Published Jul. 23

Over the past three years, Gov. Ron DeSantis has restricted Floridians First Amendment rights and repeatedly pushed for laws that violate basic American freedoms. During this years session of the Florida Legislature, these assaults accelerated.

The First Amendment guarantees the rights to free speech, a free press, freedom to assemble and protest peacefully, the right to petition the government for change and freedom from the imposition of religious beliefs by government.

In the wake of national protests after the 2020 police killing of George Floyd in Minneapolis, DeSantis championed the anti-protest bill, House Bill 1. It dictated that any person participating in a rally or protest could be charged with a felony if three or more other people at that event engaged in unlawful activity resulting in imminent danger of damage to property or injury to another person. In other words, you could be charged for an offense committed by people who were total strangers to you, even if you were protesting peacefully.

In 2021, U.S. District Court Judge Mark Walker struck down that provision of the law. Walker stated that HB 1 could effectively criminalize the protected speech of hundreds, if not thousands, of law-abiding Floridians. This violates the First Amendment.

That ruling hasnt stopped DeSantis from trying to impede free speech in other ways. In this years legislative session, he and his allies pushed House Bill 7, an educational censorship bill, signed into law in April. That bill prevents content from being taught in schools that illustrates the discrimination, including race and gender discrimination, that has existed for centuries in our society.

HB 7 even bans private employers from requiring diversity training or other workshops related to race and gender discrimination, which are often used to create inclusive, productive work environments. Worse, the law gives employees the ability to sue an employer for requiring such workshops. HB 7 is a clear attempt to whitewash American history and to ban viewpoints the governor and his allies do not like.

DeSantis and his legislative allies continued to attack Floridians First Amendment rights by targeting LGBTQ+ youth and families with the dont say gay bill (House Bill 1557). This dangerous legislation bans teachers from addressing LGBTQ+ topics in grades K-3. It also prohibits such discussions at any grade level if someone else does not deem them age-appropriate.

Any parent who thinks a classroom discussion was inappropriate will be able to sue, a provision of the law that will end up chilling speech and creating chaos. This legislation will further shame, stigmatize, and isolate LGBTQ+ youth, who already suffer from high rates of depression and suicide.

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On Feb. 17, 25 people were banned from the Capitol for a year, and another was unjustly arrested and held in jail overnight. All because a few people were chanting in opposition to the passing of House Bill 5, the 15-week abortion ban backed by DeSantis. That law is yet another way that a constitutional right the right to privacy and bodily autonomy is under attack in Florida.

In addition, over the past few years, we have witnessed journalists being denied access to official press conferences and briefings by DeSantis attempts to block coverage of critical public matters, including coronavirus updates and bill signings.

DeSantis is waging a terrifying and unconstitutional assault on Floridians First Amendment rights, and all Floridians should be outraged by his attempts to silence us.

Dissent is patriotic; government censorship is undemocratic, unconstitutional and un-American. We will all do better when we have leaders in Florida who use their power to improve our lives and our livelihoods and are dedicated to making the values of liberty and justice a reality for all of us.

Amy Turkel is the interim executive director of the ACLU of Florida.

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DeSantis and his allies in Florida are trampling on our First Amendment rights | Column - Tampa Bay Times

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Rep. Jim Jordan, R-Ohio, revealed the Left's double standard on free speech Saturday on "Unfiltered with Dan Bongino."

REP. JIM JORDAN: They don't think that the First Amendment rights apply to you and [me]. Think about what they've said about your free speech rights. The Left today says if you don't agree with them, you're not even allowed to talk and if you try, we're going to call you racist, and we're going to try to cancel you.

ELON MUSK SCARES LIBERALS, TWITTER AS HE PURSUES FREE SPEECH

And now we have the Left giving a wink and a nod to people actually trying to use violence and intimidation tactics against people they disagree with. So that's what frightens me their attack on your First Amendment rights, your Second Amendment rights, your Fourth Amendment due process rights. And now [there's] this almost this double standard that they have when it comes to violence that they see from people [who] agree with their political position.

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The Left does not think the First Amendment applies to the Right: Rep Jim Jordan - Fox News

from the you-can-protect-children-without-infringing-on-the-1st-amendment dept

California has officially joined the growing list of states attempting to regulate how social media companies run their platforms. The states proposed legislation, however, faces a major legal obstacle: the Constitution.

California lawmakers are marching ahead with AB 2408, the Social Media Platform Duty to Children Act. On June 28, the Judiciary Committee unanimously passed an amended version of the bill, tweaking several provisions. Next, AB 2408 must pass the Senate Appropriations Committee and the California Senate before governor Gavin Newsom may sign the bill into law.

AB 2408 would impose a duty on social media platforms to avoid addicting minor users. Although protecting minors is a noble cause, regulating how social media design their services likely violates the First Amendment, which protects platforms right to curate content based on their editorial discretion.

As with most bills, the devils in the details. AB 2408s structure and prohibitions would limit platforms abilities to arrange and moderate content for minors.

AB 2408 defines Addict as the act of knowingly or negligently caus[ing] addiction through any act or omission. The bill defines Addiction as use of one or more social media platforms resulting in preoccupation or obsession with, or withdrawal or difficulty to cease or reduce use in addition to physical, mental, emotional, developmental, or material harms to the user.

The bill allows the Attorney General to sue social media platforms for implementing a design, feature, or affordance which leads to addiction. To prevail under AB 2408, a plaintiff must prove that a minor became addicted and was therefore harmed, that a design or feature on the platform was a substantial factor in the addiction, and that it was reasonably foreseeable that the design or feature would lead to addiction.

A recent amendment removed a private right of action which would have allowed minor users and parents to sue platforms directly. Lawmakers also changed the definition of social media platform. The amendments, however, do little to change the bills constitutionality.

In short, AB 2408 aims to prohibit social media platforms from building features which the platforms know, or ought to know, will result in addiction for minors.

In general, social media platforms design features to make their platforms more useful or enjoyable. For example, any internet platform worth its salt uses algorithms to display, recommend, and tailor content based on a users browsing activity and interests. By restricting how social media companies build and use these features, AB 2408 interferes with their editorial discretion by limiting how platforms display and amplify content.

AB 2408 appears less objectionable than the social media regulations currently brewing in Texas and Florida, which are geared towards forcing platforms to host conservative content. Ultimately, however, all three bills seek to regulate how social media platforms moderate content. Its unlikely these bills withstand First Amendment challenges.

Texass and Floridas social media bills are already running into trouble in court. On May 31, the Supreme Court suspended Texass HB20, reimposing a preliminary injunction on enforcement of the legislation.

Just eight days earlier, the U.S.federal Court of Appeals for the Eleventh Circuit held that Floridas social media bill violates the First Amendment. Circuit Judge Kevin Newsom explained: Put simply, with minor exceptions, the government cant tell a private person or entity what to say or how to say it.

The court concluded that social media platforms content-moderation decisions constitute protected exercises of editorial judgment, and that the provisions of the new Florida law that restrict large platforms ability to engage in content moderation unconstitutionally burden that prerogative.

Proponents of AB 2408 argue that the bill only regulates business conduct, not speech. But limiting platforms abilities to build features used to display content implicates their constitutionally protected editorial judgment.

In Reno v. ACLU, the Supreme Court applied the First Amendment to the Internet, striking down provisions of the 1996 Communications Decency Act which criminalized the intentional transmission of obscene or indecent messages and information depicting or describing sexual or excretory activities or organs in an offensive manner. The Court found no basis for qualifying the level of First Amendment scrutiny that should be applied to the Internet.

Twenty years earlier, in Miami Herald v. Tornillo, the Supreme Court held that the government cannot regulate a newspapers choice of material or the decisions made as to limitations on the size and content of the paper.

Social media features designed to display content to users are analogous to newspaper editors dictating the size and content of their paper. Just as it protects newspapers, the First Amendment likely limits Californias authority to punish Internet platforms for their editorial decisions related to displaying and arranging content on their services. Consequently, AB 2408 faces the same First Amendment roadblocks as the Texas and Florida bills.

Protecting children is important. Thats undeniably true. Lawmakers, however, must pursue these policy objectives within the confines of the Constitution.

Andy Jung is a Legal Fellow at TechFreedom, a non-profit, non-partisan think tank focused on technology law and policy. Andy received his law degree from Antonin Scalia Law School in Arlington, VA. Before law school, Andy worked for software startup companies in California.

Filed Under: 1st amendment, ab 2408, addiction, california, content moderation, for the children, protect the children, social media

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California's Social Media Bill Flies In The Face Of The First Amendment - Techdirt

In November 2020, a 2-1 Eleventh Circuit panel decision inOtto v. City of Boca Ratonconcluded:

Boca Raton and Palm Beach County prohibit therapists from engaging in counseling or any therapy with a goal of changing a minor's sexual orientation, reducing a minor's sexual or romantic attractions (at least to others of the same gender or sex), or changing a minor's gender identity or expressionthough support and assistance to a person undergoing gender transition is specifically permitted. These restrictions apply even to purely speech-based therapy. We understand and appreciate that the therapy is highly controversial. But the First Amendment has no carveout for controversial speech. We hold that the challenged ordinances violate the First Amendment because they are content-based regulations of speech that cannot survive strict scrutiny.

(See Jonathan Adler's post on the case.) Today, the Eleventh Circuit denied en banc rehearing, with several judges writing to concur or to dissent on that point; I'm slammed right now and can't quickly summarize or excerpt the opinions (which take up 110 pages), but I thought I'd link to them for the benefit of readers who are interested in looking through them.

Here is the original post:

Eleventh Circuit Opinions on the First Amendment and Bans on "Conversion Therapy" for Minors - Reason

By Dorothy Atkins (July 25, 2022, 8:13 PM EDT) -- A split Ninth Circuit refused Monday to reconsider a panel's finding that invalidated a law that makes it a crime to encourage unlawful immigration, with a judge writing in dissent that the opinion misinterprets the statute and employs the "nuclear option" by finding that the law infringes free speech rights.

In a 33-page dissent joined by five Ninth Circuit judges, plus two judges who dissented in part, U.S. Circuit Court Judge Patrick J. Bumatay wrote that the three-judge panel's February opinion misreads the "text, history and structure" of the 70-year-old criminal statute, and misconstrues it to broadly apply beyond an "ordinary"...

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Split 9th Circ. Won't Hear Ruling Invalidating Immigration Law - Law360

Disputing that restrictions on race-related workplace training violate the First Amendment, the state is asking a federal judge to toss out a challenge by businesses to a law that Gov. Ron DeSantis dubbed the Stop WOKE Act.

Attorneys for the state last week filed motions to dismiss the lawsuit and to prevent a preliminary injunction. The law, which took effect July 1, targets how race-related concepts are addressed in workplace training and school classrooms, with DeSantis touting it as preventing indoctrination.

The states motions contended that the law does not violate the First Amendment because it only bars businesses from requiring employees to take part in training programs that use the targeted concepts.

They (the laws restrictions) leave employers free to engage in, promote and pay for any speech they wish, including the invidiously biased speech targeted by the act, and they leave willing employees free to hear and to join in it, the states lawyers wrote. All they prevent is the use of the employers coercive economic leverage over its employees to make them an offer they cant refuse: Listen to the companys speech or clear out your desk.

Businesses filed the lawsuit June 22 and subsequently requested a preliminary injunction against the law, which they said violates their ability to discuss issues such as racism and implicit bias with employees.

The act silences speech aimed at combating racism and sexism speech that is vital to the plaintiffs operation of their businesses, the June 30 preliminary-injunction request said. The governor, and the Florida Legislature acting at his behest, has repeatedly sought to punish companies who have engaged in speech that displeases him, in flagrant violation of the First Amendment. Because Governor DeSantis is not a monarch, but rather a democratically elected official, the Stop WOKE Act cannot stand.

Chief U.S. District Judge Mark Walker has scheduled an Aug. 8 hearing on the preliminary-injunction request.

The plaintiffs in the case are Primo Tampa, LLC, a Ben & Jerrys ice-cream franchisee; Honeyfund.com, Inc., a Clearwater-based technology company that provides wedding registries; and Chevara Orrin and her company, Collective Concepts, LLC. Orrin and her company provide consulting and training to employers about issues such as diversity, equity and inclusion.

The law (HB 7), which DeSantis signed April 22, spurred fierce debates before passing during this years legislative session. DeSantis called it the Stop Wrongs To Our Kids and Employees Act, or Stop WOKE Act.

The law lists eight race-related concepts and says that a required training program or other activity that espouses, promotes, advances, inculcates, or compels such individual (an employee) to believe any of the following concepts constitutes discrimination based on race, color, sex, or national origin.

As an example of the concepts, the law targets compelling employees to believe that an individual, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the individual played no part, committed in the past by other members of the same race, color, sex, or national origin.

The states attorneys wrote in one of the court documents filed Thursday that what the act does all it does is prevent employers from conscripting their employees, against their will, into the audience as a condition of their employment.

What it does not protect is the ability of employers to use their economic leverage over their workers to force them, on pain of losing their jobs or other sanction, to listen to such views, the states attorneys wrote. That is conduct, not speech, and the First Amendment has nothing to say about it.

The lawsuit, however, said the plaintiffs believe it is important that training and other activities address issues such as diversity and structural racism in workplaces. It said, for example, it is unclear how Honeyfund can move forward with training scheduled later this year and be consistent with the new law.

Without such DEI (diversity, equity and inclusion) trainings, plaintiff Honeyfund would risk losing substantial benefits to its businesses, including improving collaboration and productivity, attracting more diverse candidates, increasing employee engagement and connecting with diverse clientele, the lawsuit said. Honeyfund is best positioned to know what practices are best for its business.

A separate case challenging parts of the law dealing with the education system also is pending in federal court.

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Florida takes aim at a lawsuit over its new workplace training restrictions - WFSU

Editors note: A previous version of this story described Amber Krabach as being sympathetic to QAnon. Krabach has denied association with the conspiracy theory and political movement. As reported by Crosscut, Krabach has posted QAnon messages and images on social media, including the movements slogan: where we go one, we go all.

Amber Krabach, Republican legislative candidate, is defending the presence of signs littered across King Countys ballot drop boxes that claim this ballot box is under surveillance.

Krabach, a Republican state House candidate from Woodinville, has posted QAnon-related memes and tweets, sometimes under a hashtag that abbreviates the QAnon rallying cry, Where We Go One, We Go All. Krabach is running as a third party against incumbent state Rep. Larry Springer, D-Kirkland, in the 45th Legislative District, and Republican candidate John Gibbons.

After the signs started appearing next to ballot drop boxes across the Seattle area, many officials were quick to call the signs voter intimidation, but now the former King County GOP Elections Integrity Commission (EIC) chair Krabach says the signs were just an effort to inform the public of the law and to provide accurate information about how to report concerns.

On the signs were big red letters, reading this ballot drop box is under surveillance, and accepting compensation for harvesting or depositing ballots may be a violation of Federal Law, along with a QR code leading to the election incident report on the King County GOP website.

When brought to their attention, Michael Patrick Thomas, Chair of the King County Republican Party, said party officials were unaware of the signs. Thomas said they were created by the EIC and they had acted outside of its authority and without the express knowledge, permission, or consent of the King County Republican Party.

Krabach disputes the GOP chair though, asserting that the honorable EIC was never affiliated with the signage project, and the dissolution of the committee was unjustified.

The EIC has long been working toward increasing the election integrity in the county though, Krabach said, with fears of voter fraud at an all-time high across the country. A poll done by PolitiFact in June 2022 shows that 70% of Republicans believe there was some voter fraud in the 2020 election.

King County Elections conducts some of the safest and most secure elections anywhere in our nation, and these intimidation tactics are a direct extension of the anti-democratic rhetoric behind The Big Lie, King County Executive Dow Constantine said. Voter intimidation is a state and federal crime, and Ive directed Sheriff Cole-Tindall to investigate.

Under surveillance ballot-box signs likely voter intimidation, officials say

This is not enough to ensure the election integrity, and the EIC was put in place to advocate for voter increasing security, says Krabach.

King County has been asked numerous times to add security cameras to the 75+ drop boxes around our county because there is simply no way to effectively monitor them otherwise, Krabach said. They have outright refused to provide this service to the public. The surveillance sign project was a private, salutary effort to inform the public of the law and to provide accurate information about how to report concerns.

To back up her claims that the signs were completely legal, Krabach points to the election observer program that is already run by the city. In the program, volunteers from both political parties are invited to observe the opening and recording of ballot information, but not the actual drop boxes in the city.

It is not voter intimidation, or otherwise unlawful, to provide basic, factual information about federal election law, Krabach said. Any assertion to the contrary is inappropriate, and has the appearance of intending to keep voters, and the public at large, from being aware of this information

While observing the drop boxes is not illegal, the Washington Secretary of States office points out that if people feel their access is impeded, or are not comfortable casting their ballot, then it might be considered voter intimidation.

There are many ways curious or concerned voters can observe and engage in our electoral process. However, voter intimidation is not one of them, King County Prosecutor Dan Satterberg said. Washington law permits voters to drop off ballots for others.Signs intended to make voters feel like they are being watched and monitored and violating the law by depositing ballots is voter intimidation, period.

While city officials have removed the signs, Krabach is not happy with how the situation has been handled.

Instructing their employees to steal these signs is not only a violation of my First Amendment rights to free speech and free expression but also a flagrant theft of private property, Krabach said. With county and state officials now joining in to target citizen observers, while silencing their speech and trying to intimidate them out of their efforts to obtain assurance of election integrity, Id like to know if this seemingly tyrannical pile-on is really something they believe will increase voter confidence in our election process.

Elections officials called the placement of the signs serious offenses that would be fully investigated, so those who posted them would be held accountable.

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Violation of my First Amendment rights, House candidate says of removal of election surveillance signs - MyNorthwest

Ashli Babbitt's motherspoke to Rudy Giuliani on his podcast, released on Sunday, and claimed that her daughter is treated worse than a Black woman in America.

Aside from the racist claim, Babbitt joined a crowd of attackers in breaking through the windows and doors of the U.S. Capitol on Jan. 6, marched through the halls of the Capitol, then directly to the outer office of the Speaker of the House, where she helped break out the glass with a Capitol Police officer standing with his gun drawn. She chose to go through the window anyway.

Even Rep. Markwayne Mullin, R-Ohio, a far-right supporter of Donald Trump told Good Morning America, the officer "didn't have a choice at that time. They were trying to come through the front door, which is where I was at in the chamber, and in the back, they were trying to come through the speaker's lobby, and that's problematic when you're trying to defend two fronts."

"When they broke the glass in the back, the [police] lieutenant that was therehim and I already had multiple conversations prior to thisand he didn't have a choice at that time. The mob was going to come through the door, there was a lot of members and staff that were in danger at the time. And when he [drew] his weapon, that's a decision that's very hard for anyone to make and, once you draw your weapon like that, you have to defend yourself with deadly force."

Giuliani said that he may have been among the first to see the video. "I saw it I saw it, I saw it, three hours after I may have been the first one to see the film. When I saw it with several homicide detectives."

Co-host Maria Ryan claimed, falsely, that there was new information becoming available about anti-fascist protesters and Capitol Police officers that she implied were actually the ones behind the Jan. 6 attack.

"New film is coming out all the time," she claimed.

"Nancy Pelosi sitting up there in her castle mad that the minions dared show up that day well, you know there are a million strong people there to address their government and they made an attempt to kill the First Amendment," said Babbitt's mother Micki Witthoeft. "But the First Amendment isn't dead. It's wounded but it's not dead. And people are startin' to realize things that happened that day."

She went on to say that the House Select Committee is only there to "brainwash American citizens." She believes that because the Jan. 6 committee aired the public hearings in prime time that the Jan. 6 attackers now can't get a fair trial before a jury anywhere in America.

Withoeft then claimed that the officer who shot her was checking his earpiece and that a signal flare went up at the time her daughter was shot. It's unclear what she's talking about, however. She attacked the officer and questioned the investigation.

Ryan then claimed that videos show Babbitt trying to stop the men from breaking the glass, but Ryan claimed the ones decked out in MAGA gear were anti-fascists. She also claimed that Babbitt was trying to help officers, but didn't explain why then Babbitt climbed through the glass while an officer had a pointed gun at her. Ryan claimed there was no warning before he fired, which is also false,as a video showsthe officer had his gun aimed at them as they were trying to break the glass.

As of June 2022, Babbitt's family hasn't filed a lawsuit against the Capitol Police saying they would in Aug. 2021,the New York Daily News reported.

Listen to the rant below:

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Ashli Babbitt's mom tells Giuliani her death would be treated better if she was a Black woman - Salon

First Amendment

By Debra Cassens Weiss

July 25, 2022, 3:24 pm CDT

Image from Shutterstock.

Technology companies could face a disparate patchwork of laws regulating abortion information in the aftermath of the U.S. Supreme Court's decision overturning Roe v. Wade, according to the Washington Post.

Democrats are considering laws to protect digital information from disclosure to prosecutors, while Republicans could seek to access such data, according to the Washington Post.

Another potential headache for tech companies is a South Carolina bill, S. 1373, according to the Washington Post and Ars Technica.

S. 1373 would make it illegal to provide information by telephone, internet or other mode of communication about how to obtain an abortion, knowing that the information will be used or is reasonably likely to be used for an abortion. The bill would also make websites and internet services liable in such situations, if the information is purposefully directed to a pregnant woman living in South Carolina.

Internet providers and technology companies would likely be protected from liability by Section 230 of the Communications Decency Act and the First Amendment, according to Eric Goldman, a professor at the Santa Clara University School of Law. Section 230 protects technology companies for content posted by others.

But Goldman thinks that people could be at risk for aiding and abetting illegal abortions under the law if they send messages about how to obtain an abortion. And some technology companies may be reluctant to post information because of fears of legal liability, despite protections, Goldman said.

The South Carolina bill is based on a model proposal by the National Right to Life Committee, according to the Washington Post. The model proposal has since been revised, however. It now restricts websites and internet hosts only when abortion information is likely to be used for an unlawful abortion in South Carolina, rather than an abortion generally, according to James Bopp, general counsel for the National Right to Life Committee.

Hat tip to How Appealing, which noted the Washington Posts story.

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South Carolina bill would ban internet information on abortions; tech companies may face competing laws - ABA Journal

Facebook and Google have become the de facto regulators of news and speech deciding what content people see and when.

Their dominating control over how we communicate has serious implications for Freedom of Press and our broader rights under the First Amendment.

To be sure, the First Amendment provisions on speech and press do not apply to private entities like Big Tech companies; they are only limitations placed on the government. But the Founders could not have envisioned a future in which the distribution of nearly all news and information would be controlled by two private entities: Facebook and Google.

Any time a Big Tech company removes specific posts or bans a disruptive user, the op-ed pages of the most prestigious publications and many of our Twitter timelines often focus on the implications for free speech and the spirit of the First Amendment.

However, a sorely underexamined aspect of Big Techs impact on the First Amendment is the control they have over the flow of news content, and the corresponding devastating impact on local newspapers. These companies decide what you see and whether (if at all) your local publisher gets paid for its work.

People go online all day every day to learn about the world and their communities. Local publishers report on tangible things like the ribbon cutting of a new small business or the state football championship. And they also hold politicians to account and sustain democracy.

Big Tech likes the audiences that local publishers deliver, but they dont want to pay for the journalism. Facebook and Google rake in profits by simply curating content, which is just a fancy word for the articles, photos, and videos that are the work product of real journalists doing the hard work of reporting at local newspapers.

Google and Facebooks complete dominance of the digital advertising market has also allowed them to dictate terms and enabled them to cut side deals for themselves and shortchange small and local publishers across the country.

Big Tech companies have too much economic and political power in society, especially over the news industry. No companies should have this much control over an entire industry, especially the industry responsible for keeping Americans informed.

Legislative solutions like the Journalism Competition and Preservation Act (JCPA) are essential to reign in the influence of these out-of-control tech titans, revive struggling local news organizations, and protect the First Amendment.

The JCPA levels the playing field between Big Tech and small and local publishers by allowing them to collectively negotiate fair terms for using their content by Big Tech companies. The bill has also recently been refocused to exclusively benefit small and local publishers especially those that reinvest in journalists. The JCPA is also content-neutral, allowing outlets to receive their fair share from Big Tech regardless of how their opinion pages lean.

If Congress does not pass the JCPA, local newsrooms will continue to struggle to stay afloat, and Big Tech will continue to fill the void with their platforms, fueled by algorithms optimized to keep readers outraged and at each others throats. All the while, their executives and investors will continue to reap staggering profits from the economic and political disfunction they are creating.

In todays partisan political climate, it is rare for Democrats and Republicans to agree on anything but the JCPA is one important exception. We need to pass the JCPA to ensure that publishers especially small and local publishers are treated fairly and compensated justly.

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Big Tech is Trying to Cancel Local News - newberryobserver.com