Daily Archives: March 24, 2024

This article originally appeared in Bloomberg Law on March 18, 2024.

If the First Amendment stands for anything, it stands for the idea that a government official cant go after you just because someone doesnt like what you say. But thats exactly what New York state officials did in NRA v. Vullo, a case to be argued before the US Supreme Court this term.

The Supreme Court should stop government officials in New York and nationwide from using informal means to punish speakers based on their viewpoints, no matter how unpopular.

Its no secret that the National Rifle Association, known to most as the NRA, is controversial.

The NRA is the nations best-known advocate for the right to bear arms. But rather than duke it out with the NRA in the marketplace of ideas, the Superintendent of the New York State Department of Financial Services Maria Vullo allegedly took a more pernicious approach: She used the power of her position to pressure insurance companies into refusing to insure the NRA because of its advocacy and its views, according to the NRAs claims.

After the 2018 mass school shooting in Parkland, Fla., Vullo met with executives at Lloyds of London to discuss her views on gun control and to tell them she believed the companys underwriting of NRA-endorsed insurance policies raised regulatory issues, the NRA alleges. She told them Lloyds could avoid liabilitybut only if the company told its syndicates to stop underwriting their insurance policies, and joined her agencys campaign against gun groups, according to the NRAs brief.

Lloyds publicly broke ties with the NRA a few months later.

But Vullo didnt stop there. She then allegedly issued guidance letters to all insurance companies and banks operating in the stateentities directly regulated by her agencyadvising them to evaluate their business risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations. In other words: Think twice about the company you keep and the views they express.

Government actors at all levels have grown more creative in their efforts to evade the First Amendment. The court should take a strong stance against New Yorks actions here to protect not only the NRA, but all Americans from illegal government coercion.

New York, if these facts are true, tried to circumvent the First Amendments ban on censorship by relying on this informal pressure campaign. But informal censorship violates the First Amendment, too. The First Amendment looks to the substance of government actions, not just the form those actions take. And while the government is free to try and convince others to adopt its ideas, it crosses a constitutional line when it attempts to coerce them, especially when it employs thinly-veiled threats of prosecution or regulatory action.

The Supreme Court should use this case to provide clear guidance on why informal actions to suppress speech subvert the rule of law. In many cases, informal censorship can be worse violations of the First Amendment, because when government officials operate behind closed doors, its more difficult for the public to hold them accountable.

A clearly structured test to identify informal censorship will help courts crack down on governments attempts to do end-runs around the First Amendment. That test should consider several indicators of unconstitutional coercion, including things like whether the official is speaking in their official capacity, whether the official makes veiled threats about potential prosecutions or lawsuit, and the officials word choice and tone, among others.

Government actors at all levels have grown more creative in their efforts to evade the First Amendment. The court should take a strong stance against New Yorks actions here to protect not only the NRA, but all Americans from illegal government coercion.

The case is National Rifle Association of America v. Vullo, U.S., No. 22-842, to be argued 3/18/24.

See the rest here:
NRA case shows the Supreme Court must stop informal censorship - Foundation for Individual Rights and Expression

Up First briefing: Putin wins Russian election; SCOTUS censorship case Putin hails his victory in a Russian election with no real opposition. The Supreme Court will hear arguments in a case that examines whether the government can combat misinformation online.

Good morning. You're reading the Up First newsletter. Subscribe here to get it delivered to your inbox, and listen to the Up First podcast for all the news you need to start your day.

At a news conference in Moscow hours after polls closed, Russian President Vladimir Putin thanked his country for its support following a three-day election. He also commented on the death of the opposition leader Alexei Navalny for the first time. Partial results show Putin easily winning a fifth term. Western countries are saying the vote was neither free nor fair.

Russian President Vladimir Putin gestures while speaking on a visit to his campaign headquarters after a presidential election in Moscow, Russia, early Monday. Alexander Zemlianichenko/AP hide caption

Russian President Vladimir Putin gestures while speaking on a visit to his campaign headquarters after a presidential election in Moscow, Russia, early Monday.

Former President Donald Trump is making headlines again for comments he made about Jan. 6 rioters, immigrants, asylum seekers and the U.S. auto industry at a campaign rally in Ohio this weekend. Trump warned that "it's going to be a bloodbath for the country" if he's not elected referring to the auto industry and his plans to increase tariffs on foreign-made cars.

The Supreme Court is set to hear arguments today on a case focused on the federal government's ability to combat what it sees as false, misleading, or dangerous information online. The case will be a test of First Amendment rights in the internet age. An appeals court ruled last September that key government officials, including those in the White House, CDC and FBI, could not communicate with social media companies. The court said these officials likely violated First Amendment rights by pressuring the companies to moderate or change content about the COVID pandemic, election interference and more. The court is also expected to hear a case about government influence and First Amendment rights related to the National Rifle Association after it finishes arguments on the social media case.

When Israel launched its military response to the Oct. 7 Hamas-led attacks, it told Palestinians in northern Gaza to evacuate and head south. When the Israeli military operation moved to central Gaza, Palestinians were again ordered to move south. Now, five months into the war, Gaza's southernmost town of Rafah is seeing a mass displacement of an estimated 1.5 million people sheltering there more than half of Gaza's population.

Keith Haring's carousel at Luna Luna in Los Angeles. Jeff McLane/Photo by Jeff McLane hide caption

Keith Haring's carousel at Luna Luna in Los Angeles.

Canadian rapper Drake has helped recreate an iconic 1980s art carnival from Hamburg, Germany, in Los Angeles. The original Luna Luna festival, which was the brainchild of Austrian multimedia artist Andre Heller, featured work from the top contemporary artists of the 20th century, including Jean-Michel Basquiat and Roy Lichtenstein

See photos from the revived Luna Luna festival and learn more about this amusement park of art.

The FBI Boston Division recovered 22 artifacts stolen from Japan, including the artwork above. During World War II, various treasures from the Ryukyu Kingdom were stolen. The Federal Bureau of Investigation hide caption

The FBI Boston Division recovered 22 artifacts stolen from Japan, including the artwork above. During World War II, various treasures from the Ryukyu Kingdom were stolen.

This newsletter was edited by Majd Al-Waheidi. Mansee Khurana contributed.

The rest is here:
Up First briefing: Putin wins Russian election; SCOTUS censorship case - NPR

We receive phone calls (or emails or text messages) all the time from government people urging us to write one way or the other, or not to write at all. The officials are from the local, state and federal level, both legislative and executive. Some are elected types. Some are appointed types. Some are career civil servants. And some are staff of the elected or the appointed.

And its not just this Editorial Board; our colleagues elsewhere at the Daily News get the same entreatments, as do our competitors at other news organizations.

Once, some of these specialized employees were called press agents, now they carry titles like press secretary and communications director and senior advisor. But whoever is making the outreach, from the president to the dog catchers deputy assistant, its all allowed with the open exchange of ideas. It is not censorship of the media. And none of it is abridging the freedom of the press as prohibited under the First Amendment.

That was the question before the U.S. Supreme Court yesterday as the justices considered a ruling from the lower courts that found the Biden administration had managed to violate the First Amendment by asking social media companies to curb some of the crazy conspiracy junk and medical garbage about COVID.

The altruistic public health motive was to get Americans to wear masks and take the vaccine and not drink bleach, but the Republican attorneys general of Missouri and Louisiana sued and won a ruling from a Louisiana federal judge that the government could not talk to the social media providers in this manner. An appeals panel upheld the bad decision. The Supremes should now knock it down.

The federal employees reaching out to highlight some of the nutty anti-vax ravings and other nonsense on the sites (often going against the sites own rules) were perfectly within their authority to make contact and ask for changes. Just like we get asked by government employees to support their positions or programs. Its not only the press that can ask. But we dont have to answer and we dont have to obey. The same for social media.

Thankfully, it sounded from Mondays oral argument that most of the nine justices took that view and didnt see any First Amendment problem or censorship. No one forced Twitter or Facebook to do anything and there were no threats of using government power for retaliation.

Even if the Biden administration had demanded that the dangerous and insane information be removed (which didnt happen) it would still have been allowed. The social media networks were free to hang up and tell the government to get lost.

We and the rest of the press (including social media) can publish unpopular ideas. We can even publish provably wrong ideas, like the Earth is flat (it is not). And we can also publish provably wrong ideas that are dangerous, like playing in traffic is cool and fun, and the government can argue all they want against it, but they cant stop us.

If they did come to seize the presses that we print on and grab the internet sites we publish with, that is censorship that is barred by the Constitution. Otherwise, its just words.

See the original post here:
Asking is not censorship: No First Amendment bar for government to talk to publishers - New York Daily News

After much anticipation, X-Men 97, a direct continuation to X-Men: The Animated Series from the 1990s, hits Disney Plus this week. But its not the first time Marvel has dusted off the old series and revived it for a nostalgic new millennium.

Marvel Comics itself took a swing with X-Men 92, published in 2015 and technically a Secret Wars tie-in (but dont worry about it). For 92, writers Chad Bowers and Chris Sims and artist Scott Koblish had to figure out how to make a comic book story that felt like a beloved cartoon show closely based on 90s comics, without just replicating 90s comics themselves. X-Men: The Animated Series definitely had its own vibe but blocky animation doesnt translate to still images, and once you put character designs ripped right out of the comics back on the page, they just look like theyre from comics. Rogue and Gambits outrageous accents? From the comics. Storms operatic diction? The comics.

X-Men: The Animated Series was beloved because it was a truly excellent introduction not just to the characters of the X-Men, but their most compelling comic book storylines or at least as close as the folks behind the show could get given television standards of the time. And so Bowers and Sims and Koblish made an interesting choice: According to their X-Men 92, the thing that makes a story feel like the 92 animated series is censorship.

In the realm of cartoon adaptations of long-running comics series, X-Men: The Animated Series has always set itself apart by how closely it mimicked the comics it was based on. You could almost call The Animated Series more of a translation than an adaptation, with the way it directly adapted even comics stories published during the shows run.

Or at least, it adapted them as best as it could given a very different set of content standards.

Shall we go down the list? No cussing, so everyone, even Wolverine, uses incredible minced oaths. Every bad guy must show signs of life after theyve been knocked down. Minimize direct and implied references to sex, religion, drugs, torture, funerals, and also any word derived from kill. And no blood! Sure, Wolverines got a healing factor, but we cant show him getting bashed up too bad or running around too naked (comics love this). Instead, lets emphasize his enhanced senses. And make sure the Sentinels are front and center; censors are totally fine with slicing and dicing robots or electrocuting them with Storms lightning, blasting holes through them with Cyclops force beams, bashing them to bits with Rogues super strength, and exploding them with Gambits playing cards.

X-Men wasnt unusual for its era in the restrictions placed on it. But those rules were one thing for shows where Spider-Man or Batman punched bad guys until they hit the floor and groaned. It was quite another for the X-Men, whose most popular guy was a man made of knives who was constantly receiving wounds. And it was even more fraught for a close adaptation of X-Men stories, whose general popularity is locked around soap operatic romantic and sexual tension. Gambit and Rogue dont want to get engaged, folks, they want to have piping-hot impossible-because-of-her-mutation premarital sex.

So when you set out to define what makes an X-Men: The Animated Series-style story different from an X-Men comics-style story, at some point youre just going to be listing all the ways in which the comics stories had to change for kids TV. As a comic series trying to replicate the Animated Series tone, X-Men 92 simply leaned into that, with a story about the X-Men fighting censorship itself.

In 92, the X-Men face a villain they never could have fought in the animated series: Cassandra Nova, a character that could not be more at odds with the 90s era of X-Men if she tried. Cassandra was the first major villain of Grant Morrison and Frank Quitelys New X-Men, a run still renowned today for its radical redefinition of the X-Men. The first page of their first X-Men comic is a splash image of Cyclops and Wolverine casually dismembering a Sentinel, as Cyclops says, pointedly, Wolverine, you can probably stop doing that now.

Cassandra Nova was Morrison and Quitelys first attempt to fill the antagonistic hole left by sweeping Sentinels off the table; a moral inverse to Professor X, who wanted to destroy all that he wanted to uphold. But for 92 Bowers and Sims and Koblish gave Cassandra a new hook this time, she doesnt want to kill all mutants. She wants to bowdlerize all mutants.

She captures the X-Men and either brainwashes them into compliance Wolverine goes pacifist, Gambit puts a promise ring on Rogue and they swear to keep it abstinent until marriage or traps them inside their own minds. In the end, Wolverine regains his claws after re-realizing they can be used to help people; Rogue and Gambit snap out of it when they remember that theres more to being able to touch somebody than sex and marriage. The X-Men win the day, gaining a victory over simplistic reductions of morality.

The team behind X-Men 97 certainly seemed to have asked themselves some of the same questions as the team behind X-Men 92: Is this kids show revival for kids, or the grown adults who loved the first show? Do we preserve the bowdlerized 90s tone? Will it even feel like the real X-Men cartoon without it?

Time has lent a measure of humor to the idea of a Wolverine who cant cut anybody but robots and will only drink beer if someone could reasonably mistake it for soda. Its quaint to look back on a time when kids cartoons were so limited in what they could portray, all because of a presumption of a pearl-clutching public.

Those presumptions have evolved but its worth remembering that they havent gone away. There are new frontiers in the slow battle of attrition between kids TV showrunners and studio censors, and new creators pushing the envelope. After all, youll find every episode of X-Men: 97 on Disney Plus, but you wont find every episode of Bluey.

Heres hoping that in another couple of decades, 2024s broadcast standards seem as quaint as 1997s, bub.

Link:
X-Men: The Animated Series was defined by its censors - Polygon

An oak tree's willingness to be called he or she canceled a district read in Floyd County, VA; themed book displays are banned in Louisiana parish; and more.

CASEY: Bestselling Kids Book Wishtree Spooks Virginia County District | The Roanoke Times A self-pollinating tree sparked complaints in Floyd County, VA, because the tree that narrates Katherine Applegate's Wishtree says, Call me she. Call me he. Anything will work. Now, a group read of the bookhas been canceled.

Utah Governor Signs Bill Making It Easier to Ban Books from Utah Schools Statewide | Salt Lake Tribune The new law allows a single book to be removed from all Utah public schools if three districts (or two districts and five charter schools) determine it amounts to objective sensitive material.

Book Ban Controversy Prompts Title Shakeup at Alabama Public Library | WVTM 13 The board of Trussville Public Libraryfaced the call for the removal of 41 books. In the end, 11 books were removed, which the board saidwas not due to their content but because they were not being checked out enough. The other 30 challenged titles will remain in the same section or be moved to the adult department or new mature teen area.

Louisiana Library Board Reinstates Book Display Ban | KATC3 The Library Board of Control meeting for the Lafayette Parish Public Libraries Systemreinstated a ban on certain themed book displays. The decision means commemorative months, such as Pride Month, Womens History Month, and Black History Month, will not be showcased in any libraries across Lafayette Parish Public Libraries System.

Researchers: Books about Difficult, Adult Subjects Make Kids Better Readers | VOA A study found that reading books considered disturbing by students was beneficial for their learning and emotional development. Parents also noticed a growth in their children after they read the disturbing books.

Policing Libraries, aka Book Banning, Moves a Step Further in Arkansas | Arkansas Times At the request of a library board member, who was appointed by Governor Sarah Huckabee Sanders, the head of the Arkansas State Library emailed state-funded libraries to ask if they own or have owned 30 specific titles accessible to patrons under age 18 that the board member finds objectionable. Responses are due by April 2.Your voluntary cooperation is requested, the email said.

Libraries are always evolving. Stay ahead. Log In.

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Self-Pollinating Narrator of 'Wishtree' Called 'Indoctrination,' Virginia District Group Read Canceled | Censorship News - News Letter Journal

The Biden administration attempted to distract the Supreme Court from the voluminous evidence of federal abuse of Americans speech rights during oral arguments in Murthy v. Missouri Monday. It sounded like several justices followed the feds waving red flag.

The government may not use coercive threats to suppress speech, but it is entitled to speak for itself by informing, persuading, or criticizing private speakers, said Biden administration lawyer Brian Fletcher in his opening remarks. He and several justices asserted government speech prerogatives that would flip the Constitution upside down.

The government doesnt have constitutional rights. Constitutional rights belong to the people and restrain the government. The peoples right to speak may not be abridged. Government officials speaking, in their official capacities, may certainly be abridged. Indeed, it often must be, precisely to restrict officials from abusing the states monopoly on violence to bully citizens into serfdom.

It is obviously un-American and unconstitutional for the government to develop a hit list of citizens to mute in the public square through secret pressure on communications monopolies beholden to the government for their monopoly powers. There is simply no way its protected speech for the feds to use intermediaries to silence anyone who disagrees with them on internet forums where the majority of the nations political organizing and information dissemination occurs.

Whats happening is not government expressing its views to media, or encouraging press to suppress their own speech, as Justice Elena Kagan put it. This is government bullying third parties to suppress Americans speech that officials dislike.

In the newspaper analogy, it would be like government threatening an IRS audit or Equal Employment Opportunity Commission (EEOC) investigation, or pulling the business license of The Washington Post if the Post published an op-ed from Jay Bhattacharya. As Norwood v. Harrison established in 1973, thats blatantly unconstitutional. Government cannot induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.

Yet, notes Matt Taibbi, some justices and Fletcher re-framed the outing of extravagantly funded, ongoing content-flagging programs, designed by veterans of foreign counterterrorism operations and targeting the domestic population, as a debate about what Fletcher called classic bully pulpit exhortations.

We have laws against all the harms the government and several justices put forth as excuses for government censorship. Terrorism is illegal. Promoting terrorism is illegal, as an incitement to treason and violence. Inciting children to injure or murder themselves by jumping out windows a hypothetical brought up by Justice Ketanji Brown Jackson and discussed at length in oral arguments is illegal.

If someone is spreading terrorist incitements to violence on Facebook, law enforcement needs to go after the terrorist plotters, not Facebook. Just like its unjust to punish gun, knife, and tire iron manufacturers for the people who use their products to murder, its unjust and unconstitutional for government to effectively commandeer Facebook under the pretext of all the evils people use it to spread. If they have a problem with those evils, they should address those evils directly, not pressure Facebook to do what they cant get through Congress like its some kind of substitute legislature.

Its also ridiculous to, as Jackson and Fletcher did in oral argument, assume that the government is the only possible solution to every social ill. Do these hypothetically window-jumping children not have parents? Teachers? Older siblings? Neighbors? Would the social media companies not have an interest in preventing their products from being used to promote death, and wouldnt that be an easy thing to explain publicly? Apparently, Jackson couldnt conceive of any other solution to problems like these than government censorship, when our society has handled far bigger problems like war, pandemics, and foreign invasion without government censorship for 250 years!

Fletcher described it as a problem that in this case, two states and five individuals are trying to use the Article III courts to audit all of the executive branchs communications with and about social media platforms. Thats called transparency, and its only a problem if the government is trying to escape accountability to voters for its actions.

The people have a fundamental right to audit what their government is doing with public positions, institutions, and funds! How do we have government by consent of the governed if the people can have no idea what their government is doing?

Under federal laws, all communications like those this lawsuit uncovered are public records. Yet these public records are really hard to get. The executive branch has been effectively nullifying open records laws by absurdly lengthening disclosure times to as long as 636 days increasingly forcing citizens to wage expensive lawsuits to get federal agencies to cough up records years beyond the legal deadline.

Congress should pass a law forcing the automatic disclosure of all government communications with tech monopolies that dont concern actual classified information and national security designations, which the government expands unlawfully to avoid transparency. No justice should support government secrecy about its speech pressure efforts outside of legitimate national security actions.

Fletchers argument also claimed to draw a line between government persuasion and government coercion. The size and minute harassment powers of our government long ago obliterated any such line, if it ever existed. Federal agencies now have the power to try citizens in non-Article III courts, outside constitutional protections for due process. Citizens can be bankrupted long before they finally get to appeal to a real court. Thats why most of them just do whatever the agencies say, even when its clearly unlawful.

Federal agencies demand power over almost every facet of life, from puddles in peoples backyards to the temperature of cheese served in a tiny restaurant. If they put a target on any normal citizens back, he goes bankrupt after regulatory torture.

As Franklin Roosevelts brain trust planned, government is now the senior partner of every business, giving every request from government officials automatic coercion power. Federal agencies have six ways from Sunday of getting back at a noncompliant company, from the EEOC to the Occupational Safety and Health Administration to the Environmental Protection Agency to Health and Human Services to Securities and Exchange Commission investigations and more. Use an accurate pronoun? Investigation. Hire one too many white guys? Investigation.

TikTok legislation going through Congress right now would codify federal power to seize social media companies accused of being owned by foreign interests. Shortly after he acquired X, Elon Musk faced a regulatory shakedown costing him tens of millions, and more on the way. He has money like that, but the rest of us dont.

Speech from a private citizen does not have the threat of violence behind it. Speech from a government official, on the other hand, absolutely does and always has. Government officials have powers that other people dont, and those powers are easily abused, which is exactly why we have a Constitution. SCOTUS needs to take this crucial context into account, making constitutional protections stronger because the government is far, far outside its constitutional bounds.

Big tech companies very business model depends on government regulators and can be destroyed or kneecapped at the stroke of an activist presidents pen. Or, at least, thats what the president said when Facebook and Twitter didnt do what he wanted: Section 230 should immediately be revoked. This is a president who claims the executive power to unilaterally rewrite laws, ignore laws, and ignore Supreme Court decisions. Its a president who issues orders as press releases so they go into effect months before they can even begin to be challenged in court.

If justices buy the administrations nice-guy pretenses of concern about terrorism, and once in a lifetime pandemic measures, they didnt read the briefs in this case and see that is simply a cover for the U.S. government turning counterterrorism tools on its own citizens in an attempt to control election outcomes. This is precisely what the First Amendment was designed to check, and we Americans need our Supreme Court to understand that and act to protect us. Elections mean nothing when the government is secretly keeping voters from talking to each other.

The Supreme Court may not be able to return the country to full constitutional government by eradicating the almost entirely unconstitutional administrative state. But it should enforce as many constitutional boundaries as possible on such agencies. That clearly includes prohibiting all of government from outsourcing to allegedly private organizations actions that would be illegal for the government to take.

That includes not just coercive instructions to social media companies, but also developing social media censorship tools and organizations as cutouts for the rogue security state that is targeting peaceful citizens instead of actual terrorists. Even false speech is not domestic terrorism, and no clearheaded Supreme Court justice looking at the evidence could let the Biden administration weaponize antiterrorism measures to strip law-abiding Americans of our fundamental human rights.

Original post:
This Country Can't Afford A SCOTUS Weak On Internet Censorship - The Federalist

Less than a year ago, TikTok CEO Shou Zi Chew was grilled on Capitol Hill over fears about our data being stolen and uploaded to servers in China, which made efforts to ban the app at the time not shocking. Now, the senate has voted to approve a bill aimed at forcing TikTok to divest from their owners, ByteDance, over data privacy concerns. This issue on data privacy has been the same as it was in both 2023 and 2020. The discussion on banning the app got quiet for the rest of 2023, until a bill proposing a ban of the app quickly got passed in the house.

A full ban of the app already should be a cause for alarm with those against blatant censorship, but the motivations behind such a ban may be worse than they may appear.

TikTok cannot be defined as having one singular community, because it all depends on what corner of the platform youve found yourself on. For instance, it can seem like an app where people who are too young to be on the internet congregate and cause mayhem with their nonsensical videos if youre unlucky.

At the same time, TikTok may also be a place to find inspiration for a project, whether that is something academic or something personal, like a recipe idea. Or, maybe youre someone who can find out the current events happening in the U.S. as well as abroad. What do these all have in common? Being about information.

Such information that can be found on the app is not always to the advantage of governments, and the U.S. knows this.

TikTok has been a popular place to find out information about the ongoing Israel-Palestine war, especially with college-aged people, which it is interesting that the conversation around banning a social media platform has ramped up again after this started to be the case. Rep. Mike Gallagher (R-WI), one of the politicians behind the bill, even told reporters after the vote towards the bill that TikTok is increasingly becoming the dominant news platform in America.

There are problems with getting all your news from one source, but the point still stands the app easily allows people to see information that they might otherwise not. Younger generations are getting their news from sources besides the usual news media, and this seems to be a problem.

What is especially odd about the bill, though, is that it does not seem to apply to other countries that the U.S. has deemed foreign adversary countries. According to Section 4872(d) in Title 10 of the United States Code, countries that fall under this category include the Democratic Peoples Republic of North Korea; the Peoples Republic of China; the Russian Federation; and the Islamic Republic of Iran. The bill mentions TikTok and ByteDance directly by name, yet other social media platforms based in these adversary countries are not mentioned once.

Why is it that TikTok needs to be banned due to its prominence and ties to China, yet VK, a Russian-owned social media platform that is a known propaganda resource, does not even get a single mention in this bill? Why is Telegram, a messaging app originally based in St. Petersburg, not ripe for the picking or banning to be removed from mobile app stores for people in the U.S?

The most frustrating part about the motivations behind a potential TikTok ban would be that it is all in the name of national security. When U.S, citizens get spied on and their data harvested to be sent to other countries, that is bad. But when the U.S. does the exact same thing to its own citizens, that is justified and reasonable? No person should have their data sent away and sold to sketchy companies, no matter where you live.

For now, we should hold out hope that the effort falls flat in the Senate. And if the bill does pass, do not forget about a useful tool against internet censorship: a virtual private network (VPN). That way, you will not be locked out of the app if it were to get banned.

Read this article:
Banning TikTok is just the first step to censorship - Point Park Globe

The Floyd County (Va.) Public Schools have suspended a One Division, One Book community reading of Katherine Applegates Wishtree following complaints that the middle-grade novel depicts a monoecious red oak, a tree with reproductive parts that can pollinate and flower simultaneously. In the book, originally published in 2017, the tree claims an identity that is both female and male and responds to diverse pronouns: Call me she. Call me he. Anything will work. (Trees have four primary systems of reproduction.)

The schools reading program kicked off on March 4 and was already underway when parent Jodi Farmer, whose children attend a private Christian academy in neighboring Carroll County, took to Facebook to inform Floyd County residents about the reference to gender. Farmer challenged Wishtree's nonbinary account of the oak's identity, calling the book "indoctrination at its finest."

In a March 11 email sent to families from FCPS, unspecified officials wrote, We understand and respect the concerns raised by members of the community regarding certain material within the selected book, and After careful consideration, we decided to suspend the One Division, One Book reading event. Families are welcome to continue reading the book on their own, but schools will not be hosting any corresponding activities.

Reached by phone, school board vice-chairperson Laura Leroy said PW should contact FCPS for more information about One Division, One Book and the Wishtree decision. School board chair James Ingram, superintendent Jessica Cromer, and secondary literacy educator Kristen Harrod did not respond to phone messages or email requests for comment. Floyd County, southwest of Roanoke, serves children at four pre-K7 elementary schools and one high school with grades 812.

Applegate, who was not scheduled to participate in events related to One Division, One Book, learned secondhand about the literacy program's suspension. I found out via Dan Caseys article in the Roanoke Times, Applegate told PW after tweeting her thoughts on X. My first reaction was laughter, because it seemed like satireit could be a story in the Onion, the humor site. But of course there is nothing funny about the real motivation, which is bigotry against LGBTQ people.

The irony is that Wishtree is about community and kindness and tolerance, Applegate added. She said she wrote Wishtree in response to the othering of whole communities of immigrants and people of color in the mid-2010s. In the novel, townspeople in an unnamed U.S. neighborhood write their wishes on pieces of cloth and tie them to the branches of Red, an oak tree two centuries old.

Red also observes local dramas, including the bullying of a Muslim girl whose family has moved to the towna conflict the tree helps resolve. In the documentary The ABCs of Book Banning, you see a sweet Muslim girl reading a passage from Wishtree, Applegate noted, adding that the books religious and cultural diversity has been a point of contention. It has been challenged in other places, but embraced too, in similar community one-book readings. On March 2, Applegate read from and signed Wishtree as part of the Kennedy Centers environmentally focused Reach to Forest event.

Applegate expressed disappointment that One Division, One Book and Wishtree were dismissed with no explanations, nothing concrete from FCPS, and she noted the fear school boards face when book challenges put them on the defensive. We have to keep making noise again and again, and the litigation in Texas is a really good step toward combating book bans, she said. On that note, FCPSs next school board meeting is April 8maybe Ill stop by and say hi.

A version of this article appeared in the 03/25/2024 issue of Publishers Weekly under the headline:

See the article here:
In Virginia, Censors Attempt to Axe 'Wishtree' - Publishers Weekly

The U.S. Supreme Court on Monday considered dueling interpretations of the Biden administration's interactions with social media platforms regarding content it viewed as dangerous to public health, democracy, or national security. During oral arguments in Murthy v. Missouri, Louisiana Solicitor General J. Benjamin Aguinaga said those private contacts, combined with public statements condemning the platforms' failure to suppress "misinformation," amounted to government-directed censorship. U.S. Principal Deputy Solicitor General Brian Fletcher disagreed, saying neither crossed the line "between persuasion and coercion."

If the federal government coerced platforms to censor speech by threatening them with "adverse government action," Fletcher conceded, that would be a clear violation of the First Amendment. But "no threats happened here," he argued, because White House officials merely "use[d] strong language" while encouraging the platforms to suppress speech that offended them and "referred in a general way to legal reforms in response to press questions." Any attempt to enjoin the government from privately pressuring Facebook et al. to crack down on controversial speech or publicly castigating them for failing to do so, he warned, would interfere with constitutionally permissible information sharing, "provision of advice," and federal officials' use of "the bully pulpit" to "call on the platforms to do more."

Aguinaga argued that federal officials went far beyond providing information that might help the platforms enforce their own content rules. He said officials persistently pressured the platforms to broaden those restrictions and enforce them more aggressively, and the platforms responded by changing their policies and practices. "As the 5th Circuit put it," Aguinaga said, "the record reveals unrelenting pressure by the government to coerce social media platforms to suppress the speech of millions of Americans." And most of that pressure, he emphasized, was applied behind closed doors, coming to light only as a result of discovery in this case.

"The government badgers the platforms 24/7," Aguinaga said. "It abuses them with profanity. It warns that the highest levels of the White House are concerned. It ominously says that the White House is considering its options, and it accuses platforms both of playing 'total Calvin Ball' and of 'hiding the ball'all to get the platforms to censor more speech. Under this onslaught, the platforms routinely cave.Pressuring platforms in back rooms shielded from public view is not using the bully pulpit at all. That's just being a bully."

Fletcher and Aguinaga both invokedBantam Books v. Sullivan, a 1963 case in which the Supreme Court held that Rhode Island's Commission to Encourage Morality in Youth violated the First Amendment by pressuring book distributors to drop titles it deemed objectionable. Notably, the commission itself had no enforcement authority, and at least some of the books it flagged did not meet the Supreme Court's test for obscenity, meaning the distributors were not violating any law by selling them. The Court nevertheless concluded that the commission's communications with book distributors, which ostensibly sought their "cooperation" but were "phrased virtually as orders," were unconstitutional because they aimed to suppress disfavored speech and had that predictable result.

Last September, the U.S. Court of Appeals for the 5th Circuit ruled that some of the Biden administration's communications with social media platforms qualified as coercion under the Bantam Books test. It also held that some of the interactions amounted to "significant encouragement" under the Court's 1982 ruling inBlum v. Yaretsky. Although that case involved due process rather than freedom of speech, the Court held that private decisions can amount to "state action" when the government has "provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." That holding jibes with the general principle that the government may not indirectly do something that the Constitution forbids it to do directly.

In this case, the 5th Circuit held that the White House, the FBI, the Centers for Disease Control and Prevention, and the Cybersecurity and Infrastructure Security Agency were so heavily involved in content moderation decisions that their "advice" qualified as "significant encouragement" under Blum. As the Foundation for Individual Rights and Expression put it in a brief asking the Supreme Court to uphold the 5th Circuit's decision, federal officials "became so entangled with social media platform moderation policies that they were able to effectively rewrite the platforms' policies from the inside."

Fletcher urged the justices to focus on the persuasion/coercion distinction supported by Bantam Books rather than the question of "significant encouragement," which he said "risks turning the platforms and lots of other entities that are interacting with the government into state actors," thereby "restricting their editorial choices under the First Amendment." And on the question of coercion, he said, it was not enough to show that some federal officials were talking about antitrust action, regulation, and increased liability for user-posted content as ways of holding platforms "accountable" at the same time that others were urging the platforms to banish specific speakers, delete particular posts, or suppress certain kinds of content.

Justice Samuel Alito suggested that the Biden administration treated social media platforms differently than it would treat news outlets such asThe New York Times,The Washington Post, and the Associated Press. "The White House and federal officials are repeatedly saying that Facebook and the federal government should be partners," he said. "'We are on the same team.' Officials are demanding answers. 'I want an answer. I want it right away.' When they're unhappy, they curse them out. There are regular meetings. There is constant pestering of Facebook and some of the other platforms[Officials] suggestrules that should be applied and [ask], 'Why don't you tell us everything that you're gonna do so we can help you and we can look it over?' And I thought, 'Wow, I cannot imagine federal officials taking that approach to the print media.'If you did that to them, what do you think the reaction would be?"

At the same time, Alito said, the federal government had "these big clubs" to encourage compliance, including potential legal reforms that would expand the platforms' civil liability. "So it's treating Facebook and these other platforms like they're subordinates," he said.

The cursing to which Alito alluded, Fletcher noted, came in the context of a complaint about problems with President Joe Biden's Instagram account. "Are you guys fucking serious?" Deputy Assistant to the President Rob Flahertysaid in an email to Facebook. "I want an answer on what happened here and I want it today." That exchange, Fletcher said, was "not about moderating other people's content."

Fletcher nevertheless conceded that White House officials often adopted a harsh tone when they demanded that platforms suppress messages they viewed as discouraging vaccination against COVID-19. "There's an intensity [to] the back and forth here, and there's an anger that I think is unusual," he said. "But the context for that, I think, is that these platforms we're saying publicly, 'We want to help. We think we have a responsibility to give people accurate information and not bad information, and we're doing everything we can to meet that goal.' That's where this language of partnership comes from. It's not just from the White House; it's these platforms, which are powerful, sophisticated entities, saying, 'We're doing the best we can.'The anger is when the officials think that the platforms are not being transparent about the scope of the problem or aren't giving information that's available."

Justice Clarence Thomas, who joined Alito and Justice Neil Gorsuch in dissenting when the Court stayed the 5th Circuit's preliminary injunction in October, suggested that even amicable cooperation between the government and social media platforms could run afoul of the First Amendment. He asked Fletcher whether the government could "censor someone" by "agreeing with the platforms, as opposed to coercing the platforms." Suppose the platforms agreed that "we're on the same team" and "work[ed] together" with the government "to make sure that this misinformation doesn't gain sort of any following," he said. "The government can't censor by coordinating with private parties to exclude others' speech?"

Gorsuch likewise made a few points that might support a ruling against the government. He said suppression of a given plaintiff's speech could be deemed "traceable" to the government's conduct if the latter was "a motivating factor" in that particular moderation decision, even if it was not "a proximate cause." And he suggested that "a threat or an inducement with respect to antitrust actions" or protection from civil liability for users' posts, both of which could be relevant here, might "qualify as coercion." Likewise "an accusation by a government official that unless you change your policies, you're responsible for killing people"a description that fits what Biden said about Facebook and other platforms.

While Fletcher focused on coercion and defined it narrowly, Aguinaga argued that any contact in which a public official urges a platform to take down objectionable content carries an implicit threat because of the power that the government wields. If "my dear mother" complains to a platform about a post, he said, "they don't know her from Adam," so "they don't care, but they do care if it's the government."

Aguinaga drew a distinction between rebutting misinformation and demanding its censorship. "If the government thinks there's false speech out there, the remedy for that is true speech," he said. "Nothing prohibits the government from going to that platform and saying, 'We've seen a lot of false information about election activity and COVID and vaccines.'.Nothing prohibits the government from saying, 'Here's a list of everything we say is true. That is true in our view, and you should amplify our speech. And anytime that false speech arises, you should put our posts right there next to it, saying this is the government's view on this issue.'"

Aguinaga, who described himself as "a purist on the First Amendment," suggested that would be the right approach even when the government is responding to "factually erroneous information" about actions by U.S. troops (a hypothetical posed by Justice Brett Kavanaugh) or a social media "challenge" involving "teens jumping out of windows at increasing elevations" (as imagined by Justice Ketanji Brown Jackson). But he noted that suppression of some online speech, especially in the context of national security, would be constitutional if it withstood "strict scrutiny," meaning it was the least restrictive means of serving a compelling government interest.

"If you're concerned with the breadth of our arguments, that's one fail-safe," Aguinaga said. "No matter how broad the standard [that] the Court adopts, there's always gonna be strict scrutiny at the end of the line to save the government in times where it desperately needs to do the things that you're outlining."

Justice Elena Kagan questioned whether any of the individual plaintiffs who joined Louisiana and Missouri in this lawsuit could prove their speech was suppressed as a result of government pressure rather than independent decisions by social media platforms. "There's just nothing where you can say, 'OK, the government said, take down that communication,'" she told Aguinaga. "The government is making some broad statements about the kinds of communications it thinks [are] harmful. Facebook has a lot of opinions on its own about various kinds of communications." Based on "standard ideas about traceability and redressability," she said, "I don't see a single item in your briefs that would satisfy our normal tests."

Justice Sonia Sotomayor complained that Aguinaga's brief was misleading. "You omit information that changes the context of some of your claims," she said. "You attribute things to people who it didn't happen to." In one case, she said, "it was [a plaintiff's] brother that something happened to, not her. I don't know what to make of all this.I'm not sure how we get to prove direct injury in any way."

Aguinaga apologized. "If any aspect of our brief was notas forthcoming as it should have been," he said, "I would take full responsibility for that." He cited a couple of examples that he thought "prove direct injury," but Kagan and Sotomayor remained skeptical. And Fletcher argued that the timing of government communications and moderation decisions affecting the plaintiffs does not support an inference that the former resulted in the latter.

Aguinaga emphasized that the government's intervention resulted in the suppression of speech that otherwise would have been allowed. To illustrate that point, he cited an email from Meta executive Nick Clegg to Surgeon General Vivek Murthy, who had joined Biden in publicly charging Facebook with complicity in the deaths of unvaccinated Americans and urged a "whole-of-society" effort to combat the "urgent threat to public health" posed by "health misinformation," which he said might include "legal and regulatory measures."

After thanking Murthy "for taking the time to meet,'" Clegg said, "I wanted to make sure you saw the steps we took just this past week to adjust policies on what we're removing with respect to misinformation, as well as steps taken to further address the 'disinfo dozen' [users the government has identified as major purveyors of anti-vaccine messages]: we removed 17 additional Pages, Groups, and Instagram accounts tied to the disinfo dozen." Later Clegg told Murthy that Facebook "will shortly be expanding our COVID policies to further reduce the spread of potentially harmful content on our platform." Such exchanges, Aguinaga said, show that platforms like Facebook were "moving beyond what their own policies require[d] because they felt pressure to take more action and to censor more speech."

In Fletcher's telling, however, federal officials were simply providing information and encouraging voluntary collaboration. Aguinaga "started by saying that this is a massive attack on free speech," Fletcher said during his rebuttal. "The lower courts called it a coordinated censorship campaign. I want to be clear [that] if those things had happened, they would be reprehensible. It would be a huge problem." But under "a rigorous analysis of the facts and the law," he said, "we don't think that's [what] happened here. We don't think that's supported."

[This post has been updated with comments from Thomas and Gorsuch.]

Link:
SCOTUS Ponders Whether Biden Administration Coerced Social Media Platforms To Censor Speech - Reason

They say bad facts make bad law. But bad hypotheticals make even worse law, especially when they come from a clueless set of judges considering the most important free speech case in years.

That thought repeatedly crossed my mind as I listened to the U.S. Supreme Court make a mockery of free speech in Mondays arguments in the Murthy v. Missouri censorship case.

Make no mistake: The actions that led the attorneys general of Missouri and Louisiana to sue the Biden administration were not normal. They were unprecedented, both in the extremes to which government officials went in their effort to pressure tech companies into censoring viewpoints they did not like and in the way the companies submitted to the governments pressure. To use White House official Rob Flahertys word, they became partners in an Orwellian scheme to remove speech the government deemed false, misleading, or, in a perfect reflection of our elites beloved new nanny state, harmful to society.

The institutionalists on the Supreme Court appeared not to care. They seemed more concerned about chilling the governments ability to criticize media outlets that print stories they dont like something that, without attribution, Justice Elena Kagan said happens thousands of times a day in the federal government and which Kagan said she does herself. The institutionalists appeared more worried about a hypothetical of restricting law enforcement from informing a tech company (they always use the benign term inform) that people were using its platform to promote a teen suicide game.

Poor Benjamin Aguiaga, the Louisiana solicitor general, had to deal with that and other absurd hypotheticals throughout the argument. At one point, Justice Samuel Alito came to Aguiagas rescue, noting that some of your most recent colloquy with my colleagues have gotten off into questions that I didnt take it from your brief we you think we actually need to decide in this case. Alito correctly observed that your principal argument was that whatever coercion means, it what happened here is sufficient and that coercion doesnt mean only it doesnt apply only when the government says do this, and if you dont do this, there are going to be legal consequences when it says that in this same breath, but that its a more flexible standard and you have to take into account the whole course of the relationship regarding this matter.

That point went missing throughout the Murthy argument. The lawyering did not help. Ive faced my share of hostile panels, so I sympathize with Aguiaga. But he did not rise to the occasion. He got pulled down a rabbit hole with hypotheticals that he could not win. He failed to mention that the state action question that is, the question of whether censorship by a private technology company should be held to constitutional scrutiny because it is traceable to the government is not the end of the inquiry. Even if the plaintiff shows that private action constitutes state action, he or she must still show that the challenged action violates the Constitution.

That is easier said than done. Take the hypotheticals that Justices Kagan and Ketanji Brown Jackson offered. No judge would find the removal of a teen suicide video to violate the First Amendment, or any other law, because the First Amendment does not protect incitement or speech integral to criminal conduct. For the same reason, no judge would find the removal of terrorist recruitment videos, or child pornography, to violate the First Amendment. Indeed, Congress gave tech companies the power to remove such content in Section 230 of the Communications Decency Act of 1996.

The state action doctrine matters in this case because the challenged action the removal of speech based on its viewpoint is so noxious. It is precisely what the founders drafted the First Amendment to prohibit. It is always subject to strict scrutiny especially when, as here, it involves matters of public concern, including public health policy.

That is why Kagan and Jackson had to create strawman arguments based on extreme examples involving speech that gets less (or no) protection under the First Amendment. And while Aguiaga obliged them, he did so in a way that left several of the other justices, especially Amy Coney Barrett, confused about what standard he was discussing.

Aguiaga also failed to emphasize the key point of how the lower courts decided this matter: a preliminary injunction issued after extensive discovery that generated a massive factual record and a detailed opinion that the 5th Circuit largely affirmed in a 3-0 opinion. Appellate courts usually show great deference to such decisions.

Aguiaga should have mentioned that. He could have evaded the bizarre hypotheticals thrown out by Kagan, Jackson, and Sonia Sotomayor by explaining that those facts would result in a different factual record that would likely yield a different result.

In fact, lets be honest: Those records wouldnt exist because nobody would file those lawsuits. The attorney general of Louisiana certainly wouldnt sue the federal government for trying to combat the circulation of teen suicide videos. Nor would the Louisiana AG sue the federal government for telling Big Tech that you are hosting a lot of terrorist speech, which is going to increase the chances that theres going to be some terrible harm thats going to take place, another absurd hypothetical Kagan proffered.

The states involvement made this unique. What also made this case special the reason Judge Terry Doughty issued his opinion on Independence Day was the fact that the federal government was not targeting specific content that it could show posed an imminent threat of harm (like the terrorist videos or teen suicide videos in the justices hypotheticals) but was pressuring Big Tech to remove entire viewpoints about matters of public concern. And not just any viewpoints but those that disagreed with, or merely questioned, the governments viewpoint on certain topics. In other words, the government was pressuring the tech companies to silence dissent.

To his credit, Aguiaga tried to make that point a few times, but he did not do it nearly enough. Like the lawyers in the NetChoice cases, he also failed to challenge the justices casual use of the term misinformation and their assumption that tech companies are only censoring the bad stuff that appears online (whatever that means).

That is one of the most troubling aspects of these cases. After all, what is misinformation? In the context of public health, I assume the Supreme Court would say anything that public health officials say is false, misleading, or harmful.

But why should the government get to define what is true and what is false? Why should the government get to define what speech is misleading? Why should the government define what speech is harmful?

Those should be the central questions in these censorship cases. That is why the Missouri and Louisiana AGs filed this case. After all, speech that the government calls misinformation and which it has successfully pressured Big Tech to block often turns out to be true. Take, for example, the authenticity of Hunter Bidens laptop and the efficacy of the Covid-19 shots.

That is why the Supreme Court has never required that speech be true to be protected by the First Amendment. It has also rebuffed efforts to reduce the legal protection given to offensive (or some would say harmful) speech, including obscenity. Indeed, although obscenity is widely assumed to be unprotected by the First Amendment, the constitutional analysis is more nuanced.

The Murthy argument showed a Supreme Court that is headed in a very different direction. Justices Alito and Neil Gorsuch were the lone bright spots. They were the only ones who asked probing questions of both sides and seemed to care more about protecting the rights of ordinary Americans than unnamed federal bureaucrats.

Following Justice Antonin Scalias death, Justice Clarence Thomas has also become a leading voice for the courts originalists, even during oral argument, a practice he once seemed to disdain (I was there on Feb. 22, 2006, when Thomas asked a question in Holmes v. South Carolina; he did not ask another question until 2016).

Of course, there may still be a way to convert the courts three leftists back to the free speech side of society. Just a few years ago, in Manhattan Community Access Corporation v. Halleck, Kagan took the side of free speech when dissenting from a decision written by Justice Brett Kavanaugh that ratified a private companys refusal to broadcast a controversial documentary. Perhaps the leftists would change their tune if it was Donald Trumps White House that was pressuring tech companies to remove the speech of their political opponents.

What if Google decided that abortion is murder, and harmful to women who go through it, so it decided to remove speech that promotes abortion and abortion rights from YouTube? Would Kagan really have no problem with that? Would she be OK with Google removing videos of her criticizing the Dobbs decision from YouTube?

Or suppose Trump wins the 2024 election and his administration takes a hard stand against transgenderism. Under government pressure, Google decides that trans ideology is dangerous and harmful to children (it could cite plenty of evidence for support, of course) and says pro-trans videos should be removed from YouTube. Thats fine? We are supposed to believe that Kagan, Sotomayor, and Jackson not to mention untold numbers of Democrat-appointed judges across America would go along with that?

I think not. Aguiaga should have said so. Instead, he showed little resistance to a hostile bench that we knew was coming and that could render one of the most destructive constitutional decisions since the 19th century.

Scott Street is a Democratic lawyer and consultant in Los Angeles. He regularly writes about legal and political issues.

The rest is here:
Supreme Court Makes A Mockery Of Free Speech - The Federalist