Going forward, the only thing you’ll hear reported from the Pentagon will be delivered by subservient, right-wing stenographers. The War Department has its own Ministry of Truth, staffed by people whose organizations have seen their fortunes rise along with Trump’s. The bootlicking was always there. The only change is that it’s now officially state-sanctioned.
The administration doesn’t care how this looks. It only cares that it got what it wants. Not only did it break with tradition by demanding journalists agree to play by the administration’s rules if they wanted access to the Pentagon and military officials, it broke with tradition by proudly proclaiming its victory over the First Amendment on the social media platform most devoted to stifling criticism of authoritarians:
Nearly one week since a rash of Pentagon journalists turned in their press credentials after refusing to sign a new restrictive press policy, the Defense Department announced a “new media” press corps, largely hailing from right-wing outlets.
The 60 people from various news organizations represent, “a broad spectrum of new media outlets and independent journalists,” Pentagon spokesperson Sean Parnell wrote in a statement Wednesday on X, adding that all of the publications agreed to the agency’s press policy.
There’s a lot to be appalled by/mock endlessly going on here. First, there’s the fact that this plan will be carried out by other federal agencies since it worked out perfectly here. Second, there’s no “broad spectrum” here, unless you consider multiple people saying the same things with the same pro-Trump deference a hot new take on journalistic freedom.
Then there are the people generously being called “journalists” by a man speaking for an agency being concurrently fellated by at least a couple of dozen extremely right-wing publications. No one would call these people “journalists,” perhaps not even those being called “journalists” by the DoD spokesman.
Brace yourself. It gets ugly immediately.
According to a draft of the announcement obtained by The Washington Post ahead of Parnell’s tweet, the coalition of signatories includes the cable network Real America’s Voice, streaming service Lindell TV (started by MyPillow CEO and Trump ally Mike Lindell), the websites the Gateway Pundit, the Post Millennial, Human Events, the National Pulse, and RedState. It also includes Turning Point USA’s media brand Frontlines, as well as influencer Tim Pool’s Timcast, and a Substack-based newsletter called Washington Reporter.
While the Defense Department was proud to announce it had ousted actual journalists from the Pentagon, it was a bit more cagey when it came to naming the ones who decided to stick around. Parnell bragged on X, but actual journalists had to ask some questions to come up with a list of those who swore an oath of fealty to Papa Doc Don or whatever the fuck it is we’re calling Donald Trump these days.
What’s more surprising is the list of people who left. I’m not talking about the expected ex-pats or the ones already kicked out by the Pentagon (NPR, New York Times). I’m talking about Trump proxies like Newsmax, Fox News, and the Daily Caller. These outlets — despite spending most of their time ensuring the administration always has a bullhorn to borrow — also thought the Pentagon’s demands were inappropriate, which left only the weirdest and worst of the right wing media in place to do the government’s bidding.
And this demand was even too much for one writer who worked for a right wing outlet that has spent the Trump years (which includes the Biden years) further distancing itself from anything that could be considered credible reporting — the Epoch Times — found both the DoD demand and his (now former) employer’s concession too much to stomach:
A national security reporter at the right-wing Epoch Times newspaper has resigned after the publication signed on to rules restricting news gathering within the Pentagon.
The reporter, Andrew Thornebrooke, submitted his resignation in writing on Friday. Although he did not have an active Pentagon press pass, he regularly covered issues related to the Defense Department and frequently reported from the cavernous military complex while working at the publication.
In his resignation email, a copy of which was obtained by The New York Times, Mr. Thornebrooke called The Epoch Times’s signing of the pledge a choice to “abdicate our responsibility as journalists in favor of merely repeating state narratives.”
Thornebrooke also took issue with an editorial directive to refer to antifa as a “terrorist organization” despite there being no evidence it’s an “organization” (rather than an ideological movement), much less involved in terrorism.
This is censorship that isn’t even pretending to be something else. The public statements declaring a new “press” corp are just a victory lap by brutish people who have the audacity to claim they have the moral high ground while shitting all over the rights their predecessors fought and died for.
On the morning of Jan. 7, Jesús Ramírez and other day laborers huddled in a Home Depot parking lot in Bakersfield, California, hoping for work.
Suddenly, they were surrounded by U.S. Homeland Security vehicles.
One agent demanded Ramírez show his papers. When he pulled out his wallet, the agent “snatched” it and took his ID without asking questions, Ramírez said.
“It was clear to me the agents did not know who I was,” Ramírez, 64, said in a court filing translated from Spanish. “They did not show me any document or have a warrant for me.”
He was among 78 people arrested during an immigration enforcement mission, “Operation Return to Sender,” carried out less than two weeks before Donald Trump returned to the White House.
Note the date: January 7. Trump had already been elected but was not yet in office. That would be the other person Bovino is willing to answer to, even if that person isn’t actually his boss at that point in time.
Bovino launched “Return to Sender,” the mission to California’s Central Valley earlier this year, without approval from the Biden administration, the Atlantic magazine reported.
[A] CalMatters investigation, in partnership with Evident and Bellingcat, found that Border Patrol officials misrepresented the very basics of their high-profile, large-scale immigration raid. Data obtained from U.S. Customs and Border Protection reveal that Border Patrol had no prior knowledge of criminal or immigration history for 77 of the 78 people arrested.
In a spreadsheet provided by the agency, under “Criminal History,” all but one entry contains the following passage: “Criminal and/or immigration history was not known prior to the encounter.”
Bovino is now in Chicago, far from the southern border he’s used to patrolling. But he’s still the same old Bovino — an asshat with a bad haircut who thinks no one can tell him what to do, not even federal court judges.
After plaintiffs secured a restraining order restricting the use of crowd control projectiles against people engaged in protected speech, Bovino immediately ensured the court order was violated. And he decided he should be the person to do it. The court order said tear gas couldn’t be used until after clear orders to disperse had been ignored. Bovino said fuck it and hurled tear gas into a peaceful crowd that had done nothing more than stand a few feet away from Bovino and other immigration enforcement officers.
That’s from the filing [PDF] submitted by the plaintiffs, asking Judge Sara Ellis to take note of this blatant violation of her court order. And if you don’t care for still photos, here’s a recording of Bovino violating the court order:
U.S. District Court Judge Sara Ellis ordered Border Patrol chief Greg Bovino, who has led a series of increasingly aggressive raids across Chicago and the suburbs, to appear in her courtroom in person at 10 a.m. Tuesday.
Ellis’ order came less than 24 hours after Bovino fired tear gas at a crowd during an aggressive raid in Little Village. Bovino accompanied agents on raids in Little Village Wednesday and Thursday.
But we’ll have to wait and see how this will play out. Bovino certainly acts like he’s above the law. Not only that, he states to journalists that he’s above the law. First, he insulted the judge. And then he basically said he’d continue to ignore court orders because they’re not the boss of him (paraphrasing). This is from the same filing that includes the screenshot of Bovino’s tear gas tossing:
[M]ultiple declarants and numerous video clips demonstrate that the crowd in Little Village was peaceful at the moment Defendant Bovino started the conflict by launching cannisters of tear gas into the assembled crowd, and that no warnings or dispersal orders were given before he did so.
[…]
Following the incident, Defendant Bovino was interviewed by a reporter. In that interview, Defendant Bovino appears uninjured. He says in response to questions words to the effect of, “Did Judge Ellis get hit in the head by a rock like I did this morning?” Defendant Bovino continues saying something like, “maybe she needs to see what that’s like before she gives an order like that.”
The filing notes Bovino does not appear to be injured. And the government hasn’t filed any declaration backing Bovino’s claims.
But that’s not all Bovino said during that interview. He literally stated he was not obligated to follow orders given by federal courts:
In that same interview discussed above, Defendant Bovino also stated, “I take my orders from the executive branch,” suggesting disdain for this Court’s authority to enjoin his unlawful conduct.
Asked whether firing from elevated positions or above the waist violates DHS policy, Bovino insisted, “It doesn’t matter where you fire from … that is a less lethal device for area saturation.” As for shots striking protesters above the waist, he said, “If someone strays into a pepper ball, then that’s on them. Don’t protest and don’t trespass.“
OK. That’s fucked up. This is a grown-ass man using a rhetorical device most famously deployed by two elementary school students in a cartoon. Worse, Bovino isn’t going to wait for people to “stray” into the line of his unlawful fire. He and his boys are going to instigate violence and reverse engineer justifications for their actions.
As the filing notes, the DHS claimed a “mob” surrounded officers and threw projectiles, including “commercial artillery shell fireworks.” The lawyers handling this case don’t mince words when responding to the government’s assertions:
The statement is a lie.
If Bovino bothers to show up in court, there will be plenty more of those. Given this inevitability, courts need to consider engaging in extreme measures to ensure compliance. The “presumption of regularity” no longer exists under Trump. The entire administration has demonstrated it believes it answers to no one — an internal rot that has infected everything it touches. In the past, people like Bovino would be considered aberrations: rogue officials in need of a good firing. These days, Bovino is the rule, rather than the exception. And this nation’s courts need to respond to this “new normal” accordingly.
The Party of Free Speech Snowflakes is at it again. Despite Charlie Kirk not actually being a member of the administration or, indeed, a political leader of any sort, the Trump Administration continues to act as though one of its own has been assassinated, rather than just another podcaster who happened to be more popular (for all the wrong reasons) than most.
The State Department has made a big deal in recent months about refusing/stripping visas over what’s normally considered to be protected speech in the United States. That’s because it’s headed by DEI hire Marco Rubio, who is prized not only for his ability to follow orders but his willingness to sit and not speak unless spoken to during diplomatic summit meetings.
Rubio — and his deputy Christopher Landau — are the gatekeepers of the Nazi Bar that is America. And if you can’t be bothered to cry your eyes out for a guy who’d never shed a tear for you, you’re not allowed to hang out in a country where you’ll probably just end up arrested during another untargeted ICE sweep.
“The United States has no obligation to host foreigners who wish death on Americans,” the state department said in a statement posted on X. “The State Department continues to identify visa holders who celebrated the heinous assassination of Charlie Kirk.”
The state department then listed six “examples of aliens who are no longer welcome in the US” in a thread on the social media platform owned by Elon Musk, the Trump donor who called himself “a free speech absolutist” before buying the site formerly known as Twitter.
If you can stomach it, the X thread contains a list of supposed offenders of this brand new rule about temporarily residing in the United States. As is to be expected, those singled out for their refusal to treat Kirk’s death with the respect it doesn’t deserve are from countries this bigoted administration considers to be unworthy of rights or basic human respect, like Argentina, Brazil, Mexico, and Paraguay. Somehow, a couple of social media posts from people in Germany and South Africa make it into the mix.
This is the end result of a witch hunt deliberately started by the deputy secretary of the State Department:
Last month, a deputy secretary of state, Christopher Landau, urged social media users to send him posts critical of Kirk, saying he was “disgusted to see some on social media praising, rationalizing, or making light of the event, and have directed our consular officials to undertake appropriate action”.
And there it is: the party that thinks free speech should only protect their hatefulness towards others, but should never be extended to speech it doesn’t like. While Charlie Kirk may have occasionally provided advisor-esque input to the Trump administration, he was never a politician nor a member of Trump’s cabinet. To elevate him posthumously into Someone Who Cannot Be Criticized is fucking disgusting. He was just another white dude with a bunch of biases who was blessed enough to make a bunch of money by taking advantage of the Trump administration’s embrace of white Christian nationalism ideals.
A person’s temporary residency in another country should never be based on whether or not they agree with the current government’s ideals nor the internet randos the government has decided are more equal than the rest of us. America was built on dissent. Now, it’s being destroyed by someone who seems to think he’s the second coming of King George.
Brian Reed’s “Question Everything” podcast built its reputation on careful journalism that explores moral complexity within the journalism field. It’s one of my favorite podcasts. Which makes his latest pivot so infuriating: Reed has announced he’s now advocating to repeal Section 230—while demonstrating he fundamentally misunderstands what the law does, how it works, and what repealing it would accomplish.
If you’ve read Techdirt for basically any length of time, you’ll know that I feel the exact opposite on this topic. Repealing, or really almost all proposals to reform Section 230, would be a complete disaster for free speech on the internet, including for journalists.
The problem isn’t advocacy journalism—I’ve been doing that myself for years. The problem is Reed’s approach: decide on a solution, then cherry-pick emotional anecdotes and misleading sources to support it, while ignoring the legal experts who could explain why he’s wrong. It’s the exact opposite of how to do good journalism, which is unfortunate for someone who holds out his (otherwise excellent!) podcast as a place to explore how to do journalism well.
Last week, he published the first episode of his “get rid of 230” series, and it has so many problems, mistakes, and nonsense, that I feel like I had to write about it now, in the hopes that Brian might be more careful in future pieces. (Reed has said he plans to interview critics of his position, including me, but only after the series gets going—which seems backwards for someone advocating major legal changes.)
The framing of this piece is around the conspiracy theory regarding the Sandy Hook school shootings, and someone who used to believe them. First off, this feels like a cheap journalistic hook, basing a larger argument on an emotional hook that clouds the issues and the trade-offs. The Sandy Hook shooting was horrible! The fact that some jackasses pushed conspiracy theories about it is also horrific! That primes you in the form of “something must be done, this is something, we must do this” to accept Reed’s preferred solution: repeal 230.
But he doesn’t talk to any actual experts on 230, misrepresents Section 230, misleads people into understanding how repealing 230 would impact that specific (highly emotional) story, and then closes on an emotionally manipulative hook (convincing the person he spoke to who used to believe in Sandy Hook conspiracy theories, that getting rid of 230 would work, despite her lack of understanding or knowledge of what would actually happen).
In listening to the piece, it struck me that Reed here is doing part of what he (somewhat misleadingly) claims social media companies are doing: hooking you with manipulative lies and misrepresentations to keep you hooked and to convince you something false is true by lying to his listeners. It’s a shame, but it’s certainly not journalism.
Let’s dig into some of the many problems with the piece.
The Framing is Manipulative
I already mentioned that the decision to frame the entire piece around one extraordinary, but horrific story is manipulative, but it goes beyond that. Reed compares the fact that some of the victims from Sandy Hook successfully sued Alex Jones for defamation over the lies and conspiracy theories he spread regarding that event, to the fact that they can’t sue YouTube.
But in 2022, family members of 10 of the Sandy Hook victims did win a defamation case against Alex Jones’s company, and the verdict was huge. Jones was ordered to pay the family members over a billion dollars in damages.
Just this week, the Supreme Court declined to hear an appeal from Jones over it. A semblance of justice for the victims, though infuriatingly, Alex Jones filed for bankruptcy and has avoided paying them so far. But also, and this is what I want to focus on, the lawsuits are a real deterrent to Alex Jones and others who will likely think twice before lying like this again.
So now I want you to think about this. Alex Jones did not spread this lie on his own. He relied on social media companies, especially YouTube, which hosts his show, to send his conspiracy theory, out to the masses. One YouTube video spouting this lie shortly after the shooting got nearly 11 million views in less than 2 weeks. And by 2018 when the family sued him. Alex Jones had 1.6 billion views on his YouTube channel. The Sandy Hook lie was laced throughout that content, burrowing its way into the psyche of millions of people, including Kate and her dad.
Alex Jones made money off of each of those views. But so did YouTube. Yet, the Sandy Hook families, they cannot sue YouTube for defaming them because of section 230.
There are a ton of important details left out of this, that, if actually presented, might change the understanding here. First, while the families did win that huge verdict, much of that was because Jones defaulted. He didn’t really fight the defamation case, basically ignoring court orders to turn over discovery. It was only after the default that he really tried to fight things at the remedy stage. Indeed, part of the Supreme Court cert petition that was just rejected was because he claimed he didn’t get a fair trial due to the default.
You simply can’t assume that because the families won that very bizarre case in which Jones treated the entire affair with contempt, that means that the families would have a case against YouTube as well. That’s not how this works.
This is Not How Defamation Law Works
Reed correctly notes that the bar for defamation is high, including that there has to be knowledge to qualify, but then immediately seems to forget that. Without a prior judicial determination that specific content is defamatory, no platform—with or without Section 230—is likely to meet the knowledge standard required for liability. That’s kind of important!
Now this is really important to keep in mind. Freedom of speech means we have the freedom to lie. We have the freedom to spew absolute utter bullshit. We have the freedom to concoct conspiracy theories and even use them to make money by selling ads or subscriptions or what have you.
Most lies are protected by the First Amendment and they should be.
But there’s a small subset of lies that are not protected speech even under the First Amendment. The old shouting fire in a crowded theater, not necessarily protected. And similarly, lies that are defamatory aren’t protected.
In order for a statement to be defamatory, okay, for the most part,whoever’s publishing it has to know it’s untrueand it has to cause damage to the person or the institution the statement’s about. Reputational damage, emotional damage, or a lie could hurt someone’s business. The bar for proving defamation is high in the US. It can be hard to win those cases.
I bolded the key part here: while there’s some nuance here, mostly, the publisher has to know the statement is untrue. And the bar here is very high. To survive under the First Amendment, the knowledge standard is important.
It’s why booksellers can’t be held liable for “obscene” books on their shelves. It’s why publishers aren’t held liable for books they publish, even if those books lead people to eat poisonous mushrooms. The knowledge standard matters.
And even though Reed mentions the knowledge point, he seems to immediately forget it. Nor does he even attempt to deal with the question of how an algorithm can have the requisite knowledge (hint: it can’t). He just brushes past that kind of important part.
But it’s the key to why his entire argument premise is flawed: just making it so anyone can sue web platforms doesn’t mean anyone will win. Indeed, they’ll lose in most cases. Because if you get rid of 230, the First Amendment still exists. But, because of a bunch of structural reasons explained below, it will make the world of internet speech much worse for you and I (and the journalists Reed wants to help), while actually clearing the market of competitors to the Googles and Metas of the world Reed is hoping to punish.
That’s Not How Section 230 Works
Reed’s summary is simply inaccurate. And not in the “well, we can differ on how we describe it.” He makes blatant factual errors. First, he claims that “only internet companies” get 230 protections:
These companies have a special protection that only internet companies get. We need to strip that protection away.
But that’s wrong. Section 230 applies to any provider of an interactive computer service (which is more than just “internet companies”) and their users. It’s right there in the law. Because of that latter part, it has protected people forwarding emails and retweeting content. It has been used repeatedly to protect journalists on that basis. It protects you and me. It is not exclusive to “internet companies.” That’s just factually wrong.
The law is not, and has never been, some sort of special privilege for certain kinds of companies, but a framework for protecting speech online, by making it possible for speech distributing intermediaries to exist in the first place. Which helps journalists. And helps you and me. Without it, there would be fewer ways in which we could speak.
Reed also appears to misrepresent or conflate a bunch of things here:
Section 230, which Congress passed in 1996, it makes it so that internet companies can’t be sued for what happened happens on their sites. Facebook, YouTube, Tik Tok, they bear essentially no responsibility for the content they amplify and recommend to millions, even billions of people. No matter how much it harms people, no matter how much it warps our democracy under section 230, you cannot successfully sue tech companies for defamation, even if they spread lies about you. You can’t sue them for pushing a terror recruitment video on someone who then goes and kills your family member. You can’t sue them for bombarding your kids. with videos that promote eating disorders or that share suicide methods or sexual content.
First off, much of what he describes is First Amendment protected speech. Second, he ignores that Section 230 doesn’t apply to federal criminal law, which is what things like terrorist content would likely cover (I’m guessing he’s confused based on the Supreme Court cases from a few years ago, where 230 wasn’t the issue—the lack of any traceability of the terrorist attacks to the websites was).
But, generally speaking, if you’re advocating for legal changes, you should be specific in what you want changed and why. Putting out a big list of stuff, some of which would be protected, some of which would not be, as well as some that the law covers and some it doesn’t… isn’t compelling. It suggests you don’t understand the basics. Furthermore, lumping things like eating disorders in with defamation and terrorist content, suggests an unwillingness to deal with the specifics and the complexities. Instead, it suggests a desire for a general “why can’t we pass a law that says ‘bad stuff isn’t allowed online?'” But that’s a First Amendment issue, not a 230 issue (as we’ll explain in more detail below).
Reed also, unfortunately, seems to have been influenced by the blatantly false argument that there’s a platform/publisher distinction buried within Section 230. There isn’t. But it doesn’t stop him from saying this:
I’m going to keep reminding you what Section 230 is, as we covered on this show, because I want it to stick. Section 230, small provision in a law Congress passed in 1996, just 26 words, but words that were so influential, they’re known as the 26 words that created the internet.
Quick fact check: Section 230 is way longer than 26 words. Yes, Section (c)(1) is 26 words. But, the rest matters too. If you’re advocating to repeal a law, maybe read the whole thing?
Those words make it so that internet platforms cannot be treated as publishers of the content on their platform. It’s why Sandy Hook parents could sue Alex Jones for the lies he told, but they couldn’t sue the platforms like YouTube that Jones used to spread those lies.
And there is a logic to this that I think made sense when Section 230 was passed in the ’90s. Back then, internet companies offered chat rooms, message boards, places where other people posted, and the companies were pretty passively transmitting those posts.
Reed has this completely backwards. Section 230 was a direct response to Stratton Oakmont v. Prodigy, where a judge ruled that Prodigy’s active moderation to create a “family friendly” service made it liable for all content on the platform.
The two authors of Section 230, Ron Wyden and Chris Cox, have talked about this at length for decades. They wanted platforms to be active participants and not dumb conduits passively transmitting posts. Their fear was without Section 230, those services would be forced to just be passive transmitters, because doing anything to the content (as Prodigy did) would make them liable. But given the amount of content, that would be impossible.
So Cox and Wyden’s solution to encourage platforms to be more than passive conduits was to say “if you do regular publishing activities—such as promoting, rearranging, and removing certain content then we won’t treat you like a publisher.”
The entire point was to encourage publisher-like behavior, not discourage it.
Reed has the law’s purpose exactly backwards!
That’s kind of shocking for someone advocating to overturn the law! It would help to understand it first! Because if the law actually did what Reed pretends it does, I might be in favor of repeal as well! The problem is, it doesn’t. And it never did.
One analogy that gets thrown around for this is that the platforms, they’re like your mailman. They’re just delivering somebody else’s letter about the Sandy Hook conspiracy. They’re not writing it themselves. And sure, that might have been true for a while, but imagine now that the mailman reads the letter he’s delivering, sees it’s pretty tantalizing. There’s a government conspiracy to take away people’s guns by orchestrating a fake school shooting, hiring child actors, and staging a massacre and a whole 911 response.
The mailman thinks, “That’s pretty good stuff. People are going to like this.” He makes millions of copies of the letter and delivers them to millions of people. And then as all those people start writing letters to their friends and family talking about this crazy conspiracy, the mailman keeps making copies of those letters and sending them around to more people.
And he makes a ton of money off of this by selling ads that he sticks into those envelopes. Would you say in that case the mailman is just a conduit for someone else’s message? Or has he transformed into a different role? A role more like a publisher who should be responsible for the statements he or she actively chooses to amplify to the world. That is essentially what YouTube and other social media platforms are doing by using algorithms to boost certain content. In fact, I think the mailman analogy is tame for what these companies are up to.
Again, the entire framing here is backwards. It’s based on Reed’s false assumption—an assumption that any expert in 230 would hopefully disabuse him of—that the reason for 230 was to encourage platforms to be “passive conduits” but it’s the exact opposite.
Cox and Wyden were clear (and have remained clear) that the purpose of the law was exactly the opposite. It was to give platforms the ability to create different kinds of communities and to promote/demote/moderate/delete at will.
The key point was that, because of the amount of content, no website would be willing and able to do any of this if they were potentially held liable for everything.
As for the final point, that social media companies are now way different from “the mailman,” both Cox and Wyden have talked about how wrong that is. In an FCC filing a few years back, debunking some myths about 230, they pointed out that this claim of “oh sites are different” is nonsense and misunderstands the fundamentals of the law:
Critics of Section 230 point out the significant differences between the internet of 1996 and today.Those differences, however, are not unanticipated. When we wrote the law, we believed the internet of the future was going to be a very vibrant and extraordinary opportunity for people to become educated about innumerable subjects, from health care to technological innovation to their own fields of employment. So we began with these two propositions: let’s make sure that every internet user has the opportunity to exercise their First Amendment rights; and let’s deal with the slime and horrible material on the internet by giving both websites and their users the tools and the legal protection necessary to take it down.
The march of technology and the profusion of e-commerce business models over the last two decadesrepresent precisely the kind of progress that Congress in 1996 hoped would follow from Section 230’s protectionsfor speech on the internet and for the websites that host it. The increase in user-created content in the years since then is both a desired result of the certainty the law provides, and further reason that the law is needed more than ever in today’s environment.
The Understanding of How Incentives Work Under the Law is Wrong
Here’s where Reed’s misunderstanding gets truly dangerous. He claims Section 230 removes incentives for platforms to moderate content. In reality, it’s the opposite: without Section 230, websites would have less incentive to moderate, not more.
Why? Because under the First Amendment, you need to show that the intermediary had actual knowledge of the violative nature of the content. If you removed Section 230, the best way to prove that you have no knowledge is not to look, and not to moderate.
You potentially go back to a Stratton Oakmont-style world, where the incentives are to do less moderation because any moderation you do introduces more liability. The more liability you create, the less likely someone is to take on the task. Any investigation into Section 230 has to start from understanding those basic facts, so it’s odd that Reed so blatantly misrepresents them and suggests that 230 means there’s no incentive to moderate:
We want to make stories that are popular so we can keep audiences paying attention and sell ads—or movie tickets or streaming subscriptions—to support our businesses. But in the world that every other media company occupies, aside from social media, if we go too far and put a lie out that hurts somebody, we risk getting sued.
It doesn’t mean other media outlets don’t lie or exaggerate or spin stories, but there’s still a meaningful guard rail there. There’s a real deterrent to make sure we’re not publishing or promoting lies that are so egregious, so harmful that we risk getting sued, such as lying about the deaths of kids who were killed and their devastated parents.
Social media companies have no such deterrent and they’re making tons of money. We don’t know how much money in large part because the way that kind of info usually gets forced out of companies is through lawsuits which we can’t file against these tech behemoths because of section 230. So, we don’t know, for instance, how much money YouTube made from content with the Sandy Hook conspiracy in it. All we know is that they can and do boost defamatory lies as much as they want, raking cash without any risk of being sued for it.
But this gets at a fundamental flaw that shows up in these debates: that the only possible pressure on websites is the threat of being sued. That’s not just wrong, it, again, totally gets the purpose and function of Section 230 backwards.
There are tons of reasons for websites to do a better job moderating: if your platform fills up with garbage, users start to go away. As do advertisers, investors, other partners as well.
This is, fundamentally, the most frustrating part about every single new person who stumbles haphazardly into the Section 230 debate without bothering to understand how it works within the law. They get the incentives exactly backwards.
230 says “experiment with different approaches to making your website safe.” Taking away 230 says “any experiment you try to keep your website safe opens you up to ruinous litigation.” Which one do you think leads to a healthier internet?
It Misrepresents how Companies Actually Work
Reed paints tech companies as cartoon villains, relying on simplistic and misleading interpretations of leaked documents and outdated sources. This isn’t just sloppy—it’s the kind of manipulative framing he’d probably critique in other contexts.
For example, he grossly misrepresents (in a truly manipulative way!) what the documents Frances Haugen released said, just as much of the media did. For example, here’s how Reed characterizes some of what Haugen leaked:
Haugen’s document dump showed that Facebook leadership knew about the harms their product is causing, including disinformation and hate speech, but also product designs that were hurting children, such as the algorithm’s tendency to lead teen girls to posts about anorexia. Francis Haugen told lawmakers that top people at Facebook knew exactly what the company was doing and why it was doing.
Except… that’s very much out of context. Here’s how misleading Reed’s characterization is. The actual internal research Haugen leaked—the stuff Reed claims shows Facebook “knew about the harms”—looked like this:
The headline of that slide sure looks bad, right? But then you look at the context, which shows that in nearly every single category they studied across boys and girls, they found that more users found Instagram made them feel better, not worse. The only category where that wasn’t true was teen girls and body image, where the split was pretty equal. That’s one category out of 24 studied! And this was internal research calling out that fact because the point was to convince the company to figure out ways to better deal with that one case, not to ignore it.
And, what we’ve heard over and over again since all this is that companies have moved away from doing this kind of internal exploration, because they know that if they learn about negative impacts of their own service, it will be used against them by the media.
Reed’s misrepresentation creates exactly the perverse incentive he claims to oppose: companies now avoid studying potential harms because any honest internal research will be weaponized against them by journalists who don’t bother to read past the headline. Reed’s approach of getting rid of 230’s protections would make this even worse, not better.
Because as part of any related lawsuit there would be discovery, and you can absolutely guarantee that a study like the one above that Haugen leaked would be used in court, in a misleading way, showing just that headline, without the necessary context of “we called this out to see how we could improve.”
So without Section 230 and with lawsuits, companies would have much less incentive to look for ways to improve safety online, because any such investigation would be presented as “knowledge” of the problem. Better not to look at all.
There’s a similar problem with the way Reed reports on the YouTube algorithm. Reed quotes Guillaume Chaslot but doesn’t mention that Chaslot left YouTube in 2013—12 years ago. That’s ancient history in tech terms. I’ve met Chaslot and been on panels with him. He’s great! And I think his insights on the dangers of the algorithm in the early days were important work and highlighted to the world the problems of bad algorithms. But it’s way out of date. And not all of the algorithms are bad.
Conspiracy theories are are really easy to make. You can just make your own conspiracy theories in like one hour shoot it and then it get it can get millions of views. They’re addictive because people who live in this filter bubble of conspiracy theories and they don’t watch the classical media. So they spend more time on YouTube.
Imagine you’re someone who doesn’t trust the media, you’re going to spend more time on YouTube. So since you spend more time on YouTube, the algorithm thinks you’re better than anybody else. The definition of better for the algorithm, it’s who spends more time. So it will recommend you more. So there’s like this vicious call.
It’s a vicious circle, Chaslot says, where the more conspiratorial the videos, the longer users stay on the platform watching them, the more valuable that content becomes, the more YouTube’s algorithm recommends the conspiratorial videos.
Since Chaslot left YouTube, there have been a series of studies that have shown that, while some of that may have been true back when Chaslot was at the company, it hasn’t been true in many, many years.
A study in 2019 (looking at data from 2016 onwards) found that YouTube’s algorithm actually pushed people away from radicalizing content. A further study a couple of years ago similarly found no evidence of YouTube’s algorithm sending people down these rabbit holes.
It turns out that things like Chaslot’s public berating of the company, as well as public and media pressure, not to mention political blowback, had helped the company re-calibrate the algorithm away from all that.
And you know what allowed them to do that? The freedom Section 230 provided, saying that they wouldn’t face any litigation liability for adjusting the algorithm.
A Total Misunderstanding of What Would Happen Absent 230
Reed’s fundamental error runs deeper than just misunderstanding the law—he completely misunderstands what would happen if his “solution” were implemented. He claims that the risk of lawsuits would make the companies act better:
We need to be able to sue these companies.
Imagine the Sandy Hook families had been able to sue YouTube for defaming them in addition to Alex Jones. Again, we don’t know how much money YouTube made off the Sandy Hook lies. Did YouTube pull in as much cash as Alex Jones, five times as much? A hundred times? Whatever it was, what if the victims were able to sue YouTube? It wouldn’t get rid of their loss or trauma, but it could offer some compensation. YouTube’s owned by Google, remember, one of the most valuable companies in the world. More likely to actually pay out instead of going bankrupt like Alex Jones.
This fantasy scenario has three fatal flaws:
First, YouTube would still win these cases. As we discussed above, there’s almost certainly no valid defamation suit here. Most complained about content will still be First Amendment-protected speech, and YouTube, as the intermediary, would still have the First Amendment and the “actual knowledge” standard to fall back on.
The only way to have actual knowledge of content being defamatory is for there to be a judgment in court about the content. So, YouTube couldn’t be on the hook in this scenario until after the plaintiffs had already taken the speaker to court and received a judgment that the content was defamatory. At that point, you could argue that the platform would then be on notice and could no longer promote the content. But that wouldn’t stop any of the initial harms that Reed thinks they would.
Second, Reed’s solution would entrench Big Tech’s dominance. Getting a case dismissed on Section 230 grounds costs maybe $50k to $100k. Getting the same case dismissed on First Amendment grounds? Try $2 to $5 million.
For a company like Google or Meta, with their buildings full of lawyers, this is still pocket change. They’ll win those cases. But it means that you’ve wiped out the market for non-Meta, non-Google sized companies. The smaller players get wiped out because a single lawsuit (or even a threat of a lawsuit) can be existential.
The end result: Reed’s solution gives more power to the giant companies he paints as evil villains.
Third, there’s vanishingly little content that isn’t protected by the First Amendment. Using the Alex Jones example is distorting and manipulative, because it’s one of the extremely rare cases where defamation has been shown (and that was partly just because Jones didn’t really fight the case).
Reed doubles down on these errors:
But on a wider scale, The risk of massive lawsuits like this, a real threat to these companies’ profits, could finally force the platforms to change how they’re operating. Maybe they change the algorithms to prioritize content from outlets that fact check because that’s less risky. Maybe they’d get rid of fancy algorithms altogether, go back to people getting shown posts chronologically or based on their own choice of search terms. It’d be up to the companies, but however they chose to address it, they would at least have to adapt their business model so that it incorporated the risk of getting sued when they boost damaging lies.
This shows Reed still doesn’t understand the incentive structure. Companies would still win these lawsuits on First Amendment grounds. And they’d increase their odds by programming algorithms and then never reviewing content—the exact opposite of what Reed suggests he wants.
And here’s where Reed’s pattern of using questionable sources becomes most problematic. He quotes Frances Haugen advocating for his position, without noting that Haugen has no legal expertise on these issues:
For what it’s worth, this is what Facebook whistleblower Frances Haugen argued for in Congress in 2021.
I strongly encourage reforming Section 230 to exempt decisions about algorithms. They have 100% control over their algorithms and Facebook should not get a free pass on choices it makes to prioritize growth and virality and reactiveness over public safety. They shouldn’t get a free pass on that because they’re paying for their profits right now with our safety. So, I strongly encourage reform of 230 in that way.
But, as we noted when Haugen said that, this is (again) getting it all backwards. At the very same time that Haugen was testifying with those words, Facebook was literally running ads all over Washington DC, encouraging Congress to reform Section 230 in this way. Facebook wants to destroy 230.
Why? Because Zuckerberg knows full well what I wrote above. Getting rid of 230 means a few expensive lawsuits that his legal team can easily win, while wiping out smaller competitors who can’t afford the legal bills.
Meta’s usage has been declining as users migrate to smaller platforms. What better way to eliminate that competition than making platform operation legally prohibitive for anyone without Meta’s legal budget?
Notably, not a single person Reed speaks to is a lawyer. He doesn’t talk to anyone who lays out the details of how all this works. He only speaks to people who dislike tech companies. Which is fine, because it’s perfectly understandable to hate on big tech companies. But if you’re advocating for a massive legal change, shouldn’t you first understand how the law actually works in practice?
For a podcast about improving journalism, this represents a spectacular failure of basic journalistic practices. Indeed, Reed admits at the end that he’s still trying to figure out how to do all this:
I’m still trying to figure out how to do this whole advocacy thing. Honestly, pushing for a policy change rather than just reporting on it. It’s new to me and I don’t know exactly what I’m supposed to be doing. Should I be launching a petition, raising money for like a PAC? I’ve been talking to marketing people about slogans for a campaign. We’ll document this as I stumble my way through. It’s all a bit awkward for me. So, if you have ideas for how you can build this movement to be able to sue big tech. Please tell me.
There it is: “I’m still trying to figure out how to do this whole advocacy thing.” Reed has publicly committed to advocating for a specific legal change—one that would fundamentally reshape how the internet works—while admitting he doesn’t understand advocacy, hasn’t talked to experts, and is figuring it out as he goes. Generally it’s a bad idea to come up with a slogan when you still don’t even understand the thing you’re advocating for.
This is advocacy journalism in reverse: decide your conclusion, then do the research. It’s exactly the kind of shoddy approach that Reed would rightly criticize in other contexts.
I have no problem with advocacy journalism. I’ve been doing it for years. But effective advocacy starts with understanding the subject deeply, consulting with experts, and then forming a position based on that knowledge. Reed has it backwards.
The tragedy is that there are so many real problems with how big tech companies operate, and there are thoughtful reforms that could help. But Reed’s approach—emotional manipulation, factual errors, and backwards legal analysis—makes productive conversation harder, not easier.
Maybe next time, try learning about the law first, then deciding whether to advocate for its repeal.
That’s not the sort of thing that’s happening these days. In fact, the current administration is more like the current Vietnam government than it would care to admit, especially when it rails against socialism while taking controlling interests in US companies. I mean…
Although the constitution provides for independent judges and lay assessors (who lack administrative training), the United States Department of State maintains that Vietnam lacks an independent judiciary, in part because the Communist Party selects judges and vets them for political reliability.
Anyway, we’ve finally reached the end of the insanity introduced by DoD Secretary Pete Hegseth late last month. The rebranded (but not by Congress) “Department of War” dropped a new set of guidelines for journalists that not only restricted which areas of the Pentagon they could access and who they could talk to, but made it clear (without saying in so many words) that the only press agencies that would be given access would be those that printed whatever the government said without asking too many questions or doing too much editorializing.
The fallout is over. There’s nearly no one left in the Pentagon press office. Every legitimate news agency has left, along with a few unexpected ex-pats.
Dozens of reporters turned in access badges and exited the Pentagon on Wednesday rather than agree to government-imposed restrictions on their work, pushing journalists who cover the American military further from the seat of its power. The nation’s leadership called the new rules “common sense” to help regulate a “very disruptive” press.
News outlets were nearly unanimous in rejecting new rules imposed by Defense Secretary Pete Hegseth that would leave journalists vulnerable to expulsion if they sought to report on information — classified or otherwise — that had not been approved by Hegseth for release.
Among those you may not have expected to reject direct control of the press include longtime Trump bullhorns Fox News and Newsmax. Only 15 journalists (out of hundreds) signed this access journalism pledge. Eleven of those were reporters for foreign-based news organizations and a couple of entities whose only news outlet appears to be social media posts.
Of those signatories, two are from the pro-Trump cable channel, One America News; one is from right-wing website The Federalist; and another is from ultra-conservative newspaper The Epoch Times.
OAN is even further right than Fox or Newsmax. It’s half-content farm, half-conspiracy theory factory. The Epoch Times is nothing buta conspiracy theory factory, but with ties to the Chinese Falun Gong religious movement. And The Federalist… well, just click through and doom scroll through the headlines and you’ll see for yourself. It’s basically the Trump administration after a few writing classes.
The Federalist has defended itself (I mean, I imagine it thinks it has) with a long, not-at-all unhinged post by editor-in-chief Mollie Hemingway on X, because of course it did. According to Hemingway, it was the ultimate act of bravery to agree to allow the Defense Department to tell The Federalist what it can and can’t print. It’s a super weird thing to go on main and declare yourself proud to be a propagandist, but then again, it’s not every day someone discovers they have a fetish for boot heels and they’ll be damned if anyone’s going to criticize them for it.
Say what you will about the sorry state of the US press in general, but this nearly-universal walkout is a heartening show of solidarity against the power grabs of an authoritarian regime. The truth will still manage to make its way out of the Pentagon, despite these efforts. And anyone still working from the inside has already demonstrably proven they can’t be trusted to handle the truth.
You may recall a year or so ago, when Mark Zuckerberg whined to Jim Jordan about how the Biden administration “repeatedly pressured our teams for months to censor certain… content.” Or maybe you remember when he went on Joe Rogan and whined some more about Biden pressure on moderation, even though he admitted there that he rejected their requests:
And they pushed us super hard to take down things that were honestly were true. Right, I mean they they basically pushed us and and said, you know, anything that says that vaccines might have side effects, you basically need to take down.
And I was just like,well we’re not going to do that. Like,we’re clearly not going to do that.
Zuckerberg also made a pledge that they were supposedly going to stop being pushed around. From now on, he swore, there was a new Meta that wouldn’t bow at all to government officials demanding content be removed.
He was a new Zuck. A Zuck who would stand up to oppressive government demands.
So, about that.
On Tuesday, Attorney General Pam Bondi publicly bragged about the Trump administration doing exactly what Mark Zuckerberg falsely claimed the Biden administration did to him. She bragged about how the Justice Department successfully pressured Facebook into removing First Amendment-protected speech:
If you can’t see that, it’s Bondi tweeting:
Today following outreach from the Justice Department, Facebook removed a large group page that was being used to dox and target ICE agents in Chicago. The wave of violence against ICE has been driven by online apps and social media campaigns designed to put ICE officers at risk just for doing their jobs. The Department of Justice will continue engaging tech companies to eliminate platforms where radicals can incite imminent violence against federal law enforcement.
This is actual government censorship—direct pressure from the DOJ to remove constitutionally protected speech. And unlike the Biden administration’s communications that Zuck admitted he easily refused, in this case, Facebook immediately complied.
The content in question? Tracking the public movements of law enforcement officials. This is classic protected First Amendment activity, with well-established case law protecting the right to record and monitor police in public. It’s nowhere close to meeting the Brandenburg standard for “inciting imminent lawless action” that Bondi misquotes in her tweet.
So, once again, let’s take a step back and look at this. When it was the Biden administration asking Facebook about COVID misinfo, Zuck had no problem saying “well, we’re not going to do that.” And as it became clear Trump had a decent chance of winning the election, it gave Zuck an opportunity to throw the Biden admin under the bus, while insisting that they’d changed and would stop being pressured by governments.
But then, as soon as Bondi calls Zuck and says “jump,” he asks “how high?”
And, of course, it’s not just Zuckerberg who is being a cowardly hypocrite here.
Remember how Judge Terry Doughty, in the Missouri v. Biden case, took similar anecdotes of supposed pressure (which the Supreme Court later rejected, noting that Doughty’s findings were “clearly erroneous” and based on “no evidence”) and claimed that any sign of governments merely communicating with social media companies about moderation practices clearly represented an epic violation of the First Amendment. He said that “the present case arguably involves the most massive attack against free speech in United States’ history.”
Of course, the Supreme Court eventually laughed that off, because it was based on him both fabricating evidence (including quotes that were not said) and misunderstanding other evidence. But where are the people who cheered on Doughty’s ruling about Bondi’s “massive attack against free speech?”
Or, perhaps, you remember the “Twitter Files” gang of Matt Taibbi, Michael Shellenberger, and new CBS News Editor in Chief Bari Weiss, claiming that a few misrepresented stories of government officials asking platforms about their content moderation practices represented the “censorship industrial complex” and were huge attacks on free speech. Matt Taibbi insisted that any suppression of “true speech that undermined confidence in government policies” was “precisely the situation the First Amendment was designed to avoid.”
Shellenberger touted a supposed whistleblower “proving” that the government “pressured” social media, such as Facebook, to take down content (the actual evidence he presented said no such thing). He’s spent years since then laughably presenting himself as an expert on government and social media “censorship”, even getting a “professorship” at Bari Weiss’s fake university on the subject.
Weiss herself wrote a typically self-congratulating article about how Elon Musk bought Twitter to “save the world” from “censorship” and whined about how government-induced content moderation “curtailed public debate.”
Where are they on this? I see nothing from Taibbi, Shellenberger, or Weiss. Not a single story about this on the CBS-owned The Free Press. Nothing on X from any of them. Nothing on their various Substacks. Just… silence as the Trump administration does the very thing, loudly and proudly, that they spent years falsely accusing Biden of, while claiming it was an attack on the very foundations of democracy. How odd.
Or how about this: top Trump confidant and conspiracy theorist Laura Loomer went around taking credit for the DOJ getting the page removed from Facebook, just a week after her own lawsuit, which tried to argue that Facebook (and Twitter) did the RICO in banning her, got rejected by the Supreme Court.
That shows Laura Loomer first tweeting about “ICE tracking pages” on Facebook and complaining that Facebook shouldn’t allow them, followed by her breaking the news that the DOJ told her they contacted Facebook to remove them:
Fantastic news. DOJ source tells me they have seen my report and they have contacted Facebook and their executives at META to tell them they need to remove these ICE tracking pages from the platform.
We will see if they comply. There are DOZENS of pages like the one below that endanger the lives of ICE agents.
It’s further evidence Big Tech is continuing to subvert and undermine President Trump and his agenda.
The hypocrisy level here is off the charts. She’s literally spent years suing Facebook for banning her account, claiming it was an attack on her speech… and now she’s demanding that the government tell Facebook to suppress speech, and celebrating when they do so.
The only consistency is “speech I like should be allowed, speech I don’t like shouldn’t be.”
(a) secure the right of the American people to engage in constitutionally protected speech;
(b) ensure 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
Bondi clearly violated that.
Will anyone point that out?
Now, because we have enough MAGA trolls around here, I can already predict the reply: “this is different,” they will say, “because this is ‘doxxing’ and a threat to ICE.”
Hell, Bondi even hints at that in her tweet, as well as pretending this fits under the Brandenburg standard of “inciting imminent lawless action” which she misquotes in her tweet. Except that’s bullshit. Simply tracking the location of law enforcement officials in public is not anywhere close to crossing the Brandenburg line. It’s also not “doxxing” in any meaningful manner, which is about revealing private info about someone (and, in most cases, is also not against the law).
So what we’re left with is yet another example of the extreme hypocrisy of the MAGA cult. They claimed, falsely, that Biden was “censoring” social media (a lie debunked by even the conservatives on the Supreme Court) and then as soon as they got into power, they not only did exactly what they falsely accused Biden of doing, but they did so openly, publicly, and proudly.
And where are all those “free speech warriors”? Where are Taibbi, Shellenberger, and Weiss? They were soooooooo concerned that what Biden didn’t actually do was the end of free speech in America. Yet, when Trump does way worse than even what they pretended Biden did… it’s crickets.
How odd.
Or how about Joe Rogan? He spent hours with Zuck, helping him spin a blatantly misleading tale of “censorship” from Biden (which again, even Zuck admitted to Rogan didn’t lead to any speech being taken down). But here, Zuck folded like a cheap card table… and what? Silence?
These grifters spent years telling us that free speech was under attack, but they never had the actual goods. Yet now it’s actually happening, but by the guy they supported, and they’re all off hiding somewhere?
How pathetic.
But this isn’t just about individual hypocrisy—it reveals something more troubling about the entire “free speech” discourse we’ve been subjected to for the past several years. The people who positioned themselves as champions of free speech never actually cared about the principle. They cared about weaponizing the concept to attack their political opponents while laying groundwork for their own censorship regime.
The supposed champions of free speech who spent years manufacturing outrage over nonexistent government censorship are now silent in the face of actual government censorship. Their hypocrisy is complete, and they should never, ever, be seen as credible sources on the subject of free speech.
Zuckerberg, meanwhile, has revealed himself as exactly what critics always said he was: a coward who bends to whoever holds power. His theatrical resistance to Biden was performative. His instant capitulation to Trump is revealing.
The real lesson here isn’t just that these people are frauds—though they obviously are. It’s that we now have a crystal-clear example of what actual government pressure on speech looks like, versus the manufactured controversies of the past few years. When Bondi tweets about successful DOJ pressure campaigns, when Facebook immediately complies, when demands result in immediate content removal—that’s the difference between real government coercion and the communications that resulted in no platform action, which the Supreme Court found insufficient to establish standing because plaintiffs couldn’t show they were actually harmed.
The free speech grifters won’t learn from this, of course. But the rest of us should.
America isn’t the land of the free. We abandoned that title when we returned Donald Trump to office — the same person who refused to engage in the peaceful transfer of power in 2020 and, immediately upon his return to power, pardoned almost everyone who engaged in an attempted insurrection on his behalf.
The so-called “party of free speech” has repeatedly made it clear that the First Amendment means everyone should be subjected to their hateful speech, but will never be extended to those who oppose the current leadership and/or simply wish to document the evil acts of those currently in power.
The GOP’s extreme hypocrisy during both Trump administrations makes the usual hypocrisy expected of politicians look like a mostly-benign side effect of existing in a democratic republic. Under Trump, there’s nothing benign about the hypocrisy, which no longer contains even the minimum of plausible deniability we’ve come to expect from more competent, less bigoted politicians.
Activists, journalists, and the occasional opinionated college student have all been targeted for expressing their displeasure with this government and its policies. Turning ICE, DHS, and the DOJ into politicized weapons of administration vengeance has ensured maximum pain in return for acts that used to be considered protected by enshrined constitutional rights.
That’s no longer the case. Rights are now privileges under Trump, which means they’ll only protect people the GOP likes. For everyone else, there’s the constant threat of government retaliation — an act that has long been considered illegal by every federal court, but now is destined to become quasi-codified by a Supreme Court that is just as beholden to Trump as any of his Cabinet appointees.
This may be an exceedingly long preamble to the subject matter discussed in this post. But I don’t want any reader to skip over the reality of the current situation before they decide to start being bitchy and pedantic in the comment threads. This country is being destroyed from within by those “leading” it. These are the symptoms of deliberate internal rot. This isn’t just about some guy having his rights ignored and his life expectancy cut short by a deliberately cruel administration.
“The charges were dropped, yet he remains detained by Ice,” said José Zamora, the regional director for the Americas at the Committee to Protect Journalists, during a press conference on Tuesday morning at the Georgia capitol with Guevara’s attorneys and family. “Let’s be clear, Mario is being punished for his journalism. He is now the only journalist in prison in the US in direct retaliation for his reporting.”
The Trump administration learned only one thing from this blowback: to stock its prisons with more people in “direct retaliation” for “reporting,” ensuring Guevara could never be considered an anomaly. That it’s been unable to make these charges stick says more about the ridiculousness of its efforts than any belated recognition that locking up people for using their First Amendment rights might be a bad idea.
Guevara was placed in a detention center run by GEO Group, which has gone all starry-eyed now that ICE has billions of extra dollars to play with and needs more detainment facilities immediately from whatever government contractor is first to respond with literally any bid.
On top of that, Guevara’s phone was seized by federal officers, but as of the end of July, his legal reps had yet to see a warrant justifying its continued detention, much less any searches the government has most likely already performed.
Guevera’s case made the news, as was to be expected when the government arrests journalists (no matter their country of origin) for performing journalism. Just as predictably, the Trump administration has chosen to amp up the punishment of Mario Guevara because his very existence remains problematic for a government that occasionally has to pay lip service to long-held rights.
So, this is what the Trump administration has decided to do with El Salvadoran native Mario Guevara, who fled his country to avoid being imprisoned and tortured by local militia groups: under the cover of night, it has vanished him back to the land he fled, as The Guardian reports:
Guevara has been a media mainstay in the Atlanta area for about 20 years, after fleeing El Salvador to escape leftwing militias in 2004. Though he has a work permit and two of his children are American citizens, he has operated under the “administrative closure” of deportation orders for much of that time.
Immigration officials put him on a plane at 4am on Friday morning, family members said.
Guevara’s final destination is El Salvador, something that follows (as The Guardian reports puts it) the “longest imprisonment” of any reporter arrested for acts of journalism “in United States history.”
This latest act of betrayal of American ideals follows more than 100 days of detention, even though all criminal charges were dropped, leaving Guevara only with dubious claims about legal residency by ICE.
Speaking of ICE, immigration officers told Guevara this his documentation of public activities by public officials in public places was literally a threat to the US government in general.
Despite clearly identifying himself as press, Guevara was arrested by local law enforcement in June while reporting on a protest against the Trump administration near Atlanta. Immigration and Customs Enforcement (ICE) then took him into custody. Prosecutors quickly dropped the charges after confirming he was complying with law enforcement, and an immigration judge granted him bond. Immigration officials, however, refused to release him, claiming that livestreaming law enforcement activity makes him a threat.
This is, of course, the current administration’s stance on documenting any federal mass deportation activity. DHS and ICE have both issued statements about the supposed increasing threat to officers (mostly to justify the never-needed-before mask use by federal officers) and the DHS itself has issued guidance to other law enforcement agencies stating that filming law enforcement (itself a protected First Amendment activity) is a threatening act worthy of criminal charges.
Because Guevara managed to attract international attention with his unjustified arrest and lengthy detention, the government has decided to punish him by sending him back to the country he left because he feared for his life.
That’s extremely disheartening because it means shaming the government is no longer enough on its own to provoke change. Sure, plenty of governments decide to become even more vindictive when shamed, but that desire for revenge often results in mistakes that can be undone by federal courts. Now, it appears even the federal courts are powerless (because the Supreme Court is unwilling to oppose Trump) to right wrongs by forcing the government to pay for its mistakes.
This doesn’t mean the government shouldn’t be named and shamed for it being shitty on pretty much every conceivable level. It’s still worth doing, because every bit of exposure has the possibility to help. But we should temper our expectations for positive changes. That’s not meant to be defeatist. Every bit of resistance is worth the effort. If nothing else, we should not be deterred from documenting this rise of authoritarianism as it’s happening. The truth still needs to be told, even if those who find it inconvenient are doing all they can to erase it from the permanent record.
In what may be the most accidentally honest moment of his presidency, Donald Trump just admitted what we’ve been documenting for months: “We took the freedom of speech away.”
Yes, that’s literally what he said:
For those who’ve been following Trump’s systematic assault on the First Amendment—which we’ve covered extensively at Techdirt—this admission is remarkable not for its content, but for its candor. Here’s a president whose supporters claimed he would “bring free speech back” explicitly acknowledging that his administration has done the opposite.
He said this at the White House’s bizarre roundtable on antifa, which involved a bunch of serial fabulists and conspiracy theorists feeding the President’s delusional need to justify using the military on American citizens who live in states that didn’t vote enough for him.
If you can’t see the video, the transcript is pretty straightforward:
We made it one year penalty for inciting riots.We took the freedom of speech awaybecause that’s been through the courts and the courts said you have freedom of speech, but what has happened is when they burn a flag it agitates and irritates crowds.
I’ve never seen anything like it on both sides. And you end up with riots so we’re going on that basis.
We’re looking at it from not from the freedom of speech, which I always felt strongly about, but never passed the courts. This is what they do, is they incite… when you burn an American flag, you incite tremendous violence. We have many examples of it. Many, many examples of it. And it’s actually down on tape and you see things happen that just don’t happen unless it’s the flag that’s burning.
Well, thank you for admitting what we all know is true.
Now, of course, this is a bit of typical Trumpian word salad, but we can parse what he’s trying to say in a manner that likely reveals what the circle of suck-ups around him have been telling him in order to justify their deeply censorial, deeply authoritarian desires.
Back in August he signed an executive order, which has no legal basis for anything, claiming that federal prosecutors should try to figure out a way to prosecute people for burning the flag by arguing that it’s incitement to imminent violence. This is because there is a widely recognized exception to the First Amendment which is “incitement to imminent lawless action.”
The theory, such as it is, goes like this: while flag burning is normally protected speech, Trump’s handlers think they can circumvent that protection by arguing that flag burning constitutes incitement to imminent lawless action.
Normally “incitement” is very, very limited to situations where someone points at someone else and tells people “go kill that person” or something of that nature. It has to be clear, directed, and involving “imminent lawless action” meaning right after the words are said.
Flag burning is not that. And, for all his talk about “never passed the courts,” this has been tested in the courts and the courts have been pretty clear: burning a flag is almost always First Amendment protected expression. The key case here is Texas v. Johnson:
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.
When Trump says this “never passed the courts,” he’s not just wrong—he’s demonstrating a fundamental misunderstanding of how Supreme Court precedent works. Texas v. Johnson didn’t fail to “pass” the courts; it established that flag burning is constitutionally protected speech.
As for the “one year penalty” that is not in the executive order, nor is it something a President could determine by Executive Order. But no one dares tell the mad king he’s got no idea what he’s talking about.
More telling than Trump’s legal confusion is his claim to possess extensive evidence that doesn’t exist. He insists they have “many, many examples” of flag burning inciting violence that they have “down on tape.” This should be easy to verify—if such tape existed.
If journalists cared about getting this right, they could ask him any number of questions, starting with why he’s ignoring Texas v. Johnson. Or, maybe, since he claimed they have “many, many examples” of flag burning inciting violence, that they have “down on tape,” someone should ask him to provide the tapes. Where is the evidence of this? He says they have so much of it, so surely they can show it?
The Brandenburg standard for incitement requires speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Flag burning, as symbolic political speech, simply doesn’t meet this test. Not even close. There would need to be specific, directed calls to violence, not mere symbolic expression that some find offensive.
But we all know it’s the usual nonsensical ramblings of an old man who has no idea what’s actually going on, and who is easily fooled by fake things they put on Fox News.
The only honest and accurate thing he said in the whole thing was the line that every Democrat should use in their political ads:
“We took the freedom of speech away.”
Yes, Donald, you sure did. And you continue to do so. Bring this up every day. Make the quote famous. Make sure everyone knows what Donald Trump is admitting.
This admission fits perfectly into Trump’s broader pattern of attacking the First Amendment. From threatening to sue publishers to promising to imprison protestors, this administration has consistently treated free speech as an obstacle to be overcome rather than a principle to be protected.
And everyone who supported him on the false belief that he would “bring free speech back” might want to do some soul searching to understand why you bought an obvious lie from an obvious fabulist.
For years now, the MAGA crowd has been absolutely convinced that the Biden administration engaged in the most egregious censorship campaign in American history. They’ve waved around the Murthy v. Missouri case as proof that Biden officials illegally pressured tech companies to remove content (even as the Supreme Court concluded there wasn’t even enough evidence of any coercion to give any of the plaintiffs standing). Just last week, Rep. Jim Jordan was wildly celebrating what heclaimedwas Google’s admission that the Biden administration forced YouTube to censor people (which wasn’t actually what Google said at all, but reading comprehension has never been Jordan’s strong suit).
But now we have an actual, crystal-clear example of government officials using direct threats to pressure a tech company into removing disfavored speech—and suddenly, the free speech warriors have gone mysteriously quiet.
404 Media has the story of Apple removing the ICEBlock app from its App Store on Thursday after direct pressure from Department of Justice officials acting at the direction of Attorney General Pam Bondi. The app, which allows people to crowdsource sightings of ICE officials, was pulled following what Fox News described as the DOJ “reaching out” to Apple and “demanding” the removal.
Aaron provided 404 Media with a copy of the email he received from Apple regarding the removal. It says “Upon re-evaluation, we found that your app is not in compliance with the App Review Guidelines.” It then points to parts of those guidelines around “Objectionable Content,” and specifically “Defamatory discriminatory, or mean-spirited content, including references or commentary about religion, race, sexual orientation, gender, national/ethnic origin, or other targeted groups, particularly if the app is likely to humiliate, intimidate, or harm a targeted individual or group.”
The email then says “Information provided to Apple by law enforcementshows that your app violates Guideline 1.1.1 because its purpose is to provide location information about law enforcement officers that can be used to harm such officers individually or as a group.”
And Bondi herself was quite explicit about the government’s role in this censorship:
Bondi told Fox “ICEBlock is designed to put ICE agents at risk just for doing their jobs, and violence against law enforcement is an intolerable red line that cannot be crossed. This Department of Justice will continue making every effort to protect our brave federal law enforcement officers, who risk their lives every day to keep Americans safe.”
“We reached out to Apple today demanding they removethe ICEBlock app from their App Store—and Apple did so,” Bondi added according to the Fox report.
Now, some will inevitably argue that Apple made an independent decision based on its own guidelines. But the MAGA crowd refused to accept that exact same argument when it was made in defense of what happened during the Biden administration. When companies explained that their content moderation decisions were based on their own policies, not government pressure, the MAGA crowd dismissed those explanations as irrelevant. They’ve spent years refusing to acknowledge the difference between government persuasion and government coercion.
In all of the communications from the Biden administration that were revealed in Murthy v. Missouri, officials never demanded removal of content. They did request reviews against existing policies (which is why companies rejected over 60% of flagged content) and occasionally suggested policy changes (which were mostly ignored). Even when companies did take action, they consistently maintained it was based on their own policy determinations.
But here? Bondi explicitly states she demanded Apple remove the app. There’s no ambiguity, no gentle suggestion, no “request for review.” It’s a direct government demand for censorship that was immediately complied with.
So let’s be clear about what happened here: A government official made a demand to a private tech company to remove an app based on the content of that app, and the company complied. This is exactly—and I mean exactly—what Jordan, Trump, and the entire MAGA ecosystem have been claiming (falsely) was the greatest violation of the First Amendment in modern history when they imagined Biden officials did it.
But somehow, I doubt we’ll see Jordan holding hearings about this. I doubt we’ll see breathless segments about government censorship. I doubt we’ll see any of the usual suspects who spent years screaming about the Biden administration’s supposed “jawboning” saying a single word about this actual, documented case of government officials pressuring a tech company to remove content.
Now, to be fair, ICEBlock has legitimate issues that have been well-documented. Security researcher Micah Lee has written extensively about how the app is “activism theater” that wasn’t developed with input from actual immigrant defense groups and spreads unverified information that can cause panic rather than provide useful protection. He also documented serious security vulnerabilities in the app’s infrastructure that the developer ignored for weeks. These are legitimate concerns about the app’s effectiveness and security.
But here’s the thing: the quality or effectiveness of the app is irrelevant to the First Amendment question. The government cannot pressure private companies to remove apps based on the content of those apps, regardless of whether that content is high-quality, low-quality, effective, or ineffective. As we documented earlier this year, ICEBlock and similar apps serve a purpose that many people find valuable—providing early warning systems for ICE activities in local communities at a time when people (for good reasons!) are quite concerned about ICE’s abusive tactics.
The Supreme Court made this distinction crystal clear in both the Murthy and Vullo cases. In Vullo, the Court explicitly stated:
A government official can share her views freely and criticize particular beliefs, and she can do so forcefully in the hopes of persuading others to follow her lead. In doing so, she can rely on the merits and force of her ideas, the strength of her convictions, and her ability to inspire others.What she cannot do, however, is use the power of the State to punish or suppress disfavored expression….
Bondi didn’t just share her views or criticize the app. She explicitly used the power of the state by “demanding” Apple remove it, and Apple complied within hours. This is textbook government coercion of the type that the Supreme Court has repeatedly said violates the First Amendment.
Just last week, we had Trump supporters lying about Biden “censorship” to justify FCC Chair Brendan Carr’s explicit threats against Disney over Jimmy Kimmel’s speech. They keep pointing to Murthy v. Missouri as if it blessed government pressure on tech companies, when it actually said the opposite—that such pressure would violate the First Amendment if there was evidence it occurred.
But, as we discussed, in Murthy, the Supreme Court made it clear that explicit threats would, in fact, cross the First Amendment line. The problem in Murthy was the lack of evidence of “coercion” or “significant encouragement” to suppress speech—the Court specifically looked for explicit demands or threats and found none (while it did find such explicit demands in the Vullo case, which they heard the same day). The majority ruling states that the conduct needs to involve coercion and “not mere communication.”
Well, here’s your coercion. Here’s your “significant encouragement.” Here’s your smoking gun in the form of the Attorney General literally telling the media she demanded the removal of an app.
Here’s the actual government censorship that Jordan and company have been claiming to fight against for years.
Where are they now?
The silence reveals something fundamental about the entire “censorship” crusade: It was never about protecting free speech or preventing government overreach. It was about creating a permission structure for their own authoritarian impulses while weaponizing victimhood narratives against their political opponents.
When faced with actual, explicit, documented government censorship—the kind they’ve been breathlessly warning about for years—they have nothing to say. Because this censorship serves their agenda, targets their enemies, and advances their political goals.
The mask has slipped completely. The “free speech” warriors have shown themselves to be exactly what critics always said they were: not principled defenders of civil liberties, but partisan actors who only care about speech when it benefits them.
We’ve spent plenty of time talking about various people who are failing to meet this moment, but I will say that a number of district court judges have really been stepping up.
The latest example is Reagan-appointed conservative Judge William Young (who had previously—somewhat sarcastically—mocked the Supreme Court’s ridiculous abuse of the shadow docket), who was handling the American Association of University Professors’ lawsuit against the Trump administration over its attempts to criminalize and punish students and professors for the apparent crime of expressing support of Palestinians or criticism of the actions of the government of Israel.
While others are folding and capitulating, Judge Young has a clear-eyed view of what exactly is happening right now. And he’s stepping up while others are cowering.
The full 161-page ruling from Judge Young almost has to be read to be believed. It should go down in history as a hugely meaningful and consequential ruling, though there’s a decent enough chance that the Supreme Court will effectively delete it via an unexplained shadow docket ruling in a month or two).
The ruling starts out (and ends) in a manner I’ve never seen before. Judge Young posts a ridiculous threatening post card he received in response to one of his earlier rulings against the Trump admin:
As you can see, the postcard (received June 19th or just days after Young had ordered the NIH to restore grants that Donald Trump illegally blocked) is a handwritten message saying
Trump has pardons and tanks…
What do you have?
Judge Young then structures the ruling as a reply to the sender:
Dear Mr. or Ms. Anonymous,
Alone, I have nothing but my sense of duty.
Together, We the People of the United States –- you and me — have our magnificent Constitution.
Here’s how that works out in a specific case –-
And then goes into the ruling.
It starts out with Young quoting the entirety of the text of the First Amendment noting that “its words carved in New Hampshire granite on the exterior of the very courthouse in which this Court sits” before pointing out that on his first day back in office, Donald Trump issued an executive order purporting to “restore free speech” which many of us have called out as a complete farce, and now Judge Young is using his position to call that out as well.
President Trump here makes clear that, in his view, the First Amendment’s protection of freedom of speech applies to American citizens alone, and to an unconstitutionally narrow view of citizenship at that.
This case -– perhaps the most important ever to fall within the jurisdiction of this district court –- squarely presents the issue whether non-citizens lawfully present here in United States actually have the same free speech rights as the rest of us. The Court answers this Constitutional question unequivocally “yes, they do.” “No law” means “no law.” The First Amendment does not draw President Trump’s invidious distinction and it is not to be found in our history or jurisprudence…. No one’s freedom of speech is unlimited, of course, but these limits are the same for both citizens and non-citizens alike.
He finds that Secretary of State Marco Rubio and Homeland Security boss Kristi Noem clearly conspired to punish people for their speech, violating the First Amendment.
Having carefully considered the entirety of the record, this Court finds by clear and convincing evidence that the Secretary of Homeland Security Kristi Noem and the Secretary of State Marco Rubio, together with the subordinate officials and agents of each of them, deliberately and with purposeful aforethought, did so concert their actions and those of their two departments intentionally to chill the rights to freedom of speech and peacefully to assemble of the non-citizen plaintiff members of the plaintiff associations.
There’s a lot of background specifically on how Homeland Security folks were told to investigate campus protestors in order to figure out any excuse to strip them of their visas. Over and over again, we learn about students targeted for their obviously First Amendment-protected speech, some of whom we’ve already written about, but about many, many more as well.
In recounting the ridiculous kidnapping of Rumeysa Ozturk, the judge recounts how masked agents just grabbed her off the street, expressing disbelief that this kind of nonsense could happen in America.
The agents then all masked up, with the exception of one agent who already had a hood covering his head. Öztürk did not resist. Her wrists were cuffed behind her back and, taking her arms, the agents led her to a car which then sped away out of Massachusetts.
At 3:30 in the video, a voice can be heard asking, “Why are you hiding your faces?” Öztürk Arrest Video 3:30.
A fair question.
Judge Young notes that even ICE people were perplexed by all of this nonsense:
Again, there was concern about the novelty of the arrest. ICE Assistant Special Agent in Charge had never seen that type of direction from the State Department and HSI headquarters, and while he assumed the direction to be sufficient because it was coming from the top, that agent consulted with a lawyer from ICE’s Office of the Principal Legal Advisor.
After dozens of pages recounting nonsense arrests, and plenty of quotes of Marco Rubio cosplaying as a thuggish censorial authoritarian, the judge finally tees off on how this all seems like bullshit. He notes that government employees who testified all appeared to be “decent, credible dedicated non-partisan professionals” but that they were “weaponized by their highest superiors to reach foregone conclusions for most ignoble ends.”
And then puts the blame on Rubio and Noem for their clear intimidation plan designed to create real chilling effects on pro-Palestinian protests:
It was never the Secretaries’ immediate intention to deport all pro-Palestinian non-citizens for that obvious First Amendment violation, that could have raised a major outcry. Rather, the intent of the Secretaries was more invidious — to target a few for speaking out and then use the full rigor of the Immigration and Nationality Act (in ways it had never been used before) to have them publicly deported with the goal of tamping down pro-Palestinian student protests and terrorizing similarly situated non-citizen (and other) pro-Palestinians into silence because their views were unwelcome.
The Secretaries have succeeded, apparently well beyond their immediate intentions. One may speculate that they acted under instructions from the White House, but speculation is not evidence and this Court does not so find. What is clear, however, is that the President may not have authorized this operation (or even known about it), but once it was in play the President wholeheartedly supported it, making many individual case specific comments (some quite cruel) that demonstrate he has been fully briefed.
As an aside, the court puts in a footnote that Trump has engaged in a “full-throated assault on the First Amendment across the board under the cover of an unconstitutionally broad definition of Anti-Semitism.”
And that’s when Judge Young really starts cooking. He points out that Trump has “violated his sacred oath” and then talks about the current state of the US government, and how too many people have been lulled into complacency over all this. He highlights how the entirety of the US experiment appears to be on the brink because so few people are willing to step up and speak out in the face of such unconstitutional attacks on everything America is supposed to hold dear.
In the golden age of our democracy, this opinion might end here. After all, the facts prove that the President himself approves truly scandalous and unconstitutional suppression of free speech on the part of two of his senior cabinet secretaries. One would imagine that the corrective would follow as a matter of course from the appropriate authorities. Yet nothing will happen. The Department of Justice represents the the President, and Congress is occupied with other weighty matters.
Nor will there be any meaningful public outcry. There is an amalgam of reasons. The President in recent months has strikingly unapologetically increased his attack on First Amendment values, balked here and there by District Court orders. The issues presented here commenced last March.
ICE has successfully persuaded the public that it is our principal criminal law enforcement agency. Americans have an abiding faith in our criminal justice system. After all, ultimately they run it as jurors. “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury[.]” U.S. Const. art. III, § 2, cl. 3. Despite the meaningless but effective “worst of the worst” rhetoric, however, ICE has nothing whatever to do with criminal law enforcement and seeks to avoid the actual criminal courts at all costs. It is carrying a civil law mandate passed by our Congress and pressed to its furthest reach by the President. Even so, it drapes itself in the public’s understanding of the criminal law though its “warrants” are but unreviewed orders from an ICE superior and its “immigration courts” are not true courts at all but hearings before officers who cannot challenge the legal interpretations they are given. Under the unitary President theory they must speak with his voice. The People’s presence as jurors is unthinkable.
From there, he starts talking about how totally fucked up it is that ICE agents are running around in masks, which he calls out as “dishonorable” and “cowardly”! No euphemisms. No mealy-mouthed language. Just calling out how masked agents arresting students for their speech is fucked up:
And there’s the issue of masks. This Court has listened carefully to the reasons given by Öztürk’s captors for masking-up and has heard the same reasons advanced by the defendant Todd Lyons, Acting Director of ICE.It rejects this testimony as disingenuous, squalid and dishonorable. ICE goes masked for a single reason — to terrorize Americans into quiescence.Small wonder ICE often seems to need our respected military to guard them as they go about implementing our immigration laws. It should be noted that our troops do not ordinarily wear masks. Can you imagine a masked marine? It is a matter of honor — and honor still matters.To us, masks are associated with cowardly desperadosand the despised Ku Klux Klan. In all our history we have never tolerated an armed masked secret police. Carrying on in this fashion, ICE brings indelible obloquy to this administration and everyone who works in it. “We can not escape history,” Lincoln righty said. “[It] will light us down in honor or dishonor, to the latest generation.” Abraham Lincoln, Second Annual Message to Congress (Dec. 1, 1862).
He then goes on to point out that anyone who claims it doesn’t matter, since Rubio and Noem are targeting non-citizens, is full of shit:
Finally, perhaps we don’t much care. After all, these Plaintiffs, a group of non-citizen pro-Palestinians are relatively small compared to the much larger interest groups who have every right vigorously to espouse the cause of the State of Israel. Palestine is far away and its people are caught up in the horrors of a modern war with heavy ordinance wreaking massive indiscriminate destruction, a war that is not one of our making. Why should we care about the free speech rights of their compatriots here among us?
Here’s why:
The United states is a great nation, not because any of us say so. It is great because we still practice our frontier tradition of selflessness for the good of us all. Strangers go out of their way to help strangers when they see a need. In times of fire, flood, and national disaster, everyone pitches in to help people we’ve never met and first responders selflessly risk their lives for others. Hundreds of firefighters rushed into the Twin Towers on 9/11 without hesitation desperate to find and save survivors. That’s who we are. And on distant battlefields our military “fought and died for the men [they] marched among.”
Then we finally get to the meat of the ruling: this is a blatant attack on the First Amendment and the Administrative Procedure Act as well:
This Court rules that the Plaintiffs have shown by clear and convincing evidence that Secretaries Noem and Rubio have intentionally and in concert implemented Executive Orders in 14161 and 14188 a viewpoint-discriminatory way to chill protected speech. This conduct violated the First Amendment. The coercion line of case law bolsters this conclusion, and the Public Officials’ threats to continue detaining, deporting, and revoking visas based on political speech serves as circumstantial evidence that such enforcement exists, is viewpoint discriminatory, and has objectively chilled the Plaintiffs’ speech, but the campaign of threats itself, because not directed specifically at the Plaintiffs, does not separately violate the Constitution under this precise line of case law.
This mode of enforcement policy also violates the APA because, for the same reasons, it is contrary to constitutional right. It is also arbitrary or capricious because it reverses prior policy without reasoned explanation or consideration of reliance interests, and is based on statutes that have never been used in this way.
There are some questions as to whether or not the plaintiffs here have standing themselves, but Judge Young finds that they do based on the chilling effects created by the government and rejects the government’s claims that the chilling effects are only speculative, because… duh:
On the merits, the Court disagrees that the Plaintiffs’ standing witnesses have shown only subjective fear and unreasonable self-censorship. In particular, standing witness Professor Al-Ali, who is a lawful permanent resident and a member of both AAUP and MESA, testified to a long history of scholarly work and advocacy on issues related to Palestine, including signing and in one case drafting open letters calling for, among other things, Brown University’s divestment from companies involved in Israel’s military occupation of Palestine, the dropping of legal charges against student protestors in aftermath of the October 7 attacks, and a ceasefire in Gaza…. Professor Al-Ali credibly testified that news of Khalil and Öztürk’s arrests, in addition to the comment from President Trump that Khalil’s arrest would be one of “many,” led her to alter international travel plans and to contact an immigration lawyer to track her travel abroad, to decline a public-facing leadership opportunity that might have more firmly associated her with pro-Palestine human rights advocacy, to cease her previous practice of signing open letters related to these issues, to forego specific research projects related to Palestine and funded research opportunities requiring travel, and to stop attending protests and assisting in negotiations between Brown University and its students as she had previously done, all out of fear of being targeted for her pro-Palestinian speech and association with such views.
It also notes, as we have in the past, that First Amendment precedent is clear that non-citizens in the US are still protected under the First Amendment, even if the contours of that protection are a bit more “complex” than for citizens, but notes that almost all of the cases that suggest non-citizens have fewer rights are “red scare” cases that are an embarrassment to American history.
Even assuming that the First Amendment law of the second Red Scare era still applies to noncitizens in its entirety, the Public Officials’reliance on these Red Scare era casesonly accentuates two important distinctions between this case and the cases on which the Public Officials most rely. First, Harisiades carefully examined a specific congressional determination that the organization of which the plaintiffs were former members advocated the “methodical but prudent incitement to violence,” and ultimately “incitement to violent overthrow” of the United States government. Harisiades, 342 U.S. at 592. Here, there is no alleged membership of any organization and no congressional determination specific to it or to the targeted noncitizens, much less a determination that the targeted noncitizens are involved in advocating for the government’s violent overthrow, 342 U.S. at 592. Second, Mandel and Hawaii, which the Public Officials cite for the proposition that all burdens on noncitizens’ First Amendment rights are subject to only a “facially legitimate and bona fide” reason standard of review, are exclusion cases, and “[t]he distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law,” Zadvydas v. Davis, 533 U.S. 678, 693 (2001); Gastelum-Quinones v. Kennedy, 374 U.S. 469, 479 (1963) (“[D]eportation is a drastic sanction, one which can destroy lives and disrupt families, and . . . a holding of deportability must therefore be premised upon [meaningful evidence of the relevant violation].”). In any case,political speech is not, on its own, a facially legitimate reason for expelling personsfrom this country
And thus, the government’s attempt to say “but these foreigners have no First Amendment rights” not only fails, Judge Young also points out that Rubio and Noem’s actions are unprecedented in how unconstitutional they are:
For these reasons, this Court rules that here the Plaintiffs have shown that Secretaries Noem and Rubio are engaged in a mode of enforcement leading to detaining, deporting, and revoking noncitizens’ visas solely on the basis of political speech, and with the intent of chilling such speech and that of others similarly situated. Such conduct is not only unconstitutional, but a thing virtually unknown to our constitutional tradition.
As for the exceptionally weak argument that speech supporting Palestine or criticizing Israel was somehow tantamount to inciting imminent lawless action (and thus, not protected by the First Amendment), Judge Young points out that no one involved in the process seemed to believe that, or they would have done an analysis of the speech to see if it met that criteria:
the Court saw virtually no evidence that anyone along the way seriously questioned whether pure political speech in support of Palestine or against Israel could be construed as support for terrorism, whether support for terrorism as such could be grounds for the adverse actions that were contemplated, or whether any targeted individual had met any circumscribed, ascertainable standard of speech or conduct that might be grounds for these actions. Trial produced no evidence that the challenged procedures contemplated the speech to have been as incitement to imminent violence or, per the terms of an older test, clear and present danger. Rather, the subordinates spoke the language of “violat[ing]” the Executive Orders, as if they were the law, and of “align[ing] with the executive order’s focus on deporting ‘Hamas sympathizers,’” as if “Hamas sympathizers” were a self-interpreting term. They appear to have treated “antisemitism,” which, however heinous, is, without more, protected speech, as something that, in essence, one simply knows when one sees it. In short, if it looked like the Executive Orders might have disapproved of it, that was potential grounds for deportation.
And Judge Young pulls out an “ignorance of the law is no excuse” point in case the government wants to claim it somehow didn’t realize it was violating the First Amendment rights of the people it was targeting:
But just as a general matter ignorance of the law is no excuse, the Secretary of State’s and other high officials’ apparent indifference as to whether support or sympathy for terrorism, as opposed to material support, could be grounds for adverse action by law, or whether such support could be construed to include the voicing of support for Palestine or objection to the policies of the State of Israel, is no defense to the charge that they have done what they have repeatedly said they were doing: intentionally targeted political speech in order to stop campus protests.
The judge also notes that there are really only two possibilities: US officials are totally incompetent in their investigations… or they directly chose to target visa holders for their protected speech:
Due to the frictionless quality described above, once one was on the lists, one was potentially subject to adverse action so long as, it seems, there was any online mention of one’s pro-Palestine activities. The Public Officials’ argument that few of the originally investigated names were targeted is little comfort. Those names that were passed up the chain of command by the investigating subordinates were almost universally approved for adverse action, and, again, the reasons for being passed up the chain of command included any form of online suggestion that one was “pro-Hamas,” including Canary Mission’s own anonymous articles. Watching the process at work, and not wishing to credit the Public Officials with incompetence, it would require a remarkable naivete not to conclude that this process worked as intended.
The Court calls out the famous Bantam Books ruling along with last year’s Vullo SCOTUS ruling (which we keep talking about lately) to highlight that the First Amendment is pretty clear that the government cannot force third parties to chill speech on its behalf. And, the court specifically calls out the vague lack of standards here as making it all more threatening, since it creates a more impactful chilling effect, since people may be too fearful to express anything they think might earn disapproval from the Trump administration.
Because “a government official cannot do indirectly what she is barred from doing directly,” Vullo, 144 S.Ct. at 1328, the Public Officials may not in effect regulate speech by means of an unwritten enforcement procedure implementing a facially lawful Executive Order, as if speech codes were permissible so long as they were not written down. Again, an unwritten speech code seems, if anything, potentially more threatening to core constitutional values than a written one, and the ambiguity recognized and criticized by several courts of appeals in the recent run of campus speech code cases discussed above, see supra Section III.A.1. The Plaintiffs’ noncitizen members here have all been made to understand that there are certain things that it may be gravely dangerous for them to say or do, but have not been told precisely what those things are (or are not); the diffuseness and ambition of this coercion campaign do not render it less constitutionally suspect.
He also calls out the insanity of sending government agents used to tracking down and arresting hardened criminals and terrorists to… arrest students for writing op-eds. The only reason to do that is to create chilling effects on speech:
This Court credits the testimony of the agents involved that at least some of these practices were not per se abnormal for HSI arrests and detentions; but this only begs the question, however,why special agents previously deployed for sensitive intelligence matters have been deployed to enforce this particular policy of, in essence, rounding up campus protestors and op-ed writers?Or why, having observed the first arrests that were made under this policy and seen that these arrests by these agents involved an obvious, highly publicized atmosphere of secrecy and fright, the Public Officials responsible for it did not adjust the policy to make the arrests less obviously chilling? Or why the members of the inter-agency advisory council whom the Public Officials will not name, did not adjust the policy to make the arrests less obviously chilling? Again, deprived of any real attempted explanation as to what the members of this council intended by the selected means of these arrests,this Court must draw the most reasonable inference: that the manner and method of their execution was adopted, or at least approved of once the first such arrest had been made, in part intentionally to chill the speechof other would be pro-Palestine and anti-Israel speakers, including Plaintiffs’ noncitizen members.
The judge also rejects any notion that purely pro-Palestinian or anti-Israel speech should be deemed as “pro-terrorism.”
To conclude, and to be clear, this Court has no sympathy for terrorism, or for those who genuinely support it. It has proudly sentenced terrorists, see United States v. Reid, 206 F. Supp. 2d 132 (2002), and understands its own role as one small part of a federal scheme that exists significantly to protect this Nation’s national security. Nor does the Court take a position on any foreign conflict or express special sympathy for any side of any political debate, foreign or domestic. Rather, the judicial role is limited to safeguarding the rights of all persons lawfully present in this country. This includes the freedom of speech that allows those persons to understand each other and to debate. If “terrorist” is interpreted to mean “pro-Palestine” or “anti-Israel,” and “support” encompasses pure political speech, then core free speech rights have been imperiled.
As for the claim that foreigners in the US are here at the whims of the US government and can be removed for any reason, that’s… not how any of this works. First Amendment rights are rights, not privileges. Furthermore, the judge notes, how the government treats “guests” is still limited by the restraints of the Constitution.
Throughout these proceedings, the Public Officials have emphasized that the noncitizens at issue are present at our grace. They describe their presence here as a privilege, which can be revoked for almost any reason, or at least when we begin to feel we would not have invited them here had we known what they were going to say to us. This Court in part must agree: non-citizens are, indeed, in a sense our guests. How we treat our guests is a question of constitutional scope, because who we are as a people and as a nation is an important part of how we must interpret the fundamental laws that constrain us.
And then there’s just the basic fact that it is authoritarian countries that imprison people based on their speech, and a huge part of the Constitution was supposed to show how we were better than that:
We are not, and we must not become, a nation that imprisons and deports people because we are afraid of what they have to tell us.See Dennis v. United States, 341 U.S. 494 554-55 (1951) (Frankfurter, J., concurring in the judgment) (describing, in the context of the second Red Scare, “a danger that something may occur in our own minds and souls which will make us no longer like the persons by whose efforts this republic was founded and held together, but rather like the representatives of that very power we are trying to combat: intolerant, secretive, suspicious, cruel, and terrified of internal dissension because we have lost our own belief in ourselves and in the power of our ideals”)(quoting George F. Kennan, Where do You Stand on Communism?, New York Times Magazine, May 27, 1951, at 53)); Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring) (“Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, . . . the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.”); Carlson v. Landon, 342 U.S. 524, 554 (1952) (Black, J., dissenting) (“To put people [law-abiding people] in jail for fear of their talk seems to me to be an abridgment of speech in flat violation of the First Amendment. . . . My belief is that we must have freedom of speech, press and religion for all or we may eventually have it for none. I further believe that the First Amendment grants an absolute right to believe in any governmental system, discuss all governmental affairs, and argue for desired changes in the existing order. This freedom is too dangerous for bad, tyrannical governments to permit. But those who wrote and adopted our First Amendment weighed those dangers against the dangers of censorship and deliberately chose the First Amendment’s unequivocal command that freedom of assembly, petition, speech and press shall not be abridged.”).
Of course, it’s only on page 148 of this ruling that the judge has to grapple with the “but what now?” question:
It is not enough for the Court simply to determine that the plaintiffs’ First Amendment constitutional rights have been violated. The Constitution is not self-effectuating. There must be some prospect of an effective remedy (we call it “redressability”) in order to proceed. Diamond Alternative Energy, LLC v. Env’t Prot. Agency, 145 S. Ct. 2121, 2133 (2025) (“The . . . redressability requirement generally serves to ensure that there is a sufficient relationship between the judicial relief requested and the injury suffered.”)(citations and quotations omitted). Otherwise, this Court ought terminate these proceedings at this point lest it become no more than a divisive scold. When this Court denied the motion to dismiss herein, AAUP, 780 F. Supp. 3d at 379, it thought an effective remedy might be obtainable; today it is not so sure.
That last sentence sure sounds ominous. Because it is. Judge Young then speaks quite clearly about the singular danger that is our authoritarian President:
The reason is the rapidly changing nature of the Executive Branch under Article II of our Constitution and, while he is properly not now a defendant in these proceedings, the nature of our President himself.
Again, I need to remind you (this is a long piece after all), this is a staunch conservative, Reagan-appointed judge. And he appears quite reasonably concerned about what is going on in DC:
We’ve never had a President like President Trump. He espouses, [and] he’s the first President in our history to espouse, a concept of the unified Presidency. The idea is that the President of the United States — and certainly he’s duly-elected — after a full and fair election, the President of the United States — he is the single, superior, executive, motive force for all federal employees employed under Article II
He then calls out the lack of clothes on this emperor and all those around him who continue to agree with him that he is supremely well-dressed in the greatest clothing ever made:
Triumphalism is the very essence of the Trump brand. Often this is naught but hollow bragging: “my perfect administration,” wearing a red baseball cap in the presidential oval office emblazoned “Trump Was Right About Everything,” or most recently depicting himself as an officer in the First Cavalry Division. Unfortunately, this tends to obscure the very real and sweeping changes President Trump has wrought in his first year in office. If change is a mark of success, President Trump is the most successful president in history.
He ignores everything . . .
This is indubitably true.The Constitution, our civil laws, regulations, mores, customs, practices, courtesies — all of it; the President simply ignores it all when he takes it into his head to act. A broad swath of our people find this refreshing in what they may feel is an over regulated society. After all, lawyers seem to have a penchant for telling you what you can’t do. President Trump simply ignores them.
And he calls out how successful, if unconstitutional, Trump’s bullying has proven:
Small wonder then that our bastions of independent unbiased free speech –- those entities we once thought unassailable –- have proven all too often to have only Quaker guns. Behold President Trump’s successes in limiting free speech -– law firms cower, institutional leaders in higher education meekly appease the President, media outlets from huge conglomerates to small niche magazines mind the bottom line rather than the ethics of journalism.
But it’s all just bluster and bullying in the end, in support of a mad king who threatens anyone who points out that he’s as naked as the moment he was born:
While the President naturally seeks warm cheering and gladsome, welcoming acceptance of his views, in the real world he’ll settle for sullen silence and obedience. What he will not countenance is dissent or disagreement. He recognizes, of course, that there are legislative and judicial branches to our government, co-equal even to a unitary Presidency. He meets dissent from his orders in those other two branches by demonizing and disparaging the speakers, sometimes descending to personal vitriol.
Dissent elsewhere among our people is likewise disfavored, often in colorful scurrilous terms. All this the First Amendment capaciously and emphatically allows.
When he drifts off into calling people “traitors” and condemning them for “treason,” however, he reveals an ignorance of the crime and the special burden of proof it requires.More important, such speech is not protected by the First Amendment; it is defamatory.
Of course, he notes, somewhat sarcastically, that the Supreme Court has deemed the President immune from civil suits (this is from the Nixon era, Trump v. the US is about criminal matters).
Judge Young also calls out just how crazy it is that our President, who is supposed to be the President of all the people, defending the Constitution, is, instead, focused on petty revenge and personal scores.
Everything above in this section is necessary background to frame the problem this President has with the First Amendment. Where things run off the rails for him is his fixation with “retribution.” “I am your retribution,” he thundered famously while on the campaign trail. Yet government retribution for speech (precisely what has happened here) is directly forbidden by the First Amendment. The President’s palpable misunderstanding that the government simply cannot seek retribution for speech he disdains poses a great threat to Americans’ freedom of speech. It is at this juncture that the judiciary has robustly rebuffed the President and his administration.
He then cites the long list of cases the President has lost (such as those brought by law firms he attacked, universities he denied funding to, media organizations he has punished for their speech).
Which brings us back to the question of how can the judge make things right in this case, covering these abuses, when it appears to be the clear position of this administration to violate the First Amendment rights of anyone they deem insufficiently loyal.
He notes there will need to now be a separate remedy phase to figure out what can be done, while noting the limits in his own authority. He cannot limit the speech of Donald Trump or Rubio or Noem. And he can’t block them from “properly” enforcing the laws passed by Congress.
So as he moves on to hold future hearings regarding remedies, he quotes Ronald Reagan’s inaugural address when he became California’s governor:
Freedom is a fragile thing and it’s never more than one generation away from extinction. It is not ours by way of inheritance; it must be fought for and defended constantly by each generation, for it comes only once to a people.
But then notes that Trump appears to view that same statement in a different light: one where the fragility of freedom means that it is his to crush and destroy:
I’ve come to believe that President Trump truly understands and appreciates the full import of President Reagan’s inspiring message –- yet I fear he has drawn from it a darker, more cynical message.I fear President Trump believes the American people are so divided that today they will not stand up, fight for, and defend our most precious constitutional valuesso long as they are lulled into thinking their own personal interests are not affected.
Is he correct?
That is a pretty bold provocation in a ruling against the government from a district court judge. I can’t recall ever seeing anything like it.
And I’d be remiss if I didn’t point out that Judge Young also calls out the cost of lawfare in a footnote, and how chilling it can be on the speech of people threatened with lawfare:
The federal courts themselves are complicit in chilling would-be litigants. It is not that we are less than scrupulously impartial. We demonstrate our judicial independence and utter impartiality every day whatever the personal cost. It is, rather that in our effort to be entirely fair, thorough, and transparent, we areslow, ponderously slow. This in turn means we areexpensive, crushingly so for an individual litigant. Frequently, the threat of federal civil litigation, however frivolous, is enough severely to harass an individual and cause his submission.
Emphasis in the original by Judge Young. I find this notable not for the reason Judge Young calls it out (he uses it to again call out the Supreme Court’s shadow docket adventures), but because so often when people discuss this very aspect of things like SLAPP lawsuits, judges dismiss it as no big deal, and insist that their slow efforts are really not worth bothering about, and that anybody should be able to figure out how to deal with it.
Just having a judge acknowledge otherwise is a surprise, but nice to see.
And thus we finally get to the end of the ruling, and the judge returns to the threatening postcard he received with which he started off this ruling, closing it out thusly:
If you can’t see that it says:
I hope you found this helpful. Thanks for writing. It shows you care. You should.
Sincerely & respectfully,
Bill Young
P.S. The next time you’re in Boston [the postmark on the card is from the Philadelphia area] stop in at the Courthouse and watch your fellow citizens, sitting as jurors, reach out for justice. It is here, and in courthouses just like this one, both state and federal, spread throughout our land that our Constitution is most vibrantly alive, for it is well said that “Where a jury sits, there burns the lamp of liberty.”
This is quite a memorable ruling—not just for its legal conclusions, but for how it models what “meeting the moment” actually looks like. Judge Young doesn’t just issue a dry legal opinion; he directly confronts the authoritarian playbook with constitutional principles, calls out cowardice and dishonor where he sees it, and frames the stakes in terms ordinary Americans can understand.
While it will not convince anyone in the Trump regime or the MAGA faithful, it demonstrates something crucial: that there are still people in positions of authority willing to use that authority to defend constitutional principles, even when—especially when—it’s uncomfortable or dangerous to do so.
Judge Young’s direct challenge to his anonymous correspondent—”I fear President Trump believes the American people are so divided that today they will not stand up, fight for, and defend our most precious constitutional values”—should be read as both a warning and a call to action. The question isn’t just whether Trump is right about our divisions, but whether the rest of us have the courage to prove him wrong.
