Category Archives: Free Speech

Remembering Frank Borman

Re: Frank Borman Commander of Apollo 8 flight, Friday Metro & Business obituary.

Frank Borman was truly an Apollo space program hero. When the lunar landing vehicle tests in Earth orbit were delayed, NASA reassigned his flight, Apollo 8, to a daunting and very risky mission to orbit the moon.

On Dec. 21, 1968, he, James Lovell and William Anders were launched on the first manned launch from Launch Complex 39 at the Kennedy Space Center, in the second crewed flight of the newly redesigned Apollo spacecraft, and atop only the third launch of the powerful Saturn V rocket.

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They were the first human beings to be free of Earths gravity, and they successfully orbited the moon 10 times, returning to Earth on Dec. 27. During the flight, they took photos and gathered celestial navigation information that would be useful for follow-on Apollo flights. In addition, they took the iconic photo of earthrise and performed the inspired Christmas Eve readings from the Book of Genesis.

With the Vietnam War raging, the assassinations of Martin Luther King Jr. and Robert F. Kennedy, and mass civil unrest causing riots in major cities, 1968 was a tumultuous year. Bormans flight helped to close 1968 with a much-needed national triumph.

Edgar J. Manton, Heath

The Nov. 9 Letters to the Editor had three letters speaking to the kind of things we should be voting for and the kind of fears we should have about the promises of revenge being made by former President Donald Trump if he is re-elected. All three letters are spot on.

While reading them, something that I saw on a newscast after the Tuesday elections came to mind. It was something former Pennsylvania Sen. Rick Santorum said, and it is not the first time Ive heard it expressed. Santorum stated that pure democracies are not the way to run a country.

This is perhaps the most insidious thing I have heard. It is a seemingly off-the-cuff but devastatingly destructive phrase.

I suppose people who think in this way are people who believe in the divine right of kings, a belief that leaders are handpicked by God to rule. This belief held sway for a very long time in history.

This is the very thing our Founding Fathers wrote about and fought against. It was their hope to move history toward a time when the rights of individuals held sway. That has been so with greater and lesser success.

Weber Baker, Farmers Branch

Re: Colleges must not cower before protesters, by Morgan Marietta, Wednesday Opinion.

Thank you for printing this essay by Morgan Marietta. Marietta has been in the news regarding a public discussion at UT-Arlington. Im glad Marietta was given a place to express the issues of free speech.

Some decades ago, I was privileged to have Allan Saxe as one of my professors at UTA. Several times over the course of the semester, Saxe would realize he had said something that my fellow students were passionate about. It would yield a funny, intriguing, informative and in-depth discussion of events and politics.

Near the end of each class, Saxe would laugh and tell us the importance of listening and learning from each other, no matter the topic and views.

Several years ago, Saxe was the keynote speaker at a function I attended where he discussed the Bill of Rights and U.S. Constitution. I spoke with him afterward to thank him for teaching me to think all those years ago. He quietly told me that our world was changing and he probably could not teach the same today. I am saddened to see that Saxe seems correct after the events Marietta was part of.

Ray Janes, Highland Village

Its time to respond to the political sound bites regarding Joe Bidens economy. Since our countrys inception, our presidents have taken the mostly undeserved credit and blame for our good and bad economies.

While the president can influence economic policy through various means, including fiscal and regulatory measures, the economy is a complex system that is influenced by a multitude of factors, many of which are beyond the control of any single individual or administration.

Several key factors can affect the economy, among them global economic trends, technological advancements and natural disasters. The U.S. economy is affected by the actions of the Federal Reserve, Congress and various other governmental and nongovernmental entities, as well as by the decisions and actions of businesses and consumers.

Economic changes often take time to materialize, and it can be challenging to attribute specific economic outcomes solely to the actions of any one president. When evaluating the state of the economy, it is essential to consider a wide range of factors, both domestic and international, that contribute to its performance.

Jerry Lawson, Allen

I recently attended a human trafficking lecture, and it occurred to me that our federal government is allowing humans to cross our border, and our state government is trafficking these humans into our country. There is very little common sense on display here, just a lot of political posturing.

While political posturing may be good for campaign contributions, it does nothing to help our nation. Rather than all this nonsensical grandstanding, can our federal and state governments not work together to address and, hopefully, solve this severe crisis that is so detrimental to our national well-being?

Jaime Vela, Denton

We welcome your thoughts in a letter to the editor. See the guidelines and submit your letter here. If you have problems with the form, you can submit via email at letters@dallasnews.com

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Letters to the Editor Astronaut Borman, UTA free speech, economy, border crisis - The Dallas Morning News

College campuses would not flourish without the freedom of speech, said a First Amendment lawyer on free speech at an on-campus forum.

Not only is free speech important, but there is particular solicitude for it on our university and college campuses, said Ronnie London, a general counsel lawyer with the Foundation for Individual Rights and Expression.

London spoke on Wednesday, Sept. 27, at the Universitys First Amendment Forum and clarified what the highly debated amendment protects and what it does not. He explained that certain categories of speechsuch as true threats, fighting words, fraud, blackmailare classified as unprotected speech.

Part of utilizing free speech rights, said London, is recognizing ones ability to disagree with others. He called this an internally radical idea that uses speech and not force to resolve our differences.

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Nobody is infallible. Nobody has a monopoly on the truth, and there is no authority out thereor there should be no authority out thereto decide for every single individual what the truth is, he said. Wars and crusades and persecution should not be the ideal. Its not healthy for anyone, and it rarely actually solves anything.

London highlighted Sweezy v. New Hampshire, a 1957 United States Supreme Court case pertaining to the role of free speech at a state university. In the case, a professor had gone to jail for refusing to answer questions about a lecture he had given; however, the court ruled the jailing as a violation of due process, and he was released.

London labeled this case as one of the first to seek judgment on the First Amendment as it applied to a college campus.

He went on to talk about hate speech and how different groups of people may define it differently, saying that it is in the eye of the beholder.

It is not for an official body, like the university, like the government, to pick sides on those issues, London said.

While the term hate speech can be subjective, speech that brings direct discriminatory harassment is punishable by those institutions. However, to reach punishment, London said that the speech must reach a high level of discrimination.

He defined discriminatory harassment as an action so severe, pervasive and objectively offensive and targeted to an individual or group of individuals that it effectively bars the victims access to educational opportunities or benefits.

Additionally, London said that when a person confronts an idea that upsets them, sometimes ignorance is bliss.

I find ignoring things to be terribly underrated, he said.

London also said that silencing the opposite side can do more harm than good.

Youve lost the opportunity to persuade them that theyre wrong, he said. Also, youve lost the opportunity to persuade everyone else who might see it.

Speaking up is not to be confused with censorship, though, he said.

Once you try and shut down that speaker, youre not speaking anymore. Youre censoring, London said.

London believes that free speech is a vital part of our society, an idea that University President Brad D. Smith agrees with.

The right to free speech is the most foundational element of our democracy and of our country, Smith said. What we learned here today is what is offensive, or what ends up being defensive, is a very individual interpretation, and its not subject to an institution to make that decision.

He went on to say, This is a skill we have to develop in ourselves and we have to learn to understand and appreciate others.

First Lady Alys Smith, meanwhile, said that the presence of free speech is a needed element on campus.

Free speech is exactly what we need so that people have the free exchange of ideas, she said. Its the only way we learn from each other, even if we dont like what we hear.

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First Amendment Forum Discusses Free Speech - The Parthenon - MU The Parthenon

Artificial intelligence could be used to disrupt U.S. election campaigns, members of the U.S. Senate Committee on Rules and Administration said during a Wednesday hearing.

But the hearing showed that imposing laws and regulations on campaign content without violating constitutional rights to political speech will be difficult.

Elections pose a particular challenge for AI, an emerging technology with potential to affect many industries and issues, committee Chair Amy Klobuchar, a Minnesota Democrat, said. AI can make it easier to doctor photos and videos, creating fictional content that appears real to viewers.

Klobuchar called that untenable for democracy.

Klobuchar said the hearing underscored the need for Congress to impose guardrails for the use of AI in elections. Klobuchar is the lead sponsor of a bipartisan bill, with Republicans Josh Hawley of Missouri and Susan Collins of Maine and Democrat Chris Coons of Delaware, that would ban the use of AI to make deceptive campaign materials.

With AI, the rampant disinformation we have seen in recent years will quickly grow in quantity and quality, she said. We need guardrails to protect our elections.

But some Republicans on the panel, and two expert witnesses, also warned that regulating AIs use in elections would be difficult and perhaps unwise because of the potential impact on First Amendment-protected political speech.

A law prohibiting AI-generated political speech would also sweep an enormous amount of protected and even valuable political discourse under its ambit, said Ari Cohn, free speech counsel for TechFreedom, a technology think tank.

Klobuchar twice used an example of AI-generated deep-fake images, meaning wholly false images meant to look real, that appeared to show former President Donald Trump hugging Anthony Fauci. Fauci is the former leader of the National Institute of Allergy and Infectious Diseases who is deeply unpopular with some sections of the Republican electorate because of his positions on COVID-19.

The images were used in a campaign ad by Florida Gov. Ron DeSantis, who along with Trump, is running for the 2024 Republican nomination for president.

Trevor Potter, the former chair of the Federal Election Commission, testified that election laws are intended to help voters by requiring transparency about who pays for political speech and who is speaking. AI could upend those goals and make interference by foreign or domestic adversaries easier, he said.

Unchecked, the deceptive use of AI could make it virtually impossible to determine who is truly speaking in a political communication, whether the message being communicated is authentic or even whether something being depicted actually happened, Potter said. This could leave voters unable to meaningfully evaluate candidates and candidates unable to convey their desired message to voters, undermining our democracy.

Klobuchar asked the panel of five witnesses if they agreed AI posed at least some risk to elections, which they appeared to affirm.

Misinformation and disinformation in elections is particularly important for communities of color, said Maya Wiley, the CEO of the Leadership Conference On Civil And Human Rights.

Black communities and those whose first language is not English have been disproportionately targeted in recent elections, including material generated by Russian agents in 2016, she said.

Misinformation in campaigns has been attempted without AI, said Neil Chilson, a researcher at the Center For Growth And Opportunity at Utah State University. Deception, not the technology, is the problem, he said.

If the concern is with a certain type of outcome, lets focus on the outcome and not the tools used to create it, Chilson said in response to questioning from ranking Republican Deb Fischer of Nebraska.

Writing legislation narrowly enough to target deceptive uses of AI without interfering with common campaign practices would be difficult, Chilson said.

I know we all use the term deep fake, but the line between deep fake and tweaks to make somebody look slightly younger in their ad is pretty blurry, Chilson said. And drawing that line in legislation is very difficult.

If a federal law existed, especially with heavy penalties, the result would be to chill a lot of speech, he added.

U.S. Sen. Bill Hagerty, a Tennessee Republican, said he didnt trust the Biden administration and Congress to properly balance concerns about fraudulent material with speech rights and fostering the emergence of AI, which has the potential for many positive uses in addition to possible nefarious ones.

While he said he saw issues with AI, Congress should be careful in its approach, he said.

Congress and the Biden administration should not engage in heavy-handed regulation with uncertain impacts that I believe pose a great risk to limiting political speech, he said. We shouldnt immediately indulge the impulse for government to just do something, as they say, before we fully understand the impacts of the emerging technology, especially when that something encroaches on political speech.

Responding to Hagerty, Klobuchar promoted her bill that would ban outright fraud that is created by AI.

That is untenable in a democracy, she said.

Minnesota Secretary of State Steve Simon testified that while it may be difficult for courts and lawmakers to determine what content crosses a line into fraud, there are ways to navigate those challenges.

Sen. Hagerty is correct and right to point out that this is difficult and that Congress and any legislative body needs to get it right, he said. But though the line-drawing exercise might be difficult, courts are equipped to draw that line.

Congress should require disclaimers for political ads that use AI, but such a requirement shouldnt replace the power to have content removed from television, radio and the internet if it is fraudulent, Klobuchar said.

She added that in addition to banning the most extreme fraud, her priorities in legislation that could see action this year would be to give the FEC more authority to regulate AI-generated content, and requiring disclaimers from platforms that carry political ads.

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U.S. Senate panel weighs free speech and deep fakes in AI ... - Minnesota Reformer

A former law lecturer who has raised tens of thousands of pounds to bring an unfair dismissal case against the Open University has claimed that universities remain largely oblivious to their academic freedom responsibilities, despite recent legislation.

Almut Gadows case has been championed by critics of universities who say institutions have endemic issues with free speech and academic freedom. Her crowdfunder, which has raised its initial target of 70,000, is being supported by the Free Speech Union.

She alleges that she was fired from the UKs biggest higher education provider for questioning gender identity-based changes to the curriculum.

The OUsaid her dismissal for gross misconduct was upheld on appeal and that it rejected the offensive and spurious allegations she has made.

Her case focuses on the universitys law school which like many academic departments has been attempting to liberate its degree programmes. Dr Gadow said this included instructions to teach students about diverse gender identities and to use the preferred pronouns of offenders in case studies. She objected to this, saying it conflicted with a lawyers role of focusing on the facts of a case and was adistraction for students.

I dont object to some people having this agenda in the same way as I dont mind people having whatever politics they choose to, Dr Gadow told Times Higher Education.

What I mind is academic institutions feeling that they can force academics to become conduits of that agenda. Thats what I am trying to challenge.

Dr Gadow said she had repeatedly attempted to question the changes, including on an online staff forum, but her posts were removed by management.

Questioning what is in module materials has always been a part of what tutors do, said Dr Gadow, who worked for the OU for nearly a decade.

Normally when one raises these kinds of issues, provided you do it courteously, the answer would always be, Thanks, well have another look at it.

From the very first time I raised issues of gender, the answer was, We will not change any material in this regard full stop, and this is the last thing we will say about it.

The case comes after the passing of the Higher Education (Freedom of Speech) Act, which created a new free speech champion post within the Office for Students, now held by Arif Ahmed, and handed the regulator new powers to enforce free speech responsibilities. Dr Gadow said time will tell whether this would have made a difference to her case.

I could have gone to the free speech tsar, and he certainly could have intervened to some extent, Dr Gadow said. Iknow some academics think he will go in and sort it all out, but if you have ever looked at regulation, you will know that is not really likely.

Even where a regulator finds one of the entities it regulates to be breaking the law, in the overwhelming majority of cases they do no more than provide words of advice.

Universities can also be sued under the new act when it fully comes into force, but Dr Gadows case instead draws on Article10 of the European Convention on Human Rights and the UKs Equality Act in an attempt to entrench academic freedom protections in employment law.

In theory, it is already the case that human rights law protects academic freedom to a very high degree, she said. But it has never been put before a judge, so in practice universities are largely oblivious to this.

A spokesperson for the OU said: Almut Gadow was dismissed after a finding of gross misconduct. The dismissal was upheld at an appeal hearing chaired by an independent and senior barrister.

Since being dismissed, Almut Gadow has made a series of offensive and spurious allegations online which we reject in the strongest of terms. We welcome the opportunity the tribunal hearing provides to present our evidence about the facts of this case.

tom.williams@timeshighereducation.com

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What can Gadow case tell us about free speech? - Times Higher Education

Unifying moments worthy of celebration are woefully rare in modern politics. Especially when it comes to free speech.

New Jersey just earned one.

Thats because Gov. Phil Murphy recently signed a new law passed unanimously by both houses of the legislature that strengthens the free speech rights of all New Jerseyans.

The law, called the Uniform Public Expression Act (UPEPA), is whats known as an anti-SLAPP law. SLAPP stands for strategic lawsuit against public participation. SLAPPs are lawsuits aimed at preventing speakers from exercising political speech rights, usually using a meritless defamation claim as the pretense for a suit. Without anti-SLAPP protections, plaintiffs with deep pockets can use costly litigation to silence speech they dont like.

Laws like UPEPA help speakers of all kinds defend themselves against SLAPPs. Without such defenses, the burdens and costs of fighting SLAPPs can not only crush political speech but can also be personally and financially devastating to speakers targeted by such lawsuits. Moreover, in jurisdictions without anti-SLAPP protections, the looming threat of potential SLAPPs chill speech. This means that would-be speakers will avoid speaking in the first place for fear of suffering serious consequences merely for exercising their First Amendment rights.

In passing UPEPA, New Jersey joins 32 other states and the District of Columbia as jurisdictions with anti-SLAPP laws. Even better, New Jersey becomes the 20th state to pass a strong anti-SLAPP law. New Jersey previously had no anti-SLAPP protection at all, which prompted it to earn a grade of F in the Institute for Free Speechs 50-state Anti-SLAPP Report Card.

UPEPA dramatically improves that dismal free-speech landscape. The law closely tracks the model anti-SLAPP language recommended by the respected, nonpartisan Uniform Law Commission. This language ensures that an anti-SLAPP law contains key provisions that enhance deterrence of SLAPPs.

These provisions help to deter SLAPPs and minimize litigation costs for defendants, including permitting a winning defendant to recover an award of costs and attorney fees. Other essential provisions include a requirement that plaintiffs show that they have a legitimate case early in the proceedings. Defendants also have a right to an immediate appeal if the court denies an anti-SLAPP motion. Finally, the new law instructs judges to interpret the laws speech protections broadly, helping to ensure that those protections extend to expression on any matter of public concern.

The effectiveness of this language and the importance of such laws have attracted the support of groups from across the political spectrum. In fact, a diverse coalition of 28 signers, including organizations such as the ACLU, National Right to Life, International Association of Better Business Bureaus, Motion Picture Association, and the News Media Alliance, published an open letter in support of the Uniform Law Commissions model UPEPA in 2022, with the Institute for Free Speech as an organizing member.

This wide range of support reflects the positive impact that anti-SLAPP laws have on the fundamental right to free expression. Even in these politically charged times, anti-SLAPP laws often enjoy tremendous bipartisan support because they safeguard everyones right to free speech.

That was certainly the case in New Jersey. The bill that became UPEPA had deep bipartisan sponsorship and passed without a single no vote in either the Assembly or the Senate.

Now, New Jerseyans of either party or no party can celebrate the fact that their elected officials have not only addressed a significant legal shortcoming in the state, but they have done so with a new law that is among the strongest in the entire country.

As a result, New Jersey speakers can speak more freely, secure in the knowledge that they enjoy legal protections against those who would silence them.

David Keating, of Chevy Chase, Md., is the president of the Washington-based Institute for Free Speech.

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NJ flips to strongly protecting free speech from lawsuits, by David ... - Press of Atlantic City

Earlier this week, EFF joined the ACLU and 59 partner organizations to send a letter to Senate Majority Leader Chuck Schumer urging the Senate to reject the STOP CSAM Act. This bill threatens encrypted communications and free speech online, and would actively harm LGBTQ+ people, people seeking reproductive care, and many others. EFF has consistently opposed this legislation. This bill has unacceptable consequences for free speech, privacy, and security that will affect how we connect, communicate, and organize.

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The STOP CSAM Act, as amended, would lead to censorship of First Amendment protected speech, including speech about reproductive health, sexual orientation and gender identity, and personal experiences related to gender, sex, and sexuality. Even today, without this bill, platforms regularly remove content that has vague ties to sex or sexuality for fear of liability. This would only increase if STOP CSAM incentivized apps and websites to exercise a heavier hand at content moderation.

If enacted, the STOP CSAM Act will also make it more difficult to communicate using end-to-end encryption. End-to-end encrypted communications cannot be read by anyone but the sender or recipient that means authoritarian governments, malicious third parties, and the platforms themselves can read user messages. Offering encrypted services could open apps and websites up to liability, because a court could find that end-to-end encryption services are likely to be used for CSAM, and that merely offering them is reckless.

Congress should not pass this law, which will undermine security and free speech online. Existing law already requires online service providers who have actual knowledge of CSAM on their platforms to report that content to the National Center for Missing and Exploited Children (NCMEC), a quasi-government entity that works closely with law enforcement agencies. Congress and the FTC have many tools already at their disposal to tackle CSAM, some of which are not used.

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EFF, ACLU and 59 Other Organizations Demand Congress Protect ... - EFF

Within just my first year as The Tennesseans inaugural First Amendment reporter, many remarkable issues have arisen, though one story in particular took the fight for freedom of expression to the national level: that of the states attempt to restrict drag performances through the law.

The story for me, anyway, started as many drag-related stories do: with sore feet and an insufferable number of outfit changes.

Instead of performing on a stage, however, swathed in glitter and creative costumes, I was driving at an ill-advised speed across the state of Tennessee at 1 a.m. in early October 2022. I had just traded the nude stilettos and maroon dress I wore for my twins wedding rehearsal for a pair of beat-up boots and jeans to report on a drag performance in Jackson, Tenn. A drag performance that, unbeknownst to me, would mark the very beginning of the massive cultural debate in the state.

Weeks previously, my colleague and I heard through our local grapevine rumblings of conflict in our small west Tennessee city regarding an upcoming Pride event and drag show. Although this was just before my transfer to The Tennessean as the First Amendment reporter, the pushback to a constitutionally protected activity immediately piqued our interest.

Leading the charge against the event was a local legislator and members of a local church who hours before the event was scheduled to begin argued in court to restrict the event to adults-only attendance, something organizers ultimately agreed to do. Members of the local church advocated heavily for the cancellation of the event, saying events like these ridicule the basic laws of nature and decency and are an improper usage of the First Amendment.

The restriction of the show to adults-only was not enough, in the legislators own words, and he vowed before my furiously scribbling pen that he would take this to the Tennessee General Assembly to prevent such performances from happening across the entire state.

We had no idea that our coverage of the event would lead to months of follow-up stories and serve as the basis for an intense clash between First Amendment rights and religious beliefs. Lawmakers passed a measure classifying male and female impersonators as adult cabaret and restricted performances to adults, private property and away from any place where they could be seen by or be harmful to minors.

I could go on about the research we did as the story swelled beyond me and the Jackson city limits. I spent hours in the halls of the state legislature, made dozens of phone calls to both supporters and dissenters of the law and collaborated with my new colleagues in Nashville and beyond as I fully took over the First Amendment beat.

Despite intense backlash from across the country, the bill restricting some drag performances became law in early March of 2023, before being swiftly halted by a federal judge as a lawsuit against it worked its way through the courts.

The lawsuit came from a theatre group in Memphis continuing the citys long history of standing up to discrimination and resulted in a Trump-appointed judge ruling that the law was an unconstitutional infringement on the freedom of expression and speech, and it was directly targeting drag performers in a discriminatory way. Additionally, the judge noted that the law could have much farther-reaching effects than written because both the vagueness of the laws language and the incorrect usage of the legal definition of obscene left people with no way to accurately determine if they were breaking the law.

Some of the facts used to determine the outcome were the very statements the local legislator said to me back when this all began defining his push for the bill as a targeted effort against drag performances, despite his latter statements claiming the opposite. Ironically, freedom of speech and expression is what was threatened under this bill, and the legislators own freedom of speech is what helped stop the bill.

The underlying point is that speech and the reporting of such is incalculably important. Journalism is about the people, and even bigger than that, the freedom people have thanks to the First Amendment. By the people, for the people and so in a rather cyclical analogy, the people are the speech, and the speech is the story.

Beyond our papers research for this topic, the story was about the young drag performer who stepped shakily onto a Nashville stage for their debut performance, too scared to come out to their parents but so elated to find solace in the local drag community. It was about the long-performing drag queen who excitedly led me backstage after a show closed, dripping rhinestones and smeared makeup, to show me his custom clothing designs that got him through fashion school. It was about the parent who tearfully shouted encouragement for their adult child as they stepped confidently onto the stage, later telling me about how her son used to be terrified to even make eye contact with strangers.

And it was about the local pastor who although very confused on how drag performances worked (Are they all queens? he asked. Is there a ranking system?) was even more confused why there was such a push to restrict free expression, with a law that could be so swiftly used as a weapon to discriminate with abandon.

What is more godly than living as God made you? he asked me. I didnt have an answer that night.

But an answer did come, in a way, when the judge affirmed what many of us know: that the freedom of speech and expression is not about whether you like the speech or not. Its about allowing the vastness of the human experience to be expressed equally in our diverse society, from the halls of the state legislature to a small stage in Jackson, Tennessee. And to express that fully, reporters must continue to focus every single story on what matters most: the people.

And, clearly, I need to focus on wearing comfier heels.

Angele Lathams position as the First Amendment reporter for The Tennessean is made possible thanks to a partnership among the Journalism Funding Partners, the Freedom Forum and The Tennessean.

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First Five: Covering drag and free speech in Tennessee - Southwest Virginia Today

Judge David A. Rodabaugh, Lima Municipal Court, shared Constitutional Limits on State and Federal Governments Regarding the Rights of Private Citizens, during Bluffton Universitys Constitution Day Forum on Tuesday, Sept. 19.

During the event, Rodabaugh discussed the recent Supreme Court decision for 303 Creative LLC v. Elenis. The case dealt with matters of free speech, nondiscrimination and LGBTQ-rights.

Free and open to the public, this presentation served as Blufftons Constitution Day annual educational event.

A lot of people dont know whats in it. You need to read it and see whats therethe rights and interests you have, said Rodabaugh. You may not know it, but it affects you on a daily basis. Without the Constitution, what do we have? Another king? A dictator? The Constitution protects individuals and protects our freedoms.

All educational institutions which receive federal funds are required to offer an instructional program each year on or near Sept. 17, the day the U.S. Constitution was signed in 1787.

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Judge Rodabuagh discussed free speech, nondiscrimination at Forum - Bluffton Icon

Nearly 500 anti-LGBTQ bills have been introduced in state legislatures in the U.S. in 2023. Many of those bills seek to reduce or eliminate gender-affirming care for transgender minors or to ban drag performances in places where minors could view them.

Most of those bills have not become law. But many of those that have did not survive legal scrutiny when challenged in court.

Anti-LGBTQ laws that federal judges have concluded do not pass constitutional scrutiny include anti-trans legislation in Arkansas and anti-drag legislation in Tennessee.

A notable feature of these rulings for me a First Amendment scholar is how many rely on the First Amendments protection of free speech. In several of the decisions, judges used harsh language to describe what they deemed to be assaults on a fundamental American right.

On June 2, 2023, a federal judge permanently enjoined Tennessees attempt to limit drag performances by restricting adult entertainment featuring male or female impersonators. When a law is permanently enjoined, it can no longer be enforced unless an appeals court reverses the decision.

The judge ruled on broad grounds that Tennessees law violated freedom of speech, writing that it reeks with constitutional maladies of vagueness and overbreadth fatal to statutes that regulate First Amendment rights. He also ruled that the law was passed for the impermissible purpose of chilling constitutionally-protected speech and that it engaged in viewpoint discrimination, which occurs when a law regulates speech from a disfavored perspective.

Three weeks later, a federal judge granted a temporary injunction against Floridas anti-drag law on similar broad grounds.

And in Utah, a federal judge required the city of St. George to grant a permit for a drag show, ruling that the city had applied an ordinance in a discriminatory manner in order to prevent the family-friendly drag show from happening. As in the other cases, the judges ruling was based on First Amendment precedent.

On June 20, 2023, a federal judge permanently enjoined an Arkansas law, passed in 2021 over the veto of then-Gov. Asa Hutchinson, preventing transgender minors from receiving various kinds of gender-affirming medical care, including puberty blockers and hormone therapy.

The judge held that Arkansas law violated the Fourteenth Amendments equal protection clause which ensures laws are applied equally regardless of social characteristics like race or gender because the law discriminated on the basis of sex.

Arkansas claimed its law was passed in order to protect children and to safeguard medical ethics. The judge agreed that these were legitimate state interests, but rejected Arkansas claim that its law furthered those ends.

The judge also held that Arkansas law violated the First Amendment free speech rights of medical care providers because the law would have prevented them from providing referrals for gender transition medical treatment.

During June 2023, federal judges in Florida and Indiana granted temporary injunctions against enforcement of similar state laws. This means that these laws cannot be enforced until a full trial is conducted and only if that trial results in a ruling that these laws are constitutional.

In striking down these unconstitutional state laws on First Amendment grounds, many judges went out of their way to reinforce the point that freedom of speech protects views about sexual orientation and gender identity that may be unpopular in conservative areas.

In his ruling on the St. George, Utah case, U.S. District Judge David Nuffer stressed that Public spaces are public spaces. Public spaces are not private spaces. Public spaces are not majority spaces. The First Amendment of the United States Constitution ensures that all citizens, popular or not, majority or minority, conventional or unconventional, have access to public spaces for public expression.

Nuffer also noted that Public officials and the city governments in which they serve are trustees of constitutional rights for all citizens. Protecting the constitutional rights of all citizens includes protecting the constitutional rights of members of the LGBTQ community and of other gender-nonconforming people.

Free speech rights also extend to those who want to use speech in order to help promote the well-being of LGBTQ people. In ruling that Arkansas law violated the First Amendment, Judge Jay Moody stated that the state law prevents doctors from informing their patients where gender transition treatment may be available and that it effectively bans their ability to speak to patients about these treatments because the physician is not allowed to tell their patient where it is available. For this reason, he held that the law violated the First Amendment.

As additional anti-LGBTQ state laws are challenged in court, judges are likely to continue to use the First Amendment to show how such laws fail to respect Americans fundamental free speech rights.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Anti-LGBTQ laws in the US are getting struck down for limiting free ... - Oregon Capital Chronicle

Justin Hendrix is CEO and Editor of Tech Policy Press.

On Friday, I attended a packed lunchtime discussion hosted by the Harvard Law School Rappaport Forum titled Censorship, Content Moderation, and the First Amendment. The panel was moderated by Noah Feldman,a Professor Law at Harvard. Speakers included Jameel Jaffer,Adjunct Professor of Law and Journalism at Columbia Law School & Executive Director of the Knight First Amendment Institute, Columbia University; and Daphne Keller,Lecturer on Law at Stanford Law School & Director of the Program on Platform Regulation at the Stanford Cyber Policy Center.

The discussion focused on issues that may soon be considered by the US Supreme Court, including the constitutionality of laws passed in Texas and Florida that would prevent social media platforms from taking action on certain political speech. In August, the Biden administration urged the Court to decide whether the laws are constitutional, and it is expected to do so.

And, the Rappaport Forum panel also considered Missouri v Biden in light of the recent US Fifth Circuit Court of Appeals ruling against the Biden administration. That case concerns what is permissible government persuasion and what is impermissible coercion and significant encouragement when lobbying social media companies to make certain content moderation decisions. On Tuesday, the government asked the Supreme Court to pause a block on its contacts with social media companies, while the plaintiffs seek a rehearing of the Fifth Circuit decision to address its scope.

(For another compelling, recent perspective on the issues in Missouri v Biden, I recommend reading former Twitter trust and safety head Yoel Roths essay, published today by the Knight First Amendment Institute, which focuses on the portion of the Fifth Circuit ruling concerning the FBI drawing on his personal experience.)

With the Law Schools permission, Im publishing the transcript of the Rappaport Forum discussion here, as it is a useful and accessible way to engage with the issues at play. As the Knight First Amendment Institutes Jaffer put it, the courts are going to hear this full slew of cases over the next few years relating to the governments power to influence or coerce or expose the social media companies content moderation decisions. And I think it hardly needs to be said that those cases are going to have an immense effect on the character of digital public sphere and therefore on our democracy as well.

Id add only that the effects will extend well beyond the US, since it will change the ways in which global social media platforms conduct themselves when it comes to content moderation and political speech. The implications may be even more profound in countries far beyond the jurisdiction of US courts.

This transcript is lightly edited.

Noah Feldman:

I just want to say a word about the two leading topics that well be talking about. And we will, Im sure expand beyond just those topics. The first is a set of cases that are in front of the US Supreme Court now that are being briefed and will be argued this Supreme Court term and decided, one expects, by the end of June, involving laws passed by Florida and Texas that in their form regulate what social media platforms may and may not do in their content moderation.

And to oversimplify, each of these laws imposes on the platforms something like the standard that the First Amendment imposes on government in moderating content. As you know, that standard and not just those of you who were in my First Amendment class, welcome, glad youre here. We just had two hours of First Amendment. So these are the real, the people really committed to the First Amendment and I thank you for coming.

As you know, all of you, the standards that a private company and the social media platforms are private companies, are ordinarily held to, are not First Amendment standards. Because the first amendment in the first instance only regulates the government. These state laws therefore would put the content moderation operations within those companies in a very different position with respect to what they can and cannot moderate than they presently are. It would require far, far less moderation of things like hate speech and misinformation and possibly even ordinary everyday offensiveness than they practice under current circumstances. And the circuit courts of appeals split on the constitutionality of those laws and thats why its before the Supreme Court now.

Hard to imagine a topic more important for free speech in the United States today than what are the standards that the social media platforms may or may not use to determine what content can be on those platforms? And here that issue arises in direct relationship to the First Amendment.

The other is also before the Supreme Court, but in a slightly different procedural posture, if youll forgive the legalese. It is a case involving an argument by individuals whose content was taken down from social media sites for violating their rules on COVID misinformation. Who alleged in district court where they won a preliminary injunction. That the Biden administration convinced by means of encouragement and even coercion the platforms to take down their content by fine-tuning their content moderation misinformation standards to prohibit what they were doing.

The US Court of Appeals for the Fifth Circuit partly upheld a preliminary injunction issued by the lower court. It narrowed it down to just the Biden administration and not people in the CDC and the Supreme Court decided to stay that order until I think four oclock today and gave until the end of the day Wednesday for people to submit briefs. So its very probable that before you go off to your happy hours this evening, there will be a Supreme Court decision on this fascinating and rich issue, which sometimes we use the shorthand to call it, we call it jawbone. I actually dont know the intellectual origins of that phrase because it sounds to me like Samson and the jawbone of the ass, and that didnt end well for the Philistines.

Daphne Keller:

It is.

Noah Feldman:

Is that actually the origin? I always thought it had something to do with the fact that you talk out of your jaw, but I guess not. If so, its a very loaded metaphor, I guess it assumes a conclusion.

But what is meant is circumstances where government officials use persuasion, and persuasion that may go up to the line, will cross the line of coercive persuasion to the point where the decision to remove the speech becomes in law the speech of the government. And by becoming the speech of the government, is regulated by the First Amendment. Okay, so for those of you who havent taken First Amendment or havent taken it recently, the idea is that the government ordinarily can say whatever it likes, but it cant stop people from speaking. Private parties can stop other private parties from speaking and theyre not stopped by the First Amendment from doing so.

But if the private party, the social media company, removes the speech of another private person and does so because the government made them do it, then at that point it becomes the governments speech Act and then it cannot lawfully be performed. It wouldve been fine on that theory if the platforms did it themselves, but its not constitutional if they did it by being pushed into it according to some complex legal standard by the government. Without further ado, Daphne, the floor is yours.

Daphne Keller:

Thank you so much and thank you to Harvard and the Rappaport Forum for hosting us here.

So Ive been practicing platform speech law for a long, long time and Ive been teaching it for 11 years, I just realized. And when I started teaching it, every single class was on the topic that lawyers call intermediary liability. So thats the question of when the law can or should require platforms to take down user speech because that speech or that content is unlawful and its doing harm in violating the law by being distributed further by the platforms. And every year that I teach for the past five or six years, Ive had to drop a day of talking about that question, which is when does the law require platforms to silence their users? And add more material about the opposite question, which is when can the law stop platforms from silencing their users?

Are there situations where there can be, what we call must carry laws compelling platforms to carry speech against their will because a government body has decided that thats whats in the public interest? And as we know from Noahs introduction, in these cases coming out of Texas and Florida, that theyre likely to go to the Supreme Court soon, those states are asserting the right to compel platforms to carry speech that they dont want to. But lest you think that other issue has gone away, there have been three state laws requiring platforms, effectively requiring them to take down user speech that got struck down as unconstitutional in the past two and a half weeks. So there is a lot of action on both sides of this. When does the law make platform silence people? When does it compel them to let people speak? And its a very complicated set of issues because there really are speech considerations on all sides.

It is quite understandable that people want to be able to talk in some of the most important public forums of our age and they dont like it when a giant corporation stops them from doing that. That is not surprising and while it is passed as politically an issue of concern to the right and to Republicans right now, I think it is absolutely a bipartisan issue. Liberals dont like being silenced by corporations either. It is, I think unsurprising that were seeing the great wave of regulation right now, including the three state laws that were just struck down and the Texas and Florida laws, because were in this historically unprecedented situation of very concentrated power over public discourse and private discourse. The things that we once would have said to each other in a church or a bar or a note passed in class are instead passed through these private companies and transmitted digitally.

And that introduces both a greater capacity for control because theyre there at all, because its a centralized power and because they can have tools that automatically detect what words you use and automatically, if inaccurately you suppress things. So its unprecedented power and because it is private power, the tools to defend users rights from surveillance under the Fourth Amendment and from censorship under the First Amendment, those legal tools dont work or they dont If they work, we dont know how they work yet because the idea of applying them to private actors in the way that some advocates want to do now is unprecedented, is unexplored territory, figuring out how that could possibly work.

I think I want to suggest that there is a problem in the way that states have responded to this concentration of power, and that this is a problem that appears on the right and the left. Again, I think a lot of this gets passed as partisan and isnt necessarily. The problem is that regulators say, Wow, private companies, YouTube, Facebook, Google, you have so much control over discourse, its terrible. Were going to have to take that over and tell you how to use it. So instead of saying, Theres a concentration of power, lets undo the concentration of power, which is conceivable through interoperability mandates or through changes in privacy law. Instead of taking that approach, the approach that you get from both the left and the right is to say, use your power in the following way. Use it to take down more of this kind of speech or use it to keep up more of this kind of speech.

And I want to drive home that, the Texas and Florida laws, although they get called must carry laws and Texas and Florida themselves claimed that they are common carriage laws, which suggests that the platforms are supposed to just carry everything that people say, they actually introduced some pretty significant state preferences about speech. They are not content neutral, theyre not speaker neutral and they incentivize platforms to do things that will suppress speech as well as maybe carrying more speech. So, one way that that works is Texass law has a mandate to be viewpoint neutral when platforms are deciding what content to take down. If they want to take down anti-racist content, then they have to also, and I said that backwards. If they want to take down racist content, they also have to leave up anti-racist content. You pick your really difficult issue and theyre supposed to carry speech on both sides of it. If they want to take down pro-anorexia content aimed at teenagers, they might have to take down anti-anorexia content aimed at teenagers.

What that does for listeners, if youre on the internet and you wanted to follow a speaker you already respect or learn about something, is as the cost of accessing the information you want, which maybe is the anti-racist speech, you have to also put up with this state mandated inclusion of the stuff that you didnt want. So it is very much changing what it is that users can see and read online at state behest in a way that raises questions, not just about platforms rights to decide what to do, but about users rights to speak or rather to access information online. It is also, I think, quite likely speaking as a former platform lawyer, that if the platform is trying to decide how to comply with the viewpoint neutrality mandate, theyll say, You know what? Id rather have no one talking about racism at all than have to carry both the pro-racist and the anti-racist viewpoints. So Im just going to take down a whole lot more speech than I used to. And thats the consequence of this, the nominally pro-free expression law in Texas.

I can tell you more about ways in which I think the laws more in the weeds to introduce state preferences for speech, but hopefully that sets out the basics of it. I have about three more minutes, right? All right. I think theres an underlying problem here or an underlying difficulty, which is about what in the trade gets called lawful but awful speech. This is this very large category of speech and I had an article in the UChicago Law Review going into more depth on this, that is legal, its protected by the First Amendment, thats probably not going to change. But it is also morally abhorrent to many people, it violates social norms and they dont want to see it. So the pro-anorexia content, the pro-suicide content, the beheading videos, the Holocaust denial, the list is very long, and its very ugly.

If we dont want to see that content on the internet, we cant use the law to make it go away. And so where weve been so far is were stuck having private companies come up with rules and enforcing the rules that theres economic demand for and social demand for, but nobody likes that either because of this concentration of power issue. And so the deeper question I think is, how to deal with that. And the answer cant be, or I hope it cant be, Well, well just ban a bunch more speech. If we will use the law to restrict all this stuff that is currently First Amendment protected. Or theres a version of that that says, You can still say all that stuff offline, but if you say it on platforms, its more dangerous, so they have to take it down. And maybe the FCC will administer a new set of rules for previously lawful speech and say platforms have to take it down.

There are a lot of directions you could go to use legal power to address that. And I think theyre all pretty scary. And so I am much more interested in approaches that go back to this idea of maybe lets not have that concentration of power. Lets build what my Stanford colleague Francis Fukuyama calls middleware or what other people call it, adversarial interoperability or competitive compatibility. Which is finding ways to make it so that internet users can decide for themselves what speech rules they want to be subject to and have a competitive marketplace of different providers coming along, letting you select the Disney flavor of YouTube or the version of Twitter that is curated by a Black Lives Matter affiliated group or the combination or something from your church. There are all these ways to layer competing speech rules on top of existing platforms that I think can take us away from this idea that there has to be just one set of rules and the government gets to say what its going to be.

Noah Feldman:

Thank you so much, Daphne. On that last topic, itll be interesting to talk about A, whether that puts people into filter bubbles and B, whether were not actually seeing the market competition now in the way that, the company formerly known as Twitter, now has radically different rules of engagement than it did previously and is yet were in competition with other factors. Jameel.

Jameel Jaffer:

So I totally disagree with everything that Daphne said.

No, its really a privilege to be up here with Daphne and Noah who are both wonderful people and really smart thinkers on this set of issues. I do need to correct one thing that Noah said. I did not, in fact, dream up the Knight Institute. It was Columbia University and the Knight Foundation that dreamt it up and then made the mistake of hiring me to build the institute. So as youve already heard, the courts are going to hear this full slew of cases over the next few years relating to the governments power to influence or coerce or expose the social media companies content moderation decisions. And I think it hardly needs to be said that those cases are going to have an immense effect on the character of digital public sphere and therefore on our democracy as well.

Some of those cases have already been mentioned, in Florida and Texas. We have these laws that require the social media companies to carry content that they would rather not carry. The laws also limit the use of recommendation algorithms, they require the companies to dispose all sorts of information to their users and to the public. Theres also this Missouri case that Noah referred to where users have sued the Biden administration over its efforts to coerce the platforms or influence the platforms into taking down what the administration saw as vaccine disinformation. I would put into this category of cases, also the TikTok cases where the Montana has banned TikTok altogether from operating in the state. And one way to think about that law is as the most extreme content moderation where TikTok cant serve any content at all to its users. There are lots of other cases Daphne referred to some of them. Lots of other cases in the lower courts right now that raise these kinds of issues. I think that the plaintiffs have a pretty good chance of prevailing in most of those cases.

And in my view, the plaintiffs probably should prevail in most of those cases. Because most of them involve what I think can fairly be described as government efforts to rig public discourse. And that is precisely what the First Amendment was meant to protect against. But I think that it matters a lot how the courts resolve those cases, how the plaintiffs win those cases. Im worried that the courts are constructing a First Amendment that sees every regulatory intervention in this sphere as a form of censorship. And I dont think that that version of the First Amendment would serve free speech or democracy very well. In my view, the First Amendment should be able to distinguish between regulation that undermines the values that the First Amendment was meant to serve. Values like accountability and tolerance, self-government and interventions that promote those values. The First Amendment needs to be able to distinguish those two categories of interventions.

And of course its important that the First Amendment be attentive to the possibility that any intervention in this sphere is an effort to distort public discourse, or that the intervention will have that effect. And I dont want to move past that too quickly. I think thats hugely important, if you doubt the importance of that, just look around the world at the way that fake news laws are being used now against journalists. So I think its hugely important that First Amendment doctrine continue to be attentive to the possibility that any regulation in this sphere has that intent or that effect. But I do think it would be a sad thing and something terrible for our democracy if the courts constructed a First Amendment that was indiscriminately deregulatory. A First Amendment that left essentially no space for regulatory intervention at all, even intervention that might be important to protecting the integrity or the vitality of the digital public sphere.

So I think its worth taking a close look at some of the arguments that the social media companies and the technology companies, more broadly, are making in these cases that we have identified already. So one of the arguments is that, the collection of user data is speech within the meaning of the First Amendment. Another is that, any regulatory intervention that implicates the platforms editorial judgment has to be subject to the most stringent form of constitutional review. Another argument is that, any regulatory intervention that focuses specifically on social media companies should be subject for that reason to the most stringent form of constitutional review. And then finally, any regulation that would be unconstitutional if applied to newspapers must also be unconstitutional if its applied to social media companies. So its not surprising that you see social media companies making those arguments. What business wouldnt want to be totally beyond the reach of regulation?

So I understand and appreciate why theyre making these arguments. But if courts accept those arguments, its not just the bad laws that we have already identified that will be struck down, its also good laws. Those kinds of arguments will preempt legislatures from passing laws that I think most of us, no matter what our political views are, would agree make sense. Privacy laws for example, that would restrict what data the platforms can collect and what they can do with that data. Interoperability laws, which Daphne already mentioned, that might make it possible for third parties to build on top of the networks that the social media companies have created. Transparency laws that would allow the public to better understand what effect the platforms engineering decisions are having on public discourse. Or process oriented laws that would give users whose speech is taken down the right to an explanation or the right to appeal that decision.

Now, I know Noah wants me to make this argument in the strongest possible way, but I need to caveat it in one respect at least, which is that, the details are going to matter a lot. Im not making the argument that every transparency law is necessarily constitutional. Again, its important that the courts be attentive not just to the reasons why legislatures are passing these laws, but to the actual effect that the laws are likely to have on First Amendment actors exercise of editorial judgment. But a First Amendment that precluded any and all regulation of social media platforms would make the First Amendment, I think the enemy of the values that we need the First Amendment to protect. Should I stop there or do I have a couple more minutes? You want me to-

Noah Feldman:

You can go on for another minute.

Jameel Jaffer:

Yeah. Okay, well only-

Noah Feldman:

Say something provocative.

Jameel Jaffer:

Okay. All right.

Noah Feldman:

The last time I had a discussion with Jameel, we got into a yelling argument that took an hour and a half and its all on video somewhere.

Jameel Jaffer:

You werent the moderator.

Noah Feldman:

I wasnt the moderator, thats true.

Jameel Jaffer:

I guess the only thing, maybe this will sharpen the argument slightly. So the argument that the First Amendment shouldnt make any distinction between newspapers say and social media companies seems especially misguided to me. Theres no question in my mind that social media companies exercise editorial judgment. They make judgments all the time about the relative value of different categories of speech that seems like editorial judgment of the kind that, or at least analogous to the kinds of judgments that newspapers make about what should appear in their pages or that parade organizers make when they decide which floats can appear in the parade, that seems like a form of editorial judgment to me. But the relationship that a social media company has, to the speech that appears on its platform is different from the relationship that a newspaper has to the speech that appears in its pages. To say that another way, both of these kinds of actors exercise editorial judgment, but they exercise editorial judgment in different ways.

And those differences I think should matter to the First Amendment analysis. Why dont I leave it there? I can say more on that.

Noah Feldman:

Great. I would love to ask a question to both of you that derives from something that Jameel said, but I think its relevant to both of your comments. And that is the question of why we have a First Amendment in the first place at all. So I think you said in passing Jameel that the whole point of the First Amendment is to avoid the government distorting free speech or rigging what discourse is out there is the public. And I want to push back from the standpoint of the people who passed the Florida and Texas laws. I think what they would say is, Thats not the main purpose of the First Amendment, although it might be a purpose. The main purpose of the First Amendment isnt to enable people to speak freely. And nowadays, the place that people speak is on social media. And as platform lawyers certainly know, and everyone who uses social media knows, an enormous amount of content that you might want to say on social media, you cant.

It gets taken down and the more controversial you are, the more quick they are to take it down. And so from that perspective, if the government cant tell social media to allow free speech, and if you cant define free speech by saying, Were not going to make up a special definition for you, were just going to use the definition that the courts make us use, how on earth can that be in violation of the principles of the First Amendment? It seems like the only way it could be is if you think something that you guys both claim not to think, I think, which is that, the platforms are not just like newspapers who can say whatever they want.

So if theyre not like newspapers, what could possibly be wrong with Florida or Texas saying, You know what guys? Youre subject to the same standards that were subject to. And the reason for that is that the First Amendment is about maximizing peoples capacity to communicate and you are in the real world, the thing that stands between this generation and the possibility of free speech. So I would like each of you to address that.

Daphne Keller:

So thats not what they said though.

Noah Feldman:

Well, lets reconstruct it in the strongest argument that they could. Lets then just imagine a statute which is a variant on this, these statutes that just says, The platforms may not do anything that the government may not do with the regulation of free speech. Is that constitutional in your view?

Daphne Keller:

I dont think so.

Noah Feldman:

Thats what I thought.

Daphne Keller:

And so to be clear, the difference is, so Florida says, You have to let politicians say anything and journalists say anything. So it is picking winners as speakers and giving them special privileges. And I think those are important special speakers too, but the way they do it is very clumsy. And then Texas says, You have to be viewpoint neutral, but actually you dont have to be viewpoint neutral as to these things we think are really bad, you can just take that down.

Noah Feldman:

Just imagine they did it well.

Daphne Keller:

Yeah. So, instead were imagining a law that says theres a common carriage law, which is what Texas and Florida claim they have, which says, You have to carry every single thing period. Or you have to carry every single thing thats legal. And so if you know somethings illegal, take that down, but you have to carry everything else. I think one, I guess, the constitutionality, but man, those lawmakers constituents would hate that. Their kids and grandparents and cousins and whatever would go on YouTube and suddenly see a bunch of extreme porn or go on TikTok and see a bunch of pro-suicide videos and think this is not something people would actually be happy with. But setting that aside, I think, so I have been focusing on the speech rights of internet users and how theyre affected. But here the impact on the speech rights of the platforms is quite visible and quite extreme. Is taking away their ability to set any editorial policy at all, which I think is clearly a First Amendment problem. It also will, I think would be a .

Noah Feldman:

But why? Because corporations deserve free speech rights?

Daphne Keller:

Well, because we have a bunch of precedents saying that the parade operators and the cable operators and so forth, various commercial entities or non-commercial entities that just aggregate third party speech and set some rules for it, they do have First Amendment rights. So because the Supreme Court I think is my main answer there. But I also think it would destroy the

Noah Feldman:

Can I just push back? I mean, what if the Supreme Court said that, A parade is one thing, because can always make your own parade. But I tried to make my own Facebook and I wasnt so successful. So theyre not exactly like a parade, and so were going to treat them differently. And I think Jameel thinks that they should be treated differently from newspapers. So if that were the case I mean I dont think, imagine the precedent doesnt limit us here, because I personally dont think that it does. Would you still think, if you were on the Supreme Court and not bound by a precedent, do you believe that these giant gajillion dollar multinational corporations that control all of our speech have their own free speech to shut us up? Or thats the question that Im asking.

Daphne Keller:

Yes. Yes, they do. I dont think there should be-

Noah Feldman:

Why?

Daphne Keller:

There should be more of them. They shouldnt have the power that they do, but they are providing a service that most users want in curating the speech that they see. So its not a free speech mosh pit, every day when you show up on Twitter or YouTube or Facebook. And theyre doing that in expressing, theyre expressing their own priorities about what speech is good and bad in so doing. It seems like, I agree with you, the court can just change it and maybe they will, and maybe thats the world were heading for. So precedents not that important, but I think that there is a First Amendment value being served that would be served better with more competition, but its definitely a First Amendment value.

Noah Feldman:

Jameel, and especially given that you think theres a difference between the social media companies and newspapers, I want to know what the principle is behind that difference. Unless you are willing to allow the government to force the social media companies to allow free speech.

Jameel Jaffer:

Well, I mean I think it depends. So the answer for newspapers, the Supreme Court has already given us in a case called Miami Herald. So there was a law that wouldve required newspapers to run opposing viewpoints when they editorialize on certain topics. And the Supreme Court struck it down, saying, You cant force newspapers to publish opinions they disagree with and to carry speech so they dont want to carry. And so the question is, does that principle apply or apply with the same force to social media companies? And I dont think it should. I do think that there are circumstances in which legislatures should be able to impose, must carry obligations on platforms even if they couldnt impose the same ones on newspapers. Im not totally unsympathetic to that aspect of the Florida law. The Florida law says, the best version of the Florida law would say, A couple of weeks before elections, the big social media companies can take down political candidates posts only according to, say, published procedural rules that are applied generally and not just to political candidates or to a particular subset of political candidates.

Now, do I think that law might be constitutional because I think the social media companies have no First Amendment rights at issue here? No. I think the social media companies are exercising editorial judgment as Daphne says, theyre just exercising it in a different way than newspapers do. But the fact that theyre exercising editorial judgment isnt the end of the analysis. Then theres the question of, is the public justification for overriding that editorial judgment strong enough to justify overriding it? And I think you could make a strong case or at least a plausible case, that in the weeks before an election, the publics interest in hearing from political candidates should prevail over the interests of Facebook or TikTok in promoting the political candidates that they might prefer at that particular moment in time.

Now, the Florida law, Im not defending the Florida law. The Florida law I think was passed in order to retaliate against companies that were perceived to have a liberal bias. I dont think there are any legislative findings in the Florida law to justify the must carry provision I just described. But Im not unsympathetic to that argument and I dont think we want a first amendment that categorically precludes legislatures from even considering those kinds of must carry provision.

Noah Feldman:

So can I push you just a tiny bit to what seems to me like it would be the logical conclusion of that view? You say there has to be a compelling governmental interest, fair. What about the compelling governmental interest in the next generation of people who communicate only on social media, for the most part, having free speech? I mean, we dont have a public The Supreme Court has said that the public sphere today is online and on social media. So if you accept that, then I cant even imagine an interest more compelling to override the supposed free speech interests of these gajillion dollar corporations. I think neither of you is jumping up and down about the idea that all corporations have free speech rights, but well leave that to one side.

But the core idea would be that we cant have free speech anymore if the platforms are treated as exercising the editorial control. And you yourself, I mean, I think Im expressing a view, its closer to your view than to mine, because I tend to be on neither newspapers. But Im really trying to articulate the counter view. Once youve conceded that under some circumstances their editorial control can be overridden, why not override it just all the way down the line and lets just have free speech and we dont have to invent some bad free speech law. Well just use the free speech law the Supreme Court has already created for governments.

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