and the DSA itself — appear to be less credible.

Still, I can’t help but close this story with a bit of a “told ya so” directed at Elon. Remember, weeks after announcing his intention to purchase Twitter, Elon sat down with Breton and gave a full throated endorsement of the DSA approach. At the time, we warned him that if he really supported free speech, he’d actually be speaking out about the risks for free speech under the DSA (something old Twitter did in pushing back against earlier drafts of it). But instead, he told Breton that he agreed with this approach. And now he’s its first victim.

I hope that he has ExTwitter fight back against this intrusion, as that would help make it clear that the DSA’s rules should not get this deep into the level of tinkering with content on a site or with random features of a site the EU dislikes.

Filed Under: community notes, deceptive design, dsa, elon musk, free speech, investigation, thierry breton, verification
Companies: twitter, x