Joseph Gordon-Levitt Goes To Washington DC, Gets Section 230 Completely Backwards

from the that's-not-how-it-works-at-all dept

You may have heard last week that actor Joseph Gordon-Levitt went to Washington DC and gave a short speech at an event put on by Senator Dick Durbin calling for the sunsetting of Section 230. It’s a short speech, and it gets almost everything wrong about Section 230. Watch it here:

Let me first say that, while I’m sure some will rush to jump in and say “oh, it’s just some Hollywood actor guy, jumping into something he doesn’t understand,” I actually think that’s a little unfair about JGL. Very early on he started his own (very interesting, very creative) user-generated content platform called HitRecord, and over the years I’ve followed many of his takes on copyright and internet policy and while I don’t always agree, I do believe that he does legitimately take this stuff seriously and actually wants to understand the nuances (unlike some).

But it appears he’s fallen for some not just bad advice, but blatantly incorrect advice about this. He’s also posted a followup video where he claims to explain his position in more detail, but it only makes things worse, because it compounds the blatant factual errors that underpin his entire argument.

First let’s look at the major problems with his speech in DC:

So I understand what Section 230 did to bring about the birth of the internet. That was 30 years ago. And I also understand how the internet has changed since then because back then message boards and other websites with user-generated content, they really were more like telephone carriers. They were neutral platforms. That’s not how things work anymore.

So, that’s literally incorrect. If JGL is really interested in the actual history here, I did a whole podcast series where I spoke to the people behind Section 230, including those involved in the early internet and the various lawsuits at the time.

Section 230 was never meant for “neutral” websites. As the authors (and the text of the law itself!) make clear: it was created so that websites did not need to be neutral. It literally was written in response to the Stratton Oakmont v. Prodigy case (for JGL’s benefit: Stratton Oakmont is the company portrayed in Wolf of Wall Street), where the boiler room operation sued Prodigy because someone posted in their forums claims about how sketchy Stratton Oakmont was (which, you know, was true).

But Stratton sued, and the judge said that because Prodigy moderated, that because they wanted to have a family friendly site, that is because they were not neutral, they were liable for anything they decided to leave up. In the judge’s ruling he effectively said “because you’re not neutral, and because you moderate, you are effectively endorsing this content, and thus if it’s defamatory you’re liable for defamation.”

Section 230 (originally the “Internet Freedom and Family Empowerment Act”) was never about protecting platforms for being neutral. It was literally the opposite of that. It was about making sure that platforms felt comfortable making editorial decisions. It was about letting companies decide what to share, what not to share, what to amplify, and what not to amplify, without being held liable as a publisher of that content.

This is important, but it’s a point that a bunch of bad faith people, starting with Ted Cruz, have been lying about for about a decade, pretending that the intent of 230 was to protect sites that are “neutral.” It’s literally the opposite of that. And it’s disappointing that JGL would repeat this myth as if it’s fact. Courts have said this explicitly—I’ll get to the Ninth Circuit’s Barnes decision later, where the court said Section 230’s entire purpose is to protect companies because they act as publishers—but first, let’s go through the rest of what JGL got wrong.

He then goes on to talk about legitimate problems with internet giants having too much power, but falsely attributes that to Section 230.

Today, the internet is dominated by a small handful of these gigantic businesses that are not at all neutral, but instead algorithmically amplify whatever gets the most attention and maximizes ad revenue. And we know what happens when we let these engagement optimization algorithms be the lens that we see the world through. We get a mental health crisis, especially amongst young people. We get a rise in extremism and a rise in conspiracy theories. And then of course we get these echo chambers. These algorithms, they amplify the demonization of the other side so badly that we can’t even have a civil conversation. It seems like we can’t agree on anything.

So, first of all, I know that the common wisdom is that all of this is true, but as we’ve detailed, actual experts have been unable to find any support for a causal connection. Studies on “echo chambers” have found that the internet decreases echo chambers, rather than increases them. The studies on mental health show the opposite of what JGL (and Jonathan Haidt) claim. Even the claims about algorithms focused solely on engagement don’t seem to have held up (or, generally, it was true early on, but the companies found that maximizing solely on engagement burned people out quickly and was actually bad for business, and so most social media adjusted the algorithms away from just that).

So, again, almost every assertion there is false (or, at the very least, much more nuanced that he makes it out to be).

But the biggest myth of all is the idea that getting rid of 230 will somehow tame the internet giants. Once again, the exact opposite is true. As we’ve discussed hundreds of times, the big internet companies don’t need Section 230.

The real benefit of 230 is that it gets vexatious lawsuits tossed out early. That matters a lot for smaller companies. To put it in real terms: with 230, companies can get vexatious lawsuits dismissed for around $100,000 to $200,000 dollars (I used to say $50k, but my lawyer friends tell me it’s getting more expensive). That is a lot of money. But it’s generally survivable. To get the same cases dismissed on First Amendment grounds (as almost all of them would be), you’re talking $5 million and up.

That’s pocket change for Meta and Google who have buildings full of lawyers. It’s existential for smaller competitive sites.

So the end result of getting rid of 230 is not getting rid of the internet giants. It’s locking them in and giving them more power. It’s why Meta literally has run ads telling Congress it’s time to ditch 230.

What is Mark Zuckerberg’s biggest problem right now? Competition from smaller upstarts chipping away at his userbase. Getting rid of 230 makes it harder for smaller providers to survive, and limits the drain from Meta.

On top of that, getting rid of 230 gives them less reason to moderate. Because, under the First Amendment, the only way they can possibly be held liable is if they had actual knowledge of content that violates the law. And the best way to avoid having knowledge is not to look.

It means not doing any research on harms caused by your site, because that will be used as evidence of “knowledge.” It means limiting how much moderation you do so that (a la Prodigy three decades ago) you’re not seen to be “endorsing” any content you leave up.

Getting rid of Section 230 literally makes Every Single Problem JGL discussed in his speech worse! He got every single thing backwards.

And he closes out with quite the rhetorical flourish:

I have a message for all the other senators out there: [Yells]: I WANT TO SEE THIS THING PASS 100 TO 0. There should be nobody voting to give any more impunity to these tech companies. Nobody. It’s time for a change. Let’s make it happen. Thank you.

Except it’s not voting to give anyone “more impunity.” It’s a vote to say “stop moderating, and unleash a flood of vexatious lawsuits that will destroy smaller competitors.”

The Follow-Up Makes It Worse

Yesterday, JGL posted a longer video, noting that he’d heard a bunch of criticism about his speech and he wanted to respond to it. Frankly, it’s a bizarre video, but go ahead and watch it too:

It starts out with him saying he actually agrees with a lot of his critics, because he wants an “internet that has vibrant, free, and productive public discourse.” Except… that’s literally what Section 230 enables. Because without it, you don’t have intermediaries willing to host public discourse. You ONLY have giant companies with buildings full of lawyers who will set the rules of public discourse.

Again, his entire argument is backwards.

Then… he does this weird half backdown, where he says he doesn’t really want the end of Section 230, but he just wants “reform.”

 Here’s the first thing I’ll say. I’m in favor of reforming section 230. I’m not in favor of eliminating all of the protections that it affords. I’m going to repeat that because it’s it’s really the crux of this. I’m in favor of reforming, upgrading, modernizing section 230 because it was passed 30 years ago. I am not in favor of eliminating all of the protections that it affords.

Buddy, you literally went to Washington DC, got up in front of Senators, and told everyone you wanted the bill that literally takes away every one of those protections to pass 100 to 0. Don’t then say “oh I just want to reform it.” Bullshit. You said get rid of the damn thing.

But… let’s go through this, because it’s a frequent thing we hear from people. “Oh, let’s reform it, not get rid of it.” As our very own First Amendment lawyer Cathy Gellis has explained over and over again, every proposed reform to date is really repeal.

The reason for this is the procedural benefit we discussed above. Because every single kind of “reform” requires long, expensive lawsuits to determine if the company is liable. In the end, those companies will still win, because of the First Amendment. Just like how one of the most famous 230 “losses” ended up. Roommates.com lost its Section 230 protections, which resulted in many, many years in court… and then they eventually won anyway. All 230 does is make it so you don’t have to pay lawyers nearly as much to reach the same result.

So, every single reform proposal basically resets the clock in a way that old court precedents go out the window, and all you’re doing is allowing vexatious lawsuits to cost a lot more for companies. This will mean some won’t even start. Others will go out of business.

Or, worse, many companies will just enable a hecklers veto. Donald Trump doesn’t like what people are saying on a platform? Threaten to sue. The cost without 230 (even a reformed 230 where a court can’t rely on precedent) means it’s cheaper to just remove the content that upsets Donald Trump. Or your landlord. Or some internet troll.

You basically are giving everyone a veto by the mere threat of a lawsuit. I’m sorry, but that is not the recipe for a “vibrant, free, and productive public discourse.”

Calling for reform of 230 is, in every case we’ve seen to date, really a call for repeal, whether the reformers recognize that or not. Is there a possibility that you could reform it in a way that isn’t that? Maybe? But I’ve yet to see any proposal, and the only ones I can think of would be going in the other direction (e.g., expanding 230’s protections to include intellectual property, or rolling back FOSTA).

JGL then talks about small businesses and agrees that sites like HitRecord require 230. Which sure makes it odd that he’s supporting repeal. However, he seems to have bought in to the logic of the argument memeified by internet law professor Eric Goldman—who has catalogued basically every single Section 230 lawsuit as well as every single “reform” proposal ever made and found them all wanting—that “if you don’t amend 230 in unspecified ways, we’ll kill this internet.”

That is… generally not a good way to make policy. But it’s how JGL thinks it should be done:

Well, there have been lots of efforts to reform section 230 in the past and they keep getting killed uh by the big tech lobbyists. So, this section 230 sunset act is as far as I understand it a strategy towards reform. It’ll force the tech companies to the negotiating table. That’s why I supported it.

Again, this is wrong. Big tech is always at the freaking negotiating table. You don’t think they’re there? Come on. As I noted, Zuck has been willing to ditch 230 for almost a decade now. It makes him seem “cooperative” to Congress while at the same time destroying the ability of competitors to survive.

The reason 230 reform bills fail is because enough grassroots folks actually show up and scream at Congress. It ain’t the freaking “big tech lobbyists.” It’s people like the ACLU and the EFF and Fight for the Future and Demand Progress speaking up and sending calls and emails to Congress.

Also, talking about these “efforts at reform” getting “killed by big tech lobbyists.” This is FOSTA erasure, JGL. In 2018 (with the explicit support of Meta) Congress passed FOSTA, which was a Section 230 reform bill. Remember?

And how did that work out? Did it make Meta and Google better? No.

But did it destroy online spaces used by sex workers? Did it lead to real world harm for sex workers? Did it make it harder for law enforcement to capture actual human traffickers? Did it destroy online communities? Did it hide historical LGBTQ content because of legal threats?

Yes to literally all of those things.

So, yeah, I’m freaking worried about “reform” to 230, because we saw it already. And many of us warned about the harms, while “big tech” supported the law. And we were right. The harms did occur. But it took away competitive online communities and suppressed sex positive and LGBTQ content.

Is that what you want to support JGL? No? Then maybe speak to some of the people who actually work on this stuff, who understand the nuances, not the slogans.

Speaking of which, JGL then doubles down on his exactly backwards Ted Cruz-inspired version of Section 230:

Section 230 as it’s currently written or as it was written 30 years ago distinguishes between what it calls publishers and carriers. So a publisher would be, you, a person, saying something or a company saying something like the New York Times say or you know the Walt Disney Company publishers. Then carriers would be somebody like AT&T or Verizon, you know, the the the companies that make your phone or or your telephone service. So basically what Section 230 said is that these platforms for user-generated content are not publishers. They are carriers. They are as neutral as the telephone company. And if someone uses the telephone to commit a crime, the telephone company shouldn’t be held liable. And that’s true about a telephone company. But again, there’s a third category that we need to add to really reflect how the internet works today. And that third category is amplification.

Again, I need to stress that this is literally wrong. Like, fundamentally, literally he has it backwards and inside out. This is a pretty big factual error.

First, Section 230 does not, in any way, distinguish between “what it calls publishers and carriers.” This is the “publisher/platform” myth all over again.

I mean, you can look at the law. It makes no such distinction at all. The only distinction it makes is between “interactive computer services” and “information content providers.” Now some (perhaps JGL) will claim that’s the same thing as “publishers” and “carriers.” But it’s literally not.

Carriers (as in, common carrier law) implies the neutrality that JGL mentioned earlier. And perhaps that’s why he’s confused. But the purpose of 230 was to enable “interactive computer services” to act as publishers, without being held liable as publishers. It was NOT saying “don’t be a publisher.” It was saying “we want you to be a publisher, not a neutral carrier, but we know that if you face liability as a publisher, you won’t agree to publish. So, for third party content, we won’t hold you liable for your publishing actions.”

Again, go back to the Stratton Oakmont case. Prodigy “acted as a publisher” in trying to filter out non-family friendly content. And the judge said “okay now you’re liable.” The entire point of 230 was to say “don’t be neutral, act as a publisher, but since it’s all 3rd party content, we won’t hold you liable as the publisher.”

In the Barnes case in the Ninth Circuit, the court was quite clear about this. The entire purpose of Section 230 is to encourage interactive computing services to act like a publisher by removing liability for being a publisher. Here’s a key part in which the court explains why Yahoo deserves 230 protections for 3rd party content because it acted as the publisher:

In other words, the duty that Barnes claims Yahoo violated derives from Yahoo’s conduct as a publisher—the steps it allegedly took, but later supposedly abandoned, to de-publish the offensive profiles. It is because such conduct is publishing conduct that we have insisted that section 230 protects from liability….

So let me repeat this again: the point of Section 230 is not to say “you’re a carrier, not a publisher.” It’s literally to say “you can safely act as a publisher because you won’t face liability for content you had no part in its creation.”

JGL has it backwards.

He then goes on to make a weird and meaningless distinction between “free speech” and “commercial amplification” as if it’s legally meaningful.

At the crux of their article is a really important distinction and that distinction is between free speech and commercial amplification. Free speech meaning what a human being says. commercial amplification, meaning when a platform like Instagram or YouTube or Tik Tok or whatever uses an algorithm to uh maximize engagement and ad revenue to hook you, keep you and serve you ads. And this is a really important difference that section 230 does not appreciate.

The article he’s talking about is this very, very, very, very, very badly confused piece in ACM. It’s written by Jaron Lanier, Allison Stanger, and Audrey Tang. If those names sound familiar, it’s because they’ve been publishing similar pieces that are just fundamentally wrong for years. Here’s one piece I wrote picking apart one, here’s another picking apart another.

None of those three individuals understands Section 230 at all. Stanger gave testimony to Congress that was so wrong on basic facts it should have been retracted. I truly do not understand why Audrey Tang sullies her own reputation by continuing to sign on to pieces with Lanier and Stanger. I have tremendous respect for Audrey, who I’ve learned a ton from over the years. But she is not a legal expert. She was Digital Minister in Taiwan (where she did some amazing work!) and has worked at tech companies.

But she doesn’t know 230.

I’m not going to do another full breakdown of everything wrong with the ACM piece, but just look at the second paragraph:

Much of the public’s criticism of Section 230 centers on the fact that it shields platforms from liability even when they host content such as online harassment of marginalized groups or child sexual abuse material (CSAM).

What? CSAM is inherently unprotected speech. Section 230 does not protect CSAM. Section 230 literally has section (e)(1) that says “no effect on criminal law.” CSAM, as you might know, is a violation of criminal law. Websites all have strong incentives to deal with CSAM to avoid criminal liability, and they tend to take that pretty seriously. The additional civil liability that might come from a change in the law isn’t going to have much, if any, impact on that.

And “online harassment of marginalized groups” is mostly protected by the First Amendment anyway—so if 230 didn’t cover it, companies would still win on First Amendment grounds. But here’s the thing: most of us think that harassment is bad and want platforms to stop it. You know what lets them do that? Section 230. Take it away and companies have less incentive to moderate. Indeed, in Lanier and Stanger’s original piece in Wired, they argued platforms should be required to use the First Amendment as the basis for moderation—which would forbid removing most harassment of marginalized groups.

These are not serious critiques.

I could almost forgive Lanier/Stanger/Tang if this were the first time they were writing about this subject, but they have now written this same factually incorrect thing multiple times, and each time I’ve written a response pointing out the flaws.

I can understand that a well meaning person like JGL can be taken in by it. He mentions having talked to Audrey Tang about it. But, again, as much as I respect Tang’s work in Taiwan, she is not a US legal expert, and she has this stuff entirely backwards.

I do believe that JGL legitimately wants a free and open internet. I believe that he legitimately would like to see more upstart competitors and less power and control from the biggest providers. In that we agree.

But he has been convinced by some people who are either lying to him or simply do not understand the details, and thus he has become a useful tool for enabling greater power for the internet giants, and greater online censorship. The exact opposite of what he claims to support.

I hope he realizes that he’s been misled—and I’d be happy to talk this through with him, or put him in touch with actual experts on Section 230. Because right now, he’s lending his star power to one of the most dangerous ideas around for the open internet.

Filed Under: 1st amendment, allison stanger, audrey tang, competition, content moderation, dick durbin, free speech, jaron lanier, joseph gordon-levitt, section 230

Peter Mandelson Invokes Press Harassment Protections To Dodge Questions About His Support Of Jeffrey Epstein

from the what-are-you-hiding-peter? dept

Peter Mandelson—the former UK cabinet minister who was just sacked as Britain’s ambassador to the United States over newly revealed emails with Jeffrey Epstein—has found a novel way to avoid answering questions about why he told a convicted sex offender “your friends stay with you and love you” and urged him to “fight for early release.” He got the UK press regulator to send a memo to all UK media essentially telling them to leave him alone.

The National published what they describe as the “secret notice” that went out:

CONFIDENTIAL – STRICTLY NOT FOR PUBLICATION: Ipso has asked us to circulate the following advisory:

Ipso has today been contacted by a representative acting on behalf of Peter Mandelson.

Mr Mandelson’s representatives state that he does not wish to speak to the media at this time. He requests that the press do not take photos or film, approach, or contact him via phone, email, or in-person. His representatives ask that any requests for his comment are directed to [REDACTED]

We are happy to make editors aware of his request. We note the terms of Clause 2 (Privacy) and 3 (Harassment) of the Editors’ Code, and in particular that Clause 3 states that journalists must not persist in questioning, telephoning, pursuing or photographing individuals once asked to desist, unless justified in the public interest.

Clauses 2 and 3 of the UK Editor’s Code—the privacy and harassment provisions—exist primarily to protect genuinely vulnerable people from press intrusion. Grieving families. Crime victims. People suffering genuine harassment.

Mandelson is invoking them to avoid answering questions about his documented friendship with one of history’s most notorious pedophiles—a friendship so extensive and problematic that it just cost him his job as ambassador to the United States, days before a presidential state visit.

According to Politico, the UK Foreign Office withdrew Mandelson “with immediate effect” after emails showed the relationship was far deeper than previously known:

In a statement the U.K. Foreign Office said Mandelson had been withdrawn as ambassador “with immediate effect” after emails showed “the depth and extent” of his relationship with Epstein was “materially different from that known at the time of his appointment.”

“In particular Peter Mandelson’s suggestion that Jeffrey Epstein’s first conviction was wrongful and should be challenged is new information,” the statement added.

So we have a senior political figure who just got fired over revelations that he told a convicted sex offender his prosecution was “wrongful” and should be challenged, who maintained this friendship for years longer than he’d admitted, and his response is to invoke press harassment protections?

The notice does include the important qualifier “unless justified in the public interest.” And it’s hard to imagine a clearer case of public interest: a senior diplomat, just sacked from his post, over previously undisclosed communications with a convicted pedophile, in which he expressed support for challenging that pedophile’s conviction. If that’s not public interest, the term has no meaning.

But the mere act of circulating this notice creates a chilling effect. It puts journalists on notice that pursuing this story could result in complaints to the regulator. It’s using the machinery of press regulation as a shield against legitimate accountability journalism.

Now, to be fair, one could imagine scenarios where even a disgraced public figure might legitimately invoke harassment protections—it wasn’t that long ago there was a whole scandal in the UK with journalists hacking the voicemails of famous people. But that’s not what’s happening here. Mandelson is invoking these provisions to avoid being asked questions at all. “Please don’t inquire about why I told a convicted pedophile his prosecution was wrongful” is not the kind of harm these rules were designed to prevent.

This is who Mandelson has always been: someone who sees regulatory and governmental machinery as tools to be deployed on behalf of whoever he’s serving at the moment. Back in 2009, we covered how he returned from a vacation with entertainment industry mogul David Geffen and almost immediately started pushing for aggressive new copyright enforcement measures, including kicking people off the internet for file sharing. As we wrote at the time, he had what we called a “sudden conversion” to Hollywood’s position on internet enforcement that happened to coincide suspiciously with his socializing with entertainment industry executives.

Back then, the machinery was deployed to serve entertainment executives who wanted harsher copyright enforcement. Now it’s being deployed to serve Mandelson himself.

There’s a broader pattern here that goes beyond one UK politician. The Epstein revelations have been remarkable not just for what they’ve revealed about who associated with him, but for how consistently the response from the powerful has been to deflect, deny, and deploy every available mechanism to avoid genuine accountability. Some have used their media platforms to try to reshape the narrative. Some have simply refused to comment.

Mandelson is trying to use the press regulatory system itself.

It’s worth noting that The National chose to publish the “confidential – strictly not for publication” memo anyway, explicitly citing the public interest. Good for them. Because if there’s one thing that absolutely serves the public interest, it’s shining a light on attempts by the powerful to use the systems meant to protect the vulnerable as shields for their own accountability.

Mandelson’s representatives say he “does not wish to speak to the media at this time.” That’s his right to request—but no media should have to agree to his terms. Weaponizing press regulation to create a cone of silence around questions of obvious public interest is something else entirely. It’s elite impunity dressed up in the language of press ethics.

Filed Under: free speech, harassment, ipso, jeffrey epstein, peter mandelson, press freedom, press regulations, uk

Brendan Carr Launches Fake Investigation Of ABC’s ‘The View’ Because They Haven’t Adequately Coddled Trumpism

from the fake-investigations-by-phony-people dept

FCC boss Brendan Carr is back with yet another fake “investigation” of media outlets he deems insufficiently deferential to radical (and increasingly unpopular) right wing ideology. This time it involves Carr launching a phony non-investigation of ABC’s The View. The crime? They apparently didn’t kiss MAGA Republican ass with enough zeal:

“The Federal Communications Commission is opening an investigation into whether ABC’s “The View” daytime talk show violated equal time rules for interviews with political candidates after an appearance by a Democratic Texas Senate candidate this week, a source told Reuters on Saturday.”

This, to be clear, isn’t a real investigation. Carr’s office is likely the Reuters source. And he previously hinted this was coming. As we mentioned then,  Carr is threatening to leverage the “equal time” rule embedded in Section 315 of the Communications Act to take action against talk shows that don’t provide “equal” time to Republican ideology.

The rule is a dated relic that would be largely impossible for the Trump FCC to actually enforce. Republicans like Carr historically despised the equal time rule — an offshoot of the long-defunct Fairness Doctrine, a problematic effort to ensure media fairness (specifically on broadcast TV) they long complained was unconstitutional. Until they found a “President leader” with no ethical or moral center.

The rule was originally created to apply specifically to political candidate appearances on broadcast television, since back then, a TV appearance on one of the big three networks could make or break and politician attempting to run for office. In the years since, the rule has seen numerous exemptions and, with the evisceration of the regulatory state by the right wing, isn’t seriously enforceable.

That’s not stopping weird Trump zealots like Carr, who is keen to abuse FCC authority he doesn’t really have to harass media companies that don’t adequately bend the knee to kakistocracy. Anna Gomez, the FCC’s lone Democrat Commissioner, has done a good job with messaging pointing out that Carr is a dangerous, but highly performative, hack:

“Like many other so-called ‘investigations’ before it, the FCC will announce an investigation but never carry one out, reach a conclusion, or take any meaningful action,” she said. “This is government intimidation, not a legitimate investigation.”

As Gomez notes, most of this stuff goes nowhere. On one hand, it’s decorative cack Carr leaks to gullible media outlets to make it appear like he’s doing important things. On the other hand, it’s still designed to stifle journalistic freedom and the First Amendment by warning media companies that they’ll face protracted and costly legal headaches if they refuse to kiss Republican ass.

Keep in mind that ABC and Disney executives have already repeatedly tripped over themselves to curry favor with our embarrassing government, including paying Trump a $15 million bribe to settle a baseless lawsuit they were likely to win. They’re doing this because they like lower taxes, mindless deregulation, and rubber-stamped media consolidation. They couldn’t care less about journalism or viewpoint diversity.

These are cases that not only are winnable, many excellent lawyers would be willing to help fight them. And yet our media giants are still pathetic and feckless. It’s another good lesson about how even if you think kissing up to autocrats is a financial win, it doesn’t pay great returns over the longer haul. There is never a point where you will be deemed dutifully obedient, and akin to Vader’s management of Bespin’s Cloud City, the arrangement can and will always get worse.

Our increasingly broken corporate press struggles (or simply refuses) to communicate that Carr’s goal isn’t equality; it’s the disproportionate coddling and normalization of an extremist U.S. right wing political movement that’s increasingly despised by the actual public.

It was this steady media deterioration at the hands of the right wing and corporate power that opened the door to Trump’s buffoonery in the first place. And, without a serious progressive media reform movement (which needs to include publicly funded media, serious media consolidation limits, ownership diversity rules, and creative new funding models for real journalism), it’s only going to get worse.

The obvious end point, if people of conscience can’t galvanize useful policy reform, will be the sort of state media control we seen in countries like Russia and Hungary. At which point, all of the problems we’re seeing now at the hands of our violent, dim autocrats will only get worse.

Filed Under: authoritarians, brendan carr, consolidation, equal time, fascists, fcc, first amendment, free speech, journalism, media, propaganda, the view
Companies: abc, disney

DHS Is Hunting Down Trump Critics. The ‘Free Speech’ Warriors Are Mighty Quiet.

from the the-chilling-effects-are-real dept

For years, we’ve been subjected to an endless parade of hyperventilating claims about the Biden administration’s supposed “censorship industrial complex.” We were told, over and over again, that the government was weaponizing its power to silence conservative speech. The evidence for this? Some angry emails from White House staffers that Facebook ignored. That was basically it. The Supreme Court looked at it and said there was no standing because there was no evidence of coercion (and even suggested that the plaintiffs had fabricated some of the facts, unsupported by reality).

But now we have actual, documented cases of the federal government using its surveillance apparatus to track down and intimidate Americans for nothing more than criticizing government policy. And wouldn’t you know it, the same people who spent years screaming about censorship are suddenly very quiet.

If any of the following stories had happened under the Biden administration, you’d hear screams from the likes of Matt Taibbi, Bari Weiss, and Michael Shellenberger, about the crushing boot of the government trying to silence speech.

But somehow… nothing. Weiss is otherwise occupied—busy stripping CBS News for parts to please King Trump. And the dude bros who invented the “censorship industrial complex” out of their imaginations? Pretty damn quiet about stories like the following.

Taibbi is spending his time trying to play down the Epstein files and claiming Meta blocking ICE apps on direct request from DHS isn’t censorship because he hasn’t seen any evidence that it’s because of the federal government. Dude. Pam Bondi publicly stated she called Meta to have them removed. Shellenberger, who is now somehow a “free speech professor” at Bari Weiss’ collapsing fake university, seems to just be posting non-stop conspiracy theory nonsense from cranks.

Let’s start with the case that should make your blood boil. The Washington Post reports that a 67-year-old retired Philadelphia man — a naturalized U.S. citizen originally from the UK — found himself in the crosshairs of the Department of Homeland Security after he committed the apparently unforgivable sin of… sending a polite email to a government lawyer asking for mercy in a deportation case.

Here’s what he wrote to a prosecutor who was trying to deport an Afghani man who feared the Taliban would take his life if sent there. The Philadelphia resident found the prosecutors email and sent the following:

“Mr. Dernbach, don’t play Russian roulette with H’s life. Err on the side of caution. There’s a reason the US government along with many other governments don’t recognise the Taliban. Apply principles of common sense and decency.”

That’s it. That’s the email that triggered a federal response. Within hours — hours — of sending this email, Google notified him that DHS had issued an administrative subpoena demanding his personal information. Days later, federal agents showed up at his door.

Showed. Up. At. His. Door.

A retired guy sends a respectful email asking the government to be careful with someone’s life, and within the same day, the surveillance apparatus is mobilized against him.

The tool being weaponized here is the administrative subpoena (something we’ve been calling out for well over a decade, under administrations of both parties) which is a particularly insidious instrument because it doesn’t require a judge’s approval. Unlike a judicial subpoena, where investigators have to show a judge enough evidence to justify the search, administrative subpoenas are essentially self-signed permission slips. As TechCrunch explains:

Unlike judicial subpoenas, which are authorized by a judge after seeing enough evidence of a crime to authorize a search or seizure of someone’s things, administrative subpoenas are issued by federal agencies, allowing investigators to seek a wealth of information about individuals from tech and phone companies without a judge’s oversight.

While administrative subpoenas cannot be used to obtain the contents of a person’s emails, online searches, or location data, they can demand information specifically about the user, such as what time a user logs in, from where, using which devices, and revealing the email addresses and other identifiable information about who opened an online account. But because administrative subpoenas are not backed by a judge’s authority or a court’s order, it’s largely up to a company whether to give over any data to the requesting government agency.

The Philadelphia retiree’s case would be alarming enough if it were a one-off. It’s not. Bloomberg has reported on at least five cases where DHS used administrative subpoenas to try to unmask anonymous Instagram accounts that were simply documenting ICE raids in their communities. One account, @montcowatch, was targeted simply for sharing resources about immigrant rights in Montgomery County, Pennsylvania. The justification? A claim that ICE agents were being “stalked” — for which there was no actual evidence.

The ACLU, which is now representing several of these targeted individuals, isn’t mincing words:

“It doesn’t take that much to make people look over their shoulder, to think twice before they speak again. That’s why these kinds of subpoenas and other actions—the visits—are so pernicious. You don’t have to lock somebody up to make them reticent to make their voice heard. It really doesn’t take much, because the power of the federal government is so overwhelming.”

This is textbook chilling effects on speech.

Remember, it was just a year and a half ago in Murthy v. Missouri, the Supreme Court found no First Amendment violation when the Biden administration sent emails to social media platforms—in part because the platforms felt entirely free to say no. The platforms weren’t coerced; they could ignore the requests and did.

Now consider the Philadelphia retiree. He sends one polite email. Within hours, DHS has mobilized to unmask him. Days later, federal agents are at his door. Does that sound like someone who’s free to speak his mind without consequence?

Even if you felt that what the Biden admin did was inappropriate, it didn’t involve federal agents showing up at people’s homes.

That is what actual government suppression of speech looks like. Not mean tweets from press secretaries that platforms ignored, but federal agents showing up at your door because you sent an (perfectly nice) email the government didn’t like.

So we have DHS mobilizing within hours to identify a 67-year-old retiree who sent a polite email. We have agents showing up at citizens’ homes to interrogate them about their protected speech. We have the government trying to unmask anonymous accounts that are documenting law enforcement activities — something that is unambiguously protected under the First Amendment.

Recording police, sharing that recording, and doing so anonymously is legal. It’s protected speech. And the government is using administrative subpoenas to try to identify and intimidate the people doing it.

For years, we heard that government officials sending emails to social media companies — emails the companies ignored — constituted an existential threat to the First Amendment. But when the government actually uses its coercive power to track down, identify, and intimidate citizens for their speech?

Crickets.

This is what a real threat to free speech looks like. Not “jawboning” that platforms can easily refuse, but the full weight of federal surveillance being deployed against anyone who dares to criticize the administration. The chilling effect here is the entire point.

As the ACLU noted, this appears to be “part of a broader strategy to intimidate people who document immigration activity or criticize government actions.”

If you spent the last few years warning about government censorship, this is your moment. This is the actual thing you claimed to be worried about. But, of course, all those who pretended to care about free speech really only meant they cared about their own team’s speech. Watching the government actually suppress critics? No big deal. They probably deserved it.

Filed Under: 1st amendment, administrative subpoenas, bari weiss, chilling effects, dhs, donald trump, free speech, matt taibbi, michael shellenberger
Companies: google, meta

Hey Gavin Newsom! Investigating TikTok’s Moderation Is Just As Unconstitutional As When Texas & Florida Tried It

from the not-how-any-of-this-works dept

We called bullshit when Republicans tried to order websites to carry content. We’re calling bullshit now when Democrats are trying to do the same.

We spent years explaining to politicians across both parties why the government can’t dictate how private platforms moderate content. During the Biden admin, GOP governors seemed most aggressive about trying to tell platforms they couldn’t moderate. We wrote many thousands of words words about why Texas’s HB20 and Florida’s SB7072 were flagrantly unconstitutional. We cheered when courts, up to and including the Supreme Court, agreed.

And now California Governor Gavin Newsom has decided to… do the exact same thing, just from the other direction.

Cool. Cool cool cool.

Here’s Newsom, announcing that he’s launching a review of TikTok’s content moderation practices:

That’s Newsom’s “press office” announcing:

NEW: Following TikTok’s sale to a Trump-aligned business group, our office has received reports — and independently confirmed instances — of suppressed content critical of President Trump.

Gavin Newsom is launching a review of this conduct and is calling on the California Department of Justice to determine whether it violates California law.

We could save a lot of taxpayer dollars by just giving him the answer: no, it does not violate California law. It cannot. Because of the First Amendment.

It’s even worse if you dig down one level and see what Newsom is responding to:

That’s a rando X account with just a few thousand followers tweeting that “you can’t even mention epstein lmao” showing a TikTok warning that her trying to post the word “epstein” “may be in violation of our community guidelines.”

Newsom is quote tweeting this saying:

It’s time to investigate. I am launching a review into whether TikTok is violating state law by censoring Trump-critical content.

There’s so much wrong here.

Let’s start with the obvious: these “reports” are sketchy as hell. Beyond it coming from some rando account, TikTok has already explained that there was a data center power outage that caused “a cascading systems failure” affecting content posting and moderation. This happens! Content moderation systems fail all the time. Also, moderation systems make mistakes. All the time! As we’ve discussed approximately ten thousand times, even with 99.9% accuracy, you’re going to have hundreds of thousands of “mistakes” every single day on a platform the size of TikTok. That’s just math.

For the Governor of California to jump from “some rando users reported upload problems during a technical outage” to “we must investigate whether this violates California law” is… not how any of this should work.

But, who even cares about that? There’s a bigger issue here: even if every single one of these reports were accurate—even if TikTok were deliberately, systematically moderating content to favor Trump—that would be totally legal under the First Amendment.

Content moderation decisions are editorial decisions. They are protected speech. A private platform can legally decide to promote, demote, or remove whatever content it wants based on whatever criteria it wants, including political viewpoint. It can decide what it doesn’t want to host. It can do so for ideological reasons if it wants.

This is the same thing we’ve been saying for years when Republicans howled about “anti-conservative bias” on social media. And, arguably, Newsom merely investigating TikTok for its editorial choices creates chilling effects that themselves raise First Amendment concerns.

When Texas passed HB20, which tried to prohibit large social media platforms from moderating based on “viewpoint,” we pointed out that this was flagrantly unconstitutional because it would compel platforms to host speech against their will. The Supreme Court agreed, with Justice Kagan noting during oral arguments that Texas’s law would mean “the government can force you to have certain speech on your platform.”

When Florida passed SB7072 with similar provisions, we said the same thing. The Eleventh Circuit agreed, calling it “an unprecedented attempt to compel private platforms to host speech,” which violates “the First Amendment’s long-held protection for the editorial discretion of private businesses.”

So now Newsom wants to do the exact same thing, just from the other direction? He wants California to investigate whether a platform’s content moderation choices—choices protected by the First Amendment—somehow “violate California law”?

What California law would that even be? The state has attempted a variety of social media laws, which keep getting thrown out as unconstitutional (just like we warned Newsom).

Is he just making up new theories now about how a state can control the editorial decisions of private platforms based on which political direction those decisions allegedly lean?

How is this different from when Josh Hawley or Ted Cruz threatened to strip Section 230 protections from platforms they accused of “anti-conservative bias”? How is this different from when Ron DeSantis tried to punish Disney for political speech he disagreed with?

The answer is: it’s not different. It’s the same unconstitutional impulse to use government power to control private editorial decisions, just wearing the other team’s jersey. We’ve detailed time and time again that both Republicans and Democrats are super quick to reach for the censorship button whenever they see online speech they don’t like, but it’s particularly egregious here because the courts have already ruled on this exact issue.

The Supreme Court already made it quite clear that Newsom can’t do what he’s doing just a couple years ago in the Moody ruling, directed at the governors of Texas and Florida:

But a State may not interfere with private actors’ speech to advance its own vision of ideological balance. States (and their citizens) are of course right to want an expressive realm in which the public has access to a wide range of views. That is, indeed, a fundamental aim of the First Amendment. But the way the First Amendment achieves that goal is by preventing the government from “tilt[ing] public debate in a preferred direction.” Sorrell v. IMS Health Inc., 564 U. S. 552, 578–579 (2011). It is not by licensing the government to stop private actors from speaking as they wish and preferring some views over others. And that is so even when those actors possess “enviable vehicle[s]” for expression. Hurley, 515 U. S., at 577. In a better world, there would be fewer inequities in speech opportunities; and the government can take many steps to bring that world closer. But it cannot prohibit speech to improve or better balance the speech market.

TikTok could, tomorrow, announce that they’re going to remove every single piece of content critical of Trump and promote only pro-Trump material. That would be stupid. It would probably be bad for their business. Users would likely flee to competitors. But it would be legal, because private platforms have the First Amendment right to make their own editorial choices, even bad ones.

Newsom knows this. Or he should. We’ve been explaining it to politicians of both parties for years: the First Amendment protects against government control of speech, including a platform’s editorial decisions about what to host. It doesn’t guarantee anyone a right to have their preferred content amplified on someone else’s platform.

We called bullshit when Republicans tried this. We’re calling bullshit now when Democrats like Newsom are doing the same thing.

The state has no role in dictating editorial practices of any media entity. Period.

Filed Under: 1st amendment, california, content moderation, editorial discretion, florida, free speech, gavin newsom, jeffrey epstein, texas
Companies: tiktok

DOJ Arrests Journalists Don Lemon & Georgia Fort For Acts Of Journalism, Even After Courts Rejected Arrest Warrants

from the what-constitution? dept

Last week, a federal magistrate judge told the DOJ it could not arrest journalist Don Lemon. The DOJ appealed and lost that appeal too. The legal system said no.

So the DOJ arrested him anyway.

On January 18th, protesters interrupted services at a Minnesota church after discovering its pastor leads a nearby ICE field office. Journalists Don Lemon and Georgia Fort followed the protesters through the church’s publicly accessible doors to cover the story. They streamed the protest. They asked questions. They committed acts of journalism.

And by this morning they were both in federal custody (though since released).

Organizers of the protest, to the extent they had any real organizational control, were arrested. Pictures of at least one of those arrests were run through one AI platform or another to make those arrested appear to be in more distress than they actually had been.

When that didn’t quench the thirst for cruelty and fascism of this particular regime, Pam Bondi’s DOJ then attempted to go after the journalists themselves. For what crime? Anyone’s guess, honestly. The DOJ attempted to get arrest warrants for Fort and Lemon from the courts, which told them to fuck all the way off. The DOJ then attempted to appeal the rejection without informing the lower court, and attempted to get the Appeals Court to hide the request under seal. That wasn’t successful either.

But rather than admitting that violating the First Amendment rights of journalists was a total stinker of an endeavor, the DOJ convened a grand jury, apparently got an indictment, and then both Lemon and Fort were arrested at Bondi’s direction.

Local Minnesota reporter Georgia Fort, along with former CNN journalist Don Lemon, were arrested by federal agents following their coverage of a protest at a church in St. Paul. Don Lemon’s attorney said he was “taken by federal agents” on the evening of Thursday, Jan. 29, while he was in Los Angeles covering the Grammy Awards. Local independent journalist Georgia Fort was also arrested at her home by federal agents.

A statement from the Center of Broadcast Journalism called the arrest “An assault on press and on the 1st Amendment.”

“Georgia Fort, a trusted and cherished journalist in Minnesota, was arrested in the early morning hours for doing her job by covering a pop-up protest at Cities Church in St. Paul,” the statement read. “It is an outrage that a vetted and credentialed member of the media would be in any way prosecuted for doing her appointed duty in covering news. If the federal government can come for Georgia no member of the supposed ‘free’ press is safe.” 

This is incredibly dumb for a variety of reasons. For starters, the Minnesota courts, where any trial will take place, are not going to take kindly to the idea that it told the DOJ its requests for arrest warrants were hot garbage only to have that same DOJ end run around the courts to make those same arrests via a grand jury. It’s a slap in the face to the very court system within which the DOJ will have to operate. Elie Mystal is spot on about this at The Nation.

The arrests of the two journalists are clearly unconstitutional. You don’t need to be a legal scholar to know that arresting journalists for covering the news is a clear violation of the First Amendment. Lemon’s arrest is also flatly illegal. Last week, the Trump administration went to a federal magistrate judge, Douglas L. Micko, to ask for an arrest warrant for Lemon. The judge refused. The Trump administration then appealed and lost that appeal. The legal system literally said the government couldn’t arrest Lemon, but the government arrested him anyway, and they went all the way to Los Angeles (far from Minnesota) to get him.

Georgia Fort is a prominent Black journalist based in Minnesota. She was out front in covering the George Floyd protests, and expertly covered the trial of his killer, Derek Chauvin. I have little doubt that this prior reporting is among the reasons she was targeted by the Trump administration.

Add to that the very open question, based on the law that the DOJ is citing here, whether any of this actually violates a statute, by anyone involved in this at all. I would very much argue that it does not, by plain reading of the law. As Quinta Jurecic at the Atlantic notes, the legal argument is garbage.

The indictment itself makes for a strange read. No attorneys other than political appointees appear on the filing—a hint that career Justice Department employees might not have wanted to be involved. The government treats Lemon and Fort as co-conspirators of the protesters without acknowledging any protections afforded by their role as journalists. Both charges derive from the FACE Act, a 1994 law meant to prevent anti-abortion protestors from restricting access to reproductive-health clinics. Here, though, the Justice Department is leveraging a lesser-known portion of the statute that provides similar protections for freedom of religion in places of worship. Kyle Boynton, who recently departed from his position as a trial attorney in the Civil Rights Division, told me that this provision of the FACE Act has never been used—probably because “it’s plainly unconstitutional” as an overreach of Congress’s authority to legislate under the Commerce Clause. Boynton, who prosecuted FACE Act cases and crimes committed against houses of worship while at the Justice Department, was unimpressed with the legal reasoning in the indictment. “I think it’s very likely to face dismissal,” he said. Not only might courts find the statute unconstitutional, but Lemon and Fort could also contest the charges on First Amendment grounds, and the indictment doesn’t clearly show a FACE violation to begin with.

But it’s even dumber than that. As Dan Froomkin points out, part of the indictment tries to argue that the “overt acts” needed to prove a “conspiracy” is… that these journalists… interviewed the pastor. Or, as the DOJ says, “peppered him with questions.”

My goodness. How dare he commit acts of journalism?

Separately, you can watch the Don Lemon stream footage. He makes it very clear that he is there in his capacity as a journalist. He is not actually interrupting services. He is there covering the story. The same is true of Fort.

Both arrested journalists are Black. The head of the DOJ’s “civil rights division,” Harmeet Dhillon, celebrated by retweeting Republican operative Mike Davis calling Lemon “a klansman.”

Davis, for those unfamiliar, went on a right-wing fabulist’s podcast before the 2024 election and promised that if Trump won, opponents would be “hunted.” He promised “retribution.” He said: “We’re gonna put kids in cages. It’s gonna be glorious…. We’re gonna detain a lot of people in the D.C. gulag and Gitmo.”

That guy is now calling a Black journalist a “klansman” for doing journalism, while the head of Civil Rights retweets it approvingly.

It’s not just Davis and Dhillon joyfully cheering on this blatant attack on the First Amendment. The White House itself posted a black and white photo of Don Lemon cheering on his arrest, calling it (ridiculously) the “St. Paul Church Riots” (there were no riots) and tweeting “When life gives you lemons…” along with chain emojis.

That will likely go right into Lemon’s filing for vindictive prosecution.

Courts have already ordered both Lemon and Fort released, though they’ll be back in court. In Lemon’s case, the judge refused to issue the requested $100k bond the government asked for. The court also will allow him to travel internationally on a pre-planned trip, even though the government demanded he hand over his passport. All of this seems clearly designed for blatant intimidation over media coverage.

The DOJ is now treating journalism as conspiracy, questions as overt acts, and coverage as crime. Courts told them no and they did it anyway—gleefully celebrating the end of the rule of law, openly gloating about punishing the President’s critics for their speech.

Filed Under: 1st amendment, don lemon, donald trump, free speech, georgia fort, harmeet dhillon, intimidation, journalism, mike davis, minneapolis, vindictive prosecution

Brendan Carr Again Threatens Talk Shows That Refuse To Coddle Republicans

from the lazy-idiots-love-censorship dept

For more than fifty years the U.S. right wing has accused academia, journalism or science of having a “liberal bias” if it reveals absolutely anything the right wing doesn’t like. It’s an easy way to quickly discredit any critics of your worldview without having to engage in thinking, introspection, or debate, and it’s been on display for longer than many of us have been alive:

Media scholars will tell you that U.S. media is, indisputably, center-right and corporatist. As it consolidates, it increasingly serves billionaire and corporate ownership, not the public interest. Layer on fifty years of bullying over nonexistent “liberal bias,” and you get the kind of journalistic fecklessness that was on proud display last election season as the country stared down the barrel of authoritarianism.

A media that routinely coddles Republicans and corporate power and refuses to cover them honestly isn’t enough for folks like FCC boss Brendan Carr, who has been busy trampling the First Amendment during Trump’s second term. Whether it’s his bungled attempt to censor comedians, or his bullying of news outlets that tell the truth, Carr and his ilk demand absolute fealty by the entirety of modern culture and media.

Clearly, Carr is disinterested in learning from his stupid mistakes. In a post to the X right wing propaganda website last week, he took a break from destroying consumer protection standards to once again issue vague and baseless threats against talk shows that refuse to coddle Republicans:

If you can’t read it, Carr is threatening to leverage the “equal time” rule embedded in Section 315 of the Communications Act to take action against talk shows that don’t provide “equal” time to Republican ideology. Carr’s goal isn’t equality; it’s the disproportionate coddling and normalization of an extremist U.S. right wing political movement that’s increasingly despised by the actual public.

The “equal time” rule is a dated relic that would be largely impossible for the Trump court-eviscerated FCC to actually enforce. Republicans like Carr historically despised the equal time rule — an offshoot of the long-defunct Fairness Doctrine, a problematic effort to ensure media fairness (specifically on broadcast TV) that Republicans have long complained was unconstitutional.

The rule was originally created to apply specifically to political candidate appearances on broadcast television, since back then, a TV appearance on one of the big three networks could make or break and politician attempting to run for office.

In the years since, the rule has seen numerous exemptions and, with the steady evisceration of the regulatory state by the right wing, is not something viewed as seriously enforceable. Enter Carr, who is distorting this rule to suggest that it needs to apply to every guest a late-night talk show has. It’s a lazy effort by Carr to pretend his censorship effort sits on solid legal footing. It does not.

Late night comedians had, well, thoughts:

It’s worth remembering that the Trump administration has consistently lobotomized FCC and FTC authority over corporations with one hand, at the behest of their corporate paymasters, while pretending agencies like the FCC have unlimited authority over those same companies. So even if Carr filed any sort of complaint against these companies, his lawyers wouldn’t have fun defending it in court.

It’s more broadly designed to warn major networks that they’re subject to costly and pointless legal headaches if they don’t take the more efficient and cost-effective route of kissing the unpopular president’s ass. Which, as we’ve seen with the CBS takeover and their firing of Stephen Colbert, and the bribes ABC has thrown at our mad idiot king, has been embarrassingly effective… so far.

It’s just another example of this administration’s weird hypocrisy when it comes to government power, free speech, and regulatory attempts to shape or stifle speech. But it’s also important to not see this as entirely new; right wing billionaires — often arm in arm with corporate power — have been attempting, with notable success, to dominate U.S. media and befuddle the electorate for generations.

It was that steady media deterioration at the hands of the right wing and corporate power that opened the door to Trump’s buffoonery in the first place. And, without a serious progressive media reform movement (which needs to include publicly funded media, serious media consolidation limits, and creative new funding models for real journalism), it’s only going to continue to get worse.

The obvious end point, if we can’t galvanize some form of reform resistance, will be the sort of state media control we seen in countries like Russia and Hungary. At which point all of the problems we’re seeing now at the hands of our violent, dim autocrats will only get worse.

Filed Under: 1st amendment, brendan carr, censorship, equal time rule, fcc, free speech, jimmy kimmel, media, propaganda, right wing, stephen colbert
Companies: abc, cbs

The FBI Raided A Reporter’s Home, Ignoring Laws Designed To Prevent Exactly That

from the intimidation-tactics dept

If you want to understand how little the current administration cares about the First Amendment, look no further than a pre-dawn FBI raid on a journalist’s home—conducted in apparent violation of a federal law specifically designed to prevent exactly this kind of thing.

Last week, FBI agents showed up at the home of Washington Post reporter Hannah Natanson, seized two phones, two laptops, a Garmin watch, a portable hard drive, and a recording device. Natanson has spent the past year covering the Trump administration’s efforts to gut the federal workforce. She is not accused of any crime. She is not the target of any investigation. The FBI told her as much when they were busy carting away basically all of her devices.

The raid was ostensibly connected to an investigation into Aurelio Perez-Lugones, a government contractor with top-secret clearance who was arrested and charged with illegally retaining classified documents—not leaking them. Again, because this seems to have gotten lost in much of the coverage: Perez-Lugones hasn’t been charged with leaking anything to anyone. Just retaining documents. The government isn’t even alleging—at least not yet—that he gave anything to Natanson or any other journalist. But the DOJ apparently decided that the best way to investigate this guy was to ransack a journalist’s home and vacuum up everything she’s ever worked on.

There’s a law that’s supposed to prevent this. It’s called the Privacy Protection Act of 1980, and it was passed specifically because Congress recognized that letting law enforcement raid journalists to fish for evidence of other people’s crimes has a catastrophic chilling effect on the press. The law bars searches and seizures of journalists’ work product when the journalist isn’t suspected of a crime, with very narrow exceptions that don’t appear to apply here.

Yes, some will argue the government has legitimate interests in protecting classified information—but that interest doesn’t override the Constitution, and it certainly doesn’t justify ignoring a federal statute specifically designed to prevent exactly this kind of fishing expedition.

As the Freedom of the Press Foundation put it:

“This is an alarming escalation in the Trump administration’s multipronged war on press freedom. The Department of Justice (and the judge who approved this outrageous warrant) is either ignoring or distorting the Privacy Protection Act, which bars law enforcement from raiding newsrooms and reporters to search for evidence of alleged crimes by others, with very few inapplicable exceptions.

Beyond the PPA, even the DOJ’s own internal guidelines—which Attorney General Pam Bondi already weakened from their Biden-era form back in April based on an outright lie—are supposed to treat searching a journalist’s materials as an absolute last resort, reserved for rare emergencies. Not as Plan A when you want to know who a reporter has been talking to.

There was also an obvious, less constitutionally catastrophic option available. On the same day as the raid, the DOJ issued a grand jury subpoena to the Washington Post seeking substantially the same records. As the Post’s attorneys noted in their court filing:

Nothing prevented the government from issuing a subpoena to Natanson instead of executing a search warrant, which is what, historically, would have been mandated by government policy

That’s how this is supposed to work. You issue a subpoena. The news organization gets the chance to challenge it, to assert privilege, to go to court if necessary. The process allows for the adversarial testing that protects both the government’s legitimate investigative interests and the constitutional rights of a free press. But that process takes time and might result in the government not getting everything it wants.

Also, it’s not as intimidating for journalists.

So instead, they just kicked in the door.

The Post didn’t mince words in its filing seeking the return of Natanson’s devices:

The federal government’s wholesale seizure of a reporter’s confidential newsgathering materials violates the Constitution’s protections for free speech and a free press and should not be allowed to stand. It is a prior restraint and a violation of the reporter’s privilege that flouts the First Amendment and ignores federal statutory safeguards for journalists. The seizure chills speech, cripples reporting, and inflicts irreparable harm every day the government keeps its hands on protected materials. The government cannot meet its heavy burden to justify this intrusion, and it has ignored narrower, lawful alternatives.

And:

The government seized this proverbial haystack in an attempt to locate a needle. The search warrant orders that the government’s search of the seized data “must be limited to all records and information . . . from the time period October 1, 2025, to the present, which constitute records received from or relating to Aurelio Luis Perez-Lugones.” … Even the government cannot expect to find many records responsive to the warrant in this ocean of data because its criminal complaint alleges that Perez-Lugones possessed only a small number of documents potentially containing classified or secret information, which he only began collecting three months ago. Meanwhile, Natanson has thousands of communications across her more than 1,100 sources. … And her devices contain years of data about past and current confidential sources and other unpublished materials. … At best, the government has a legitimate interest in only an infinitesimal fraction of the data it has seized.

There is, at least for now, a small piece of good news. On Wednesday, Magistrate Judge William B. Porter granted the Post’s motion for a standstill order, blocking the DOJ from reviewing any of the seized materials until the court authorizes it:

“The government must preserve but must not review any of the materials that law enforcement seized… until the Court authorizes review of the materials by further order,” the magistrate judge wrote.

Oral arguments are scheduled for February 6. So for the moment, the administration shouldn’t be able to rifle through a journalist’s entire professional life looking for evidence against someone else. But the fact that this happened at all—that the FBI executed a pre-dawn raid on a reporter’s home, that a federal judge signed off on the warrant, that the DOJ thought this was an appropriate course of action—tells you everything you need to know about how this administration views the role of the press.

Attorney General Bondi, for her part, initially issued a statement that was, as we’ve now come to expect with this administration, almost comically tone-deaf to the actual concerns at play, while ridiculously belligerent:

The Trump Administration will not tolerate illegal leaks of classified information that, when reported, pose a grave risk to our Nation’s national security and the brave men and women who are serving our country.

Except, again: it’s not illegal for a journalist to receive leaked information and report on it. That’s journalism. The person who leaks may face consequences, but the reporter doesn’t become a criminal by doing their job. The Supreme Court made this clear in the Pentagon Papers case over fifty years ago, when the government tried to stop the New York Times and Washington Post from publishing classified documents about Vietnam. The press won. The principle established then—that the government cannot criminalize the act of receiving and publishing information in the public interest—remains the law today, however inconvenient that might be for an administration that doesn’t like what reporters are writing about it.

What makes this particularly galling is the context. Natanson has been reporting on the Trump administration’s mass firings of federal workers—the very story the administration would prefer not be told. As CNN noted, she’s been called the Post’s “federal government whisperer” for her coverage of how DOGE-driven cuts have affected government agencies and the people who work in them.

If you wanted to send a message to journalists covering this administration that they should think twice about cultivating sources, you could hardly do better than raiding one of them at dawn and seizing every electronic device in her home.

This isn’t some abstract concern. Every source who has ever talked to Natanson—about anything—now has to wonder whether their communications are sitting in an FBI evidence locker. Every journalist covering this administration has to wonder if they’re next. That chilling effect is the point.

We’ll find out on February 6th whether the court orders the devices returned and tells the DOJ that the Privacy Protection Act means what it says—or whether we learn that the rules designed to protect press freedom don’t actually apply when the Trump administration really, really wants to know who’s been talking to reporters.

Either way, the damage is already done. The raid happened. The message was sent. And the MAGA world that spent years screaming about censorship and free speech has, once again, made clear that its commitment to those principles extends exactly as far as speech it likes.

Filed Under: 1st amendment, aurelio perez-lugones, classified documents, fbi, freedom of the press, hannah natanson, journalism, pam bondi, privacy protection act, reporting, trump administration
Companies: washington post

Noem Says ICE Is Being Menaced By Ice Cubes, Protesters Should Be Cooped Up In ‘Free Speech Zones’

from the bold-new-version-of-America dept

CBS News still exists, despite a president doing all he can to turn it into his own Baghdad Betty. Journalists are still demanding answers from this administration, even while the Baghdadest Betty of all — Bari Weiss — does everything she can to strip mine the long-running news agency for abusable parts. (That refers to you, Tony Dokoupil.)

Last Sunday morning, Margaret Brennan interviewed DHS head Kristi Noem on “Face the Nation.” Brennan did everything she could to push back against Noem’s false claims and bullshit assertions, but in the end, Noem clearly knew she’d always have the upper hand, thanks to Trump’s legal threats and Bari Weiss’s willingness to bury reporting that doesn’t please Trump.

As ICE continues to detain, arrest, or kill anyone that seems to be too dark or too loud in Minnesota, Brennan asked if there’s an actual end point for yet another federal “surge” targeting a “blue” state. Noem, of course, can’t provide a straight answer despite being given straight facts by the interviewer.

MARGARET BRENNAN: According to Pew, Minnesota’s population of immigrants here illegally stands at 2.2%. So, how do you judge when you’ve gotten everyone off the streets, that you say is, you know, requiring your federal agents be there? How do you say we’ve had mission accomplished?

SEC. NOEM: Well, we won’t stop until we are sure that all the dangerous people are picked up, brought to justice and then deported back to their home countries–

MARGARET BRENNAN: –You don’t have a number or a date?– 

SEC. NOEM: –We wouldn’t be in this situation- We wouldn’t be in this situation if Joe Biden hadn’t allowed our open-border policies to be in place and allowed up to 20 million people unvetted into this country. We have no idea how many dangerous people are here. 

That’s not an answer. Most of what fell out of Noem’s mouth during this interview wasn’t a direct answer. Instead, it was a bunch of Trump-esque rambling, randomly punctuated by Noem insisting the person interviewing her was lying.

Noem insisted that the “millions” (most of which obviously do not reside in Minnesota) being swept up by ICE were violent criminals. She claimed “70% of them have committed or have charges against them on violent crimes.” Brennan pushed back, citing stats released by the DHS itself:

MARGARET BRENNAN: Okay, well, our reporting is that 47% based on your agency’s own numbers, 47% have criminal convictions against them*. But let’s talk about the other numbers–

SEC. NOEM: –Which means you’re wrong again. Absolutely. We’ll get you the correct numbers–

MARGARET BRENNAN: –Okay–

SEC. NOEM: –so you can use them in the future.

MARGARET BRENNAN: Well, that’s from your agency. 

Noem is fully cooked. She’s indistinguishable from Trump or anyone else in his close orbit. When your lies are exposed by facts, you call the person with the actual facts a liar. But this willful disregard for truth is nothing new: this administration divorced itself from reality during Trump’s first term. In its second term, it’s pretending truth is whatever it says it is.

But it gets scarier, stupider, and weirder from there. Here’s Noem defending murdering citizens on the street before veering off into an extremely Trumpian interpretation of First Amendment rights:

SEC. NOEM: We’ve seen over 100 different vehicle weaponized and attacking law enforcement officers. I would hope that Mayor Frey, when he’s on here, that he’ll announce that he’s going to start working with us to bring safety to the streets. If he would set up a peaceful protest zone so that these individuals can exercise their First Amendment rights and do so peacefully, we would love that, because then we could work together to make sure we’re getting criminals to justice and letting people still express their First Amendment rights.

While the government does have extremely limited powers to enact time-and-place restrictions on First Amendment activity, it certainly does not have the power to force any locale to restrict protests to only the places the government will allow protesters to gather. That’s the exact opposite of the First Amendment, which is exactly the sort of thing you’d expect a Trump administration figure to pitch, even if it would never impose restrictions like these on anyone protesting in support of Trump and his policies. (See also: hundreds of pardoned people who engaged in literal insurrection in 2021.)

After bitching Brennan out for repeating the name of the officer (Jonathan Ross) who killed Renee Good (apparently it’s “doxxing” to use a published name during a national news interview [massive eye roll]), Noem goes on to claim (without facts in evidence) that ICE officers are dealing with threats up to (and including) frozen water:

SEC. NOEM: –Don’t say his name. I mean, for heaven’s sakes, we- we don’t- we shouldn’t have people continue to dox law enforcement when they have an 8,000%–

MARGARET BRENNAN: –his name is public–

SEC. NOEM: –increase in death threats against them–

MARGARET BRENNAN: — he was struck and hospitalized–

SEC. NOEM: –I know, but that doesn’t mean it should continue to be said. His life- he got attacked with a car that was trying to take his life, and then people have attacked him and his family, and they are in jeopardy. And we have law enforcement officers every day who are getting death threats and getting attacked at their hotels and they are–

MARGARET BRENNAN: –Well, can you tell me about his status right now–

SEC. NOEM: –getting ice thrown at them. 

I can’t imagine why people might be throwing ice at ICE, but I’m sure someone much smarter than me will make that connection. And I may be just a humble small town writer who writes like your average George Bailey, but I have to imagine this might have gone better for Noem if she had decided to end that answer one sentence earlier.

This would all be laughably surreal if this administration didn’t have so much power and the will to abuse it. It’s still surreal, but you have to embrace the blackest of comedy to croak out a laugh.

This administration only knows two moves: bluster and gaslighting. Whatever you saw, you didn’t see. Whatever violations the government committed never happened. Whatever can be disputed by facts is just the ravings of leftist liars and mainstream media losers. As for everyone caught in this crossfire, fuck ’em. This party only serves itself. If there’s any silver lining here at all, it’s that Noem is too busy being Trump’s Bigot Barbie to kill her children’s pets any time soon.

Filed Under: 1st amendment, dhs, free speech, ice, kristi noem, mass deportation, minnesota, trump administration
Companies: cbs news

Utah Continues To Ban More Books, Even As It Racks Up More Lawsuits

from the codifying-the-heckler's-veto dept

Utah’s budding theocracy continues unimpeded as we head into the new year. On top of its other unconstitutional laws (like the oft-challenged social media ban) and legislative proposals, there’s its book ban law that has seen it become the first state to actually remove certain books from all public schools across the state.

The targeted books are exactly the ones you think they are. Of the 13 titles to make the first ban list in 2024, 12 of them were written by women. It has added more titles to the ban list for 2026, as BookRiot reports.

To begin the new year at public schools across the state, Utah officials banned three more books. Wicked: The Life and Times of the Wicked Witch of the West by Gregory Maguire, Nineteen Minutes by Jodi Picoult, and The Perks of Being a Wallflower by Stephen Chbosky join 19 other titles on a state-sanctioned ban list and must now be removed from all schools.

This law is basically just a heckler’s veto. No consensus is needed to subject a title to removal across the state. The law allows parents to file book challenges which, in reality, means a few bigoted activists will be able to impose their will on every resident in the state.

The law compounds this deliberate error by allowing certain schools (or those being pressured by this small group of anti-freedom activists) to place their thumbs on the scale. Since that’s what the law is designed to do, that’s exactly what has happened:

What is important to understand about the law is that despite claims this is about “local control,” schools in the state are forced to follow the decisions made in other districts. There are 42 public school districts in Utah, but two districts account for nearly 80% of the books banned statewide: Davis School District and Washington School District.

The three latest book bans came exclusively because of bans at Davis, Tooele, and Washington school districts. Again, two districts are doing nearly all of the dictating of what books are allowed at public schools throughout all of Utah.

“Local control” is as meaningless as “representative democracy.” Someone will always find a way to game the system to ensure they keep what they have if not take a little more. Political parties gerrymander. Utah legislators craft laws that allow a small subset of state schools to write the rules for the rest of them.

For now, the law remains in place and the entirety of the state remains under the direct, definitely not “local” control of a couple of school districts. For now. But things could get a bit more interesting soon, now that a serious challenge to the law has been raised by some of the authors directly affected by these bans.

A group of best-selling authors whose books are banned from Utah public schools are suing the state, arguing its sensitive materials law is unconstitutional.

Filed in federal court, the lawsuit comes after three more books were banned from K-12 schools.

[…]

Among those suing over Utah’s book ban law are award-winning novelists Elana K. Arnold and Ellen Hopkins, the Estate of Kurt Vonnegut and two anonymous Utah public high school students.

The lawsuit [PDF] raises questions the state isn’t going to be in any hurry to answer.

The Book Removal Law, codified at Section 53G-10-103 of the Utah Code, is unmoored from the First Amendment and requires Utah’s Local Education Agencies (“LEAs”) to strip their school libraries of any book that contains even a single description or depiction of sex, no matter how fleeting, no matter its context, and no matter its literary, artistic, political, or scientific value.

The Book Removal Law also never asks the most basic question: appropriate for whom? A kindergartner learning to sound out words and a twelfth-grader weeks from graduation are treated identically. As described below, once a book is labeled “sensitive,” it must be taken from the shelf, including the high school library. There is no recognition that a seventeen-year-old preparing for college, navigating identity, relationships, and the realities of adulthood stands in a fundamentally different place than a five-year-old.

This creates an absurd mismatch with other parts of Utah’s own legal standards. State law permits sixteen-year-olds to consent to certain sexual activity. Yet the same students whom Utah trusts to make intimate, real-world decisions about their bodies are, under the Book Removal Law, barred from accessing out books that contain a mere single passage describing the very conduct in which is lawful for them to engage. The Book Removal Law tells them: you are mature enough to do this, but not mature enough to read about it.

The answer is, of course, that this isn’t about protecting children from content that might be inappropriate for them. It’s about giving bigots and public employees an easy way to remove content they personally don’t like. Because its ulterior motive is its only motive, it’s been written in a way that makes it extremely susceptible to legal challenges. With any luck, this law won’t survive much longer and the people who think no one should have access to content they don’t care for will have to go back to the ineffective seething that seems to make up a disproportionate portion of their existence.

Filed Under: 1st amendment, book ban, censorship, free speech, utah