Daily Archives: July 5, 2024

If you spent Monday morning following each of the cases handed down by the Supreme Court, youre probably experiencing a bit of whiplash.

The biggest news out of the Court on Monday, of course, is a sweeping decision holding that former President Donald Trump was effectively allowed to do crimes while he was in office. Indeed, under the six Republican justices decision in Trump v. United States, it is very likely that a sitting president can order the military to assassinate his political rivals without facing any criminal consequences for doing so.

Just a few minutes before the Supreme Court handed down its Trump decision, however, it also handed down another case reaffirming that the First Amendment does not permit Republican-led legislatures to seize control of what content is published by media companies. That decision, in Moody v. Netchoice, was 6-3, with three Republican justices who also held that the leader of the Republican Party was allowed to commit many crimes while he was in office joining Justice Elena Kagans majority opinion.

So, on the same day that the Supreme Court appears to have established that a sitting president can commit the most horrible crimes imaginable against someone who dares to speak out against him, the same Court with three justices joining both decisions holds that the First Amendment still imposes some limits on the governments ability to control what content appears online.

Chief Justice John Roberts and Justice Brett Kavanaugh joined both decisions in full. Justice Amy Coney Barrett joined the Netchoice opinion in full, plus nearly all of the Trump decision.

Its impossible to comprehend the value system that would lead a justice to join both decisions, but nevertheless here we are. That said, the Courts decision in Netchoice is a victory for free speech, even if it comes the same day as one of the most chilling decisions in the Courts history.

Netchoice concerns two state laws, one from Florida and one from Texas, which seek to control what content must be published by major social media platforms such as Facebook, Twitter, or YouTube. Both laws were enacted by Republican legislatures, and signed by Republican governors, for the very purpose of forcing these platforms to publish right-leaning content that they would prefer not to publish.

As Texas Gov. Greg Abbott said before signing his states law, it was enacted to stop an allegedly dangerous movement by social media companies to silence conservative viewpoints and ideas.

The two laws, and especially the Texas law, are extraordinarily broad. Texass, for example, prohibits major social media companies from moderating content based on the viewpoint of the user or another person or on the viewpoint represented in the users expression or another persons expression.

Thats such a sweeping restriction on content moderation that it would forbid companies like YouTube or Twitter from removing content that is abusive, that promotes violence, or that seeks to overthrow the United States government. Indeed, Kagans opinion includes a bullet-pointed list of eight subject matters that the Texas law would not permit the platforms to moderate, including posts that support Nazi ideology or that encourage teenage suicide and self-injury.

In any event, Kagan makes clear that this sort of government takeover of social media moderation is not allowed, and she repeatedly rebukes the far-right US Court of Appeals for the Fifth Circuit, which upheld the Texas law.

As Kagan writes, the First Amendment does not permit the government to force platforms to carry and promote user speech that they would rather discard or downplay. She also cites several previous Supreme Court decisions that support this proposition, including its seminal decision in Miami Herald Publishing Co. v. Tornillo (1974), which held that a newspaper has the right to final control over the choice of material to go into it.

Nothing in Kagans opinion breaks new legal ground it is very well-established that the government cannot seize editorial control over the media, for reasons that should be obvious to anyone who cares the least bit about freedom of speech and of the press. But the Courts reaffirmation of this ordinary and once uncontested legal principle is still jarring on the same day that the Court handed down a blueprint for a Trump dictatorship in its presidential immunity case.

Its also worth noting that Kagans decision is technically a victory for Texas and Florida, although on such narrow grounds that this victory is unlikely to matter.

The specific holding of the Netchoice opinion turns on a distinction between a facial challenge to a state law, and a more limited as-applied challenge.

A facial challenge, which is what the social media platforms brought against Texas and Floridas unconstitutional laws, alleges that the law is unconstitutional in all of its applications and must be effectively removed from the books in its entirety. That contrasts with an as-applied challenge, which merely alleges that a law is unconstitutional when it is enforced against a particular plaintiff in a particular context.

Facial challenges, however, are notoriously difficult to win. Ordinarily, as Kagan writes, a plaintiff must show that no set of circumstances exists under which the [law] would be valid, though it is somewhat easier to win such a case in the First Amendment context.

While Kagans Netchoice opinion lays out why the Texas and Florida laws are unconstitutional as applied to social media companies core product a curated list of content authored by social media users both laws are so broadly drafted that they also may apply to less core features at websites like Facebook or Twitter, such as direct messaging or events management.

Kagan faults the lower courts for failing to separately evaluate whether the laws can constitutionally be applied to these non-core features, and sends the case back down to those lower courts to do that work. That said, the bulk of her opinion is quite clear that the laws cannot constitutionally be applied to core features like Facebooks Newsfeed or YouTubes homepage.

So, on the same day that the Supreme Court holds presidents above the law, it also appears to rule that lesser public officials still must comply with the First Amendment.

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The Supreme Court also handed down a hugely important First Amendment case today - Vox.com

The Supreme Court today correctly found that social media platforms, like newspapers, bookstores, and art galleries before them, have First Amendment rights to curate and edit the speech of others they deliver to their users, and the government has a very limited role in dictating what social media platforms must and must not publish. Although users remain understandably frustrated with how the large platforms moderate user speech, the best deal for users is when platforms make these decisions instead of the government.

As we explained in our amicus brief, users are far better off when publishers make editorial decisions free from government mandates. Although the court did not reach a final determination about the Texas and Florida laws, it confirmed that their core provisions are inconsistent with the First Amendment when they force social media sites to publish user posts that are, at best, irrelevant, and, at worst, false, abusive, or harassing. The governments favored speakers would be granted special access to the platforms, and the governments disfavored speakers silenced.

We filed our first brief advocating this position in 2018 and are pleased to see that the Supreme Court has finally agreed.

Notably, the court emphasizes another point EFF has consistently made: that the First Amendment right to edit and curate user content does not immunize social media platforms and tech companies more broadly from other forms of regulation not related to editorial policy. As the court wrote: Many possible interests relating to social media can meet that test; nothing said here puts regulation of NetChoices members off-limits as to a whole array of subjects. The court specifically calls out competition law as one avenue to address problems related to market dominance and lack of user choice. Although not mentioned in the courts opinion, consumer privacy laws are another available regulatory tool.

We will continue to urge platforms large and small to adopt the Santa Clara Principles as a human rights framework for content moderation. Further, we will continue to advocate for strong consumer data privacy laws to regulate social media companies invasive practices, as well as more robust competition laws that could end the major platforms dominance.

EFF has been urging courts to adopt this position for almost six years. We filed our first amicus brief in November 2018:https://www.eff.org/document/prager-university-v-google-eff-amicus-brief

EFFs must-carry laws issue page: https://www.eff.org/cases/netchoice-must-carry-litigation

Press release for our SCOTUS amicus brief: https://www.eff.org/press/releases/landmark-battle-over-free-speech-eff-urges-supreme-court-strike-down-texas-and

Direct link to our brief: https://www.eff.org/document/eff-brief-moodyvnetchoice

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Victory! Supreme Court Rules Platforms Have First Amendment Right to Decide What Speech to Carry, Free of State ... - EFF

Blake Fox is a rising junior at Wesleyan University and a FIRE summer intern.

On April 17, 2024, an elephant named Violaescaped from the Carson & Barnes Circus while touring in Butte, Montana. Allegedly startled by a truck backfiring, Violas escape had her weaving through cars in Buttes streets before entering the casino parking lot, where she was recaptured and returned to the circus after about 20 minutes.

In response to Violas escape, protestors gathered outside the Carson & Barnes Circus next stop in Billings, Montana. They assembled and held signs calling for Violas release, including one that read, Give them the final act they deserve + retirement.

Its just outdated. We need to move on, said Kelly Navarro, one of the organizers, who also noted that there are other circuses out there that are thriving without the use of animals.

The First Amendment protects the rights of all individuals or parties to advocate for their cause regardless of the viewpoint even if some see the speech as incorrect or even offensive. In addition, the Supreme Court has held that the First Amendment includes the rights to protest in public spaces and to criticize public figures. The protest against the Carson & Barnes Circus is not an isolated incident. For decades, animal rights activists have campaigned for their cause all over the country and they have leveraged the power of the First Amendment to do it.

The animal rights movement gained significant traction in 1975 with the publication of Peter Singers book Animal Liberation: A New Ethics for Our Treatment of Animals. This was followed by Gary Franciones Animals, Property, and the Law in 1995, which offered some of the first legal analyses of animal rights. Notable events like the March for the Animals in 1990 in Washington, D.C. and the release of documentary films like Blackfish have further propelled the animal rights movement into public prominence.

Unsurprisingly, those opposing animal rights activists message have often attempted to silence them. Perhaps the most notable example is the criminal prosecution and conviction of the seven animal rights activists behind the Stop Huntingdon Animal Cruelty movement, or the SHAC 7. The SHAC movement was an international movement in protest of Huntingdon Life Sciences, a research organization with laboratories in the United States and the United Kingdom that conducted experiments on animals, including for non-medical purposes.

In 2006, the SHAC 7 were convicted under the Animal Enterprise Terrorism Act, which criminalizes any action done for the purpose of damaging or interfering with the operations of an animal enterprise, and which damages or causes the loss of any real or personal property.

But First Amendment scholars raisedconcerns that AETA is unconstitutional, arguing it is overbroad and has a chilling effect on First Amendment-protected activities such as peaceful protest. AETA does not differentiate between protected speech and unprotected conduct. An act like vandalizing a factory farm, which would result in financial losses, is unprotected. In contrast, the First Amendment protects organizing a protest on public property outside a factory farm.

With its guarantees of freedom of speech and assembly, the First Amendment often acts as the great equalizer for movements dedicated to advancing social or political change.

Yet under AETA, if protected advocacy results in financial losses for the corporations, the individuals could be prosecuted under the law. AETA does contain a savings clause, which says, Nothing in this section shall be construed (1) to prohibit any expressive conduct (including peaceful picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment to the Constitution. However, even with a savings clause, the law still creates a chilling effect upon speech because of the potential threat of criminal liability.

Furthermore, the existence of a savings clause signifies that the legislators believe that the statute has components that could be construed to suppress speech. In May 2024, FIREs Executive Vice President Nico Perrino said about savings clauses: [At] the very least, it creates a vagueness problem within the piece of legislation. Its like you have this whole piece of legislation that chills speech, and then you put a line at the end and says it doesnt chill speech.

Government officials have continued to threaten the First Amendment rights of animal rights activists in recent years, but there has been some hopeful pushback. For example, ag-gag laws, which prohibit animal rights activists from documenting and publishing alleged abuse of animals, have been struck down in eight states often on the grounds that the First Amendment protects recordings even if they are taken on private property.

FIRE has also long been involved in protecting the free speech rights of animal rights activists. In 2019, Truman State University initially denied recognition to the Animal Alliance club on the grounds of reputational risk because of the clubs association with the animal rights group People for the Ethical Treatment of Animals, and out of fear that there could be emotional risk to students. In a letter to school administrators, FIREwrote: Truman State cant reject student groups just because it doesnt like what they might say, or what others may say in response.

Two months later, Truman State reformed its club approval process and recognized the Animal Alliance.

During ongoing litigation inPETA v. Tabak, FIRE and the Electronic Frontier Foundationfiled anamicusbriefin support of animal rights activists after the National Institutes of Health blocked the activists social media comments criticizing experiments on animals. The NIH has used filters to block key terms such as monkeys and PETA and has argued that restricting these phrases will keep the comments topical. In the brief, EFF and FIRE argued that the NIHs rule poses a risk of viewpoint discrimination.Tabak deals with the rights of animal rights activists to post on government-affiliated social media accounts, and also provides a potential avenue for the U.S. Court of Appeals for the D.C. Circuit to clarify the extent of these rights forall Americans.

One advocate was arrested and handcuffed for two hours after peacefully demonstrating in a public park. FIRE is suing to protect the constitutional right to speak freely in public parks.

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FIRE is alsodefending the First Amendment rights of animal rights advocates who often visit public parks to share their message, in part by using handheld screens to show clips from the industrial farming documentary Dominion.But when those advocates visited Discovery Green, a public park in downtown Houston, park staff and city police demanded the activists leave, insisting the documentary clips are offensive. When one of the advocates confronted them with the fact the First Amendment protects advocacy in public parks, those staff and officers paid no mind. Instead, they shunned the Constitution and arrested the advocates. With FIREs help, the advocates have sued to protect their constitutional rights.

With its guarantees of freedom of speech and assembly, the First Amendment often acts as the great equalizer for movements dedicated to advancing social or political change. Historically, it is these protections that have given wings to movements such as Womens Suffrage and the Civil Rights Movement.

The animal rights movement is no exception. As the movement continues to grow, it too will rely on the same fundamental freedom to challenge the status quo.

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How the First Amendment bolstered the animal rights movement - Foundation for Individual Rights and Expression

The Supreme Court term is over. We review its First Amendment cases. Joining the show are FIRE Chief Counsel Bob Corn-Revere, FIRE General Counsel Ronnie London, and Institute for Justice Deputy Litigation Director Robert McNamara.

Become a FIRE Member today and gain access to live monthly webinars where you can ask questions of FIRE staff. The next webinar is July 8 at 1 p.m. ET. We will take your questions about the Supreme Court term.

Timestamps

0:00 Intro

2:53 Moody v. NetChoice and NetChoice v. Paxton

31:02 NRA v. Vullo

46:57 Murthy v. Missouri

1:06:04 Gonzales v. Trevino

1:17:58 Vidal v. Elster

1:26:04 O'Connor-Ratcliff v. Garnier and Lindke v. Freed

1:34:00 Loper Bright Enterprises v. Raimondo (the Chevron deference case)

1:37:26 Free Speech Coalition v. Paxton (forthcoming SCOTUS case)

1:38:30 Outro

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The First Amendment at the Supreme Court - Foundation for Individual Rights and Expression

The Supreme Court sidestepped a definitive resolution on Monday in a pair of cases challenging state laws aimed at curbing the power of social media companies to moderate content. The ruling left in limbo an effort by Republicans who had promoted the legislation as a remedy to what they say is a bias against conservatives.

It was the most recent instance of the Supreme Court considering and then dodging a major decision on the parameters of speech on social media platforms.

The state laws differ in their details. Floridas prevents the platforms from permanently barring candidates for political office in the state, while Texas prohibits the platforms from removing any content based on a users viewpoint.

The justices unanimously agreed to return the cases to lower courts for analysis. Justice Elena Kagan, writing for the majority, noted that neither lower appeals courts had properly analyzed the First Amendment challenges to the Florida and Texas laws.

In sum, there is much work to do below on both these cases, Justice Kagan wrote, adding, But that work must be done consistent with the First Amendment, which does not go on leave when social media are involved.

Under the narrow ruling, the state laws remain intact, but lower court injunctions also remain in place, meaning both laws continue to be paused.

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Supreme Court Declines to Rule on Social Media Laws in Florida and Texas - The New York Times

Despite the allure of potential landmark First Amendment expression cases being resolved (e.g.,tech platforms cases), the 2023-24 term of the Supreme Court proved more of a bust than a bang. There was only a single First Amendment expression case in which that claim prevailed. Likewise, there was only one in which such a claim lost. The majority of the cases in which a First Amendment expression claim was raised, by sharp contrast, were either left unresolved (one case) or dismissed on non-First Amendment grounds (four cases).

A few notable facts

First Amendment expression claims sustained

First Amendment expression denied

First Amendment expression claims not resolved

First Amendment Expression claims dismissed on other grounds

First Amendment expression related case

Scorecard

9-0 Judgments in First Amendment argued cases (Whether or not First Amendment claim was reached or resolved)

6-3 Judgments in First Amendment argued cases (Whether or not FA claim was reached or resolved)

I do think that it is a great thing for press freedom that we have avoided a judicial ruling from an American court on the scope of the Espionage Act and the scope of First Amendment because from the beginning there has been this real concern among press freedom advocates about the possible implications of this case for journalism.

Some officials appointed under President Biden were never entirely comfortable with the Trump administrations decision to charge Mr. Assange with activities that skirted the line between espionage and legitimate disclosures made in the public interest, current and former officials said.

Related

TikToks filing has hundreds of pages of communications with the US government, including slide decks and presentations on mitigating national security risks.

TikTok says that the government didnt adequately consider viable alternative options before charging ahead with a law that could ban the platform in the US. TikTok, whose parent company ByteDance is based in China, claims that it provided the US government with an extensive and detailed plan to mitigate national security risks and that this plan was largely ignored when Congress passed a law with a huge impact on speech.

In briefs filed at the DC Circuit Court on Thursday, both TikTok and a group of creators on the platform whove filed their own suit spelled out their case for why they believe the new law violates the First Amendment. The court is set to hear oral arguments in the case on September 16th, just a few months before the current divest-or-ban deadline of January 19th, 2025.

The Protecting Americans from Foreign Adversary Controlled Applications Act would effectively ban TikTok from operating in the US unless it divests from ByteDance by the deadline. The president has the option to extend that deadline slightly if he sees progress toward a deal. But spinning out TikTok is not entirely simple, given the limited pool of possible buyers and the fact that Chinese export law would likely prevent a sale of its coveted recommendation algorithm.

Hate speech consists of words of abuse or disparagement about racial and other minorities. Advocates for its regulation contend that hate speech contributes to the silencing of its targets, makes them feel unwelcome in public spaces, and reinforces existing practices of discrimination. Legal regulation of hate speech can alleviate those harms, though its effectiveness might be limited. Enforcement of laws against hate speech can cause collateral damage by deterring some speakers from saying things about public policy affecting minorities that might be mistakenly characterized as hate speech, and by discriminatory enforcement.

The United States is exceptional among the world's liberal democracies in its unwillingness to treat hate speech regulation as consistent with the constitutional protection of expression. The reasons for this exceptionalism include differences among constitutional texts, doctrines dealing with the direct effects of constitutional guarantees of equality on private actors, variation in institutional capacity to guard against abusive enforcement of hate speech laws, and variations in the public trust. This is a draft chapter.

In their 2023 article, Raising the Threshold for Trademark Infringement to Protect Free Expression, Christine Haight Farley and Lisa Ramsey argue in favor of a speech-protective fair use test that would replace multiple tests applied by the United States Courts of Appeals when a defendants alleged infringement has either informational or expressive elements. This Response explains why this raised threshold test is unlikely to be adopted following the United States Supreme Courts retrenchment of speech-protective thresholds inJack Daniels Properties, Inc. v. VIP Productions, LLC. That prediction is bolstered by the Courts likely holding inVidal v. Elster.

Readers persuaded that current defensive doctrines fail to sufficiently protect expressive and informational trademark uses will find the raised threshold test appealing. However, this Response concludes the proposed test is not constitutionally required. Moreover, applying the raised threshold test will lead courts in a surprisingly broad swath of cases to abandon or severely narrow important elements of current trademark doctrine, some of which are mandated by statute. Those threatened elements help courts correctly calibrate the commercial and expressive interests of trademark owners, alleged infringers, and the trademark-using public.

There is a movement afoot to restrict young people's access to social media and pornography.

Critics of social media and online porn argue that they can be harmful to minors, and states across the country are taking up the cause, considering laws that would impose age-verification, curfews, parental opt-ins, and other restrictions.

Meanwhile, critics of the critics argue that the evidence of harm isn't so conclusive and that many of the proposed restrictions violate core civil liberties such as privacy and free speech.

So, whos right?

Cases decided

Review granted

Pendingpetitions

State action

Reviewdenied

Free speech related

Last scheduled FAN

FAN 429:What to make of anti-mask laws and mask-required laws?

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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Reflecting on the 2023-24 SCOTUS term: More bust than bang First Amendment News 430 - Foundation for Individual Rights and Expression

On June 10, 2024, the United States Supreme Court declined to hear the appeal of a parent who claimed his First Amendment rights were violated when a Massachusetts school district refused to allow video recording of his childs virtual IEP team meeting. (Scott D. Pitta v. Dina Medeiros, et al. (2024) 23-1090.) This action leaves in place a decision of the First Circuit Court of Appeals, which held that concerns over the accuracy of an IEP teams notetaking practices did not give rise to a constitutional right to video record. (Pitta v. Medeiros (1st Cir. 2024) 90 F.4th 11.)

Pitta, the students father, claimed that District employees had made statements at his childs IEP meetings which were not recorded in the notes of the meetings. Pitta claimed this rendered the notes incomplete and misleading. After District staff refused to make changes, Pitta requested that the District video record a subsequent meeting using the Google Meet video recording function. The District refused, explaining that such would be invasive and was not permitted by District policy. Parent thereafter began to video record the meeting on his own. When he refused to stop, the Districts Administrator of Special Education and IEP meeting chair, terminated the meeting.

Pitta brought suit against the District and the Districts Administrator of Special Education in her official capacity. He argued that his right to video record his childs IEP meeting came within his First Amendment right to record government officials. Parent appealed the District Courts initial dismissal of the case. On appeal, the First Circuit acknowledged individuals may have a right to video record government officials under certain circumstances, but such right did not include the video recording of the IEP meetings in question. The Court noted that school staff involved in the virtual IEP team meetings were not the type of public officials for which video recording was deemed to be covered by the First Amendment. It noted that even if the meeting was in person and not virtual, the general public is not free to walk into a school and enter a meeting of educators. The Court further reasoned that the right to video record is linked to the right of the public to receive the information and important to promoting the free discussion of governmental affairs. This was not the case here, as IEP team meetings are not ordinarily conducted in public places, nor are the discussions of the team meant to be disseminated to the public. The District argued that video recording IEP team members would hinder the performance of their duties given such recording carries a high risk of suppressing the sensitive, confidential, and honest conversations necessary when discussing or developing a childs IEP. The Court found these arguments persuasive.

Even if parents were entitled to a First Amendment right to video record IEP meetings, the Court determined the Districts policy prohibiting the video recording of an IEP team meeting served the significant governmental interest of promoting candid discussion about the development of the IEP, was content neutral and narrowly tailored, and therefore constituted a reasonable time, place, and manner restriction. The Court left open, however, the question of whether a parent may have a right to video record an IEP team meeting if necessary to meaningfully participate in the IEP process. In a footnote, the Court acknowledged that Pittas briefing claimed, for the first time, that he needed to video record the IEP meeting in order to meaningfully assert his parental rights protected by the IDEA. The First Circuit declined to address this, noting such was not a First Amendment claim, but rather an administrative hearing claim subject to exhaustion under the IDEA before it could be brought as a civil action in federal court.

The IDEA does not address the use of audio or video recording devices at IEP meetings, and no other federal statute either authorizes or prohibits the recording of an IEP or Section 504 team meeting by either a parent or a school official. Unlike audio recording which is authorized by California law in certain limited circumstances for IEP and Section 504 meetings, video recording of IEP and Section 504 team meetings is not authorized by California law. (Ed. Code, 270 and 56341.1(g)(1).) If presented with a request to video record an IEP or Section 504 team meeting and said request is denied, school district staff should consider reminding parents and/or legal guardians of the right to audio record in compliance with the above referenced statutes in certain circumstances, e.g., Ed. Code, 270 for Section 504 team meetings, and Ed. Code, 56341.1(g)(1) for IEP meetings.

Should you have any questions concerning the topic of this alert, please do not hesitate to contact the authors or your AALRR counsel for clarification and guidance.

See original here:
Refusal of Request to Video Record IEP Team Meeting Did Not Constitute First Amendment Violation - Atkinson, Andelson, Loya, Ruud & Romo

From Justice Barrett's concurrence in today's Moody v. Netchoice, LLC:

Consider, for instance, how platforms use algorithms to prioritize and remove content on their feeds. Assume that human beings decide to remove posts promoting a particular political candidate or advocating some position on a public-health issue. If they create an algorithm to help them identify and delete that content, the First Amendment protects their exercise of editorial judgmenteven if the algorithm does most of the deleting without a person in the loop. In that event, the algorithm would simply implement human beings' inherently expressive choice "to exclude a message [they] did not like from" their speech compilation.

But what if a platform's algorithm just presents automatically to each user whatever the algorithm thinks the user will likee.g., content similar to posts with which the user previously engaged? The First Amendment implications of the Florida and Texas laws might be different for that kind of algorithm.

And what about AI, which is rapidly evolving? What if a platform's owners hand the reins to an AI tool and ask it simply to remove "hateful" content? If the AI relies on large language models to determine what is "hateful" and should be removed, has a human being with First Amendment rights made an inherently expressive "choice not to propound a particular point of view"? In other words, technology may attenuate the connection between content-moderation actions (e.g., removing posts) and human beings' constitutionally protected right to "decide for [themselves] the ideas and beliefs deserving of expression, consideration, and adherence." So the way platforms use this sort of technology might have constitutional significance."

Likewise, see Justice Alito's concurrence in the judgment, joined by Justices Thomas and Gorsuch:

[C]onsider how newspapers and social-media platforms edit content. Newspaper editors are real human beings, and when the Court decided Miami Herald Co. v. Tornillo (1974) (the case that the majority finds most instructive), editors assigned articles to particular reporters, and copyeditors went over typescript with a blue pencil. The platforms, by contrast, play no role in selecting the billions of texts and videos that users try to convey to each other. And the vast bulk of the "curation" and "content moderation" carried out by platforms is not done by human beings. Instead, algorithms remove a small fraction of nonconforming posts post hoc and prioritize content based on factors that the platforms have not revealed and may not even know.

After all, many of the biggest platforms are beginning to use AI algorithms to help them moderate content. And when AI algorithms make a decision, "even the researchers and programmers creating them don't really understand why the models they have built make the decisions they make." Are such decisions equally expressive as the decisions made by humans? Should we at least think about this?

My coauthors Mark Lemley and Peter Henderson and I have argued that AI output is generally protected by the First Amendment (without focusing specifically on AI curation). But the Justices certainly raise important questions, which lower courts are now especially likely to consider.

Link:
Four Justices in Netchoice Flag Question Whether First Amendment Protects AI-Curated Materials - Reason

The First Amendment Award is presented by the Ohio APME for a distinguished contribution to freedom of the press. The recipient committed all necessary resources to overcome obstacles on behalf of the unrestricted flow of information vital to free society. By so doing, the recipient has served the public and has honored journalism, according to APME.

The reporting effort recognized was work by the Dayton Daily News that made available to the public information about a sexual assault case involving former Montgomery County assistant prosecutor John Amos.

The Dayton Daily News is listed as a finalist in 15 other categories. APME will announce at an awards ceremony on July 21 what place was awarded in each category.

1. Best Public Service: For in-depth reporting by Avery Kreemer on Ohios abortion battle.

2. Best Explanatory Reporting: For detailed reporting helping taxpayers understand last years historic property value increase and how it impacts them.

3. Best Enterprise Reporting: Sydney Dawes, for in-depth reporting on how toxic chemicals got into local drinking water supplies and what can be done about it.

4. Best Feature Photo: Bill Lackey for photos from Crawl for the Roses baby race at Mother Stewarts.

5. Best Digital Project: For the Dayton Daily News project Billions in COVID aid: Wheres it going?, which tracked COVID relief spending across the region.

6. Best Business Writer: Lynn Hulsey, for in-depth reporting on topics such as consumer spending, the childcare crisis and development around the airport.

7. Best Sports Columnist: Tom Archdeacon, for work including An angel appears at home plate, and Its a place where I love to be Ebonie Sherwood back on sidelines at Stebbins.

8. Best Sports Feature Writer: Tom Archdeacon, for work such as Nine fingers up, Oregon District hero Jeremy Ganger remembers and The incredible story of Daytons fencing police officer.

9. Best Sports Writer: Tom Archdeacon, for his body of work.

10. Best Illustration or Informational Graphic: For Daytons own Routes and Ladders, designed by Adrian Zamarron.

11. Best Columnist: Ray Marcano for columns such as This is what a power grab looks like, and COVID isnt done with us.

12. Best Editorial Writer: Nick Hrkman for editorials on multiple topics including last years push to amend Ohios constitution.

13. Best Graphics Artist: Alexis Larsen, for informational graphics on topics such as public comment to Ohio Medicaid on estate recovery, and the future of office space.

14. Best Daily Sports Section: For sports coverage in the Dayton Daily News.

15. Best Digital Presence: For the Dayton Daily News complete digital presentation, including website, social media and apps.

See the article here:
Dayton Daily News wins First Amendment Award, is finalist in 15 other categories in statewide awards - Dayton Daily News

(Rafael Henrique | Dreamstime.com)

In today's ruling in Moody v. NetChoice, addressing challenges to Texas and Florida laws severely limiting social media content moderation, the Supreme Court declined to issue a final ruling on the merits, for procedural reasons. But in remanding the cases to the lower courts, Justice Elena Kagan's majority opinion also established standards under which the major provisions of the two laws would almost certainly have to be ruled unconstitutional. I was highly critical of last week's decision denying standing to plaintiffs challenging the federal government's efforts to pressure social media firms to take down posts. Today's ruling is far better. Hopefully, the Court will eventually make clear that the government is presumptively barred from either forcing social media providers to take down posts it disapproves of or forcing them to post material the website owners object to.

The reason why the Court decided not to issue a final decision is that the lower courts did not engage in extensive enough fact-finding and analysis to consider a facial challenge to the constitutionality of the laws as a whole:

Today, we vacate both decisions for reasons separate from the First Amendment merits, because neither Court of Appeals properly considered the facial nature of NetChoice's challenge. The courts mainly addressed what the parties had focused on. And the parties mainly argued these cases as if the laws applied only to the curated feeds offered by the largest and most paradigmatic social-media platforms. But argument in this Court revealed that the laws might apply to, and differently affect, other kinds of websites and apps. In a facial challenge, that could well matter, even when the challenge is brought under the First Amendment. As explained below, the question in such a case is whether a law's unconstitutional applications are substantial compared to its constitutional ones. To make that judgment, a court must determine a law's full set of applications, evaluate which are constitutional and which are not, and compare the one to the other. Neither court performed that necessary inquiry..

To succeed on its First Amendment claim, NetChoice must show that the law at issue (whether from Texas or from Florida) "prohibits a substantial amount of protected speech relative to its plainly legitimate sweep." Hansen, 599 U. S., at 770. None of the parties below focused on that issue; nor did the Fifth or Eleventh Circuits. But that choice, unanimous as it has been, cannot now control. Even in the First Amendment context, facial challenges are disfavored, and neither parties nor courts can disregard the requisite inquiry into how a law works in all of its applications. So on remand, each court must evaluate the full scope of the law's coverage. It must then decide which of the law's applications are constitutionally permissible and which are not, and finally weigh the one against the other. The need for NetChoice to carry its burden on those issues is the price of its decision to challenge the laws as a whole.

But in remanding the cases, the majority lays out "relevant constitutional principles, and explain how" the Fifth circuit "failed to follow them" when it upheld the Texas social media (the Eleventh Circuit had invalidated most of Florida's law). The Court's three principles are devastating to the states' laws:

First, the First Amendment offers protection when an entity engaging in expressive activity, including compiling and curating others' speech, is directed to accommodate messages it would prefer to exclude. "[T]he editorial function itself is an aspect of speech." Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 737(1996) (plurality opinion).. And that is as true when the content comes from third parties as when it does not. (Again, think of a newspaper opinion page or, if you prefer, a parade.) Deciding on the third-party speech that will be included in or excluded from a compilationand then organizing and presenting the included itemsis expressive activity of its own. And that activity results in a distinctive expressive product. When the government interferes with such editorial choicessay, by ordering the excluded to be included it alters the content of the compilation. (It creates a different opinion page or parade, bearing a different message.) And in so doingin overriding a private party's expressive choicesthe government confronts the First Amendment

Second, none of that changes just because a compiler includes most items and excludes just a few. That was the situation in Hurley. The St. Patrick's Day parade at issue there was "eclectic": It included a "wide variety of patriotic, commercial, political, moral, artistic, religious, athletic, public service, trade union, and eleemosynary themes, as well as conflicting messages." 515 U. S., at 562. Or otherwise said, the organizers were "rather lenient in admitting participants." Id., at 569. No matter. A "narrow, succinctly articulable message is not a condition of constitutional protection." Ibid. It "is enough" for a compiler to exclude the handful of messages it most "disfavor[s]." Id., at 574.

Third, the government cannot get its way just by asserting an interest in improving, or better balancing, the marketplace of ideas. Of course, it is critically important to have a well-functioning sphere of expression, in which citizens have access to information from many sources. That's the whole project of the First Amendment. And the government can take varied measures, like enforcing competition laws, to protect that access. But in case after case, the Court has barred the government from forcing a private speaker to present views it wished to spurn in order to rejigger the expressive realm.

Central elements of the Texas and Florida laws are unconstitutional under this approach. Social media firms are undeniably "compiling and curating others' speech" and under the state laws, they are "directed to accommodate messages [they] would prefer to exclude." The firms may exclude only a small percentage of the vast rage of speech users might want to post. But the Court's second principle rightly says that doesn't matter.

Finally, if "the government cannot get its way just by asserting an interest in improving, or better balancing, the marketplace of ideas," that destroys the central rationale for the two state laws. As the Court notes later in its opinion, "improving" or "better balancing" the "marketplace" of ideas is precisely the objective of Texas's law, which was largely motivated by concerns that the social media platforms were biased against various types of right-wing speech.

Later in the opinion, Justice Kagan notes the implications for the Texas law:

The platforms may attach "warning[s], disclaimers, or general commentary"for example, informing users that certain content has "not been verified by official sources." Id., at 75a. Likewise, they may use "information panels" to give users "context on content relating to topics and news prone to misinformation, as well as context about who submitted the content."

But sometimes, the platforms decide, providing more information is not enough; instead, removing a post is the right course. The platforms' content-moderation policies also say when that is so. Facebook's Standards, for example, proscribe postswith exceptions for "news-worth[iness]" and other "public interest value"in categories and subcategories including: Violence and Criminal Behavior (e.g., violence and incitement, coordinating harm and publicizing crime, fraud and deception); Safety (e.g., suicide and self-injury, sexual exploitation, bullying and harassment); Objectionable Content (e.g., hate speech, violent and graphic content); Integrity and Authenticity (e.g., false news, manipulated media). Id., at 412a415a, 441a442a. The platforms thus unabashedly control the content that will appear to users, exercising authority to remove, label or demote messages they disfavor.

Except that Texas's law limits their power to do so. As noted earlier, the law's central provision prohibits the large social-media platforms (and maybe other entities6) from "censor[ing]" a "user's expression" based on its "viewpoint."143A.002(a)(2); see supra, at 7. The law defines "expression" broadly, thus including pretty much anything that might be posted. See 143A.001(2). And it defines "censor" to mean "block, ban, remove, deplatform, demonetize, deboost, restrict, deny equal access or visibility to, or otherwise discriminate against expression." 143A.001(1).7 That is a long list of verbs, but it comes down to this: The platforms cannot do any of the things they typically do (on their main feeds) to posts they disapprovecannot demote, label, or remove them whenever the action is based on the post's viewpoint.

And we have time and again held that type of regulation to interfere with protected speech. Like the editors, cable operators, and parade organizers this Court has previously considered, the major social-media platforms are in the business, when curating their feeds, of combining "multi-farious voices" to create a distinctive expressive offering. Hurley, 515 U. S., at 569. The individual messages may originate with third parties, but the larger offering is the platform's. It is the product of a wealth of choices about whetherand, if so, howto convey posts having a certain content or viewpoint. Those choices rest on a set of beliefs about which messages are appropriate and which are not (or which are more appropriate and which less so). And in the aggregate they give the feed a particular expressive quality.

I think the Court's principles are broad enough to justify facial invalidation of the Texas and Florida laws, because ruling that the restrictions on social-media content moderation are unconstitutional is enough to show that the laws "prohibit a substantial amount of protected speech relative to [their] plainly legitimate sweep." But even if the facial challenges fail, the social media firms could easily file as-applied challenges focusing more narrowly on content moderation. And those would almost certainly succeed.

In his opinion concurring in judgment, Justice Samuel Alito (joined by Gorsuch and Thomas) claims the Court's discussion of First Amendment standards is merely nonbinding dicta. But it pretty obviously sets out principles the lower courts must follow on remand.

Alito also argues that not enough is known about the firms' content moderation policies, and how their content moderation policies work, in part because the firms have not fully revealed how their algorithms functio. But, as the majority shows, we do know enough to see that the major social media firms do restrict posts based on content, and that they favor some messages, while disfavoring others. That's exactly why the states decided to enact the challenged laws in the first place!

The dissent's argument that there are different social media platforms with different contents also doesn't do much to undercut the majority. All of the major platforms have extensive expressive content, and all impose editorial restrictions based at least in part on the subject matter and viewpoint. Perhaps this is less true of some platforms (such as Etsy) which mainly just let users sell products, rather than convey messages. But the Texas and Florida laws cover enough political and social commentary that they clearly "prohibit a substantial amount of protected speech relative to [their] plainly legitimate sweep."

Justice Alito also alludes, briefly, to the major social media platforms' extensive reach and influence. Interestingly, this issuemuch focused on by commentators on these casesplays almost no role in the majority's analysis, and only a minor one in the dissent. The same goes for the argument that social media firms' content moderation policies can be regulated because the firms are similar to "common carriers." The majority doesn't explicitly mention this theory, though much of its analysis implicitly rebuts it, by pointing out the many ways in which social media firms do not simply serve all comers. Justice Alito only briefly mentions the common carrier theory in a footnote. I criticized the common carrier and influence arguments in detail here.

In sum, while the Court did not reach a decision on the merits, the standards it lays out are an important win for the social media firmsand for freedom of speech.

Read more from the original source:
Supreme Court Remands Texas and Florida Social Media Cases - But Strongly Suggests the States' Laws Violate the ... - Reason