Daily Archives: March 2, 2024

According to a new poll from the Foundation for Individual Rights and Expression (FIRE), a First Amendment organization, nearly a third of Americans, including similar numbers of Republicans and Democrats, say that the First Amendment goes "too far" in the rights it guarantees. More than half agreed that their local community should not allow a public speech that espouses a belief they find particularly offensive.

"Those results were disappointing, but not exactly surprising," said FIRE Chief Research Adviser Sean Stevens in a Tuesday press release. "Here at FIRE, we've long observed that many people who say they're concerned about free speech waver when it comes to beliefs they personally find offensive. But the best way to protect your speech in the future is to defend the right to controversial and offensive speech today."

The survey, which was conducted in partnership with the Polarization Research Lab (PRL) at Dartmouth College, asked 1,000 Americans about their opinions on free speech and expression. The survey found that "when it comes to whether people are able to freely express their views," over two-thirds of respondents said they believed America was headed in the wrong direction. Further, only 25 percent of respondents agreed that the right to free speech was "very" or "completely" secure.

The survey also asked respondents to read a dozen controversial statements and pick the one they found most offensive. The most disliked beliefs were that "all whites are racist oppressors," followed by statements like "America got what it deserved on 9/11" and "January 6th was a peaceful protest." The survey then asked respondents whether they'd agree with allowing this opinion to be expressed in different circumstances.

Half of the respondents said that their community "definitely" or "probably" should not permit a public speech expressing the opinion they found most offensive. A whopping 69 percent said a local college should "definitely" or "probably" not allow a professor who holds such an opinion to teach there. Over a quarter of respondents said that someone who previously said the offensive opinion should be fired from their job.

These results indicate that though the average American is concerned about protecting free speech rights, a significant portion of the populationseem poised to welcome increasing censorship.

"The average American already thinks that free speech in America is in dire straits. Most worryingly, they think it will get worse," said Stevens. "These findings should be a wake-up call for the nation to recommit to a vibrant free speech culture before it's too late."

See the original post here:
Poll: Almost a third of Americans say the First Amendment goes 'too far' - Reason

What a constitutional spectacle: Two states, two trade associations, four lawyers, almost 300 briefs, nine Justices, and four hours of argument. The two First Amendment cases argued earlier this week wereMoody v. NetChoice, LLC andNetChoice, LLC v. Paxton. The lawyers arguing those cases were Floridas solicitor general Henry C. Whitaker, Texas Solicitor General Aaron Nielson, Paul D. Clement who represented the trade groups, and U.S. Solicitor General Elizabeth Prelogar who largely agreed with Clement.

Here are a few revealing excerpts:

Regulating Content on Social Media Platforms

Justice Sonia Sotomayor: I have a problem with laws that are so broad that they stifle speech just on their face.

Justice Ketanji Brown Jackson: The law on its face is really broad, Jackson said of the Florida measure. To the extent the entire law goes, other lawful applications would go, too.

Justice Elena Kagan: [W]hy isnt [it] . . . a classic First Amendment violation for the state to come in and say, we're not allowing . . . you to enforce those sorts of restrictions even thoughit's like an editorial judgment, you're excluding particular kinds of speech?"

Justice Brett Kavanaugh: When the government censors, when the government excludes speech from the public square, that is obviously a violation of the First Amendment. When a private individual or private entity makes decisions about what to include and what to exclude, that's protected generally editorial discretion, even though you could view the private entity's decision to exclude something as private censorship.

Chief Justice John G. Roberts: The First Amendment restricts what the government can do, and what the government is doing here is saying, you must do this, you must carry these people; you've got to explain if you don't[t]hats not the First Amendment.

Justice Amy Coney Barret: Floridas law, so far as I can understand it, is very broad.

Justice Samuel Alito, Re: social medias content moderation policies: Is it anything more than a euphemism for censorship? . . . So you say this is just like a newspaper, basically. Its like The Miami Herald. And the states say no, this is like Western Union. Its like a telegraph company. I look at this and I say it's really not like either of those. I dont know how we can decide this case by jumping to one side or the other.

Regulating the likes of Gmail, Venmo, Google, Uber and Etsy

Justice Samuel Alito: Does Gmail have a First Amendment right to delete, lets say, Tucker Carlsons or Rachel Maddows Gmail accounts if they dont agree with his or her viewpoints?

Justice Elena Kagan: When youre running Venmo youre not engaged in speech activities and so when a state says to you, You know what, you have to serve everybody irrespective of whether you like their political opinions or not, then it seems you have a much less good argument.

Section 230

Justice Amy Coney Barrett: If what we say about this is that this is speech thats entitled to First Amendment protection, I do think then that has Section 230 implications for another case. And so its always tricky to write an opinion when you know there might be landmines that would affect things later . . .We have to look at the statute as a whole. We dont have a lot of briefing on this. And this is a sprawling statute and it makes me a little bit nervous.

Related

This term, the Supreme Court will decide a cluster of cases the most consequential in my 40-year career practicing First Amendment law that will markedly shape the relationship between the government and social media.

The twomostimportantcases, which the Supreme Court will hear on Monday, were brought by NetChoice, an internet industry group, after Florida and Texas passed laws regulating social media platforms content moderation practices. Together they will determine who controls the levers of content moderation on platforms like Facebook and X: the platforms themselves or state government.

The NetChoice cases should be easy for the nine justices to decide the power should remain with the platforms

[ . . . ]

Dont let the newness of the medium and the culture war hysterics surrounding it fool you. The arguments at play here are as old as our country itself. And the conclusion, from the standpoint of the First Amendment, is clear: Allowing the government to control the platforms moderation choices is not a cure it is the very disease the Framers sought to prevent. They would abhor the notion of giving state legislatures the power to settle partisan disputes about editorial policies.

Giving state legislatures such power over social media platforms, to paraphraseP.J. ORourke, would be like giving whiskey and car keys to teenage boys. Nothing good can come of it.

Related

Thanks to our First Amendment, American victims of Cancel Culture are shielded from being arrested for their speech but thats not the case everywhere. In Britain, the story is quite different. During the age of Cancel Culture there, the number of speech-related arrests in Britain have reachedastoundingnumbers.

In 2003, the United Kingdom passed theCommunications Act, Section 127 of which targets speech that cause[s] annoyance, inconvenience, or needless anxiety to another online, as well as posts that are grossly offensive or of an indecent, obscene, or menacing manner.

In practice, that provision has resulted in a startling number of arrests:6,150 from just 2015 and 2016. That far outstrips the number of arrests in the first Red Scare in a country that has roughly half as many people as the United States did in 1920. This works out to roughlynine people a dayarrested for posting allegedly offensive messages online.

Worse yet, British police track non-crime hate incidents. In essence, this means anyone who takes offense to someones speech about a protected characteristic can report the speaker to the police. Horrifyingly, guidance for policestatesthat the victim does not have to justify or provide evidence of their belief, and police officers and staff should not directly challenge this perception.

From 2014 to 2019, almost 120,000 such incidents were cataloged across the U.K.

This is truly terrifying.

We should all be hugely grateful that our First Amendment protects us from that fate here but lets not forget thatmanypeopleargueAmerica should follow thelead of Europein terms of speech codes. Thismust nothappen, and the fallout in Britain is a perfect cautionary tale as to why.

When public school libraries remove books based on the views expressed in the books, are they violating the First Amendment? What if the librarians stocking the shelves have a political agenda? It all comes down to a precedent called Pico, and Eugene and Jane disagree about which Supreme Court justices got the rule right.

Coming soon: Stephen Rohde reviewing Hate Speech Is Not Free: The Case Against First Amendment Protection (2024) by W. Wat Hopkins.

Abstract of Hate Speech is Not Free:

Hate speech has been a societal problem for many years and has seen a resurgence recently alongside political divisiveness and technologies that ease and accelerate the spread of messages. Methods to protect individuals and groups from hate speech have eluded lawmakers as the call for restrictions or bans on such speech are confronted by claims of First Amendment protection. Problematic speech, the argument goes, should be confronted by more speech rather than by restriction.

Debate over the extent of First Amendment protection is based on two bodies of lawthe practical, precedent determined by the Supreme Court, and the theoretical framework of First Amendment jurisprudence. InHate Speech is Not Free: The Case Against Constitutional Protection, W. Wat Hopkins argues that the prevailing thought that hate is protected by both case law and theory is incorrect.

Within the Supreme Courts established hierarchy of speech protection, hate speech falls to the lowest level, deserving no protection as it does not advance ideas containing social value. Ultimately, the Supreme Courts cases addressing protected and unprotected speech set forth a clear rationale for excommunicating hate speech from First Amendment protection.

In the wake ofStudents for Fair Admissions, Inc. v. President & Fellows of Harvard College, affirmative-action proponents should pursue a First Amendment approach. Private universities, which are speaking associations that express themselves through the collective speech of faculty and students, may be able to assert an expressive-association right, based onBoy Scouts of America v. Dale, to choose their faculty and students. This theory has been recently strengthened by303 Creative LLC v. Elenis.

I discuss various complexities and counterarguments: (1) Race is not different than sex or sexual orientation for purposes of the doctrine. (2) The market context may not matter, especially after 303 Creative. (3) The conditional-federal-funding context does give the government more power than a simple regulatory context: the government will still be able to induce race-neutrality by the threat of withdrawing federal funds. But the unconstitutional conditions doctrine precludes draconian penalties like withdrawing all funds from the entire institution based only on affirmative action in some units. (4) This theory doesnt apply to public institutions.

I also explore the potential flexibilities of this theory, based on recent litigation. The scope of the Boy Scouts exception might vary based on (1) what counts as substantial interference with expressive organizations, (2) what counts as a compelling governmental interest, and (3) most importantly, what it takes for activity to be expressive. Because the test for expressiveness relies largely on social expectations about what particular actions mean, there is some chance that behavior beyond the university context like affirmative action in charitable donations might be brought within the Boy Scouts exception.

It started with David Coles New York Review of Books essay titled Whos Canceling Whom? (Feb. 8). The main focus of that essay was that [c]onservatives often charge their opponents with cancel culture, but the right poses as significant a threat to free speech as the left. Building on that theme he started by discussing that infamous congressional hearing on December 5 between Representative Elise Stefanik and the presidents of Harvard, the University of Pennsylvania, and the Massachusetts Institute of Technology [and noted how it] laid bare once again the fragility of our collective commitment to free speech. In the process of a thoughtful critique of cancel culture, Cole, though by and large laudatory, took a few respectful swipes at Laurence Tribe (he joined Stefanik in denouncing the response of the presidents) and Greg Lukianoff (he disputed the supposed assertion that cancel culture began in 2013 and is worse today than ever before).

Against that backdrop, the March 7th issue of the NYRB contains a full-page debate titled Free Speech on Campus: An Exchange Laurence H. Tribe and Greg Lukianoff, reply by David Cole. This informative and nuanced exchange is well worth the read.

Here are a few excerpts:

Tribe

I did, indeed, describe the presidents failure to answer that simple yes-or-no question as hesitant, formulaic, and bizarrely evasive. Far from joining the congresswoman, however, I criticized Representative Stefaniks hypocritical and opportunistic attack on universities; defended Harvards initial decision to resist what I described as dangerous outside meddling with academic freedom; and continue to lament Harvards ultimate decision to cave to the pressure from wealthy donors and politicians like Representative Stefanik.

I write not principally to correct this distortion of my views but to address the way the public debate over free speech on college campuses is in danger of being reduced to an oversimplified binary:either you are for college students feeling safe, or you are for virtually absolute freedom of speech. The current doctrinaire insistence that we cannot restrict speech unless it falls within previously recognized narrow exceptions such as the incitement of violence, fighting words, or true threats wrongly elevates free speech above all other freedomsincluding the bedrock principle that every student should be free to access education without discrimination.

Lukianoff

Cole claims that Rikki [Schlott] and I assertthat the past decade has seen repression of speech akin to or worse than that of the McCarthy era. In fact, we only referenced McCarthyism (as the second Red Scare) three times in the book. First, to say that we believe cancel culture will be studied the same way we study the 1798 Sedition Act or the two Red Scares. Second, to point out that the Hollywood Red Scare only targeted about three hundred people, giving a sense of the comparative scale of cancel culture, which has seen more than one thousand attempts to cancel professors since 2014. In the third, we simply noted that an estimated one hundred professors were fired during the eleven years of McCarthyism/the Second Red Scare, whereas almost two hundred have been fired in the past nine and a half years of cancel culture.

[. . .]

Cole also disputed our supposed assertion that cancel culture began in 2013 and is worse today than ever before, but were always careful to say that cancel culture is the worst period of censorship since the First Amendment began to be strictly interpreted on campus, following a series of cases that ended in 1973. The state of free speech was far worse before that, and we never claim otherwise. But when the first generation who grew up with social media and smartphones hit college, which happened around 2014, a dramatic shift took place. I ran a more thorough response to Coles review in my Substack newsletter, The Eternally Radical Idea, with several graphs and comprehensive data.

Cole

Im sorry that Laurence Tribe, whom I deeply respect as one of the nations leading constitutional scholars, feels that I misrepresented him when I noted that while Stefanik, a staunch Republican, led the charge, she was joined by many prominent liberals, includingLaurence Tribe. But heres what Tribe said, in his own words, on his Twitter page, retweeting with approval Stefaniks attack on then Harvard President Claudine Gay: Im no fan of @RepStefanik but Im with her here. Claudine Gays hesitant, formulaic, and bizarrely evasive answers were deeply troubling to me and many of my colleagues, students, and friends. In my book, when you say Im with her, youve joined her.

[. . .]

[W]e appear to part company on two points. First, Tribe (with Stefanik) thinks that any statement calling for genocide of the Jews can be prohibited on campus, even if it is merely a stupid choice of words at a spirited rally. Would he say the same about calls for intifada, which Stefanik equated with calling for genocide? What about from the river to the sea? What about calls supporting the Israeli military offensive against Gaza, which has led to more than 25,000 deaths? Can all such speech be prohibited because it calls for violence, no matter how rhetorical and no matter how far removed from actual violence on campus? Where would Tribe draw the line? He doesnt say.

Second, Tribe argues that while speech must be free in the classroom, it need not be free at other places on campus. With respect, I think that gets it backward. Speech is appropriately subject to much greater control in the classroom than on the campus lawn.

[. . .]

I also have tremendous respect for Greg Lukianoffand the work FIRE has done to protect speech on campus. As I wrote in my review, cancel culture is undoubtedly real; in fact, in both my ACLU and Georgetown capacities, I am actively engaged in trying to promote free speech on campus. So I share Lukianoffs and his coauthor Rikki Schlotts concern. But I question their claims that intolerance is worse today than in prior periods. Their comparison of cancel culture to McCarthyism fails to acknowledge the stark difference between a campaign of censorship coordinated and compelled by the government, carried out through criminal convictions, loyalty hearings, blacklists, and widespread political spying ultimately directly affecting millions of Americans and a private culture of intolerance on campuses.

Nor do the authors provide convincing evidence that campuses are substantially less tolerant today than in decades past. The fact that there are more conflicts and more complaints on todays heterogeneous campuses does not mean that the more homogeneous campuses of the past were islands of tolerance.

[. . .]

[Yes,] intolerance on campuses today is a real concern. But exaggerating the scope of the problem, much less likening it to periods of officially sanctioned state repression, is unnecessary to make the point.

Constitution Day symposium in Washington, D.C., which examined the Supreme Courts 2022-23 term, as well as upcoming cases in the 2023-24 term. Law professors from the University of Florida, the University of Mississippi, and the University of Baltimore examined the impact of recent cases decided in the Court. Among the cases discussed was303 Creative LLC v. Elenis, which ruled that the First Amendment prohibits a Colorado anti-discrimination law from forcing a wedding website designer who opposes same-sex marriage to create content for gay and lesbian couples.

Cases Decided

[W]e conclude that the Fifth Circuit should not have ventured into so uncertain an area of tort law one laden with value judgments and fraught with implications for First Amendment rights without first seeking guidance on potentially controlling Louisiana law from the Louisiana Supreme Court. We express no opinion on the propriety of the Fifth Circuit certifying or resolving on its own any other issues of state law that the parties may raise on remand. We therefore grant the petition for writ of certiorari, vacate the judgment of the United States Court of Appeals for the Fifth Circuit, and remand the case to that court for further proceedings consistent with this opinion.

Review granted

Pendingpetitions

State action

Reviewdenied

Free speech related

Previous FAN

FAN 412: Mary Anne Franks targets antidemocratic, racist, misogynistic, and corporate self-interest speech in forthcoming book

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 thoseof the articles author(s) and may not reflect the opinions of FIRE or Mr. Collins.

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Certainty and uncertainty: The tech platform cases First Amendment News 413 - Foundation for Individual Rights in Education

PEN America calls on the Supreme Court to protect the First Amendment against government overreach

(WASHINGTON) The government does not have the right to force private social media companies to carry content they would otherwise not allow on their sites. A pair of laws from Florida and Texas would do just that.

In Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton, the Supreme Court today considered the constitutionality of a pair of laws from Florida and Texas that restrict social media platforms content moderation practices.

In an amicus brief filed in December, PEN America said the laws are unconstitutional and seek to control public discourse much in the same way that book bans, educational gag orders, and other censorial policies do around the country.

These laws strike at the heart of the First Amendment. The state cannot compel private entities to platform speech that favors a government viewpoint or that the companies deem in their editorial judgment to be dangerous or deceptive, said Hadar Harris, interim Washington director for PEN America. We are sliding down a slippery slope of government control of public discourse which has gone from book bans to educational gag orders and now overreach on platform regulation. Its a foundational constitutional right in this country that the state does not get to substitute its viewpoint for that of private actors.

After several social media platforms barred President Trump following the Jan. 6, 2021, riots, Florida passed legislation prohibiting technology companies from banning a candidate for office from their platforms. Texas passed a law prohibiting platforms from taking down political content. Two tech industry groups are suing to block the laws. The cases before the Court have the potential to reshape public debate online by giving government the power to dictate what content platforms must carry.

As PEN America explains in its amicus brief, the past three years have seen an explosion in state legislatures using government power to suppress speech they disagree with. These laws could have disastrous consequences, paving the way for even more extreme attempts by the government to impose its viewpoint. PEN America calls on the Supreme Court to protect the First Amendment against government overreach in these cases.

PEN America stands at the intersection of literature and human rights to protect open expression in the United States and worldwide. We champion the freedom to write, recognizing the power of the word to transform the world. Our mission is to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible. Learn more atpen.org.

Contact: Suzanne Trimel,[emailprotected], (201) 247-5057

Originally posted here:
Social Media Content Moderation Laws 'Strike at the Heart of the First Amendment' - PEN America

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WASHINGTON D.C. (Texas Tribune) The U.S. Supreme Court on Monday will consider whether the First Amendments freedom of speech clause applies to social media companies content moderation. Their decision could render a Texas law unconstitutional.

The lawsuit challenges whether Texas and Florida can legally prohibit large social media companies from banning certain political posts or users. Both states passed laws in 2021 to stop what Republican state leaders considered censorship of conservative viewpoints.

The laws came on the heels of the Jan. 6, 2021 attack on the U.S. Capitol, which led Facebook, Twitter and other social media platforms to suspend former president Donald Trumps social media accounts because his posts were thought to glorify violence.

Tech industry groups then brought a lawsuit in which they argued those laws are unconstitutional because they conflict with the First Amendment, which protects against government infringement of speech.

Tech trade groups NetChoice and Computer & Communications Industry Association sued Texas and Florida and asked a federal court to stop the laws from going into effect, claiming they illegally impede upon private companies ability to regulate the speech on their platforms. The justices put the Texas law on hold last year while the challenges moved through the court system.

The Supreme Courts review of the laws represents the first major examination of if and how free-speech laws apply to social media companies. Legal experts say that the high courts decision could have significant implications for statehouses across the country as they begin writing laws to address misinformation online.

The stakes for free speech online are potentially enormous, said Scott Wilkens, senior counsel at the Knight First Amendment Institute at Columbia University. The court here is being presented with diametrically opposed interpretations of the law, and what the court does could, on the one hand, allow the government free rein to regulate social media platforms, or, on the other, prohibit the government from regulating them at all.

The free speech provisions included in the First Amendment do not mean that private companies are forced to allow certain speech. Instead, the Constitution states that the government cannot compel or prohibit speech from private actors.

Willkens said he believes the Court should take a middle ground and rule that while the platforms have a right to make editorial judgements, states can still regulate the platforms in ways that would promote democracy. For example, he said the platforms should be required to disclose how they curate their content.

Texas social media law, referred to as House Bill 20, would mandate that tech companies publicly disclose how they curate their content. The Supreme Court is not considering the legality of that portion of the law. They are focusing on other provisions of law, including its prohibition on social media companies with more than 50 million active monthly users from banning users based on their viewpoints. The court will also consider the laws requirement that platforms produce regular reports of removed content and create a complaint system to allow users to raise flags about removed content.

Tech companies argue that giving the government any control over their content opens the door to a flood of misinformation that would be harmful to users.

What could end up happening is that websites are flooded with lawful but awful content, said Carl Szabo, vice president and general counsel at NetChoice, one of the groups suing Texas. That renders our ability to access the information we want and not see the information we dont want, impossible.

Szabo said social media companies remove billions of pieces of content from their platforms each month, including sexually explicit material, spam, or other content that violates their terms of services.

Gov. Greg Abbott, who made the bill a priority during a special legislative session in 2021, said after the law was passed that it was intended to protect individuals freedom of speech.

Allowing biased social media companies to cancel conservative speech erodes America's free speech foundations, Andrew Mahaleris, a spokesperson for Abbott, said in a statement to The Texas Tribune. Social media websites are a modern-day public square. They are a place for healthy debate where information should be able to flow freely but there is a dangerous movement by social media companies to silence conservative viewpoints and ideas.

Disclosure: Facebook has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

We cant wait to welcome you to downtown Austin Sept. 5-7 for the 2024 Texas Tribune Festival! Join us at Texas breakout politics and policy event as we dig into the 2024 elections, state and national politics, the state of democracy, and so much more. When tickets go on sale this spring, Tribune members will save big. Donate to join or renew today.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2024/02/26/texas-social-media-law-supreme-court/.

"Does the First Amendment apply to social media moderation? The U.S. Supreme Court will decide." was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans and engages with them about public policy, politics, government and statewide issues.

The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.

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Does the First Amendment apply to social media moderation? The U.S. Supreme Court will decide - 25 News KXXV and KRHD

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Jacob Sullum - Sacrificing the First Amendment to save it? - Defiance Crescent News

Look, you dont have to like Brett Kavanaugh. You can hate him now, and you can go on hating him after you read this. But the fact is he was the hero, yesterday, at the oral argument in the most important internet speech case for decades.

In 2021, Republican politicians in Texas and Florida convinced themselves that Big Tech silences conservative views, and they got big mad about it. So they enacted a pair of laws, HB 20 (Texas) and SB 7072 (Florida), that co-opt large social media platforms right to control what speech appears on their services. HB 20 requires, for instance, that platforms treat all viewpoints the same. If a platform allows a government agency to post about a vaccination campaign, it must allow Roger Stone to post about how the vaccines have microchips in them.

We care about what speech a platform chooses to host or to block precisely because these choices are themselves expressive. Even the red-state legislators who enacted HB 20 and SB 7072 get this. Its why they enacted those lawsthey want to force the platforms to adopt an editorial bent more favorable to conservatives. (The laws would do more than intended, opening the floodgates for hate speech, harassment, and more.)

Yesterdays oral argument should have been straightforward. Content moderation is an expressive exercise of editorial judgment. Which means that its protected by the First Amendment. Which means that HB 20 and SB 7072two overbroad, poorly crafted, highly partisan online speech codesare unconstitutional.

Sadly, though, things didnt go so smoothly. Some of the justices got drawn into side issues. (Could the government make Gmail carry all emails? Could it make Uber carry all riders?) Some of them weighed the idea of declining to rule and ordering more discovery. (Maybe the laws are not invalid in every situation, they worried. Better have the lower courts look into the matter further.) Some of them tried to switch the subject to whether Section 230a key protection for online speechshould be narrowed.

Kavanaugh wasnt interested in any of this bullshit. He didnt shotgun a beer, crunch the can against his head, rip his robe off, and scream First Amendment forever, motherfuckers! But that was the vibe. Inside serious, soft-spoken Justice Kavanaugh, yearbook-page Brett was yearning to be free.

While a judge on the federal court of appeals, Kavanaugh had already written that it would be basically insane to let the Government regulate the editorial decisions of Facebook and Google. Going into the argument, his take on these cases wasnt a mystery. But Kavanaugh has kept pretty quiet since joining the Court, so it was a bit surprising to see him absolutely bring it yesterday.

With his first words, Kavanaugh went right at these laws diseased root. The concept that the government may restrict the speech of some elements of our society in order to enhance the relative voice of others, he said, quoting Supreme Court precedent, is wholly foreign to the First Amendment. By claiming to level the playing field for conservatives on social media, Kavanaugh made clear, Texas and Florida are admitting that their laws violate the Constitution.

Next, Kavanaugh called the states out for trying to turn the First Amendment upside down. In your opening remarks, he told Floridas solicitor general, you said the design of the First Amendment is to prevent suppression of speech. And you left outthree words, by the government. When the government boots you from its public forum, thats (often) a First Amendment violation. When a private platform boots you from its service, thats its right to free speech and free association in action.

Kavanaugh wasnt done on this score. He noted that the word censorship was being used in lots of different ways at the argument. Indeed, content moderation by private services is mislabeled as censorship in HB 20 and SB 7072. Kavanaugh was having none of that. Its the government that censors, he explained, when it excludes speech from the public square in violation of the First Amendment. When, by contrast, a private individual or private entity makes decisions about what to include and what to exclude, thats protectededitorial discretion.

Kavanaugh wasnt interested in any of this bullshit. He didnt shotgun a beer, crunch the can against his head, rip his robe off, and scream First Amendment forever, motherfuckers! But that was the vibe.

Then came Kavanaughs finest moment, when he shut down the most obtuse point made by any justice during the argument.

No one on the Court is more steeped in paranoia about Big Tech tyranny than Justice Samuel Alito. Perhaps, Alito wondered aloud, the term content moderation is a psy-op. Perhaps, Alito suggested, its a euphemism that they are using to get you comfortable with a practice that actually amounts to censorship. Perhaps, Alito mused, we need to resist the Orwellian temptation to recategorize offensive conduct in seemingly bland terms.

If youve read Nineteen Eighty Four, you know how preposterous it is to throw the word Orwellian around like this. Alito is using a book about totalitarian surveillance and control to whine about people (most of them jerks) getting kicked off social media appsvery much a First World problem.

Kavanaugh set things straight. When I think of Orwellian, he responded, I think of the state, not the private sector, not private individuals.

Orwellian, he went on, is the state taking over media, like in some other countrieslike in North Korea. And the First Amendment confirms, Kavanaugh said, that we dont want to be that country, that we have a different model here and have since the beginning.

You dont have to like Brett Kavanaugh. But hes in the right in this crucialand, alas, closecase. You want him casting the decisive vote. You even want him writing the Courts opinion. Free speech on the internet needs saving, and, like it or not, hes the man for the job.

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God Help Us, but Brett Kavanaugh Could Save the First Amendment - The Daily Beast

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Editorial (N.Y) Daily News: The Supreme Court's sticky web: The First Amendment protects social media - The Daily News Online

WASHINGTON On Monday, the U.S. Supreme Court heard arguments over state governments role in dictating how Big Tech companies like Google and Meta moderate speech on their social-media platforms. The cases before the court (NetChoice, LLC v. Paxton and Moody v. NetChoice, LLC) are in response to Republican-led Texas and Florida state laws that forbid platforms from taking down or even deemphasizing any posts based on their viewpoints.

Lawyers representing the technology companies argued that these laws infringe on platforms First Amendment rights by forcing a site like Facebook to host content and users that violate the platforms terms of service, including posts that violate company rules against hate speech and election disinformation. Lawyers representing Texas and Florida countered with the novel and untested idea that platforms that serve hundreds of millions of U.S. residents should be considered common carriers. As such, the government lawyers say, they should be subject to content-moderation restrictions.

Free Press Senior Counsel and Director of Digital Justice and Civil Rights Nora Benavidez said:

In this pivotal election year, social media is already having a significant impact on our democracy. There is plenty of room to critique social-media companies failure to keep platform policies and adequate staffing in place to maintain integrity on their services, particularly at a time when dozens of countries around the world are holding elections.

While we believe that the platforms should strengthen their content-moderation policies, the First Amendment is clear: Its not the governments role to impose rules on how companies like Meta and Google should accomplish this. Getting government involved in this way would cause far more problems than it would cure. It would ratchet up the amount of hate and disinformation online instead of reducing it and would undermine both the meaning and the intent of the First Amendment.

From fanning the flames of extremism ahead of January 6, 2021, to entrenching polarization around issues like the ongoing violence in Gaza, social-media companies have a crucial role in shaping public attitudes. But regulation that places control of private companies content-moderation decisions in the hands of state officials runs afoul of the First Amendment and risks forcing platforms to keep lies and other violative content up. As we head into one of the most significant election years in recent memory, regulatory schemes to force platforms to keep false and harmful content up are not the answer, especially when those unconstitutional mandates are predicated on penalties that state actors impose for decisions concerning private speech.

One of the fundamental values underpinning the First Amendment is that our government cannot dictate the terms of public debate. Thats exactly what Texas and Florida have tried to do in bolstering state authority to intervene into private speech. The potential future we see is troubling: State officials would be able to mandate that platforms keep dangerous content online under the guise of protecting free expression. The natural byproduct wouldnt be a flourishing of free speech; the result would be more misinformation, more extremism and more hate that platforms would leave up to avoid being punished. It would offer a convenient excuse for inaction for platforms that already have a track record of negligence in leaving up harmful content. That failure to moderate sufficiently is even worse in non-English languages, and harmful content is left up longer when it targets LGBTQIA+ communities and other vulnerable user groups.

Tech companies must commit to platform integrity especially in light of how online lies and calls for violence frequently lead to real-world harms. But an unconstitutional effort to regulate platforms into becoming free-for-alls of hate and political disinformation is the wrong path forward.

Background: In December, Free Press released Big Tech Backslide: How Social-Media Rollbacks Endanger Democracy Ahead of the 2024 Elections, a report that documents the retreat of Meta, Twitter and YouTube from earlier pledges to protect election integrity.

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In Supreme Court, Texas and Florida's Argument Against Big Tech Content Moderation Runs Afoul of First Amendment - Free Press

Should the online platform Substack be allowed to ban Nazis? Not should it ban Nazis. But should it be legally allowed to ban Nazis?

Im asking on behalf of nine justices of the Supreme Court, not to mention the billions of people who use the internet. On Monday, the court heard oral arguments in two cases, NetChoice v. Paxton and Moody v. NetChoice, that could dramatically reshape online speech by determining whether the First Amendment protects the content moderation decisions of social media platforms.

At issue in the cases are two state laws one from Florida and one from Texas that constrain online content moderation decisions. Roughly speaking, the Florida law prohibits social media companies from permanently banning politicians and journalistic enterprises, while the Texas law prohibits them from banning users on the basis of viewpoint.

That means, for example, that the Florida law would prohibit a platform from permanently banning a politician running for office in the state as a literal Nazi. The Texas law would bar a platform from banning pro-Nazi speech as long as it allowed anti-Nazi speech.

In addition to impacting online speech, the NetChoice cases could reshape First Amendment law in ways that matter to the press. Based on Mondays argument, journalists should watch the courts decisions for two things: First, to see if the court limits the ability to challenge laws that violate First Amendment rights as facially invalid, that is, unconstitutional in all circumstances; and second, how it treats a landmark press freedom decision, Miami Herald v. Tornillo.

First Amendment faceoff

Several justices unexpectedly raised a legal issue during Mondays arguments about the plaintiffs facial challenge to the Florida law that could have implications for the press.

In a facial challenge, a plaintiff argues that a law can never be applied in a way that is constitutional. But the justices asked whether the Florida law might have some applications that are actually constitutional. If so, the justices asked, should the court reject the plaintiffs claim and require it to bring an as-applied challenge, arguing that the law is unconstitutional in more specific ways?

The problem with that is that its easy to think of potential constitutional applications of broad and ambiguous laws, precisely because no one understands exactly what they mean.

A decision rewarding bad statutory drafting by allowing otherwise unconstitutional laws to survive based on hypothetical scenarios could, as the lawyer for the platforms argued, be the worst First Amendment case in this Court's history. It would allow legislatures to put one constitutional provision in an otherwise totally unconstitutional law and avoid having the law struck down wholesale.

For example, an Oklahoma lawmaker recently proposed a totally unconstitutional law that would require journalists to be licensed and subjected to criminal background tests and drug tests. Theres nothing constitutional about this bill. But a more shrewd lawmaker in a state intent on harming the press could cause mischief by writing ambiguous and possibly constitutional provisions into an otherwise completely unconstitutional bill, just to make it harder for courts to strike it down. Imagine, for instance, that the Oklahoma law required drug testing not just for reporters and editors, but also for delivery truck drivers.

Its not clear if the court plans to go down this road in its decisions in NetChoice. But based on the questions at oral argument, journalists should at least be concerned that the court may be thinking about creating barriers to First Amendment facial challenges that could impact cases involving the press in the future.

Press precedent holds up

In contrast, journalists can be reassured by the courts treatment during Mondays argument of Miami Herald v. Tornillo. In Tornillo, the court held that the First Amendment protects newspapers choices about what to publish or not publish, also known as the exercise of editorial discretion or judgment. In the NetChoice cases, the social media platforms argue that their content moderation decisions are the exercise of editorial discretion and therefore protected by the First Amendment.

It may seem odd for the platforms to rely on a press freedom decision to make their case before a Supreme Court that talks about the news media in increasingly hostile terms. But thankfully, most discussion of Tornillo during Mondays oral argument was positive. Justices Kavanaugh and Barrett, in particular, returned again and again to the First Amendments protections for the editorial discretion exercised by news outlets. Even justices that seemed hostile to the social media companies, like Justice Alito, seemed to accept that the First Amendment protects newspapers editorial judgments.

However, the devil may be in the details of whatever opinion the court ultimately writes. Even if the court applies Tornillo to content moderation, theres a risk that it could weaken the First Amendment protection for editorial discretion by saying that the government has to meet only a low or middling burden to overcome it. Theres no specific indication from the oral argument that the court plans to do that, but journalists should watch out for any tinkering with Tornillo in the courts decisions here.

Whatever the outcome of the NetChoice cases, states will almost certainly persist in trying to punish social media companies for hosting content that lawmakers dislike. Journalists should be wary. While social media is the political punching bag for now, there are plenty of politicians who want to go after the press using similar legal theories and complaints. If First Amendment precedent falls in social media cases, it will make it easier for lawmakers to target journalists next.

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Supreme Court social media cases could put some First Amendment claims in the firing line - Freedom of the Press Foundation

Americans have a constitutional right to express themselves freely, but a newpoll finds that many want to limit that freedom to those who offend them.

The Foundation for Individual Rights and Expression and Dartmouth Colleges Polarization Research Lab reported Tuesday that 31% of adults surveyed said the First Amendment goes too far in the rights it guarantees.

Nearly a third of Republicans and a third of Democrats said they completely or mostly agreed with the statement.

The survey also found that most respondents wanted to ban public speeches and college professors from expressing the ideas that most offend them.

Responding to a list of controversial statements that the First Amendment protects, 19% of respondents described All whites are racist oppressors as the most offensive, making it the one they most wished to censor.

Several other expressions followed close behind this one on the most offensive list: 18% named America got what it deserved on 9/11, 12% flagged January 6th was a peaceful protest and 11% chose Abortion should be completely illegal.

Farther down the list, 4% picked From the river to the sea Palestine will be free a slogan in recent pro-Palestinian protests against Israel that some Jewish groups have condemned as antisemitic.

The survey found that 52% of respondents said their community should ban public speeches promoting the statement they deemed most offensive. Another 69% said their local college should not allow a professor who promoted the idea to teach classes.

Those results were disappointing, but not exactly surprising, said Sean Stevens, FIREs chief research adviser. Here at FIRE, weve long observed that many people who say theyre concerned about free speech waver when it comes to beliefs they personally find offensive. But the best way to protect your speech in the future is to defend the right to controversial and offensive speech today.

Mr. Stevens said the Philadelphia advocacy group could not explain what drove respondents to favor censoring offensive views. He noted its the first time FIRE and Dartmouth have administered the survey.

Other key findings:

Asked whether people are able to freely express their views, 69% said free speech in America is heading in the wrong direction, compared to 31% who believe it is on the right track.

Just 25% of adults described the right to free speech today as either very or completely secure, compared to 29% who said it is not at all secure.

Nearly half of Democrats and 26% of Republicans described free speech as heading in the right direction. More than a third of Republicans said free speech is already secure, compared to 17% of Democrats.

However, respondents expressed greater hesitation about suppressing written expression and livelihood.

The survey found that 59% of respondents opposed removing public library books containing the idea they found most offensive. Another 72% said employers should not fire people who express such beliefs from their jobs.

According to researchers who conducted the survey, partisan animosity toward free speech threatens the stability of the U.S. political system.

Polarization not only divides Americans on policy, but it fractures our assessments of the stability of the bedrock features of our democracy, said Sean Westwood, the director of Dartmouths Polarization Research Lab.

Dartmouths lab and FIRE conducted the poll online Jan. 12-19, surveying 1,000 members of a YouGov panel. The margin of error was plus or minus 3 percentage points.

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One-third of adults say the First Amendment 'goes too far' - Washington Times