From Book Bans To Internet Bans: Wyoming Lets Parents Control The Whole State’s Access To The Internet

Free Speech

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

If you’ve read about the sudden appearance of age verification across the internet in the UK and thought it would never happen in the U.S., take note: many politicians want the same or even more strict laws. As of July 1st, South Dakota and Wyoming enacted laws requiring any website that hosts any sexual content to implement age verification measures. These laws would potentially capture a broad range of non-pornographic content, including classic literature and art, and expose a wide range of platforms, of all sizes, to civil or criminal liability for not using age verification on every user. That includes social media networks like X, Reddit, and Discord; online retailers like Amazon and Barnes & Noble; and streaming platforms like Netflix and Rumble—essentially, any site that allows user-generated or published content without gatekeeping access based on age.

These laws expand on the flawed logic from last month’s troubling Supreme Court decision,  Free Speech Coalition v. Paxton, which gave Texas the green light to require age verification for sites where at least one-third (33.3%) of the content is sexual materials deemed “harmful to minors.” Wyoming and South Dakota seem to interpret this decision to give them license to require age verification—and potential legal liability—for any website that contains ANY image, video, or post that contains sexual content that could be interpreted as harmful to minors. Platforms or websites may be able to comply by implementing an “age gate” within certain sections of their sites where, for example, user-generated content is allowed, or at the point of entry to the entire site.

Although these laws are in effect, we do not believe the Supreme Court’s decision in FSC v. Paxton gives these laws any constitutional legitimacy. You do not need a law degree to see the difference between the Texas law—which targets sites where a substantial portion (one third) of content is “sexual material harmful to minors”—and these laws, which apply to any site that contains even a single instance of such material. In practice, it is the difference between burdening adults with age gates for websites that host “adult” content, and burdening the entire internet, including sites that allow user-generated content or published content.

But lawmakers, prosecutors, and activists in conservative states have worked for years to aggressively expand the definition of “harmful to minors” and use other methods to censor a broad swath of content: diverse educational materials, sex education resources, art, and even award-winning literature. Books like The Bluest Eye by Toni Morrison, The Handmaid’s Tale by Margaret Atwood, and And Tango Makes Three have all been swept up in these crusades—not because of their overall content, but because of isolated scenes or references.

Wyoming’s law is also particularly extreme: rather than provide enforcement by the Attorney General, HB0043 is a “bounty” law that deputizes any resident with a child to file civil lawsuits against websites they believe are in violation, effectively turning anyone into a potential content cop. There is no central agency, no regulatory oversight, and no clear standard. Instead, the law invites parents in Wyoming to take enforcement for the entire state—every resident, and everyone else’s children—into their own hands by suing websites that contain a single example of objectionable content. Though most other state age-verification laws often allow individuals to make reports to state Attorneys General who are responsible for enforcement, and some include a private right of action allowing parents or guardians to file civil claims for damages, the Wyoming law is similar to laws in Louisiana and Utah that rely entirely on civil enforcement. 

This is a textbook example of a “heckler’s veto,” where a single person can unilaterally decide what content the public is allowed to access. However, it is clear that the Wyoming legislature explicitly designed the law this way in a deliberate effort to sidestep state enforcement and avoid an early constitutional court challenge, as many other bounty laws targeting people who assist in abortions, drag performers, and trans people have done. The result? An open invitation from the Wyoming legislature to weaponize its citizens, and the courts, against platforms, big or small. Because when nearly anyone can sue any website over any content they deem unsafe for minors, the result isn’t safety. It’s censorship.

Imagine a Wyomingite stumbling across an NSFW subreddit or a Tumblr fanfic blog and deciding it violates the law. If they were a parent of a minor, that resident could sue the platform, potentially forcing those websites to restrict or geo-block access to the entire state in order to avoid the cost and risk of litigation. And because there’s no threshold for how much “harmful” content a site must host, a single image or passage could be enough. That also means your personal website or blog—if it includes any “sexual content harmful to minors”—is also at risk. 

This law will likely be challenged, and eventually, halted, by the courts. But given that the state cannot enforce it, those challenges will not come until a parent sues a website. Until then, its mere existence poses a serious threat to free speech online. Risk-averse platforms may over-correct, over-censor, or even restrict access to the state entirely just to avoid the possibility of a lawsuit, as Pornhub has already done. And should sites impose age-verification schemes to comply, they will be a speech and privacy disaster for all state residents.

And let’s be clear: these state laws are not outliers. They are part of a growing political movement to redefine terms like “obscene,” “pornographic,” and “sexually explicit”  as catchalls to restrict content for both adults and young people alike. What starts in one state and one lawsuit can quickly become a national blueprint. 

Age-verification laws like these have relied on vague language, intimidating enforcement mechanisms, and public complacency to take root. Courts may eventually strike them down, but in the meantime, users, platforms, creators, and digital rights advocacy groups need to stay alert, speak up against these laws, and push back while they can. When governments expand censorship and surveillance offline, it’s our job at EFF to protect your access to a free and open internet. Because if we don’t push back now, the internet as we know it— the messy, diverse, and open internet we know—could disappear behind a wall of fear and censorship.

Ready to join us? Urge your state lawmakers to reject harmful age-verification laws. Call or email your representatives to oppose KOSA and any other proposed federal age-checking mandates. Make your voice heard by talking to your friends and family about what we all stand to lose if the age-gated internet becomes a global reality. Because the fight for a free internet starts with us.

Originally posted to the EFF’s Deeplinks blog.

Filed Under: 1st amendment, age verification, book bans, bounty law, censorship, free speech, heckler's veto, south dakota, wyoming

Trump Admin Goes Full McCarthy, Will Decide Whether Migrants Are Pro-USA Enough To Stay Here

Free Speech

from the does-the-American-flag-make-you-hard dept

This was pretty much inevitable. While the Trump’s band of bigots struggled mightily to expel brown people from this country, the rest of his sycophants are doing everything they can to prevent non-white foreigners from entering the country.

It’s counterproductive, especially when the end goal is at least 3,000 ICE arrests per day. If you don’t let enough migrants in, you’re going to run out of migrants to arrest and deport. It’s simple math, people. But it’s also a simple president, to use the pejorative form of the word.

Marco Rubio’s State Department is doing what it can to filter out people who might be opposed to Trump and/or his policies. Applicants for visas now must subject themselves to vetting that includes deep dives into their social media accounts to sniff out anything slightly smelling of anti-Trump animus. According to Rubio himself, being anti-Trump is the same thing as being anti-America, even though it’s clear Trump has zero respect for everything that actually makes America great.

Apparently, this isn’t working quite as well as Trump or Rubio had hoped. People who don’t like Trump must still be finding a way to enter this country. Not to worry! DHS has just issued guidance that says it can now (or rather, continue) to throw people out because they’re not TEAM USA enough.

In a move that’s completely on-brand for the Trump administration, McCarthyism is now back in play when it comes to allowing migrants to continue accessing rights and benefits that were previously considered to be guaranteed. (h/t Aaron Reichlin-Melnick on Bluesky)

This isn’t hyperbole. It’s excruciatingly literal. The new DHS policy memo [PDF] specifically cites laws created to assist Joe McCarthy’s desire to eject Communists from the country.

For certain immigration benefit requests, such as adjustment of status, the alien bears the burden of proof to demonstrate that a favorable exercise of discretion is warranted.¹

[…]

USCIS guidance provides that an alien’s compliance with immigration laws is a relevant factor when determining if a favorable exercise of discretion is warranted. USCIS is updating the Policy Manual to provide additional guidance for officers on the significant negative discretionary weight USCIS assigns in circumstances where an alien has endorsed, promoted, supported, or otherwise espoused the views of a terrorist organization or group, including those who support or promote anti-American ideologies or activities, antisemitic terrorism, antisemitic terrorist organizations, and antisemitic ideologies, in any case involving an exercise of discretion.²

There are two footnotes attached to these statements. Here’s what the first one links to, the establishment of a burden of proof that is placed on the “alien” seeking to stay in the country — a statute that was created during McCarthy’s height of power.

The second footnote links to a law created directly in response to McCarthy’s witch hunt — the title of which suggests fans of Trump might be too un-American to be allowed to seek residence in the United States:

Prohibition upon the naturalization of persons opposed to government or law, or who favor totalitarian forms of government

I mean… it speaks for itself. If there’s been an administration more tolerant of totalitarianism or less supportive of the rule of law, we certainly haven’t seen it since the final days of the Nixon administration. And at least Nixon had the courage to resign during his impeachment, rather than force himself on the nation repeatedly the way ol’ grab-em-by-the-pussy has.

The end result of the exhuming of McCarthyism is this, at least in terms of what DHS/US Citizenship and Immigration Services will do:

In cases where the alien has engaged in such activities, USCIS will enforce all relevant immigration laws to the maximum degree, including the use of discretion, to deny the benefit request.

This certainly doesn’t sound like maximum degree “discretion,” unless your definition of maximized discretion is always finding a reason to block a non-white migrant from continuing to reside in the United States. That is one way to use “discretion,” albeit one that most people wouldn’t consider to be the defining feature of discretionary power.

There is no further clarification as to what DHS/USCIS consider to be un-American enough to reject applications for permanent residence in the United States. It’s all “discretion” from here on out, which means the DHS can use this power to oust anyone it wants to, regardless of any other reasons migrants have cited as justifying their continued residence in the US.

It’s evil, stupid, and cruel. And that means it’s just another part of the complete Trump Administration set. It’s bigotry backed by laws created to appease a bigot who managed to go mainstream seven decades ago. Everything old is new again… well, except for all the old stuff like Lady Liberty serving as a beacon of hope and America behaving like it might actually deserve the title of “Leader of the Free World” now and then.

Filed Under: dhs, ice, mass deportation, mccarthyism, time to deport lady liberty i guess, trump administration, uscis

Trump Wants To Criminalize Free Speech In The Form Of Flag Burning

Free Speech

from the burn-baby-burn dept

You may recall that Donald Trump and his supporters have insisted that he’s the “free speech” President. His first day in office this term, he issued an executive order “restoring free speech” saying that “no Federal Government officer, employee, or agent engages in or facilitates any conduct that would unconstitutionally abridge the free speech of any American citizen.”

Well, I’d like to report a federal government officer violating that executive order… in the form of the President of the United States issuing another executive order which tries (weakly) to figure out a way to criminalize the burning of the American flag, which is not something the President can actually do.

Our great American Flag is the most sacred and cherished symbol of the United States of America, and of American freedom, identity, and strength.  Over nearly two-and-a-half centuries, many thousands of American patriots have fought, bled, and died to keep the Stars and Stripes waving proudly.  The American Flag is a special symbol in our national life that should unite and represent all Americans of every background and walk of life.  Desecrating it is uniquely offensive and provocative.  It is a statement of contempt, hostility, and violence against our Nation — the clearest possible expression of opposition to the political union that preserves our rights, liberty, and security.  Burning this representation of America may incite violence and riot.  American Flag burning is also used by groups of foreign nationals as a calculated act to intimidate and threaten violence against Americans because of their nationality and place of birth.

The executive order is so weak because, as it acknowledges, the Supreme Court has made it clear that the burning of the American flag is almost always protected expression under the First Amendment.

Most notably, in Texas v. Johnson in 1989, the Supreme Court was pretty clear about all this. As the Court stated explicitly:

If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.

It also highlights the point that flag burning is not just highly expressive, but the fact that America allows for the burning of its flag as a form of speech highlights American ideals:

We are tempted to say, in fact, that the flag’s deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson’s is a sign and source of our strength. Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is of the bombardment it survived at Fort McHenry. It is the Nation’s resilience, not its rigidity, that Texas sees reflected in the flag — and it is that resilience that we reassert today.

The way to preserve the flag’s special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong.

And, of course, the MAGA crowd knows all of this even if they’re pretending to forget it this week. You may recall that just last year the Heritage Foundation chose to fly the American flag upside down over its headquarters after Donald Trump was found guilty by a jury.

Similarly, the very MAGA Supreme Court Justice, Samuel Alito, was found to have flown an American flag upside down (he blamed his even more MAGA wife).

So, yes, MAGA folks know that the “desecrating” the flag is a form of expression.

The executive order pretends to get around all of this by pretending that it’s only talking about “unconstitutional” versions of flag burning, which they claim are when it amounts to “fighting words” or likely to incite imminent lawless action:

Notwithstanding the Supreme Court’s rulings on First Amendment protections, the Court has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to “fighting words” is constitutionally protected. 

This is constitutional nonsense on multiple levels. The “fighting words” exception has been effectively neutered by decades of Supreme Court decisions, and the Brandenburg “imminent lawless action” standard sets an incredibly high bar that peaceful flag burning never meets.

More fundamentally, the EO falsely claims these exceptions haven’t been tested in flag burning cases. That’s wrong. Texas v. Johnson directly addressed both, starting with “fighting words”:

Nor does Johnson’s expressive conduct fall within that small class of “fighting words” that are “likely to provoke the average person to retaliation, and thereby cause a breach of the peace.” Chaplinsky v. New Hampshire, 315 U. S. 568, 315 U. S. 574 (1942). No reasonable onlooker would have regarded Johnson’s generalized expression of dissatisfaction with the policies of the Federal Government as a direct personal insult or an invitation to exchange fisticuffs.

As for imminent lawless action, the court similarly rejected that argument from Texas in the same case, first saying that nothing in the ruling prevents Texas from keeping the peace:

We thus conclude that the State’s interest in maintaining order is not implicated on these facts. The State need not worry that our holding will disable it from preserving the peace. We do not suggest that the First Amendment forbids a State to prevent “imminent lawless action.” Brandenburg, supra, at 395 U. S. 447. And, in fact, Texas already has a statute specifically prohibiting breaches of the peace, Tex.Penal Code Ann. § 42.01 (1989), which tends to confirm that Texas need not punish this flag desecration in order to keep the peace.

But it notes that simply burning the flag does nothing at all that could be considered as such:

Texas claims that its interest in preventing breaches of the peace justifies Johnson’s conviction for flag desecration.

However, no disturbance of the peace actually occurred or threatened to occur because of Johnson’s burning of the flag. Although the State stresses the disruptive behavior of the protestors during their march toward City Hall, Brief for Petitioner 34-36, it admits that “no actual breach of the peace occurred at the time of the flagburning or in response to the flagburning.” Id. at 34. The State’s emphasis on the protestors’ disorderly actions prior to arriving at City Hall is not only somewhat surprising, given that no charges were brought on the basis of this conduct, but it also fails to show that a disturbance of the peace was a likely reaction to Johnson’s conduct. The only evidence offered by the State at trial to show the reaction to Johnson’s actions was the testimony of several persons who had been seriously offended by the flag burning. Id. at 6-7.

The State’s position, therefore, amounts to a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace, and that the expression may be prohibited on this basis. Our precedents do not countenance such a presumption. On the contrary, they recognize that a principal “function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

In other words, the executive order is hot garbage.

It is an attack on the First Amendment while pretending otherwise. It seems little more than a provocation trying to overturn Texas v. Johnson by pretending there could be some form of flag burning protest which could be criminalized.

Trump’s remarks while signing the order reveal the real game. He attacks Texas v. Johnson as coming “from a very sad court” before launching into fabricated claims about flag-burning riots:

The transcript speaks for itself (in part by showing how much word salad this man spews):

This is very important. Flag burning all over the country. They’re burning flags all over the world. They burn the American flag.

And as you know, through a very sad court, I guess it was a five to four decision, they called it freedom of speech.

But there’s another reason which is perhaps much more important. It’s called death. Because what happens when you burn a flag is the area goes crazy.

If you have hundreds of people, they go crazy. You can do other things. You can burn this piece of paper. You can and it’s but when you burn the American flag, it incites riots at levels that we’ve never seen before.

People go crazy in a way both ways. There are some that are going crazy for doing it. There are others that are angry angry about them doing it.

A good reporter would ask for a single example of someone burning a flag (let alone it “happening all over the country”) where hundreds of people went crazy and started “riots at levels that we’ve never seen before.”

None of this happened.

But it’s clear the intent here is to try to overturn Texas v. Johnson and use it to imprison anyone who is protesting Trump’s fascistic tendencies. Even though the EO pretends that this will only lead to prosecution if the flag burning is done to incite violence, Trump then makes it clear he thinks the flag burning alone deserves a year in prison (something he doesn’t get to decide, he’s not a king).

And what the penalty is going to be if you burn a flag you get one year in jail. No early uh exits. No, nothing. You get one year in jail.

He then claims as soon as he signs it, flag burning will stop immediately.

Except, of course, the opposite happened. Later in the day after signing it, an American veteran went in front of the White House in a clear sign of expressive protest, announced he was burning a flag to protest Donald Trump and his signing of the executive order:

And no riot occurred. No violence. No death. But the guy was still arrested for exercising his free speech:

This arrest proves the executive order’s real purpose in real time. There was no “imminent lawless action.” No “fighting words.” No riots or violence—just peaceful symbolic speech criticizing the government. Yet the speaker was criminalized anyway, demonstrating that this isn’t about preventing violence or maintaining order. It’s about using state power to silence dissent and punish symbolic speech that criticizes the government.

This is what authoritarianism looks like in practice: using the power of the state to criminalize symbolic criticism of the government while wrapping it in patriotic rhetoric. Trump’s executive order isn’t about protecting the flag—it’s about weaponizing law enforcement against dissent. And the fact that he’s doing this while simultaneously claiming to be the champion of “free speech” only makes the constitutional violation more brazen.

The Supreme Court got it right in Texas v. Johnson: “The way to preserve the flag’s special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong.” Trump’s approach does the opposite—it reveals a government so insecure that it must silence its critics rather than answer them.

Filed Under: 1st amendment, donald trump, executive orders, fascist, fighting words, flag burning, free speech, incitement, protest

Trump Whines, Again Threatens NBC, ABC Broadcast Licenses For Doing Journalism

Free Speech

from the the-idiot-king-is-crying-again dept

With Fox being Fox, and CBS having just paid Trump a $16 million bribe and now owned by Trump’s friends the Ellison family, there’s little worry that either network will be doing serious journalism anytime soon. So Trump, over the weekend, redirected his ire at the remaining two “big four” broadcasters, ABC and NBC, for the sin of doing journalism semi-critical of our idiot king. Of course, with a few months time, if the memory of the bribe fades, whose to say Trump won’t retarget CBS as well. After all, ABC already paid a similar tribute to Trump, but that was already nine months ago.

Remember: giving in to the bully doesn’t make him go away. It just makes him realize you’re an easy mark.

In a rant at his propaganda social media platform Truth Social, Trump lied, claiming that both ABC and NBC were unfair to Conservatives and should have their broadcast licenses pulled:

What upset our oafish mad king? Apparently it was a recent study by the right wing “watchdog” group Media Research Center (MRC) that “studied” ABC’s “World News Tonight,” “NBC Nightly News” and “CBS Evening News” from Jan. 20 through April 9. The study found that 92 percent of the 899 stories about Trump were generally negative. A lot of the coverage were of Trump’s ridiculous, harmful, and unpopular tariffs.

Trump also appears to have been upset because ABC interviewed Chris Christie, which itself can barely be construed as any sort of useful or interesting journalism. So to be clear: Trump wasn’t upset by journalism, he was upset by a right wing activist group misrepresenting journalism, and a largely irrelevant former Republican Governor of New Jersey who probably shouldn’t be on TV in the first place.

Like most things, Trump doesn’t understand how anything he works. He doesn’t understand the First Amendment. He doesn’t really understand that it’s the local affiliates of these major networks that have local broadcast licenses. Or that randomly revoking them isn’t something that’s particularly legal or easy, even with a sycophantic stooge and anti-free-speech zealot in charge of his FCC.

That’s not to say the threats are empty. Former FCC boss Tom Wheeler wrote a piece last year exploring what Trump can and can’t actually do.

As we just saw with CBS, Trump’s bobble-headed regulators have had success leveraging the merger approval process to bully companies like CBS into feckless compliance if they’re mean to the president or aren’t suitably racist and sexist enough for his liking. There are also some untapped possibilities like leveraging emergency war powers embedded in the Communications Act to attack journalism and free speech.

Worried that they might give the full-diapered baby king a sad, media companies have been quick to soften their coverage of Trump in exchange for tax breaks and regulatory favors, highlighting, repeatedly, the weakness of the modern fourth estate in the online, ad-based, infotainment news era. Many of these networks rushed to hire more right wingers to appease Trump before he’d even won re-election.

U.S. corporate news is a feckless mess that’s generally been shifting its editorial Overton window rightward for decades to appease an increasingly radical U.S. right wing. It’s hard to imagine how authoritarians would respond if the U.S. news had been vibrant and fearless in the first place. That said, if U.S. media was healthy, it’s very possible authoritarians would have never come to power in the first place.

But authoritarian disdain for factual reality and an informed electorate is bottomless all the same, and their endless bullying of U.S. media giants (often for nonexistent “liberal bias”) has been very clearly and disastrously successful.

Filed Under: 1st amendment, bias, broadcast, censorship, donald trump, free speech, journalism, licenses, media
Companies: abc, nbc

Amy Klobuchar Wants To Break The Internet Because Someone Made A Stupid Satirical Video About Her

Free Speech

from the maybe-not-the-time-for-censorship? dept

Senator Amy Klobuchar is one of the top Democrats in the Senate. She could be fighting to protect democracy against fascists. She could be working on a new, better vision for Americans. But instead, she’s focused on breaking the internet.

And now we know why: someone made a stupid satirical video about her, and her response was to write an op-ed demanding new laws to censor it. The video is obviously fake, obviously satirical, and obviously protected by the First Amendment. Klobuchar knows this—she even acknowledges the First Amendment protections in her own legislation. But she’s using this protected political speech as her prime example of why we need her NO FAKES Act to give platforms more power to take down speech.

It’s the perfect encapsulation of the authoritarian mindset critics have long warned about: a sitting senator’s first instinct when confronted with speech that mocks her is to reach for the censorship lever.

This isn’t new for Klobuchar. She has a long history of pushing obviously unconstitutional bills that would destroy the internet.

For example, remember when she had the brilliant idea to allow the head of Health & Human Services declare what content was “health misinformation” to require social media companies to take it down? Imagine just how that would be working right now with the head of Health & Human Services being the walking, talking, conspiracy theory-spewing, worm-brained RFK Jr?

She was also the key Democratic senator behind the TAKE IT DOWN Act, which did pass into law, and which Donald Trump himself has promised to use to silence criticism of himself.

Somewhere in all of this, you would hope that Senator Klobuchar and her staff might take a second to think through the consequences of these bills they keep pushing. But, no, Senator Klobuchar is instead completely freaked out because someone made a stupid satirical video “deepfake” pretending to make her say some stuff that no human being actually thinks she said.

Let’s be clear: the video that Senator Klobuchar is concerned about is (1) obviously fake and satirical, and (2) obviously protected free speech under the First Amendment. I’m going to post it here via Streamable, which means it will expire and disappear soon, because I’m actually worried about posting it somewhere more permanent, like YouTube, where Klobuchar’s threats suggest that I could have it taken down and my account banned for posting something for journalistic reasons.

The video is obviously fake. No one with any sense at all thinks that Klobuchar said anything like this:

Look, all we’re saying is that we want representation. Okay?

If Republicans are going to have beautiful girls with perfect titties in their ads, we want ads for Democrats, too, you know? We want ugly fat bitches wearing pink wigs and long-ass fake nails being loud and twerking on top of a cop car at a Waffle House cuz they didn’t get extra ketchup.

You know, just because we’re the party of ugly people doesn’t mean we can’t be featured in ads. Okay? And I know most of us are too fat to wear jeans or too ugly to go outside, but we want representation.

It’s very stupid satire, but it’s satire and it’s clearly protected speech under the First Amendment. But Klobuchar seems to believe that the First Amendment doesn’t seem to apply when people create satirical videos about her.

So I was surprised later that week when I noticed a clip of me from that hearing circulating widely on X, to the tune of more than a million views. I clicked to see what was getting so much attention.

That’s when I heard my voice — but certainly not me — spewing a vulgar and absurd critique of an ad campaign for jeans featuring Sydney Sweeney. The A.I. deepfake featured me using the phrase “perfect titties” and lamenting that Democrats were “too fat to wear jeans or too ugly to go outside.” Though I could immediately tell that someone used footage from the hearing to make a deepfake, there was no getting around the fact that it looked and sounded very real.

As anyone would, I wanted the video taken down or at least labeled “digitally altered content.” It was using my likeness to stoke controversy where it did not exist. It had me saying vile things.

Yeah, except the First Amendment doesn’t allow for a sitting senator to take down First Amendment-protected speech, in the same way that it doesn’t allow a sitting president to take down an AI-generated deep fake image of himself wandering naked in the desert. That’s political speech, as this deepfake was (even if it’s crude and silly).

The contrast with how a competent politician handles this couldn’t be starker. When someone created an almost identical deepfake of Alexandria Ocasio-Cortez—same fake controversy, similarly ridiculous fake quotes—AOC didn’t run to write new censorship laws. Instead, when newscaster Chris Cuomo fell for it and stupidly tweeted at her as if the quotes were real, AOC simply mocked Cuomo for being a gullible hack.

That’s AOC saying:

This is a deepfake dude. Please use your critical thinking skills. At this point you’re just reposting Facebook memes and calling it journalism

That’s the difference between understanding that political speech—even crude, stupid political speech—is protected, and having the authoritarian instinct to immediately reach for legal remedies against speech you don’t like.

No calling for unconstitutional laws. No demanding the (in poor taste) satire be hidden. Just straight up mockery for anyone so stupid as to fall for it.

Klobuchar uses this experience to call for a law even worse than the TAKE IT DOWN Act, her NO FAKES Act.

That is why I am again working across the aisle on a bill to give all Americans more control over how deepfakes of our voices and visual likenesses are used. The proposed bipartisan NO FAKES Act, cosponsored by Senators Chris Coons, Marsha Blackburn, Thom Tillis and me, would give people the right to demand that social media companies remove deepfakes of their voice and likeness, while making exceptions for speech protected by the First Amendment.

I mean, but this video is clearly protected by the First Amendment. And just this article is creating a chilling effect. I’m posting it only via a temporary, disposable, anonymous hosting service because the fact that a sitting US Senator is threatening platforms that host this content makes me wary of posting it there, even as the context here is obviously journalistic.

We’ve talked about just how bad the NO FAKES Act is. And just last week, Stanford’s Daphne Keller published an incredibly thorough takedown of just how dangerous the NO FAKES Act would be. Keller’s summary:

NO FAKES creates a restrictive new legal regime for realistic, computer-generated, content that has been significantly altered or was never real in the first place. This “fake” content will be legal for creators who acquire licenses from the people depicted. But it is otherwise prohibited – subject to a long, hard-to-parse list of exceptions for First Amendment-protected speech like parody and news reporting. The difficulty of applying those exceptions or distinguishing real from fake content, along with the bill’s astronomical statutory damages, will cast a long shadow of potential liability over journalists, artists, parodists, and more

I mean, just the fact that Klobuchar herself is using First Amendment protected satire as her example of why she needs NO FAKES to remove that First Amendment-protected speech should tell you everything you need to know about the usefulness of the “ long, hard-to-parse list of exceptions for First Amendment-protected speech like parody and news reporting.”

As Keller warns, NO FAKES would be a disaster for the open internet:

The difficulty of applying those exceptions or distinguishing real from fake content, along with the bill’s astronomical statutory damages, will cast a long shadow of potential liability over journalists, artists, parodists, and more. That threat to legal speech is heightened by NO FAKES’ extensive new licensing regime, which will allow profit-motivated third party agents to demand payments from content creators and distributors on behalf of both the living and the dead. Finally, the bill establishes a “notice and takedown” regime that puts decisions about speech – along with major liability risks for leaving that speech online – in the hands of risk-averse private platforms. Once content is removed, many platforms – including ranging from Wikipedia to Craigslist and more – will need to deploy flawed technical filters that prevent other users from sharing the same material, even in new and lawful contexts. The bill almost seems designed to make platforms take down far more speech than lawmakers could ever prohibit under the First Amendment.

If well-documented history is any guide, we should expect platforms to receive a deluge of mistaken or simply fraudulent notices targeting lawful speech under NO FAKES. The bill’s unclear mandates and steep statutory damages will give platforms every reason to comply with over-reaching takedown demands. A lot of these demands will likely come from ordinary people or the companies to whom those people license their rights, and target content that could plausibly be either real or fake. Sending groundless NO FAKES claims as damage control will also be a tempting option for powerful people who want to prevent the spread of embarrassing pictures they took with an old friend, Jumbotron footage, or “falsified” videos that may be offensive but are clearly labeled as satire.

There’s a lot more in Keller’s paper that is worth reading, but I think Klobuchar’s own op-ed here tells us all we need to know about the problems of NO FAKES. She is responding to First Amendment-protected speech that parodies (poorly) her own speech, and her first reaction is “how can I pass a law to censor this speech.”

Again, doing so at a time when those in power, including Donald Trump, have made it clear that they will use any technique at their disposal to intimidate and silence those who criticize or mock them is so incredibly tone deaf. Klobuchar is obsessed with “bipartisanship” at a time when that just means “giving fascists more powers to censor critics” and she’s ready to jump on board because some rando person made a silly, obviously fake satire video that made it look like she said silly things no one would ever think she’d actually say.

It’s almost the perfect encapsulation of how out of touch and feckless Klobuchar is: she’s happy to hand an authoritarian, censor-happy government way more power to silence speech, so long as she also gets to remove a video that made fun of her.

Filed Under: 1st amendment, ai, amy klobuchar, censorship, deepfakes, free speech, no fakes, no fakes act, sidney sweeney

ICE’s Official X Account Tags DOJ In Repost Of State Rep’s Clearly Protected Speech

Free Speech

from the overseen-by-dangerous-idiots dept

Petty thugs. That’s all ICE is. Masked officers too cowardly to show their faces and too aware they’re in the wrong to dare approach judges with warrant requests. Even ICE’s lawyers are doing what they can to keep themselves from being added to the permanent record.

Idiots are running the agencies and assholes are staffing the administration’s official social media accounts. These days ICE and the DHS are spending most of their time online calling factual reports “fake news,” blowing as many racist dog whistles as they can find, and otherwise deliberately misunderstanding the Constitutional rights they swore to protect and uphold.

Back in the old days (as recently as last year!), an official government social media account wouldn’t be caught dead reposting stuff dumped onto the web by bigoted trolls and novelty accounts. Now, it’s just everyday business at the Government, where insanely biased accounts like “Libs of TikTok” are being given a larger bullhorn by government agency reposts. That’s not a smart move. It suggests the government endorses the sentiments it’s rebroadcasting.

But more than that, it suggests the people running government social media accounts are no more judicious or capable of sound judgment than the absolute dreck they choose to amplify. In this case, highlighted by Sarah McLaughlin on Bluesky, it’s more than just stupid. It’s ICE tagging another federal agency presumably in hopes of instigating legal action against someone engaging in protected speech.

Here’s the post by McLaughlin:

In case you can’t see/read the embed, McLaughlin has posted a screenshot of an X post by ICE’s official account, which retweets a Libs of TikTok post calling for the “charging” of Connecticut state representative Corey Paris for “doxxing ICE’s live location and warning illegals to stay ‘vigilant.'”

To which McLaughlin has added:

A CT state rep posted a story about reports of ICE activity in his district and asked neighbors to “look out for another” and contact advocacy groups.

Libs of TikTok posted it, calling for him to be charged and tagging ICE & DHS.

ICE shared it, tagging the Justice Dept.

This is protected speech.

McLaughlin is right. Libs of TikTok, as it almost always is, is wrong.

First off, you cannot “dox” the live location of public officials carrying out their duties in public. It’s impossible. While it may be inconvenient to be live-streamed or snitched out to social media, every part of what’s being reported is the very definition of “public” and is definitely of public interest. A location cannot be doxed. If it can be seen by anyone on the street, it’s in public view. Just ask any cop who’s ever taken advantage of an automatic license plate reader or utility pole-mounted surveillance camera.

Second, Libs of TikTok deliberately misrepresents what was said by Rep. Corey Paris. Here’s what he actually said, according to the screenshot of his Instagram account that Libs of TikTok posted itself.

I’ll go ahead and transcribe it, since it’s all a bit much to be expected to read in the format it’s been presented in.

This morning, I was made aware of multiple reports of Immigration and Customs Enforcement (ICE) activity within our district. While we are working to verify the full scope of these reports, I urge all residents to remain vigilant, stay aware of your surroundings, and, above all, prioritize your safety.

Please look out for one another, check in with neighbors who may be concerned, and seek out trusted legal and community resources if needed. If you have information about ICE activity, share it with local advocacy organizations who can respond quickly and appropriately.

Our community is strongest when we remain informed, united, and committed to protecting the dignity and safety of all who call it home.

You can read this statement through as many times as you want and you won’t find anything that even remotely resembles “doxxing ICE locations” or otherwise strays anywhere near the outer boundaries of the First Amendment. Nothing unlawful is suggested or encouraged. All the state rep does is tell people ICE may be operating in the area and urges people to contact legal aid and advocacy groups if they need assistance. Otherwise, it just tells people to look out for themselves and their neighbors and, above all, prioritize their safety.

I assume the person running ICE’s official X account didn’t bother to read anything but the Libs of TikTok misrepresentation of what was said by Rep. Paris. I guess I would hope that was the case, because if the staffer did read this and still decided to tag in the DOJ’s official X account, that would be even more disturbing than simply playing to bigots by pretending the assertions made by Libs of TikTok had merit and that Paris should be investigated, if not actually arrested, for alleged “doxxing” that’s impossible to accomplish and isn’t actually happening in the first place.

Our nation is in the hands of the dumbest of dumb fucks. With any luck (and plenty of useful nudges) they’ll wear themselves out before they destroy this nation completely. And while I’d like to believe there will still be a nation worth saving once this regime is ousted, it’s gonna be hell patching up all the holes these dipshits have punched into the drywall of the Republic.

Filed Under: 1st amendment, censorship, corey paris, doj, free speech, ice
Companies: tik tok, x

Federal Judge Delivers Judicial Smackdown To FTC’s Politically Motivated Attack On Media Matters

Free Speech

from the retaliatory-animus dept

A federal judge has delivered an extraordinary rebuke to the FTC’s Andrew Ferguson, finding that his investigation into Media Matters was motivated by “retaliatory animus” rather than legitimate antitrust concerns. In a scathing ruling, Judge Sparkle L. Sooknanan granted Media Matters’ motion for a preliminary injunction, calling out not just the investigation’s pretextual nature, but the systematic pattern of harassment the organization has faced for accurate reporting.

Courts almost never find that federal agencies act with improper retaliatory motives. That Judge Sooknanan felt compelled to make such a finding—explicitly stating that “retaliatory animus was the but-for cause of the FTC’s CID”—signals just how egregious Ferguson’s conduct has been.

For those keeping score at home, this is now the third time federal courts have had to block frivolous, retaliatory government investigations targeting Media Matters for the heinous crime of… accurately reporting that ads appeared next to Nazi content on X. Because apparently, in Trump’s America, doing your job as a journalist is grounds for federal investigation.

Let’s recap this absolutely ridiculous saga. In November 2023, Media Matters published an article showing that major brand advertisements were appearing next to literal neo-Nazi content on Elon’s platform. This happened right after Musk endorsed an antisemitic conspiracy theory with his now-infamous “You have said the actual truth” response.

The report was factually accurate. Even Musk’s own lawsuit admits this. But rather than fix the problem or take responsibility, Musk decided to shoot the messenger. He promised a “thermonuclear lawsuit” and then followed through, filing ridiculously frivolous litigation against Media Matters in multiple countries.

But that wasn’t enough. Trump advisor Stephen Miller then essentially put out a public call (on Twitter, of course) for state prosecutors to pile on, leading to “investigations” by Texas AG Ken Paxton and Missouri AG Andrew Bailey. Both of those got smacked down by federal courts for the obvious First Amendment violations they were.

And now we have Andrew Ferguson’s FTC taking up the cause with an equally bogus “antitrust” investigation, in the form of a “civil investigatory demand” (effectively a subpoena).

Judge Sooknanan’s ruling is a masterclass in judicial restraint while still absolutely eviscerating the government’s case. She starts by noting just how extraordinary it is for a court to find that a federal agency acted with improper retaliatory motives:

Speech on matters of public concern is the heartland of the First Amendment. The principle that public issues should be debated freely has long been woven into the very fabric of who we are as a Nation. Without it, our democracy stands on shaky ground. It should alarm all Americans when the Government retaliates against individuals or organizations for engaging in constitutionally protected public debate. And that alarm should ring even louder when the Government retaliates against those engaged in newsgathering and reporting.

The judge then details the pattern of harassment that Media Matters has faced, noting how Ferguson basically auditioned for his FTC role by promising to go after the organization:

Before President Trump selected him to head the FTC, Mr. Ferguson appeared on Steve Bannon’s podcast, where he said that it is “really important that the FTC take investigative steps in the new administration under President Trump” because “progressives” and others who are “fighting “disinformation” were “not going to give up just because of the election.” One of his supporters, Mike Davis, who urged President Trump to nominate him to the role, made several public comments about Media Matters, including that Mr. Musk should “nuke” the media company. And after taking the reins, Chairman Ferguson brought on several senior staffers at the FTC who previously made public comments about Media Matters.

But it gets better. The judge highlights how Ferguson’s supporters and appointees have made their motivations crystal clear. Mike Davis, mentioned above, has been quite explicit about his goals:

One of Mr. Ferguson’s supporters was Mike Davis, who wrote on X that “Donald Trump should nominate digital freedom fighter Andrew Ferguson to chair FTC.” Id. ¶ 63 (Mike Davis (@mrddmia), X (Dec. 7, 2024, 2:09 pm), https://perma.cc/V9XL-J7UX). Mr. Davis has made many comments about Media Matters throughout this controversy. On December 1, 2022, Mr. Davis posted on X that Mr. Musk “should nuke @MMFA [Media Matters’ account] and all staff accounts” because “[t]hey’re a cancer to free speech.” Id. ¶ 64 (quoting Mike Davis (@mrddmia), X (Dec. 1, 2022, 11:54am), https://perma.cc/VVD5- NAR5). Later, on November 10, 2023, he solicited money to help push back against Media Matters: “If you want to help @Article3Project build our (growing) list of leftists to throw in the DC gulag with @MMFA’s @ehananoki and @MattGertz, please donate here.” Id. (quoting Mike Davis (@mrddmia), X (Nov. 10, 2023, 1:53 pm), https://perma.cc/L8E8-ZSJF). And he cheered on Mr. Musk’s eventual lawsuits against Media Matters, writing that “[a]dvertiser boycotts are highly effective tactics leftists use to cow media executives to destroy free speech—and control the political narrative. @MMFA is the driving force behind conservative media getting crushed— and conservative voices silenced. Cheers to @ElonMusk.” Id. (quoting Mike Davis (@mrddmia), X (Nov. 29, 2023, 5:42 pm), https://perma.cc/G88S-YC3U). Mr. Davis “is now an outside adviser to the Trump administration.”

The supposed “free speech warrior” wants to literally destroy an organization for exercising its free speech rights and bragged about it publicly online. Great job.

Judge Sooknanan also calls out how Ferguson stacked his team with people who had publicly expressed hatred for Media Matters:

When Mr. Ferguson became Chairman of the FTC, he brought in several senior staffers who had previously made comments about Media Matters. Joe Simonson, the FTC’s Director of Public Affairs, had posted on X in May 2024 that Media Matters employed “a number of stupid and resentful Democrats who went to like American University and didn’t have the emotional stability to work as an assistant press aide for a House member.” Jon Schweppe, a Senior Policy Advisor to Chairman Ferguson, had said in June 2023 that Media Matters “wants to weaponize powerful institutions to censor conservatives,” before celebrating one of Mr. Musk’s lawsuits against Media Matters, which he called “the scum of the earth.”… And Jake Denton, the FTC’s Chief Technology Officer, had stated in June 2023 that Media Matters was “an organization devoted to pressuring companies into silencing conservative voices.”

This isn’t even subtle. Ferguson hired a bunch of people who spent years calling for Media Matters to be destroyed for its speech and cheering on every earlier attempt to punish the company for its speech. They can’t really act shocked when people question the investigation’s legitimacy.

Of course, it also doesn’t help that the FTC’s theory for this “investigation” is utterly absurd. They’re arguing that accurate reporting about a platform’s content problems somehow constitutes illegal “collusion” because it might cause advertisers to make informed business decisions.

This is not how antitrust law works. At all. It’s not how anything works.

The judge notes the obvious problems with this theory, particularly the complete lack of evidence that Media Matters has any actual information about the “brand safety lists” that supposedly form the basis of this investigation:

The FTC claims that it believes Media Matters has information about the use of brand suitable or brand safe lists to coordinate ad placement… But they never explain why they have reason to believe that Media Matters has information relating to the use of… lists to coordinate ad placement. So the record is utterly devoid of evidence to support such a claim.

The judge also points out how the scope of the FTC’s demands goes far beyond any legitimate antitrust investigation:

Nor does the sweeping scope of the FTC’s CID square with the proffered reason. The FTC claims that it believes Media Matters has information about the use of “brand suitable” or “brand safe” lists to “coordinate ad placement.”… it also includes other demands that go well beyond the investigation’s purported scope. See, e.g., id. at 5 (“Provide each financial statement, budget, profit and loss statement, cost center report, profitability report, and any other financial report regularly prepared by or for Media Matters on any periodic basis. For each such statement, budget, or report, state how often it is prepared, and identify the employees responsible for its preparation.”); id. at 3 (“Provide all documents that Media Matters either produced or received in discovery in any litigation between Media Matters and X Corp. related to advertiser boycotts since 2023). As a whole, then, the scope of the CID suggests pretext on the part of the FTC, which is fatal to the Defendants’ causation arguments.

That “pretext” finding is the ballgame on causation. Agencies almost always get deference on subpoenas; courts almost never call pretext. She did.

One of the most important aspects of this ruling is how it documents the actual harm that this coordinated campaign of harassment has inflicted on Media Matters’ ability to do journalism. The chilling effects of this kind of lawfare are not just real, but they’re a significant drag on any organization. The judge quotes extensively from Media Matters staff about how the investigation has chilled their reporting:

And Media Matters has demonstrated that the FTC’s CID chilled its activity. One declarant has sworn that “the prospect of relaxing Media Matters’ posture on research and reporting about government entities” after winning legal victories against the state CIDs “was stymied by the FTC’s CID.” Dimiero Decl. ¶ 19; see also Padera Decl. ¶ 17 (similar). “For example, without the investigation, Media Matters would likely have looked into reporting about Andrew Ferguson’s merger requirements for Omnicom and IPG, which placed unprecedented limitations on their speech in a transparent attempt to aid media platforms, like X, with limited content moderation efforts.” Dimiero Decl. ¶ 20. The declarant even identified particular stories that Media Matters would have pursued but for the FTC CID:

Furthermore, because of the FTC CID, we have refrained from reporting on the FTC’s relationship with right-wing media or Musk’s relationship with the FTC, as we would have in the past. We have also refrained from publishing research related to right-wing media’s long-running list of companies that they have boycotted or celebrated damaging financially in light of Ferguson’s claims about advertising boycotts. We have even refrained from reporting on our own story of the FTC’s investigation into Media Matters out of fear of retaliation, also turning down a number of media requests for information and appearances on various shows and outlets about a wide range of topics related to the investigation. We also turned down a high-profile interview that was unrelated to the FTC but was about right-wing content creators, deciding that the risk of engaging with the subject matter was too high in the wake of the FTC’s CID. In the past, we likely would have written about a federal agency pressuring companies to adopt policies favored by the Administration or about Media Matters’ experience of being subject to a government investigation because of our speech. Such fears about FTC reporting did not exist in the past. For example, during the first Trump Administration, Mr. Hananoki repeatedly wrote about subjects that were within the scope of the FTC’s work. Now, any reference to the FTC or commissioners must be approved by senior staff and the legal team, burdening an already cumbersome editing process.

This is the point. The process is the punishment. Even when these investigations ultimately fail in court, they succeed in their real goal: making it too expensive and risky for organizations to criticize powerful people.

The New York Times recently reported on just how devastating this campaign has been for Media Matters:

[Media Matters] has racked up about $15 million in legal fees over the past 20 months to defend itself against lawsuits by Elon Musk, in addition to investigations by Mr. Trump’s Federal Trade Commission and Republican state attorneys general.

The group has slashed the size of its staff and scrambled to raise more cash from skittish donors, according to documents and interviews with 11 people familiar with the organization’s fight to survive.

That might not be enough. Media Matters tried to settle with Mr. Musk by offering concessions, but the sides were far apart and talks fizzled. Even when the group has triumphed in court, Mr. Musk has appealed or filed new cases elsewhere.

This is what success looks like for Musk and his political allies. They don’t need to win these cases. They just need to make criticism so expensive that organizations like Media Matters either shut up or shut down.

Perhaps the most remarkable aspect of this ruling is how explicitly Judge Sooknanan calls out the government’s bad faith. Courts are generally very deferential to government investigations, operating under a presumption that prosecutors act in good faith.

But this case was so egregious that the judge felt compelled to state the obvious:

Finally, given the comments by Chairman Ferguson and his colleagues about Media Matters, the timing of the CID, and evidence of pretext, Media Matters is likely to show that retaliatory animus was the but-for cause of the FTC’s CID.

This ruling matters far beyond Media Matters. What we’re seeing is a systematic attempt to weaponize government power against critics and journalists who challenge those in power or their allies. It’s a form of censorial lawfare, and it’s particularly ridiculous coming from those who claim to be free speech supporters.

This is authoritarianism 101. And it’s happening here, right now, in broad daylight.

The good news is that at least some federal courts are still functioning as a check on government overreach. Three different rulings have now recognized these investigations for what they are: politically motivated attacks on free speech.

But the damage has already been done. As the Times reports, Media Matters is struggling to survive financially.

Even worse, the organization has been “removed from coalition communications about FTC actions” and has had to turn down media appearances for fear of further retaliation. This is actually an important point, and I’m glad the judge called it out. The fact that others have removed Media Matters from communications out of fear that it will end up in the hands of a vindictive FTC following a vexatious investigation is really harmful.

This is the chilling effect in action. Even when the First Amendment ultimately wins in court, the process of getting there can be devastating to the organizations trying to exercise their constitutional rights.

The real question is whether other news organizations and advocacy groups will learn the wrong lesson from this. Will they decide it’s too risky to hold powerful people accountable? Will they self-censor rather than face years of expensive litigation and government harassment?

If so, then Musk and Ferguson will have achieved their real goal, even while losing in court. The First Amendment only works if people are willing to exercise their rights under it. And making those rights impossibly expensive to exercise is just another form of censorship.

At least for now, we can celebrate that the courts are still willing to call out government retaliation for what it is. But we shouldn’t kid ourselves about the broader threat to press freedom that this case represents.

When the world’s richest man and his political allies can spur multiple investigations targeting a nonprofit for accurate reporting—and when those investigations can nearly destroy that organization even when they ultimately fail—then we have a serious problem with the state of free speech in America.

Judge Sooknanan’s ruling is a victory. But it’s a victory in a war that shouldn’t have to be fought in the first place.

Filed Under: 1st amendment, andrew ferguson, antitrust, elon musk, free speech, ftc, mike davis, retaliation, sparkle sooknanan, stephen miller
Companies: media matters, twitter, x

Good News, SCOTUS May Sometimes Still Think The First Amendment Makes Censoring The Internet Illegal, But Good Luck Getting Them To Do Anything About It

Free Speech

from the good-news-bad-news dept

There was a colloquy at oral argument earlier this year in the Free Speech Coalition v. Paxton case between Justice Kavanaugh and FSC that raised the unsettling prospect that at least several of the Supreme Court justices did not understand what preliminary injunctions are for. In that case, the bad Texas law had already been enjoined by the district court (correctly) applying strict scrutiny, but then the Fifth Circuit had dumped the injunction by using a rational basis standard instead. As Justice Sotomayor kept reminding, the only issue before the Supreme Court then was whether the Fifth Circuit used the wrong standard to decide whether the injunction should be kept in force.

But a bunch of justices kept trying to go further, and Kavanaugh in particular expressly kept asking if the Court needed to reach the merits, even at this ridiculously early stage with only a small record already developed, in order to consider whether the plaintiffs challenging the law also had a likelihood of success.

JUSTICE KAVANAUGH: — to restore a preliminary injunction by this Court, we would have to find that you have a likelihood of success on how whatever level of scrutiny is applied, correct? [p.52]

No, the lawyer for FSC reminded justices. All they had to decide was that district court had not abused its discretion when it was interpreting the nascent record only just starting to get built while using the correct strict scrutiny standard. Future stages of the litigation would provide the opportunity for a finer-tuned result on the merits. But preliminary injunctions are for the district court’s best guess at that early stage that an injury is likely to occur if not stopped because, at this stage, we care more about not letting a potentially illegal harm accrue than being 100% correct that it’s illegal when it is too soon to know. And the only question on appeal after one has been issued—even at the Supreme Court—is whether that best guess did something conspicuously wrong, like applying the wrong legal standard or seriously misunderstanding the facts as the early record showed them.

Ultimately SCOTUS (somehow) concluded that the legal standard both lower courts used was wrong, deciding that the “correct” standard was the flimsier intermediate scrutiny, even though this pronouncement ignored precedent to make a new (and constitutionally dubious) rule out of thin air.  And it then applied it in a way as to greenlight the law itself, even though such an analysis effectively jumped to the merits prematurely given that the district court itself had not even finished making its own final determination under any standard. The SCOTUS decision essentially produced a “game over” litigation result, abrogating a freedom everyone thought they had up to that point even while the litigation defending that freedom was still very much game on.

Meanwhile, in addition to upending settled First Amendment law, particularly with regard to age-gating, nothing that SCOTUS has done since then has done anything to dispel the concern that it understands the importance of injunctions to protect people from unlawful if not also unconstitutional incursions on their rights. Its habit of dissolving them via administrative stays on the shadow docket has had the effect of making everyone vulnerable to whatever abuse of power the government has been able to exercise and obviated the previous power of the courts to ensure that no unconstitutional injury could be incurred unless and until it is finally shown, via a developed record of facts and law, that none will result from the challenged action.

So it shouldn’t be shocking that the Supreme Court has once again allowed it to be open season on Constitutional rights by aggressive government actors, this time by denying a shadow docket petition seeking relief from a lawless effort by the Fifth Circuit to dissolve an injunction a district court had earlier found warranted to protect the public from an unconstitutional law (in this case, HB 1126, a Mississippi Internet age-gating law).

Furthermore, it did so once again in a law involving age verification and the First Amendment. The “good” news is that, at least this time, Justice Kavanaugh included a concurrence suggesting that Mississippi’s law would ultimately be found unconstitutional on the merits.

To be clear, NetChoice has, in my view, demonstrated that it is likely to succeed on the merits—namely, that enforcement of the Mississippi law would likely violate its members’ First Amendment rights under this Court’s precedents. See Moody v. NetChoice, LLC, 603 U. S. 707 (2024); Brown v. Entertainment Merchants Assn., 564 U. S. 786 (2011); cf. Free Speech Coalition, Inc. v. Paxton, 606 U. S. ___ (2025). Given those precedents, it is no surprise that the District Court in this case enjoined enforcement of the Mississippi law and that seven other Federal District Courts have likewise enjoined enforcement of similar state laws. See No. 1:24–cv–170 (SD Miss., June 18, 2025); NetChoice, LLC v. Yost, 716 F. Supp. 3d 539 (SD Ohio 2024); Computer & Communications Industry Assn. v. Paxton, 747 F. Supp. 3d 1011 (WD Tex. 2024); NetChoice, LLC v. Reyes, 748 F. Supp. 3d 1105 (Utah 2024); NetChoice, LLC v. Bonta, 770 F. Supp. 3d 1164 (ND Cal. 2025); NetChoice, LLC v. Griffin, No. 5:23–cv–5105 (WD Ark., Mar. 31, 2025); Computer & Communications Industry Assn. v. Uthmeier, ___ F. Supp. 3d ___, No. 4:24–cv–438 (ND Fla., June 3, 2025); NetChoice v. Carr, ___ F. Supp. 3d ___, No. 1:25–cv–2422 (ND Ga., June 26, 2025). In short, under this Court’s case law as it currently stands, the Mississippi law is likely unconstitutional.

And yet, by denying this emergency shadow docket petition to lift the stay of the well-earned injunction the district court had granted of this very likely unconstitutional law, SCOTUS, including Justice Kavanaugh, has allowed it to go into its unconstitutional effect.

This indifference to constitutional injury is itself unprecedented. SCOTUS has long since recognized it to be intolerable. In Elrod v. Burns it explicitly declared it as such in the First Amendment context:

The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.

But here we are, with that irreparable injury now being welcomed by a majority of SCOTUS justices, for whom the ancient judicial tool of preliminary injunctive relief is apparently no longer a thing, and because it is the result of yet another unsigned shadow docket maneuver we’ll still never know why.

Filed Under: 1st amendment, 5th circuit, age verification, brett kavanaugh, free speech, injunctions, mississippi, rights, shadow docket, supreme court
Companies: netchoice

Seventh Circuit Shuts Down Indiana’s Unconstitutional Police Buffer Zone Law

Free Speech

from the limiting-contempt-of-cop-arrests dept

Although the Supreme Court has yet to say so itself (and probably won’t any time soon, given its current composition), it’s generally accepted that citizens have the right to film public officials performing their public duties. Law enforcement officers, however, seem to feel this should never be a right and that their actions in full view of the public shouldn’t be memorialized by anything other than police reports written by police officers.

If they can’t change the Constitution, they try to change the law. The problem with this tactic is that the law still has to be constitutional. Many localities have tried to enact laws that are specifically created to make it (1) more difficult to film police activity, and (2) make it easier for officers to arrest people for filming them. These efforts have universally failed.

We can now add another failure to this list. In 2023, the Indiana legislature passed a law that created a 25-foot halo around cops, making it illegal for people to “approach” any officer “lawfully engaged” in police work “after the law enforcement officer has ordered the person to stop.”

Of course, cops weren’t given 25-foot protractors to help ensure only actual violators were arrested for getting too close to cops. Instead, the law played right into the worst aspects of the worst cops, giving them all the reason they needed to arrest someone (especially someone engaged in recording them) for being a bit too close.

And this stupid, cop-serving law did what all of these laws do: generate lawsuits. The ACLU took the state to court first, representing independent journalist Donald Nicodemus. The RCFP (Reporters Committee for Freedom of the Press), along with several other First Amendment activists and journalistic entities, filed their own lawsuit shortly thereafter.

The district court ruled in favor of RCFP. Of course, this was immediately appealed by the state, which felt cops should be given yet another special privilege and citizens should just be expected to bear the burden by giving up a bit of their enshrined rights.

The Seventh Circuit court doesn’t like anything about the law, or the belated second effort made by the state to try to snatch victory from the jaws of defeat. (This court also upheld a ruling in favor of the ACLU and the journalist it represented in court.)

While there’s an obvious First Amendment aspect to this case, it’s actually the Fourteenth Amendment getting the job done. “Void for vagueness” is the operative phrase, and this law is about as vague and arbitrary as it gets — something even the state’s lawyers stated on the record while trying to keep this law from being hit with a restraining order. (h/t Short Circuit)

First, here’s the parallel attempt the state deployed in hopes of keeping its cop halo intact even if the 2023 law was ruled unconstitutional, as relayed by the Appeals Court in its decision [PDF]:

While this appeal was pending, the Indiana legislature passed a second buffer law, which is identical to the buffer law at issue in this case except it specifies that a law enforcement officer may only order an individual to stop approaching if he “reasonably believes that a person’s presence” within 25 feet “will interfere with the performance” of his “duties.” This second buffer law was signed by Governor Braun on March 5, 2025, and took effect on July 1, 2025. It is codified adjacent to the original buffer law.

While this not-really-all-that-new law placed some of the burden of proof back on cops with the phrase “reasonably believes” (something absent from the 2023 law), that delineation doesn’t really mean much when it’s a cop’s word against a citizen’s in an arrest described only in the officer’s words because a citizen (or journalist) has been successfully prevented from recording the interaction.

Here’s only part of what’s wrong with the 2023 law — something the 2025 law doesn’t even attempt to fix — as described by a direct beneficiary of both laws:

Officer Veal threatened that those on the corner, including Mr. Nicodemus, would go to jail if they did not move back another 25 feet, stating that there was a “new law,” apparently referring to Indiana Code § 35-44.1-2-14.

Officer Veal apparently interpreted Indiana Code § 35-44.1-2-14 as allowing police to repeatedly push persons back 25 feet at a time based solely on a police officer ordering this.

But Officer Veal’s application of the 2023 law isn’t even the worst depiction of either law. That came courtesy of the state’s legal reps, who didn’t have any good answers when the appeals court started asking questions about how the wording of either law prevented officers from abusing a law that gives them every opportunity to abuse it:

The buffer law is similarly susceptible to arbitrary enforcement and is therefore unconstitutionally vague. The State attempts to distinguish cases like Bell and Morales by arguing that the buffer law’s “specific, objective terms ensure that it does not invite officers to enforce it in an arbitrary manner”—but that argument only gets the State so far. It is true that a law criminalizing approaching within 25 feet of an officer is more objective than one criminalizing annoying behavior. We also acknowledge that the buffer law requires a do-not-approach warning before subjecting an individual to arrest. But that does not immunize the buffer law from arbitrary or discriminatory enforcement.

As the plaintiffs point out, the problem is more upstream: the buffer law offers no “guidance to the officer deciding whether [a do-not-approach] order should issue” in the first place. Without such guidance, any on-duty officer can use the buffer law to subject any pedestrian to potential criminal liability by simply ordering them not to approach, even if the pedestrian is doing nothing more than taking a morning stroll or merely walking up to an officer to ask for directions.

What was already a pretty vague law in 2023 is now perhaps irreparably vague — especially the 2025 version which pretended to introduce some sort of control but actually just gives officers a blueprint for abuse by telling them they just need to yell “stop” at people in order to justify any subsequent arrest.

It’s so blatantly obvious, the state’s legal reps were unable to come up with a defense of the law or its wording. In fact, they pretty much admitted to the court that the law was bad and would be abused by bad officers.

The State offers no real rebuttal to this notion. Indeed, the State doubled down on the vast discretion afforded by the buffer law at oral argument. We asked counsel to explain when an officer could invoke the buffer law to tell someone to stop approaching. The answer? “If an officer is conducting their official duties, an officer may tell someone to stop approaching.” For any reason? A good reason, a bad reason, a reason the officer just makes up? “Yes.” Could an officer invoke the buffer law just because he had a bad breakfast? Again, counsel answered in the affirmative.

You can’t enact laws that say the government can do whatever it wants whenever it wants for no reason at all and expect courts to just sign off on it. Two consecutive courts rejected this law. The Seventh Circuit isn’t any more receptive of the two laws than the lower court. There’s no way anything described this way could remotely be considered constitutional:

The Fourteenth Amendment will not tolerate a law subjecting pedestrians to arrest merely because a police officer had a bad breakfast—no matter how bitter the coffee or how soggy the scrambled eggs.

Back it goes to the lower court with the injunction still intact. And the only reason the lower court has to take a look at it again is because the Supreme Court recently decided all injunctions that cover more than a single jurisdiction are unequivocally bad solely because the Trump administration is now being subjected to them.

What that means here is that the court will have to determine whether or not its injunction can continue to cover the two (2) counties it applied it to — that being the only two counties in the state where enforcement of the law had actually taken place. So, there’s a good chance these laws will remain intact on a case-by-case basis until every tiny jurisdiction has handled a lawsuit related to enacted laws that affect the entire state. Thanks, SCOTUS.

Filed Under: 14th amendment, 1st amendment, 7th circuit, filming police, indiana, police accountability
Companies: reporters committee for freedom of the press

NY Appeals Court: Lol, No Of Course You Can’t Sue Social Media For The Buffalo Mass Shooting

Content Moderation

from the a-rare-correct-230-ruling dept

When politicians immediately blamed social media for the horrific 2022 Buffalo mass shooting—despite zero evidence linking the platforms to the attack—it was obvious deflection from actual policy failures. The scapegoating worked: survivors and victims’ families sued the social media companies, and last year a confused state court wrongly ruled that Section 230 didn’t protect them.

Thankfully, an appeals court recently reversed that decision in a ruling full of good quotes about how Section 230 actually works, while simultaneously demonstrating why it’s good that it works this way.

The plaintiffs conceded they couldn’t sue over the shooter’s speech itself, so they tried the increasingly popular workaround: claiming platforms lose Section 230 protection the moment they use algorithms to recommend content. This “product design” theory is seductive to courts because it sounds like it’s about the platform rather than the speech—but it’s actually a transparent attempt to gut Section 230 by making basic content organization legally toxic.

The NY appeals court saw right through this litigation sleight of hand.

Here, it is undisputed that the social media defendants qualify as providers of interactive computer services. The dispositive question is whether plaintiffs seek to hold the social media defendants liable as publishers or speakers of information provided by other content providers. Based on our reading of the complaints, we conclude that plaintiffs seek to hold the social media defendants liable as publishers of third-party content. We further conclude that the content-recommendation algorithms used by some of the social media defendants do not deprive those defendants of their status as publishers of third-party content. It follows that plaintiffs’ tort causes of action against the social media defendants are barred by section 230.

Even assuming, arguendo, that the social media defendants’ platforms are products (as opposed to services), and further assuming that they are inherently dangerous, which is a rather large assumption indeed, we conclude that plaintiffs’ strict products liability causes of action against the social media defendants fail because they are based on the nature of content posted by third parties on the social media platforms.

The plaintiffs leaned on the disastrous Third Circuit ruling in Anderson v. TikTok—which essentially held that any algorithmic curation transforms third-party content into first-party content. The NY court demolishes this reasoning by pointing out its absurd implications:

We do not find Anderson to be persuasive authority. If content-recommendation algorithms transform third-party content into first-party content, as the Anderson court determined, then Internet service providers using content-recommendation algorithms (including Facebook, Instagram, YouTube, TikTok, Google, and X) would be subject to liability for every defamatory statement made by third parties on their platforms. That would be contrary to the express purpose of section 230, which was to legislatively overrule Stratton Oakmont, Inc. v Prodigy Servs. Co. (1995 WL 323710, 1995 NY Misc LEXIS 229 [Sup Ct, Nassau County 1995]), where “an Internet service provider was found liable for defamatory statements posted by third parties because it had voluntarily screened and edited some offensive content, and so was considered a ‘publisher’ ” (Shiamili, 17 NY3d at 287-288; see Free Speech Coalition, Inc. v Paxton, — US —, —, 145 S Ct 2291, 2305 n 4 [2025]).

Although Anderson was not a defamation case, its reasoning applies with equal force to all tort causes of action, including defamation. One cannot plausibly conclude that section 230 provides immunity for some tort claims but not others based on the same underlying factual allegations. There is no strict products liability exception to section 230.

Furthermore, it points out (just as we had said after the Anderson ruling) that the Anderson ruling messes up its interpretation of the Supreme Court in the Moody case. That case was about the social media content moderation law in Florida, and the Supreme Court noted that content moderation decisions were editorial discretion protected by the First Amendment. The Third Circuit in Anderson incorrectly interpreted that to mean that such editorial discretion could not be protected under 230 because Moody made it “first party speech” instead of third party.

But the NY appeals court points out how that’s complete nonsense because having your editorial discretion protected by the First Amendment is entirely consistent with saying you can’t hold a platform liable for the underlying content which that editorial discretion is covering:

In any event, even if we were to follow Anderson and conclude that the social media defendants engaged in first-party speech by recommending to the shooter racist content posted by third parties, it stands to reason that such speech (“expressive activity” as described by the Third Circuit) is protected by the First Amendment under Moody. While TikTok did not seek protection under the First Amendment, our social media defendants do raise the First Amendment as a defense in addition to section 230.

In Moody, the Supreme Court determined that content-moderation algorithms result in expressive activity protected by the First Amendment (see 603 US at 744). Writing for the majority, Justice Kagan explained that “[d]eciding on the third-party speech that will be included in or excluded from a compilation—and then organizing and presenting the included items—is expressive activity of its own” (id. at 731). While the Moody Court did not consider social media platforms “with feeds whose algorithms respond solely to how users act online—giving them the content they appear to want, without any regard to independent content standards” (id. at 736 n 5 [emphasis added]), our plaintiffs do not allege that the algorithms of the social media defendants are based “solely” on the shooter’s online actions. To the contrary, the complaints here allege that the social media defendants served the shooter material that they chose for him for the purpose of maximizing his engagement with their platforms. Thus, per Moody, the social media defendants are entitled to First Amendment protection for third-party content recommended to the shooter by algorithms.

Although it is true, as plaintiffs point out, that the First Amendment views expressed in Moody are nonbinding dicta, it is recent dicta from a supermajority of Justices of the United States Supreme Court, which has final say on how the First Amendment is interpreted. That is not the type of dicta we are inclined to ignore even if we were to disagree with its reasoning, which we do not.

The majority opinion cites the Center for Democracy and Technology’s amicus brief that points out the obvious: at internet scale, every platform has to do some moderation and some algorithmic ranking, and that cannot and should not somehow remove protections. And the majority uses some colorful language to explain (as we have said before) 230 and the First Amendment work perfectly well together:

As the Center for Democracy and Technology explains in its amicus brief, content-recommendation algorithms are simply tools used by social media companies “to accomplish a traditional publishing function, made necessary by the scale at which providers operate.” Every method of displaying content involves editorial judgments regarding which content to display [*5]and where on the platforms. Given the immense volume of content on the Internet, it is virtually impossible to display content without ranking it in some fashion, and the ranking represents an editorial judgment of which content a user may wish to see first. All of this editorial activity, accomplished by the social media defendants’ algorithms, is constitutionally protected speech.

Thus, the interplay between section 230 and the First Amendment gives rise to a “Heads I Win, Tails You Lose” proposition in favor of the social media defendants. Either the social media defendants are immune from civil liability under section 230 on the theory that their content-recommendation algorithms do not deprive them of their status as publishers of third-party content, per Force and M.P., or they are protected by the First Amendment on the theory that the algorithms create first-party content, as per Anderson. Of course, section 230 immunity and First Amendment protection are not mutually exclusive, and in our view the social media defendants are protected by both. Under no circumstances are they protected by neither.

There is a dissenting opinion that bizarrely relies heavily on a dissenting Second Circuit opinion in the very silly Force v. Facebook case (in which the family victim of a Hamas attack blamed Facebook claiming that because some Hamas members used Facebook, Facebook could be blamed for any victims of a Hamas attack—an argument that was mostly laughed out of court). The majority points out what a silly world it would be if that were actually how things worked:

To the extent that Chief Judge Katzmann concluded that Facebook’s content-recommendation algorithms similarly deprived Facebook of its status as a publisher of third-party content within the meaning of section 230, we believe that his analysis, if applied here, would ipso facto expose most social media companies to unlimited liability in defamation cases. That is the same problem inherent in the Third Circuit’s first-party/third-party speech analysis in Anderson. Again, a social media company using content-recommendation algorithms cannot be deemed a publisher of third-party content for purposes of libel and slander claims (thus triggering section 230 immunity) and not at the same time a publisher of third-party content for strict products liability claims.

And the majority calls out the basic truths: all of these cases are bullshit cases trying to hold social media companies liable for the speech of its users—exactly the thing Section 230 was put in place to prevent:

In the broader context, the dissenters accept plaintiffs’ assertion that these actions are about the shooter’s “addiction” to social media platforms, wholly unrelated to third-party speech or content. We come to a different conclusion. As we read them, the complaints, from beginning to end, explicitly seek to hold the social media defendants liable for the racist and violent content displayed to the shooter on the various social media platforms. Plaintiffs do not allege, and could not plausibly allege, that the shooter would have murdered Black people had he become addicted to anodyne content, such as cooking tutorials or cat videos.

Instead, plaintiffs’ theory of harm rests on the premise that the platforms of the social media defendants were defectively designed because they failed to filter, prioritize, or label content in a manner that would have prevented the shooter’s radicalization. Given that plaintiffs’ allegations depend on the content of the material the shooter consumed on the Internet, their tort causes of action against the social media defendants are “inextricably intertwined” with the social media defendants’ role as publishers of third-party content….

If plaintiffs’ causes of action were based merely on the shooter’s addiction to social media, which they are not, they would fail on causation grounds. It cannot reasonably be concluded that the allegedly addictive features of the social media platforms (regardless of content) caused the shooter to commit mass murder, especially considering the intervening criminal acts by the shooter, which were not “not foreseeable in the normal course of events” and therefore broke the causal chain (Tennant v Lascelle, 161 AD3d 1565, 1566 [4th Dept 2018]; see Turturro v City of New York, 28 NY3d 469, 484 [2016]). It was the shooter’s addiction to white supremacy content, not to social media in general, that allegedly caused him to become radicalized and violent.

From there, the majority opinion reminds everyone why Section 230 is so important to free speech:

At stake in these appeals is the scope of protection afforded by section 230, which Congress enacted to combat “the threat that tort-based lawsuits pose to freedom of speech [on the] Internet” (Shiamili, 17 NY3d at 286-287 [internal quotation marks omitted]). As a distinguished law professor has noted, section 230’s immunity “particularly benefits those voices from underserved, underrepresented, and resource-poor communities,” allowing marginalized groups to speak up without fear of legal repercussion (Enrique Armijo, Section 230 as Civil Rights Statute, 92 U Cin L Rev 301, 303 [2023]). Without section 230, the diversity of information and viewpoints accessible through the Internet would be significantly limited.

And the court points out, ruling the other way would “result in the end of the internet as we know it.”

We believe that the motion court’s ruling, if allowed to stand, would gut the immunity provisions of section 230 and result in the end of the Internet as we know it. This is so because Internet service providers who use algorithms on their platforms would be subject to liability for all tort causes of action, including defamation. Because social media companies that sort and display content would be subject to liability for every untruthful statement made on their platforms, the Internet would over time devolve into mere message boards.

It also calls out how the immunity part of 230, getting these kinds of frivolous cases tossed out early on is an important part of 230, because if you have to litigate every such accusation you lose all the benefits of Section 230.

Although the motion court stated that the social media defendants’ section 230 arguments “may ultimately prove true,” dismissal at the pleading stage is essential to protect free expression under Section 230 (see Nemet Chevrolet, Ltd., 591 F3d at 255 [the statute “protects websites not only from ‘ultimate liability,’ but also from ‘having to fight costly and protracted legal battles’ “]). Dismissal after years of discovery and litigation (with ever mounting legal fees) would thwart the purpose of section 230.

Law professor Eric Goldman, whose own research and writings seem to be infused throughout the majority’s opinion, also wrote a blog post about this ruling, celebrating the majority for getting this one right at a time when so many courts are getting it wrong, but (importantly) notes that the 3-2 split on this ruling, including the usual nonsense justifications in the dissent mean that (1) this is almost certainly going to be appealed, possibly to the Supreme Court, and (2) it’s unlikely to persuade many other judges who seem totally committed to the techlash view that says “we can ignore Section 230 if we decide the internet is just, like, really bad.”

I do think it’s likely he’s right (as always) but I still think it’s worth highlighting not just the thoughtful ruling, but how these judges actually understood the full implications of ruling the other way: that it would end the internet as we know it and do massive collateral damage to the greatest free speech platform ever.

Filed Under: 1st amendment, blame, buffalo shooting, free speech, intermediary liability, new york, product liability, section 230
Companies: 4chan, amazon, discord, google, meta, reddit, youtube