Category Archives: First Amendment

I write not wanting to ruffle feathers or strain friendships. Yet, I am reminded that we remain silent because silence is easier. There may come a time I need friends to speak out on my behalf and they might not because I've set a poor example.

I am troubled by the messages that I've received over the last few days by people who are enraged because their freedom of speech rights are being denied. I interpret this to mean their Twitter accounts have been closed.

First, I'd like to point out your freedom of speech has not been denied, or I wouldn't be hearing from you. You are coming through on another forum maybe not the one you typically use, but I'm guessing you'll have a new platform shortly. Remember that Facebook and Twitter are private companies, and they do have the right to require that their users follow certain rules. Remember all of those pages you didn't read when you signed on to be a user? You simply checked, "I agree." Well, that's what you agreed to.

Second, the Supreme Court has ruled that there are a few exceptions to the First Amendment. They include obscenity, defamation, fraud, incitement, true threats and speech integral to already criminal conduct. There's a reason you can't stand up in a crowded theater and yell "Fire!" It's incitement and causes danger to others as they attempt to flee.

One example: In November, Sidney Powell, then-lawyer for President Trump, accused Dominion Voting Systems of promoting widespread voter fraud through voting machines she claimed were manufactured in Venezuela for the explicit purpose of throwing elections. All of those claims were proven false, but, nonetheless, they were picked up by social media and spread across the internet like mice in a grain bin. The president repeated Powell's claims, and his ardent followers took his words to heart, becoming more and more convinced that their candidate had been robbed of his election. He, as well as other congressmen and women, jumped on the groundswell of this example of misinformation despite state and federal judges (many Republican) throwing the claims out of court.

Employees of Dominion Voting Systems began receiving death threats. Imagine that. You do your job, someone falsely claims you cheated, and without any facts to these claims, your business plummets, and your 300 workers and their families fear for their lives. To top it off, the president of the United States continues to feed this misinformation to his loyal supporters to the point they become outraged.

So, back to the original question: Has this speech included "obscenity, defamation, fraud, incitement, true threats and speech integral to already criminal conduct?" If you, by chance, "shared" information on a "private" company's platform, whether you knew or didn't know that it was false, and it led to defamation and inciting others to violence, then yes - your account was blocked. That is a lesson to us all to be careful about casually hitting the "share" button.

Dominion Voting Systems is suing Sidney Powell for $1.3 billion (with a B), and the CEO claims that's just for starters. More suits are being filed. Are Facebook and Twitter concerned because they allowed their platform to be used to spread the lies that resulted in defamation, fraud, incitement, threats and criminal conduct? You bet.

Like millions of others, I am distressed and sickened that our country is being divided over the issue of honesty a quality I'm sure both sides agree with in principle. I understand completely why others can listen to the same speaker as I do and walk away with a different opinion as to the best approach for making our country a strong, productive and moral society for our children to inherit. In doing so, however, we have to start by agreeing with what is true and what is being propagated for personal and political gain. If someone is milking millions off a falsehood, then they're going to buy the cow? We've got too many cash cows in our midst, and they're doing severe damage to the land we love. It's time to trim the herd.

BRENDA BEVAN REMMES

Mayesville

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Letter: To everyone, including friends and family members, who feel First Amendment rights are being denied - Sumter Item

The Supreme Court should leave in place a lower court's ruling that former President Trump violated the First Amendment by blocking critics on Twitter, a free speech advocacy group argues.

The public interest in preventing impermissible viewpoint discrimination in government-operated social media accounts weighs heavily in favor of keeping the Second Circuits judgmentin place, the Knight First Amendment Institute at Columbia University argues in papers filed Thursday.

The papers come in response to arguments filed by the Department of Justice on thelast full day of Trump's presidency.

The government lawyers urged theSupreme Court to find both that the battle over the Twitter blocks is moot -- given that Trump is once again a private citizen -- and that a lower court ruling against him should be vacated.

The legal battle dates to 2017, when the Knight Institute sued Trump on behalf of seven critics who were blocked by him on Twitter.

Knight said the blocks violated users' free-speechrights, arguing that Trump's Twitter account was a public forum -- comparable to city streets, parks and other places where the government can't censor people based on their opinions.

U.S.District Court Judge Naomi Reice Buchwald in New York sided with the Knight Institute and ruled that Trump acted unconstitutionally by blocking social media users based on their viewpoints.

The Justice Department appealed to the 2nd Circuit, arguing that Trump acts in a personal capacity, not an official one, when he blocks people on Twitter. The First Amendmentprohibits the government -- but not private individuals -- from censoring criticism.

In 2019, the appellate court rejected the White House's position, ruling that evidence of the account'sofficial nature was overwhelming.

The Justice Department then sought review by the Supreme Court. In its most recent papers, the Justice Department argued that the 2nd Circuitruling was deeply problematic.

Allowing the decision below to stand would be harmful, no longer to President Trump, but to the Presidency itself and to other governmentalofficials, the Justice Department wrote.

The Knight Institute counters that the appellate court's ruling should be preserved because it provides a sensible framework that is ofvalue to the legal community and the public.

The organization added that the 2nd Circuit's decision rests on a unique set of facts and doesn't pre-ordain the result of any futurelawsuit involving other public officials and other accounts that may be used in different ways.

The Supreme Court has had the case on its conference calendar since November, but hasn'tyet said whether it will review the ruling.

A decision could come as early as Monday.

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Knight Institute Urges Supreme Court To Preserve Ruling That Trump Violated First Amendment 01/25/2021 - MediaPost Communications

Thursday, Jan. 21, 2021

While much of former President Trumps language was not traditionally presidential, it has been largely protected thanks to the First Amendment.

But since the U.S. Capitol riot, Trump has been banned from many major social media sites and some right-wing apps were muzzled.

While critics suggest this is a slippery slope toward total censorship of conservative thought, supporters of the restrictions argue Trumps incitement of the riot was deadly and allowing him to stoke further violence is dangerous.

As social media, press freedoms and a deeply divided America collide, we revisit the question: what does the First Amendment actually protect?

We sit down with national experts to analyze what freedom of speech means as Big Tech remains more powerful than ever and a new administration takes office.

GUESTS

RonNell Andersen-Jones, professor of law at the University of Utah and affiliated fellow at Yale Law Schools Information Society Project

Jillian York, director for International Freedom of Expression at Electronic Frontier Foundation

Katie Fallow, senior staff attorney at Knight First Amendment Institute

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Do Social Media Companies Have Too Much Power Over The First Amendment? - WFAE

This article is part of the Free Speech Project, a collaboration between Future Tense and the Tech, Law, & Security Program at American University Washington College of Law that examines the ways technology is influencing how we think about speech.

TRUMP INCITES MOB read the banner headline on the Jan. 7 New York Times the morning after a seditious crowd stormed the Capitol to try to block certification of the 2020 election results. Aside from certain loyalists, it seems that most agree that under the colloquial understanding of incite, Trump incited the insurrection. Even some insurrectionists pointed the finger at him, like the one who said, We were invited by the president of the United States, as they lay siege to the Capitol.

When the Senate tries Trump on the single charge in his second impeachmentINCITEMENT OF INSURRECTIONit will doubtless consider whether his incendiary Jan. 6 diatribe is protected expression under the First Amendment, as his defenders claim. The question will also be central in a criminal prosecution if the D.C. attorney generals current investigation leads to an indictment. So, did Trumps words satisfy a legal definition of incitement, whether in a criminal court or his Senate trial?

To answer that question, we have to start with Brandenburg v. Ohio (1969). In an opinion joined by all of the justices, the Supreme Court overturned the conviction of a Ku Klux Klan leader under a state statute that criminalized advocacy of crime violence, or other unlawful methods of terrorism as a means of effecting political change and barred assembly with any group that promoted such doctrines. The court held that the law criminalized too much speech because it failed to distinguish between mere advocacy at the heart of political speech and incitement to imminent lawless action, which the First Amendment does not protect.

The Brandenburg ruling proclaimed that freedom of speech protects advocacy of the use of force or of illegal acts except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action. That test continues to govern incitement law.

Brandenburg involved an appeal from a criminal conviction by a Ku Klux Klan leader, Clarence Brandenburg, who had advised the hooded crowd at a Klan gathering that if the federal government continue[d] to suppress the Caucasian race, its possible that there might have to be some revengeance taken. A wooden cross was burned during the rally, and a video revealed weapons. No acts followed. Brandenburgs exhortation lacked imminence. The possibility of illegal forms of revenge was remote; the threat of vengeance was conditional, only to occur if something out of the crowds control happened. Brandenburg did not call for any immediate action.

Trumps speech on Jan. 6 was very different from Brandenburgs. At noonwith Congress scheduled to meet in joint session at 1 p.m.Trump exhorted the crowd: And after this, were going to walk down and Ill be there with you. Were going to walk down to the Capitol. The crowd applauded. Later, wrapping up, he reiterated, So we are going to walk down Pennsylvania Avenue and we are going to the Capitol. Trumps words more than satisfy the imminence requirement.

Whether he directed illegal acts presents a trickier question. Trump did not specifically instruct people to storm the Capitol, disrupt the certification of Bidens election, destroy or steal government property, kill law enforcement officers, or terrorize the officials in the building, including his own vice president. Its important to note, however, that incitement can be implicit as well as explicit.

Trump did nothing to stem the violence while he watched it unfold live on television. He never seriously exhorted the crowd to cease anddesist.

Fact-finders sitting in judgment will decide whether Trumps language was implicitly directed at inciting or producing imminent lawlessness. But public actions from that day suggest it was. He stirred people up with baseless claims, rejected by dozens of courts since Election Day, that he had won the election in a landslide. He insisted, We wont have a country if we dont fight like hell, adding that we will not let them silence your voices. Were not going to let that happen. He questioned the steadfastness of Vice President Mike Pence (Im not hearing good stories), whom the insurgents later threatened to hang. Meanwhile, the audience chanted, Fight for Trump, suggesting they got the message.

That context matters. After Trump spoke, many of those who listened to him in person attacked the Capitol. Trumps own behavior that afternoon also proves significant. He did nothing to stem the violence while he watched it unfold live on television. He never seriously exhorted the crowd to cease and desist. When he finally spoke, he undercut his scripted law-and-order message by reiterating that a sacred landslide victory had been viciously stripped away from great patriots. He urged them to Go home with love. Trump reportedly called freshman Sen. Tommy Tuberville of Alabama, seeking his help in delaying certification of the Electoral College count. All of this demonstrates that Trump intended the result he got: insurrection. It also points to dereliction of duty to protect the government and the Constitution.

Senators or jurors might also justifiably look backward to Trumps Dec. 19 tweet inviting supporters to gather in Washington on Jan. 6Big protest Be there, will be wildand possibly further back to all of Trumps efforts to delegitimize the 2020 election. None of those earlier tweets and statements count as incitement because any threat they contained was remote, but they provide context for how Trumps listeners understood his Jan. 6 speech. Trump, in turn, presumably knew that people from all over the country planned to bring weapons and disrupt the Capitol because they shared their plans on public social media sites. Those preparations increased the likelihood that Trumps speech would spark lawlessness, though Trump may argue that the insurrection had independent momentum.

Legal observers debate whether courts should look to the average listener or to specific listeners, like the self-selected group that attended Trumps rally, to determine the likelihood that the crowd will take action. But Trumps words amount to incitement under either standard. Lets start with the subjective. We know how a significant portion of those at Trumps rally understood his language, not only from their actions but from their subsequent words. For example, after she was arrested, Jenna Ryan, who flew from Texas to Washington for the Jan. 6 events, justified her conduct by saying: I was following my president. I thought I was following what we were called to do.

The widespread impression that Trumps speech incited the ensuing riot appears to satisfy an objective standard as well. Many who watched Trumps speech from afar feared it would trigger violence, though we lacked the imagination to envision the horror that followed. An audience did not have to be specially primed to hear Trumps speech as a call to action and as permission to, in the words of one reporter, take more extreme measures.

Trumps defenders point to a single sentence of his speech to counter the incitement charge. A master at crafting deniability, Trump put on the record: I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard (emphasis added). He then pivoted to his pervasive imagery of warfare: Our country has been under siege for a long time.

This same maneuver had enabled Trump to escape liability in a civil suit brought by peaceful protesters who had been roughed up at one of his campaign rallies in 2016. Trump convinced an appellate court that his single admonition, Dont hurt em, insulated his five exhortations to get em out of here from any plausible reading as advocating violence.

But if a single sentence in an inflammatory speech could inoculate incitement from liability, every sentient speaker would add the requisite phrase while inciting to their hearts content. Here, the extent of inflammatory rhetoric compared with a passing nod at peaceful behavior indicates Trumps language was directed to incite and was likely to incite. Still, that will be question for senators or jurors to decide.

In the end, the intricacies of incitement doctrine in criminal law may not matter in the Senate. Different rules apply.

Senate rules are conspicuously silent regarding the standard of proof in impeachment trials. When Chief Justice John Roberts presided over Trumps first impeachment trial, he submitted the case to the senators for a vote without specifying any standard, or indeed giving any guidance at all.

Absent guidance, a senator might justifiably conclude a preponderance of the evidence established that Trump incited insurrection, while in criminal proceedings the prosecution would have to show that it had proved each part of the Brandenburg test beyond a reasonable doubt. A conviction in the Senate would not broaden the constitutional definition of incitement. Under the criminal standard, Trumps implicit direction to the crowd on Jan. 6 might fall short of the stringent Brandenburg requirement that the speech be directed to producing imminent lawless action.

That distinction alone could lead to a conviction in the Senate, followed by a decision not to pursue charges or an acquittal in federal court. Neither of those outcomes should be seen as undermining the legitimacy of a Senate conviction.

In a moment of crisis, it may prove tempting to disregard the fundamental premise that free speech is essential to democratic self-governance. The First Amendment recognizes that speakers hope their words will lead to action and not prove impotentbut it never protects violence. Brandenburg allows dissidents of every stripe to organize, motivate, and act. It must continue to protect movements from Black Lives Matter and environmental causes to the Proud Boys, until they cross the line from zealous advocacy to unprotected incitement.

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.

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What the First Amendment Really Says About Whether Trump Incited the Capitol Riot - Slate

Q: I thought the attack on the Capitol Jan. 6 by supporters of President Donald Trump was horrible, but Im really worried about the way social media like Twitter and Facebook are denying people like the president their free-speech rights. How can the tech companies get away with violating the Constitution like this? Am I missing something?

A: The tech companies have not violated the Constitution. By removing users from their platforms, social media companies do not deny people the right to freedom of expression under the First Amendment.

The First Amendment to the Constitution protects speech from government censorship, not the actions of private businesses. The Amendment, part of the Bill of Rights, states in part: Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.

Actions by private businesses to restrict speech do not violate the Constitution. An employer, for instance, can fire a worker who disagrees with its policies, or who espouses views even outside of work that are inconsistent with the employers image, policies or stated values. Businesses and individuals can choose not to associate with views with which they disagree and, in fact, the right not to speak, also is indirectly protected by the First Amendment.

The government cannot control what newspapers publish. And states cannot require workers to pay union dues that support political views with which they disagree.

Even where government action is involved, the right to speak ones mind is not unfettered. The government can place reasonable restrictions on the time, place or manner of speech as long as the restrictions are not related to the content of the speech. Use of loudspeakers at night in a residential neighborhood can be prohibited, for example, as could a gathering that blocks traffic, or a protest that prevents people from accessing medical facilities.

Speech that incites imminent unlawful action can be prohibited, as can obscenity, child pornography, defamation and libel and threats, which have been defined as a statement which ... a reasonable person would foresee would be interpreted ... as a serious expression of intent to inflict bodily harm. Planned Parenthood v American Coalition of Life Activists(9th Circuit, 2002).

Trump is not the only one accusing social media giants of violating the First Amendment by kicking some right-wing and pro-Trump voices off their platforms. The presidents son, Donald Jr., claimed on Twitter, ironically that Free speech no longer exists in America. Sen. Josh Hawley, who was the first senator to object to the certification of Joe Bidens victory and who went through with his objection after the riot, claimed his rights were trampled when Simon & Schuster decided not to publish his book on big tech.

Trump, Donald Jr., and Hawley especially Hawley, an Ivy League-educated lawyer should, and do, know better. Twitter and Facebook do not violate their users free speech rights by suspending the accounts of people who violate the companies' terms of service, and a publisher is not required to publish a book by an author it may hold in contempt.

But the inaccurate description of the First Amendment disseminated by both Trump Jr. and Hawley is a misinterpretation shared by a majority of Americans. A 2019 survey by the Freedom Forum, a nonprofit dedicated to raising awareness of First Amendment, found that 65 percentof respondents believed wrongly that banning users on social media because of the content of their posts was a First Amendment violation.

Social media platforms like Facebook and Twitter enjoy protections not provided newspapers or other publishers. Thanks to a 1996 law, social media platforms unlike publishers can place some restrictions on the content disseminated without becoming civilly liable for the content. Section 230 of the Communications Decency Act allows social media to place good faith restrictions on material the provider considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.

Perhaps ironically, the purpose of the law was to protect a medium that offers a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.

Both Facebook and Twitter, include adherence to standards as a condition for use of the free services. Facebook, for example, prohibits expression that threatens people or has the potential to intimidate exclude or silence. Twitternot only bans hateful conduct, but also explicitly prohibits the use of misleading information about COVID-19, violent threats and the glorification of violence.

Both companies contain exceptions to their policies for speech that is viewed as being in the public interest, although Twitter may flag some tweets. Twitter notes it is likely to remove a tweet if it includes a declarative call to action that could harm a specific or individual group, or shares information or engages in behavior that could directly interfere with an individuals exercise of their fundamental rights.

Trumps calls to overturn the results of the 2020 election which would have disenfranchised the roughly 81 million people who voted for Biden in favor of roughly 74 million who voted for Trump was determined to be a violation of Twitter and Facebook policies. While Facebook allowed the president to continue to make unsupported claims about the legality of the November election as being in the public interest, Twitter increasingly flagged the claims as inaccurate.

After Trumps Jan. 6 rally, which preceded the insurrection and assault on the Capitol building, both platforms decided to suspend Trumps accounts. Twitter statedthat the context around his tweets, and the way they were being received and interpreted on and off Twitter, demonstrated a risk of further incitement of violence.

While neither social media giant violated the free speech rights of Trump nor Hawley, there is increasing concern about the power of social mediato control the information Americans access, by suspending certain accounts as in the case of the president or by amplifying extreme opinions, or by limiting our exposure to information that appeals to and reinforces our existing views.

In the case of Trump, few individuals, if any, enjoy a wider platform from which to exercise the right to freedom of expression. The office of the President of the United States is arguably the largest platform in the world dwarfing even social media giants.

Even without Twitter, Trump has no difficulty presenting his views to the nation: Few news organizations will skip a press conference called by the president of the United States, and coverage of such events is customarily disseminated throughout the globe.

Trump, however, is not alone in calling for greater control over social media. Both Trump and Biden, for different reasons, have called for a repeal of Section 230, which legally protects social media companies from liability from content posted by users.

Attorney Daniel A. Gwinns Troy practice focuses on employment law, civil rights litigation, probate, and trusts and estates. Contact him with your legal questions at daniel@gwinnlegal.com or visit the website at gwinnlegal.com. Ask the Lawyer is informational only and should not be considered legal advice.

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Ask the Lawyer: There is no First Amendment right to social media use - The Oakland Press

In this morning'sPrice v. Barrdecision, Judge Colleen Kollar-Kotelly (D.D.C.) held:

[1.] Filming, including for purposes of making a film that would be commercially distributed, is protected by the First Amendment.

[2.] The permit requirements are content-based, because

[The requirements] do not apply generically to all commercial activity in national parks. To the contrary, the permitting regime applies to filming, a form of expressive speech, and specifically to a type of filming, "commercial filming." 54 U.S.C. 100905(a). Section 100905's implementing regulations make this content-based distinction even more apparent, defining "commercial filming" as the "recording of a moving image by a person, business, or other entity for a market audience with the intent of generating income." The application of 100905's permitting regime, therefore, necessarily turns on an assessment of whether the content of a film was meant to appeal to a market audience and generate income.

Consider, for example, the enforcement of 100905 against Mr. Price and his film Crawford Road. To determine whether Crawford Road ran afoul of 100905's permitting regime, NPS officials needed to review the film and determine ex post whether the content Mr. Price included therein was geared towards a "market audience" or evinced some "intent of generating income." 43 C.F.R. 5.12. If, however, Mr. Price's film was "non-commercial" or happened to feature only news worthy "information about current events or of current interest to the public," the permitting requirement would not apply, see id. at 5.4(a).

[3.] The requirements must therefore satisfy strict scrutiny, which they can't do. The "governmental interest in revenue collection" isn't compelling enough; and the regulations aren't narrowly tailored to the interest in "[p]rotecting national park land and the resources it contains":

First, 100905 and its implementing regulations are overinclusive. On their face, 100905 and its implementing regulations flatly require a paid permit for all "commercial filming." This regime, therefore, requires "individuals and small groups to obtain permits before engaging in expressive activities," just the same as it does for large groups with heavy and potentially disruptive filming equipment. Defendants offer no explanation for how the broad sweep of this permitting regime is sufficiently tailored to the government's goal of protecting federal land.

Relatedly, 100905's permitting regime also excludes non-commercial filming without any consideration for the damage that activity might also cause to national parks. For example, a "non-commercial" filming production carried out by a non-profit organization or a news crew would escape the reach of 100905's permitting regime, even if those groups used heavy filming equipment that damaged federal land.

I'm not sure that a distinction between commercial filming and noncommercial filming, turning just on whether the result is to be commercially distributed, iscontent-based. But I agree that the news-gathering exemption, for "information that is about current events or that would be of current interest to the public," makes the rules content-based, see Regan v. Time, Inc. (1984). And I agree that the rules can't pass the strict scrutiny required for such content-based restrictions.

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Permit Requirements for Filming in National Parks Violate First Amendment - Reason

PHILADELPHIA (KYW Newsradio) Several social media platforms have kicked President Trump off their feeds over allegations he incited the violence at the Capitol, while last week, the Philadelphia District Attorney's office began investigating whether one of their own detectives committed a crime when he allegedly posted he was ready for war over the election results.

All of this begs the question: what are your First Amendment rights on social media?

Basically, you are free to yell and scream in protest in the town's square, as it's a public space, operated by the government. But when it comes to social media, First Amendment attorney Kaitlan Gurney with Ballard Spahr said you don't actually have a "right" to be there.

"You have no first amendment right to post anything on Twitter, because it's a private company," she explained. That also goes for Facebook, Snapchat or any other platform, as social media isn't a protected platform for free speech.

"It's their own private constitution, if you will, but the U.S. Constitution is simply not involved," she added. "When one of my kids invites a friend over to my house, they need to abide by my rules. And that's exactly what's happening on social media. These companies are saying if you post on my platform, you need to abide by my rules."

When it comes to your job, Gurney said you have to abide by their social media policies.

"It can be a little different if you are a government employee or if you have a specific contract that lays out the rules for which you need to abide by, but if you are just a typical employee working for an everyday company and you are considered a work for hire, you can absolutely lose your job for what you say on social media," she said.

As for the detective, he has been suspended and relieved of his weapon, according to a DAO spokeswoman, while they investigate whether he advocated for a violent crime.

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Does the First Amendment protect you on social media? - RADIO.COM

WENTWORTH Amy Simpson, the former senior deputy director of the Rockingham County Board of Elections, recently filed a federal lawsuit against the board and two of its members, alleging they violated her First Amendment rights and state law by firing her Sept. 29.

In Simpsons complaint, made by her attorney Walter Horton of Winston-Salem in U.S. District Court for the Middle District of North Carolina, Simpson alleges she was wrongfully terminated after board members Toni Reece and Bonnie Purgason acted to have her ousted based on a private conversation Simpson had with her doctor about placement of a sign outside his office.

Simpson, who is seeking a jury trial, asks in the lawsuit for $100,000 in punitive damages, both from the board and from Reece and Purgason, $25,000 in compensatory wages for time she performed the duties of interim elections board director, reinstatement as senior deputy director of the elections board, and further damages to be awarded at the discretion of a jury, including legal costs.

A longtime county employee who had served in various jobs over the past 20 years, including interim Register of Deeds, Simpson was dismissed 10 months before she became eligible for full retirement benefits.

The lawsuit claims Simpson, during a visit to her physician, asked the doctor, "if a friend could put a sign up outside of his office He said, yes, the suit reads.

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Simpson sues Board of Elections, claims dismissal violated First Amendment rights - Greensboro News & Record

The Jan. 6 attack on the U.S. Capitol by supporters of President Donald Trump has brought simmering controversies over social media platforms to a boil. In the wake of Trumps incitement of the attack, Twitter first suspended and then permanently disabled his account, albeit reluctantly. Reactions from other firmsincluding Amazon, Apple, Facebook, and Googlefollowed quickly. Some suspended Trumps accounts. Others targeted disinformation, either directly, such as when YouTube began limiting false claims about the 2020 president election, or indirectly, as when Apple and Google removed Parler from their app stores.

Prior to the election, lawmakers on both sides of the aisle were already demanding that social media platforms be regulated more closely. As a candidate, President Joe Biden said he would like to see Section 230 of the Communications Decency Act repealed, though he has given no indication he will make doing so a priority. The role of online misinformation and conspiracy theories in fomenting an attack on the Capitol may generate additional urgency for reform, but there is no consensus on what such regulation ought to achieve. If increased political pressure translates into legislative activity, it will mean alterations to or the outright repeal of Section 230, which provides platforms with liability protection for most content posted by users and has emerged as the central battleground in debates over platform regulation. One Democratic proposal, floated by Reps. Anna Eshoo and Tom Malinowski in the aftermath of the attack, would limit Section 230 protections for content that encourages civil rights abuses or terrorism. A bipartisan proposal authored by Democratic Sen. Brian Schatz and Republican Sen. John Thune is aimed at encouraging transparency and consistency in platform content moderation decisions. Democrats and Republicans are deeply divided on their reasons for reforming the law: Republicans want to strip Section 230 protections because social media companies moderate too much content; Democrats want it reformed because platforms arent doing enough to quash harmful misinformation. Platforms thus face the Goldilocks problem: They can neither remove nor host too much content, but must get their curation exactly right to satisfy both camps.

These political divides hasnt stopped a wide range of observers from predicting Section 230s demise as a result of the attack on the Capitol. Getting rid of Section 230 is a seemingly straightforward way to press platforms to intervene more frequently. But a repeal is likely to cause significant disruptions in the short to medium term. In the long run, changes will be far less dramatic than either proponents or critics envisionthe information available online will probably remain relatively constant, but the entities that carry it may shift, especially if increased costs create disadvantages for start-up companies.

The first and most predictable effect of a diminution of Section 230 will be a wave of litigation. Aggrieved social media users and enterprising plaintiffs attorneys will challenge platforms decisions to leave up or take down content, to ban or restrict users, and to label posts as inaccurate or disputed. Conservative activists have already begun suing sites such as YouTube and Twitter to challenge restrictions on their accounts based on posting fake news. To date, these claims have failed. But unhappy users will re-litigate existing theories and try out new ones to compel platforms to remove or replace content. The increase in lawsuits will only gather steam if state legislatures are now authorized to draft and pass regulations, as North Dakota has already shown. This development will be helpful in at least one way: It will gradually clarify the boundaries of post-230 safeguards, such as firms terms of service, in enabling platforms to engage in content curation. However, it will be expensive and protracted.

In addition, different courts are likely to come to different conclusionsan undesirable outcome for global sites that would prefer to enforce consistent rules. While the U.S. Supreme Court might ultimately resolve some disputes, such as over First Amendment claims, others such as state-based contract doctrines do not fall directly under its purview. Variegated laws on the same internet subject make it difficult and expensive for national entities to comply fully, as past experience with anti-spam rules, privacy laws, and the contours of Section 230s exception for intellectual property have demonstrated.

The second immediate effect is likely that internet sites will become much more cautious about content. This could cause smaller and less well-funded sites, such as local journalism outlets or start-up platform firms, to disable user comments and other forms of interaction to avoid the risk of liability. Larger platforms are likely to struggle and generate incoherent responses, restricting political debate in some instances and leaving up conspiracy theories in others. A muddled response is an inevitable reaction to the uncertainty that the change in the regulatory landscape will produce. However, it will also fuel the outrage that some users feel about inconsistent standards and the purported bias by large technology companies. Changes to the sorts of user-generated content that platforms allow could have significant social consequences. It would not be a huge sacrifice to face cuts to the number of cat videos on YouTube. It would be a major loss if the sites new approach reduced copwatching.

A secondary effect of this new hesitancy will be increased costs for sites that do allow user-generated content, as they will have to review if not police it much more extensively. Users may not feel higher costs directlymost major platforms will remain nominally free, deriving revenue through ads and user data. However, to the extent one is concerned about the size of platformsif we worry about the Big part of Big Techthese increased expenditures will be counterproductive. The larger the platform, the more readily it can absorb new costs. Smaller firms and startups, though, may not be able to do so as easily, or at all. Thus, the current set of antitrust concerns around platform size and market dominance is in tension with reforming Section 230, as larger firms will be much better poised to navigate the changing legal landscapeand to shape it.

In the medium term, other areas of law will have to resolve internet-related questions that were previously dealt with under Section 230. For example, Section 230(c)(1) immunized platforms and their users for most content created by someone else. If I posted a defamatory tweet about you, you could sue me, but not Twitterand not anyone who retweeted it. This meant that courts rarely had to consider how to classify platforms under standard tort doctrine. Is Twitter more like a newspaper, which faces greater risk of liability as a publisher, or a bookstore, which is generally liable only when it has actual knowledge that it is offering defamatory content? Does retweeting make that user an author of the underlying content in the original Tweet? Or will courts, in their role of promulgating common law standards, arrive at an entirely new scheme for online information exchange?

Contract law will also have to adapt in the medium term to efforts to limit the disclaimers and protections that internet firms can build into their terms of service. It may no longer be possible, for example, to require a user to forfeit any legal claims based on removal (or retention) of content. These types of public policy choices instantiated through contract doctrine are not new but are likely to proliferate. Federal courts will have to further elucidate the question of who has standing to bring suitan issue that the Supreme Court famously ducked in Spokeo v. Robbins. Standing doctrine often serves as a get out of jail free card for federal courts, who can dispose of litigation that does not seem meritorious on a procedural question rather than a substantive evaluation of the claims. In short, without Section 230 to manage these issues, other areas of the law will be under pressure to adapt so as to create new boundaries that put users and firms on notice about the contours of potential liability.

A reform or repeal of Section 230 is also likely in the medium term to fuel another round of the encryption wars. The policy goal of reducing undesirable content such as incitement and child sex abuse material (CSAM) will probably encourage law enforcement agencies to renew their push for limits on encryption, particularly the end-to-end variety present in apps such as Signal. Most observers would support steps that would reduce harms to children, but it is not clear how much of a barrier encryption currently creates for law enforcement. For example, in 2019, federal courts authorized 3225 wiretaps. Of those, 121, or 3.75%, were encrypted; in 104 of those, law enforcement could not ultimately decrypt the information exchanged. A New York Times investigation found that law enforcement agencies devoted to investigating CSAM were understaffed and underfunded; the Justice Department has not even bothered to write reports that are required under federal anti-CSAM legislation. If encryption use by criminals is on the rise, calls for back doors, key escrow, and other limits on apps capabilities are likely to resonate. There are, however, important tradeoffs for privacy and security of user communications, especially if those users are political dissidents, journalists, or others with well-founded fears of surveillance. The past few cycles of the encryption wars have largely ended in stalemates, but another flare-up is likely brewing.

In the long term, and perhaps surprisingly, the content in the social media ecosystem will probably look similar to that available in the current environment with Section 230. This is because Section 230 is, in significant fashion, a statutory clearinghouse for constitutional concerns based on the First Amendment. As a rule, courts avoid deciding constitutional questions when there is another path for resolving an issue or case. Right now, Section 230 does this work. For the most part, it has not been necessary to decide whether and under what circumstances content moderation by internet sites constitutes protected expression by those sites (although some state courts have taken up the question).

It is likely, though, that editorial decisions about what information to permit on a platform are protected by the First Amendment. The internet is not broadcast radio or cable television. The first major Supreme Court case dealing with First Amendment questions over federal indecency regulation online resulted in a resounding defeat for the government, and the establishment of the principle that internet communication would be protected as strongly as more traditional media such as newspapers. Subsequent cases have confirmed this approach, and the Roberts court has been highly speech-protective. New attempts to regulate platforms are not likely to fare well when confronted with the powerful protections for free information exchange under the First Amendment. Thus, constitutional law will likely block most new regulation by state and federal governments alike, particularly where the underlying speech is lawful, even if repugnant. And platforms are likely to enjoy some protection for hosting even unlawful communication in some instances, particularly as they evolve toward more traditional gatekeepers instead of simply hosts for anything users produce.

The day after Section 230 is repealed or reduced is likely to be chaotic. Users and platforms will confront uncertainty about what is permissible, and both sides are likely to test those boundaries, for both must-carry and must-remove questions around content. In time, though, disputes will be resolved, and the online information ecosystem will probably adapt to the statutory changeat least, the larger platforms will. We may, though, lose the next Twitter to the added costs that a repeal would inevitably entail. New platforms may not be able to afford systems that screen material, making it harder for them to gain funding, to be acquired by larger tech firms, and ultimately to survive. Section 230 embodies American free speech norms that favor open discussion and dialogue. Even if our shared commitment to those norms wavers at times, it ultimately endures, and the longer-term online landscape for free expression will reflect that.

Derek E. Bambauer is a professor of law at the University of Arizona, where he teaches internet law and intellectual property.

Amazon, Apple, Facebook, Google, and Twitter provide financial support to the Brookings Institution, a nonprofit organization devoted to rigorous, independent, in-depth public policy research.

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What does the day after Section 230 reform look like? - Brookings Institution

A lone Trump supporter Mark Leggiero, of Florida, N.Y., stands outside the New York state Capitol objecting the inauguration of President Joe Biden, Wednesday, January 20, 2021. (AP Photo/Hans Pennink)

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We now have evidence that the biggest threat to American democracy was not the violent rioters who stormed the Capitol on January 6, but the bad-faith Republicans who work at the Capitol and spent two months fueling the Big Lie that the election was stolen in the first place. We also have evidence that ex-president Donald Trump could never have threatened democratic self-government without the help of social media companies. And we now have a case study on what happens to insurrectionists when private companies refuse to let them use those platforms to recruit, organize, and incite violence.

The cowards melt away. Deplatforming works. Delegitimizing people like Ted Cruz and Josh Hawley and Trump works. Inauguration Day proved that.

My fears of violence at the inauguration of President Joe Biden did not come to passthankfully. The day went off without a hitch. Covid-19 made this inauguration look different from all the recent ones, not white supremacists in red hats. Joe Biden still got to fist-bump Al Roker. Katy Perry got to sing Firework to fireworks. It was a beautiful day.

Its fair to say that putting 25,000 troops on the ground and locking down Washington, D.C., for a week probably played a bigger role in securing the inauguration than temporarily suspending Majorie Taylor Greene from Twitter. And one can only hope that militarizing the ceremonial functions of government does not become a new normal we all have to endure.

But there was no analogous show of might at state capitols, which the Capitol insurrectionists and other extremist groups had also threatened to attack. While state governments beefed up security ahead of the inauguration, they didnt go with the full military burlesque. However, on the day of reckoning, after the months of threats and maskless protests and plots to harm elected officials, nobody showed up to the rumble. There was no storm. There was no Kraken. There was no West Side Storyjust The Sound of Silence.

Well, I shouldnt say nobody. One person showed up in Albany, N.Y., to protest the election. A handful showed up in Sacramento, Calif., to do the same. One guy showed up in Vermont to protest the injustice of the automated customer service provided by AT&T. I tried to document the protests at state capitals around the country on Inauguration Day, because it turns out lone Trump supporter is actually my favorite phrase in the English language right now.Current Issue

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What changed between January 6, when these people gathered in significant numbers to invade the Capitol, and January 20, when these people couldnt maintain the intensity of John Cusak in Say Anything?

There are a lot of factors, but I would argue that the biggest one is that the social media companies took away their toys. One protester at the Texas state capitol in Austin even said so. Kaley Johnson, a reporter at the Fort-Worth Star-Telegram, cited a man who said he expected more people to be here, but was banned from Facebook so didnt know if anything was planned.

This is a truth that the social media companies have been denying all along in their attempts to justify making money off the forces that threaten democracy. Twitter and especially Facebook act like they are neutral platforms that are not responsible for the recruitment and aggregation of violent extremists. But weve seen report after report from experts in radicalization who have exposed how social media platforms are tools that are used to coordinate violence.

January 20 is what happens when these platforms take even minimal steps to block violent extremists from their services. After the Capitol siege, Facebook finally decided to ban QAnon accounts. It didnt even ban that many accounts: Reports suggest it restricted around 2,000 Facebook groups and around 10,000 Instagram accounts, barely a dent in its overall user base. Yet, scarcely two weeks after removing some of the most obvious bad users, the violent insurrectionists are already reduced to a couple of randos milling around state capitols with arts-and-crafts projects, wondering where the party went.

Facebook and Twitter also removed the most notorious bad user: Trump. The last 10 days have been blissfully void of his inane complaints about the election and terrifying love notes to white supremacists.

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And look whats happened. The New York Times reports that the Proud Boys, who pledged themselves to Emperor Trump not three months ago, are now calling him a total failure. Removing Trump from his Twitter account for only two weeks has already helped to cause a rift between the militant forces of white supremacy and the head of the Republican Party.

I will always believe that if Twitter had banned Trumps account the moment he started lying about the results of the election, five people would not have died in a riot at the Capitol. I will also believe that if Twitter had banned Trumps account the moment he started lying about the coronavirus, hundreds of thousands of people might have been saved from this disease. And I will always believe that if Twitter had banned Trumps account the moment he started lying about Barack Obamas nation of birth, he would never have been president in the first place.

That tells us a lot more about Twitter and the social media universe that distorts reality than it does about Trump. After all, its not like the man was silenced. Its not like he, or anybody else who had their accounts blocked in the wake of January 6, were stripped of their First Amendment rights. Indeed, to me, the most beautiful thing about these state capitol protests around the inauguration was not the schadenfreude but how those protests proved that the First Amendment is alive and well, and people who exercise their rights pose no real threat to free elections or democratic self-government.

One guy showed up at the state capitol in Idaho holding up a sign that read, Legalize Arson. He was not, to my knowledge, arrested or harmed by the government. In Georgia, two people were spied holding a sign that said, I Hate My Government. No constitutional crisis ensued. A guy in North Carolina had a sign calling the new president an imposter. Another man, in Washington, brandished a sign calling him a traitor. No Tomahawk missiles were sent to their locations.

Thats the First Amendment in action, folks, and its a beautiful thing. It is wonderful to live in a country where you can walk up to the seat of the government, scream I hate you for a few hours, and return home, safely, in time for supper. The people who object to the state have every right to voice their objections. The right to peaceably assemble must not be abridged by the government.More from Mystal

But what were not going to do is collapse the difference between the governments criminalizing political speech (which it cannot do) and private companies banning violent extremists from their services (which they should have done already). What were not going to do is require private companies to give a platform to Republican elected officials so those officials can give aid, comfort, and legitimacy to those violent extremists. What were certainly not going to do is let people who are literally talking into a cable news microphone whine about being silenced. The First Amendment was not created so Republicans with presidential ambitions could play footsie with extremists while maintaining plausible deniability. If Republicans want to freely associate with these people, go, associate, and let everybody know what youre doing. Nobody will stop you. Just dont come crying to Twitter because its harder to slide into its DMs.

What stopped the Proud Boys, banned from social media, from showing up in-person at state capitols? What stopped the Congressional Seditionist Caucus from protesting alongside their people on Inauguration Day, instead of participating in the ceremony inaugurating a new president theyve spent two months claiming is illegitimate? What stopped Trump from holding a press conference, in the room in his old house that was designed for such a thing, after he was banned from Twitter? Twitter only went live in 2006. How do all these people think protests were organized in 2005? Do these white wing nuts think Paul Revere came home one night and said, Honey, Ive been deplatformed. Nobody will sell me a saddle. Curse you, King George, you mad, brilliant bastard.

Nah, the people who tried to rebel against the government on January 6 had the same suite of First Amendment protections that were available to them on January 20. What they lost over the intervening two weeks was courage. And nerve. And the false sense of importance generated by spending their lives in an online echo chamber. Its not fun plotting the violent overthrow of the government when nobody can like your rebellion. Its not cool to share baseless online conspiracies when your employer fires you the next day. Its not strong to share memes about harming elected officials when it gets you kicked off the force.

These people will be back, of course, because social media companies have a business incentive to bring them back. The platforms want to create echo chambers and news silos where extremists feel safe and can have their worldviews confirmed by the wisdom of the like-minded crowd. Telling people youre right keeps them glued to the screen, sharing their information and seeing advertisements. Telling people youre a crazy nut job makes them feel sad and put down their phones. I do not believe people like Mark Zuckerberg or Jack Dorsey have learned anything from the insurrection they helped foment that will prevent them from making the same mistakes in the future. Even if they have, there will always be another tech bro eager to grab the underserved white-supremacist market share.

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Social media companies can never again act like theyre merely neutral players in the marketplace of ideas. Theyve created tools that can be used to radicalize people to commit violence. Theyve created a way for strongmen (and con men playing at strongman) to mobilize an insurrection against the government. If they refuse to police the forces theyve unleashed, our country will continue to be overrun with lies and violence.

But these problems are not intractable. The forces that led to Trumpism are not destined to thrive. Flush out the violent leaders of these movements from their online hidey-holes and leave their deranged followers to protest in peace. We can survive the people who are actually willing to show up to a protest; we cant survive people who have been sent to mount an insurrection. Showing up to a protest is a right, one that requires some measure of courage. Showing up to an insurrection is a violation of that right, and must be met with accountability and justice.

Inciting a mob online through social media is not a right. It is a privilege. One that social media companies should revoke. After four years of Trump, we now have proof that deplatforming liars and violent extremists just might save the country.

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Twitter and Facebook Just Proved That Deplatforming Works - The Nation