Daily Archives: August 12, 2023

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Donald Trump scored a partial victory in his battle to try his case in the press as Judge Tanya Chutkan imposed a less restrictive protective order than the one sought by Special Counsel Jack Smith in the election interference case.

Trump claims a free speech right to discuss the case, vowing recently to supporters in New Hampshire, I will talk about it. Theyre not taking away my First Amendment. Similarly, his lawyer John Lauro made clear in the course of afull Ginsburg on the Sunday news shows that he intends to publish all of the discovery in the case.

What the Biden administration is trying to do is prevent the press from learning about exculpatory and helpful information, evidence that the people have a right to know about, he complained on ABC, repeating the claim on several other networks.

This morning, Lauro duked it out with the DOJs Thomas Windom in Judge Tanya Chutkans courtroom. From the jump, it was clear that the prosecutors werent going to get the blanket order theyd been hoping for. The court reminded the government that non-disclosure orders must be granted for good cause, and the burden is on the moving party. Instead she protected only materials designated as sensitive, although that appears to constitute the bulk of the voluminous discovery here.

But in more or less every other respect, the government got what it wanted. Lauro argued for a relaxed standard which would allow the defense to disseminate sensitive discovery materials to volunteer attorneys or others without paid employment arrangements to assist with the preparation of this case. The government pointed out that this might permit Trump to share the entirety of its production with the six unindicted coconspirators named in the indictment, all of whom are attorneys. The court seemed highly receptive to this argument, and the final order limits sharing to persons employed to assist in the defense, persons who are interviewed as potential witnesses, counsel for potential witnesses, and other persons to whom the court may authorize disclosure.

There was further sparring this morning about Trumps unchaperoned access to sensitive discovery, particularly in light of his habit of targeting civil servants as well as his insistence that he has a constitutional right to say anything he likes about pending litigation. The protective order specifies that, if Trump accesses sensitive evidence outside the presence of his counsel, he cant take notes, or even look at it while hes got access to a photocopier or a cell phone.

Most saliently, Judge Chutkan seemed unimpressed by the defenses argument that courtroom procedures would have to yield to the vicissitudes of Trumps presidential campaign. Lauro seemed highly concerned that his client might blurt something out in the heat of the campaign and then be found in contempt of court.

That has to yield. Regardless of what is going on with his, I hate to say, his day job, this is a criminal case, Judge Chutkan countered, according to Law & Crimes Brandi Buchman, who was in the courtroom. The need for this to proceed in normal order and protect witnesses and the integrity of the process means there are going to limits on the defendants speech.

And a day after striking a sealed pleading filed by the government, the court signaled its awareness of public interest, modifying the governments proposed order by instructing the parties that any motion to seal must be accompanied by a redacted copy of any included Sensitive Materials for the Clerk of the Court to file on the public docket if the court were to grant the motion for leave to file under seal.

Prosecutors have thus far not moved for a gag order, although they have flagged multiple incendiary posts by the former president on his Truth Social platform. Judge Chutkan herself referred to them, obliquely threatening to accelerate the case if Trump insists on screaming to potential jurors about the case.

The more a party makes inflammatory statements about this case which would taint the jury pool or intimidate witnesses, the greater the urgency will be that we proceed to trial to ensure a jury pool from which we can select an impartial jury, she warned.

Trump lawyers, special counsel square off in court on limits for pretrial evidence in Jan. 6 indictment [Law & Crime] US v. Trump[Docket via Court Listener]

Liz Dyelives in Baltimore where she writes about law and politics and appears on theOpening Argumentspodcast.

Continued here:
As Trump Howls About First Amendment, Court Issues Protective Order In Trump Jan 6 Case - Above the Law

(Photo by Drew Angerer/Getty Images)

Just found out that Crooked Joe Bidens DOJ secretly attacked my Twitter account, making it a point not to let me know about this major hit on my civil rights. My Political Opponent is going CRAZY trying to infringe on my Campaign for President. Nothing like this has ever happened before. Does the First Amendment still exist? Did Deranged Jack Smith tell the Unselects to DESTROY & DELETE all evidence? These are DARK DAYS IN AMERICA! Former Leader of the Free World

Donald Trump is currently ranting into the void about yesterdays DC Circuit order upholding sanctions on Twitter for failing to turn over his account information to Special Counsel Jack Smith in timely fashion. The attack took the form of search warrant signed by a magistrate judge, accompanied by a non-disclosure order:

On January 17, 2023, the government applied for, and obtained, a search warrant that directed Twitter to produce data and records related to the @realDonaldTrump Twitter account. At the same time, the government applied for, and obtained, a nondisclosure order, which prohibited Twitter from disclosing the existence or contents of the search warrant to any person. Based on ex parte affidavits, the district court found probable cause to search the Twitter account for evidence of criminal offenses. Moreover, the district court found that there were reasonable grounds to believe that disclosing the warrant to former President Trump would seriously jeopardize the ongoing investigation by giving him an opportunity to destroy evidence, change patterns of behavior, [or] notify confederates. The warrant required Twitter to tum over all requested information by January 27, 2023. The nondisclosure order was to remain in effect for 180 days after its issuance.

The Circuit Courts ruling paints Twitter as barely functional under the ownership of Elon Musk.

On January 17, 2023, the DOJ promptly submitted the warrant through the companys portal for legal requests a portal which exists because actually something like this has happened before. But in the event, prosecutors discovered that the portal, like two-thirds of Twitters 2022 workforce, was inoperative.

On January 19, the portal came back to life, and the DOJ managed to effect service, after which nothing happened.

Reached by the government on January 25, Twitters counsel had heard nothing of the warrant, but committed to complying speedily. On February 1, four days after the compliance deadline, Twitter announced that it would not comply after all and that it intended to challenge the order in District Court.

In its challenge, Twitter accepted the sufficiency of the warrant but claimed that the non-disclosure provision violated its First Amendment right to communicate with its client. Bizarrely, it argued that Trump might have a right to assert executive privilege over his communications on the platform, and thus demanded the right to inform him of the warrant. At a hearing on February 7, Judge Beryl Howell rejected those arguments, as well as Twitters demand that the court stay compliance with the supposed hit on Trumps civil rights while it litigated the secret order to infringe on his campaign for president.

Asked by Judge Howell if Twitter could comply with the warrant by close of business that day, the companys counsel replied, I believe we are prepared to do that. Yes, Your Honor.

As added incentive, the court imposed a geometric sanction of $50,000, doubling each day the company failed to comply. Which it did, for another four days, netting itself $350,000 in fines.

The company appealed, alleging that Judge Howell had abused her discretion by forcing compliance with the warrant while the non-disclosure appeal was still pending, imposing sanctions, and abridging its First Amendment rights. But Twitter got no more joy with the appellate panel, consisting of Judges Pillard, Childs, and Pan, than it had with the trial judge.

In sum, we affirm the district courts rulings in all respects. The district court properly rejected Twitter s First Amendment challenge to the nondisclosure order. Moreover, the district court acted within the bounds of its discretion to manage its docket when it declined to stay its enforcement of the warrant while the First Amendment claim was litigated. Finally, the district court followed the appropriate procedures before finding Twitter in contempt of court including giving Twitter an opportunity to be heard and a chance to purge its contempt to avoid sanctions.

Apparently, the First Amendment still exists, but it does not allow social media companies to tip off the subject of a search warrant that the government is looking at his records if the government proves to the satisfaction of a federal judge that hes pretty likely to destroy them if notified.

Incidentally, on June 30, the DOJ filed anex parte motion notifying the trial judge that it was withdrawing the non-disclosure order, allowing Twitter to tell Trump about the warrant. So presumably, he learned about it weeks ago although considering his attention span and the state of Twitter these days, who knows?

DARK DAYS IN AMERICA!

Elizabeth Dyelives in Baltimore where she writes about law and politics and appears on theOpening Argumentspodcast.

Originally posted here:
'Does The 1st Amendment Still Exist,' Trump Howls, After Multiple Courts Sign Off On Twitter Warrant - Above the Law

The outrageous law enforcement assault on the Marion County Record newspaper raises a veritable forest of red flags.

Why would a judge sign off on an apparently illegal search? What type of officials would willingly execute such an abuse of power? Could any convoluted sequence of liquor permit infighting possibly justify such drastic measures? Are we still living in a state and nation where the First Amendment of the U.S. Constitution applies?

We dont know definitive answers to any of these questions yet, and the story may well still surprise us. In the meantime, the Record itself and Kansas Reflectors story offer starting points.

This morning, though, Id like to write about a part of the story that we do know. We know that law enforcement officials raided the office of a news outlet and carted away computers and cellphones. On its own, with no other background or context, this sets an incredibly destructive precedent.

Not just in Marion.

Newsroom raids in this country receded into history 50 years ago, said John Galer, chair of the National Newspaper Association and publisher of the Journal-News of Hillsboro, Illinois.

Today, law enforcement agencies by and large understand that gathering information from newsrooms is a last resort and then done only with subpoenas that protect the rights of all involved. For a newspaper to be intimidated by an unannounced search and seizure is unthinkable in an America that respects its First Amendment rights. NNA stands by its community newspapers and calls upon top officials in Kansas to immediately return any property seized by law enforcement so the newspaper can proceed with its work.

An attack on a newspaper office through an illegal search is not just an infringement on the rights of journalists but an assault on the very foundation of democracy and the publics right to know. This cannot be allowed to stand.

Emily Bradbury, executive director of the Kansas Press Association

Emily Bradbury, executive director of the Kansas Press Association, added strong words on behalf of local outlets: An attack on a newspaper office through an illegal search is not just an infringement on the rights of journalists but an assault on the very foundation of democracy and the publics right to know. This cannot be allowed to stand.

Imagine for a moment that youre the editor and publisher of a small weekly newspaper somewhere else in Kansas. Imagine too that youve been speaking with a source about potential wrongdoing by a prominent resident. That resident happens to have a friendly relationship with the local police department. You know that publishing the story, even in the best of times, will create a firestorm in your little community.

Now imagine that you read the coverage coming out of Marion County. You see that printing such a story or even reporting it might put you at risk of being raided. It might put your employees at risk. It might threaten the entire financial stability of your business.

So do you publish the story? Or do you think twice? Do you potentially delay the piece for a couple of weeks until this all blows over?

Well, do you?

Thats the damage already done in Marion. Thats the damage already done to Kansas journalism. No matter how the story shakes out if officials return all the seized computers and cellphones this afternoon a message has been sent. That message conflicts with the tenets of an open society. It conflicts with free expression. It shuts down the ability of democracys defenders to do their jobs, informing and educating the public.

Or as Record publisher and editor Eric Meyer told us yesterday: Its going to have a chilling effect on us even tackling issues. Whats more, it will have a chilling effect on people giving us information.

A toothpaste tube has been squeezed, hard, and theres no getting all that minty fresh goo back inside its container.

No matter the size of the outlet, no matter the reporter, the memory of this raid will linger. Stories will be slowed or go unwritten. Towns, cities, counties and entire states will lose out on vital knowledge about the misdeeds of powerful people. Thats why I care, and thats why the Reflector cares. Thats why journalists across this country, when they learn about what happened in Marion County, will care too.

Look, I understand. Journalists and journalism can be pretty annoying at times. But no one should doubt our commitment to doing our best for both readers and our communities. Folks who stand in the way of us doing that job dont just pick a fight with us. They pick a fight with the people we serve.

One more point. If you revere the Constitution as so many conservatives and liberals claim to do these days dont just sit back and watch. Step up to defend our shared freedoms. Because if the Marion County Record cant report and print freely, neither can the rest of us.

And neither can you.

Clay Wirestone is Kansas Reflector opinion editor. Through its opinion section, Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. Find information, including how to submit your own commentary, here.

Original post:
In Marion County newspaper raid, a grim threat to Kansans' First Amendment rights - Kansas Reflector

Donald Trumps impact on the First Amendment

In so many different respects, it is hard to think of any other single person whose actions have had such a significant effect on the public and courts' view of the First Amendment than Donald Trump. On the one hand, it has been argued that Trumps many defamation actions against others are prime examples of the need for First Amendment protection. On the other hand, some now maintain that recent criminal and civil actions against Trump exemplify the need for First Amendment protection. Either or both ways, Trump is continuing to have a major impact on the law and culture of free speech in America. So much so that an entire book and a big one at that! could be written about the unending First Amendment battles connected in one way or another to our former president.

Wait a minute! Now that I think of it, such a book has already been written in 2018 by professor Timothy Zick, titled, The First Amendment in the Trump Era. That book cataloged and analyzed the various First Amendment conflicts that occurred during Trumps presidency.(See FIREs So to Speak podcast interview with Zick).

Related

For all its merit, however, Zicks book was published five years ago which in Trump time is a long while. Hell, since then, Robert Corn-Revere published The Retaliator in Chief: The Case Against Donald J. Trump, in FAN 202.2 on March 4, 2019, and Knight First Amendment Institute v. Trump was litigated in the Second Circuit and the Supreme Court.

There has been so much more First Amendment cannon fodder since then that professor Zick would do well to consider a sequel albeit with the understanding that it too would likely become dated in just a few years. But the good professor is still in the Trump/free speech game, as evidenced by his recent comments in Politifact: Conflating protected political advocacy with conspiring to commit federal crimes might work to some extent in the court of public opinion, but wont be much of a defense in an actual court.

Trumps lawyers continue to fly a different conceptual flag. For example, consider their First Amendment challenges to the Justice Departments request for a protective non-disclosure order in the 2020 election case. In the Response in Opposition to Governments Motion for a Protective Order for United States v. Trump, the defense argued Instead of hewing to this narrow framework, the government requests the Court restrict all documents produced by the government, regardless of sensitivity, contrary to established law and President Trumps First Amendment rights.

Various parties have weighed in on either side of the issue:

In 2018, before the 2020 election and before Trumps multifront challenge to the results, there was a striking level of bipartisan support for free speech including tolerance for lies. But that bipartisan support changed by 2023. Thomas B. Edsall, The New York Times (Aug. 2)

In a trial about First Amendment rights, the government seeks to restrict First Amendment rights, Trumps lawyers write in the filing. Worse, it does so against its administrations primary political opponent, during an election season in which the administration, prominent party members, and media allies have campaigned on the indictment and proliferated its false allegations. Brittany Bernstein, National Review (Aug. 2)

Even assuming that Smith can prove Trump lied, there would still be constitutional barriers to criminalizing his false statements. Jonathan Turley, The Hill (Aug. 5)

Compare those sentiments to these:

Our Constitution is designed to stop people from trying to overthrow elections and trying to overthrow the government, Raskin, a former constitutional law professor, told NBCs Meet the Press. But in any event, there's a whole apparatus of criminal law which is in place to enforce this constitutional principle. That's what Donald Trump is charged with violating. Rep. Jamie Raskin via Ken Tran, USA Today (Aug. 6)

Trump did not just state the false claims; he allegedly used the false claims to engage in a conspiracy to steal the election. There is no First Amendment right to use speech to subvert an election, any more than there is a First Amendment right to use speech to bribe, threaten, or intimidate. Richard Hasen, Slate (Aug. 1)

And this:

Starting roughly in the 1980s, the political valence of free speech arguments has changed, fueled in part by the feminist anti-pornography movement, in part by the movement of the Republican Party in a more libertarian and therefore anti-regulatory direction, in part by concerns about racist and other forms of hate and in part by the growth of what is now labeled political correctness. Frederick Schauer, The New York Times (Aug. 2)

Next, consider the swirl of First Amendment fights that have made recent news in Trumpland. Only a few days ago, a federal district court dismissed Trumps counterclaim in a defamation lawsuit against E. Jean Carroll. (Recall that last year a court awarded $5 million to Ms. Carroll in her sex abuse and defamation case against Trump, and his bid for a retrial was denied.) And late this past July another federal judge dismissed Trumps $475 million defamation suit against CNN. Then last July the Trump Media and Technology Group sued The Washington Post for defamation to the tune of $3.78 million in compensatory and punitive damages.

Furthermore, Steve Brill, the man who brought us Court TV, is urging that the Trump election indictment case be televised: Federal court rules do not allow cameras in any criminal trials. However, no matter which side of this Donald Trump case you may be rooting for, you should want those rules to be suspended so that this trial can be televised live.

On related fronts: John Eastman is busy raising First Amendment defenses in his California Bar discipline case (see FAN issues 385 and 385.1 by Stephen Rohde), though his attorneys are asking that the proceeding be postponed, arguing that their client is concerned that he may be criminally charged by special counsel Jack Smith.

Let us not overlook the former mayor of New York: In his response to a lawsuit filed by two Georgia election workers who said Rudy Giuliani harmed them by falsely alleging they mishandled ballots in the 2020 presidential election, Giuliani has admitted lying. But he says the women suffered no harm and claims that his lies are protected by the First Amendment to the U.S. Constitution. Mr. Giuliani has also been exercising his free speech rights full throttle in his condemnation of special prosecutor Jack Smith for alleged abridgments of Trumps First Amendment rights.

Let us also not forget the Dominion defamation line of cases. As Sam Levine recently reported in an article in The Guardian:

When Dominion settled its closely-watched $787.5m defamation lawsuit against Fox last month, its lawyers made it clear that the company would continue to pursue legal action against those who spread false claims about the company and the 2020 election. The company still has major defamation cases pending againstRudy Giuliani, Sidney Powell, Patrick Byrne, and Mike Lindell all allies of Donald Trump who were some of the most prominent figures that spread election lies involving the voting machine company on television and elsewhere after the 2020 election.

And back in late December 2021, a federal judge rejected the Proud Boys First Amendment defenses in one of the Jan. 6 conspiracy cases.

Related:

Robert Klemko, Cop-watchers are now YouTube celebrities. Theyve changed how police work, The Washington Post (Aug. 7)

By the end of [one] night, [Christopher] Ruff had recorded a half-dozen interactions between police and civilians, some of which heposted on YouTube. Later that night he encountered the same sergeant and unloaded a barrage of profane insults. It was a typical Friday for the 33-year-old, part of his personal crusade to stop what he sees as overstepping, oath-breaking law enforcement. His encounters with police have been viewed more than 65 million times.

With varying degrees of antagonism and legal expertise, the online movement known as cop-watching or First Amendment auditing has swelled in popularity in recent years, capturing the imaginations of millions of Americans who are examining their relationship with policing after George Floyds murder at the hands of police in Minneapolis in 2020.

Cases decided

Review granted

Cert.granted and case remanded

Pendingpetitions

Stateaction

Qualifiedimmunity

Immunity under Foreign Sovereign Immunities Act

Liability Anti-Terrorism Act

Section 230 immunity

Reviewdenied

Previous FAN

FAN 388: 42 women who argued First Amendment free expression cases before the Supreme Court

This article is part ofFirst Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the articles author(s) and may not reflect the opinions of FIRE or of Mr. Collins.

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A new cultural and constitutional paradigm: The unending First ... - Foundation for Individual Rights in Education

A dangerous federal court ruling last month restricted communications between the federal government and social media companies, preventing government officials from flagging disinformation. The decision in Missouri v. Biden was so sweeping that it not only prohibited the federal government from sharing truthful information with social media companies, but it also applied to all those acting in concert with them. The courts mandate threatens the ability of civil society groups like the Brennan Center to communicate with local, state, and federal officials about the rampant election-related misinformation and disinformation that imperils our democracy.

The ruling has been put on hold pending appeal, and a hearing is set for Thursday. At stake is the ability of voters, advocacy groups, researchers, election administrators, and other government officials to respond to online purveyors of election denialism and other harmful misinformation.

In May 2022, the attorneys general of Missouri and Louisiana joined with private plaintiffs to file the lawsuit against the Biden Administration, alleging that federal officials violated the First Amendment by significantly encouraging or coercing social media companies to remove or demote content on their platforms. The plaintiffs argued that the officials targeted conservative-leaning speech spanning a range of topics, including the origin of the Covid-19 pandemic, the efficacy of masks and vaccines, the security of voting by mail, and the integrity of the 2020 presidential election. According to the plaintiffs, government officials restricted the free flow of information online by getting social media companies to remove or demote content in these areas, thereby violating the First Amendment.

In an extraordinary decision, the court ruled that the plaintiffs will likely be able to prove that the government used its power to silence the opposition, likening the governments alleged actions to George Orwells dystopian Ministry of Truth. The order prohibited the government from urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech, when communicating with social media companies.

In its ruling, the court broadly defined protected free speech to encompass all political views and content, which would apply to spreading misinformation. The injunction included carve-outs that permitted the government to inform social media companies about certain limited topics, including criminal efforts to suppress voting, national security threats, and foreign election interference. However, the exemptions are vague and undefined, leaving the scope of the orders prohibitions unclear.

The Brennan Center, the Lawyers Committee for Civil Rights Under Law, and Common Cause have filed a friend-of-the-court brief opposing the district courts deeply flawed decision. Because the order is filled with vague proscriptions and is unclear about whom it binds and precisely what speech it carves out from its ban, it endangers civil society groups efforts to fight the disinformation used to deceive or intimidate voters, harass and intimidate election workers and their families, and erode trust in electoral outcomes.

This work is central to the Brennan Centers mission, which requires robust engagement with election administrators to protect equal access to the ballot. There are numerous examples of how false or misleading information was surgically focused on certain demographics during the 2020 election in an attempt to disenfranchise voters and influence elections, and of how the malicious use of personal information (aka doxing) triggered a wave of harassment and threats against election officials and workers. In an investigation, Reuters identified more than 100 threats of death or violence made to U.S. election workers during the 2020 presidential election. Across several states, local administrators received harassing and frightening texts and phone calls, and one was even confronted outside her home, simply for doing their jobs.

We routinely notify both government officials and social media companies about this kind of misinformation to ensure that voters receive accurate information and so election workers can perform their duties free from intimidation. While the courts order purported to carve out exceptions for potential criminal conduct, those exceptions were too narrow to protect our work because the order explicitly restricted the governments ability to alert social media companies about doxing (which is not always a crime), as well as speech that risks voter confusion but may lack criminal intent. When responding to misinformation about elections, the Brennan Center and our allies are typically not positioned to determine the intent of the speaker. Moreover, although it whittles away at the fabric of democracy, the dissemination of false information is often not illegal.

The government has a responsibility to facilitate democratic participation and, importantly, the government merely sharing information about the accuracy and impacts of the content hosted by social media platforms does not automatically amount to a constitutional violation.

Further, social media companies various content policies play a vital role in fostering election protection efforts. During election periods, most platforms implement policies that promote accurate information from credible sources, require additional reviews for election-related content, and flag and remove disinformation when possible. The government should not be barred from helping the companies in those efforts. However, coercive behavior that seeks to eliminate viewpoints from the public domain with which the government disagrees violates the First Amendment, and clear judicial guidance and line drawing that mark the bounds of appropriate government conduct are critically needed.

Yet, the ruling issued last month does not offer clarity. Instead, and quite paradoxically, just as the court condemned what, in its view, appeared to be the governments effort to censor right-leaning speech, the ruling functions as an unconstitutional prior restraint its own form of censorship that chills the ability of civil society groups to speak freely to government officials for legitimate and lawful purposes that promote a healthy democracy. Because the injunctions ban on information sharing turns on the purpose of the governments communications with civil society groups, it operates as a content-based restriction on speech, which violates the First Amendment.

Courts must uphold and defend constitutional guarantees, and First Amendment rights deserve rigorous protection from government coercion that amounts to censorship. Yet the efforts taken by groups like the Brennan Center and social media companies to combat election misinformation and promote truth about our elections are not acts of censorship. Rather, they are crucial to the rights of all to participate in our democracy rights that are hard-earned and easily lost. The government must play a role, and courts should provide clear guidelines about what speech is constitutionally protected. The district courts ruling misses the mark and instead muddies the landscape, and the appeals court should not let it stand.

More here:
The Government Shouldn't Be Barred from Countering False ... - brennancenter.org

In May, the state of Montana did something that surely upset teens all over the state: It banned TikTok. Citing the platforms ownership by a Chinese company, the Montana Legislaturepasseda bill outlawing the app, thegovernor signedit, and it is slated to go into effect on Jan. 1, 2024.

But the law is currently being challenged in a now-consolidatedlawsuit. The case highlights the thorny civil liberties concerns raised by a statewide prohibition on a social media platform. TikTok and a group of content creators challenging the ban point out inlegalfilingsthat states cannot make foreign policy of their own, and note the special danger posed when states try to elbow into a role reserved exclusively to the federal government. The Reporters Committee and the Media Law Resource Center filed afriend-of-the-court briefin the consolidated case, focusing on the importance of TikTok to modern journalists and on two ways the ban violates the First Amendment.

Journalists, like all of us, areincreasinglyreliant on social media as a method of getting in touch with people, spreading and accessing information, and tracking real-time updates about events in the news. As TikTok hasrisen in popularity, journalists have flocked to the platform in part because it helps them reach adifferent audiencethan on other platforms. They can also report on that audience and use TikToks unique features (stiching and dueting, for instance) to do so.

And, as foreshadowed above, this is not just a normative problem. It is also a legal one. The U.S. Supreme Courthas heldthat regulations that single out certain entities within a medium pose severe dangers to First Amendment interests. This means, for instance, that the government cannot tax a certain subset of newspapers differently than other newspapers. In the social media context, it means that the government cannot single out TikTok in particular in the way Montana has done here.

The Montana TikTok ban violates the First Amendment in another way, too, because it forecloses an entire mode of communication. In invalidating an ordinance prohibiting most residential signs, the Supreme Courtmade clearthat these sorts of platform bans violate the First Amendment when they fail to leave open ample alternative channels by which the same message can reach the same audience with the same communicative impact. Just as drawing and sculpture are no substitute for painting, neither Instagram nor Twitter is a substitute for TikTok.

Its easy to dismiss this as a politically motivated ban of a platform (one that has had its ownrun-inswith press freedom) that mostly hosts dance videos for teenagers. But the principle here transcends the platform affected.

First, TikTok as a forum hosts all sorts of content that is inaccessible elsewhere and it works much differently than other social media. And second, denying journalists access to the app, where information spreads quickly and widely, would, for instance, make it much more difficult for journalists to debunk misinformation about content on the platform spread by, say,members of Congressor the Today Show. TheMontana Legislature itselfrelied on the suggestion that TikTok fails to remove, and may even promote, dangerous content that directs minors to engage in dangerous activities, citing a long list of social media trends and challenges, many of whichdid not originate on TikTok, are freely available on other social media sites, andmay not representbona fide trends at all.

For the sake of maintaining democracy, a free press, and a generation of teens with a sated appetite for some of the more outlandish videos on the internet, we hope the court agrees with us and strikes down this ban as unlawful.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy combining the law, policy analysis, and public education to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.

Read more here:
Montana's TikTok ban poses significant First Amendment problems - Reporters Committee for Freedom of the Press