Tag: 1st amendment

Court Blocks Parts of California’s Social Media Law in Free Speech Clash

The US Court of Appeals for the Ninth Circuit has granted a partial preliminary injunction in the X Corp. v. Bonta case, which concerns some provisions from California’s online censorship (“moderation”) law, AB 587.

In explaining the ruling, the court said that X Corp. is “likely to succeed in showing that the Content Category Report provisions facially violate the First Amendment.”

The law, introduced by 10 Democrats and one Republican in the state legislature and later adopted, mandates that large social media companies must report to California’s attorney-general regarding the details of their “moderation” apparatus. These companies are required to submit “Content Category Reports” twice a year.

The reports should include statements regarding whether the companies’ terms of service define hate speech or racism, extremism or radicalization, disinformation or misinformation, harassment, and foreign political interference; if that is the case, the authorities want to know what those definitions are.

The irony of many laws dealing with the same subjects failing to properly define these categories aside, but the court of appeals judges found that this was one of the provisions that likely violated the First Amendment, therefore granting an injunction against it, and several other portions of AB 587 (under section 22677).

Another part of the law that saw the same fate relates to large social media platforms submitting a detailed description of their “moderation policies, and information about flagged content” when it comes to the same categories of speech (hate speech, racism, etc.)

The Ninth Circuit in this way reversed a previous decision by a district court not to grant a preliminary injunction – which is a temporary block until the courts decide on the merits of the case.

We obtained a copy of the opinion for you here.

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University of California Rolls Out New Free Speech Policies To Curtail Pro-Palestine Protests on Campus

The term ‘Orwellian’ is rapidly losing its gravitas with how often we make recourse to it in trying to explain global society’s piecemeal tumble into neofascism (same as the old fascism), but a recent batch of policy changes at the University of California, Los Angeles, rolling out this fall in retaliation for students and faculty’s pro-Palestine, anti-genocide protests last spring, truly deserves the epithet.

Reeling in the wake of frequent anti-genocide protests, rallies, and marches last year, the occupation of Royce Quad by a pro-Palestine student encampment in April, and three major graduate student strikes since 2019 (this one, which was at UC Santa Cruz but threatened credibly to spread to UCLA, this one, and the most recent one), UCLA administration is scrambling to enact new campus-wide policies aimed at preventing student movements, activism, protests, and other forms of free expression and free association from taking place on campus, which is public land owned by the State of California.

The most desperate change takes the form of sweeping updates to the (also Orwellian-sounding) Time, Place, and Manner Policies, reported on today by the student paper, the Daily Bruin. Under the new regulations, campus administration redefines “​​publicly accessible spaces” (on a publicly-owned campus on public land with no gates or physical barriers to entry from the street) to include just two locations: a thin strip of walkway known as Bruinwalk, colloquially known by some as “the gauntlet” of leafletters, solicitors, canvassers, and undergraduate clubs seeking to boost their membership; and the area outside Murphy Hall, the main administrative building on campus. According to Daily Bruin, “Separate rules exist for events that receive administration approval 10 days in advance,” such as marches, rallies, and using a megaphone. Other heinous acts that students are no longer allowed to commit include ordering food delivery between midnight and 6a.m., walking outside during the same timeframe, and refusing to identify oneself to campus staff.

Next, a new, ironically stupid “Workplace Violence Prevention Plan” that is to be imposed on all campus employees this fall could have been in the works since before the pro-Palestine spring uprising, but the timing of its release is at best pure bureaucratic tone deafness and at worst another mechanism designed to clamp down on freedom of speech and association on campus. This is especially true because in the legal code to which it refers, ‘violence’ is defined broadly to include threats that result in ‘psychological trauma’. No matter what the boomers say, mental trauma is a genuine form of harm, so there is no issue there. The problem here, as with many of the University of California’s reactionary new policies, lies in the potential for – the likelihood of – selective enforcement. Furthermore, the concept of psychological harm was weaponized by Zionist counterprotesters last spring, led by their on-campus posterboy, who actively antagonized peaceful anti-genocide protesters and then was quoted in this Times of Israel article saying the encampment made him feel ‘not safe’.

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Bill Gates Laments First Amendment Strength on “Misinformation,” Advocates For Digital ID

Microsoft Founder Bill Gates has voiced concerns about the intersection between technology and speech, particularly criticizing the limitations he perceives the First Amendment’s free speech protections impose on combating online “misinformation.”

Gates erroneously cited the example that shouting “fire” in a crowded theater is an exception to free speech protections, a misrepresentation that has been clarified legally over time to be more nuanced in its application.

The technology magnate is grappling with what he believes to be the threats of misinformation and the technological phenomena of deepfakes.

In his discussions, particularly highlighted in an upcoming Netflix series and through dialogue with Stanford experts, Gates advocates for digital IDs to verify online identities to help curb this “misinformation.”

The Gates Foundation has donated money to digital ID projects in the past, using parts of Africa as a testing ground.

Gates’ proposed approach ostensibly aims to curb the spread of fake content and ensure that only verified individuals can publish information which means that online content can be matched to real-life identities.

However, this raises significant concerns about privacy and the potential for excessive surveillance and control over digital spaces, something Gates has never been too keen to defend.

“The US is a tough one because we have the notion of the First Amendment and what are the exceptions like yelling ‘fire’ in a theater,” Gates explained, as reported by CNET.

Gates’ commentary on the First Amendment, using the flawed “fire in a theater” analogy suggests a readiness to dilute foundational free speech principles to implement digital solutions.

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The Struggle for and Promise of Free Speech

Censorship – the regulation, suppression, and criminalization of disfavored speech – has mounted a comeback. Government officials, social media content moderators and moguls, journalists, and professors have aligned to thwart dissemination of misinformation, disinformation, malinformation, hate speech, and harmful or offensive remarks. They applaud themselves as brave activists blazing a new path to the achievement of a truly diverse, equitable, and inclusive democracy.

Yet they are throwbacks, as Jonathan Turley shows in “The Indispensable Right: Free Speech in an Age of Rage.” A distinguished George Washington University Law School professor, Turley is also an eminent columnist, television analyst, and litigator. His book provides a bracing “history of the struggle for free speech in America” and an incisive account of “the promise of free speech” in the United States and wherever basic rights and fundamental freedoms are protected. Through his winning combination of historical reconstruction, legal analysis, and philosophical exposition, Turley reveals that the arguments for regulating speech that the contemporary censorship industrial complex touts as original have a long and disreputable lineage.

In the West, which developed exemplary principles of free speech, that lineage of censorship stretches back to democratic Athens, which put Socrates to death for teaching the young to ask hard questions about virtue and justice, human nature, and the cosmos. It encompasses the early modern Star Chamber which in 16th– and 17th-century England prosecuted the crime of seditious libel – speaking ill of public officials, the laws, or the government – and the great 18th century English jurist William Blackstone who insisted on seditious libel’s criminality. And despite America’s founding promise and constitutional imperatives, government silencing of criticism of government extends throughout the nation’s history. Those who today undertake to expand the authorities’ power to determine what is and what is not fit for the public to think, say, and hear give fashionable expression to the authoritarian impulses, aims, and actions that not only have beset the West, but which also have marked most political societies throughout most of history.

American constitutional government sought to break authoritarianism’s grip. The Declaration of Independence stated that government’s primary task was to secure unalienable rights, starting with life, liberty, and the pursuit of happiness. In the original Constitution, the sovereign people protected speech by declining to delegate to Congress the power to regulate it. The First Amendment, ratified two years after the Constitution went into effect, explicitly denied Congress the power to abridge free speech. This reinforced the fundamental freedom – as stated in “Cato’s Letters,” widely read in 18th-century America – to “think what you would and speak what you thought.”

Free speech, Turley emphasizes, has two major justifications. The first is functional: Free speech undergirds the liberal education and robust public discussion that produce the informed citizenry on which a rights-protecting democracy depends. The second justification, grounded in natural rights teachings, affirms that speaking freely is inseparable from our humanity.

While both justifications are crucial to constitutional government in America, Turley stresses that the tendency to rely exclusively on the functional argument alone has proved calamitous. Protecting free speech solely because it is good for democracy invites the curtailment of this utterance or that publication on the grounds that it undermines democracy.

Free speech fortifies the other four First Amendment freedoms. Religious freedom includes the right to profess one’s faith, as well as the right not to profess other faiths or any faith at all. A free press keeps citizens knowledgeable about the news and circulates opinions and ideas. The freedoms of assembly and petition enable citizens to communicate among themselves and express their concerns to the government.

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NO FAKES – A Dream for Lawyers, a Nightmare for Everyone Else

Performers and ordinary humans are increasingly concerned that they may be replaced or defamed by AI-generated imitations. We’re seeing a host of bills designed to address that concern – but every one just generates new problems. Case in point: the NO FAKES Act. We flagged numerous flaws in a “discussion draft” back in April, to no avail: the final text has been released, and it’s even worse.  

Under NO FAKES, any human person has the right to sue anyone who has either made, or made available, their “digital replica.” A replica is broadly defined as “a newly-created, computer generated, electronic representation of the image, voice or visual likeness” of a person. The right applies to the person themselves; anyone who has a license to use their image, voice, or likeness; and their heirs for up to 70 years after the person dies. Because it is a federal intellectual property right, Section 230 protections – a crucial liability shield for platforms and anyone else that hosts or shares user-generated content—will not apply. And that legal risk begins the moment a person gets a notice that the content is unlawful, even if they didn’t create the replica and have no way to confirm whether or not it was authorized, or have any way to verify the claim. NO FAKES thereby creates a classic “hecklers’ veto”: anyone can use a specious accusation to get speech they don’t like taken down.  

The bill proposes a variety of exclusions for news, satire, biopics, criticism, etc. to limit the impact on free expression, but their application is uncertain at best. For example, there’s an exemption for use of a replica for a “bona fide” news broadcast, provided that the replica is “materially relevant” to the subject of the broadcast. Will citizen journalism qualify as “bona fide”? And who decides whether the replica is “materially relevant”?  

These are just some of the many open questions, all of which will lead to full employment for lawyers, but likely no one else, particularly not those whose livelihood depends on the freedom to create journalism or art about famous people. 

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Court Says ‘Let’s Go Brandon’ Can Be Censored By School

A federal court ruling has allowed a school to censor “Let’s Go Brandon,” preventing students from wearing the popular social media meme on shirts.

But a constitutional expert warns that it’s a “dangerous precedent” that will move the nation established on the basis of free speech the wrong direction.

Constitutional expert Jonathan Turley, a law professor at George Washington University, has testified before Congress on constitutional issues, and even represented members in court.

He cited the case of “D.A.” in Michigan, a student ordered to remove his sweater with the phrase on it.

That decision was from Judge Paul Maloney.

“Maloney rejects the free speech claim and rules that school officials can punish a student for wearing a ‘Let’s Go Brandon’ T-shirt. I believe that he is wrong and that the case sets a dangerous precedent,” Turley wrote.

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‘Totalitarian and Unconstitutional’: Tim Walz Ban on Christian Teachers Set to Hit Schools in Just Months

Gov. Tim Walz’s ban on faithful Christians from teaching in Minnesota’s public is set to hit the state’s schools in just months.

It also bans adherent Jews and Muslims.

And a report at the Federalist warns that he is “poised to make similar bigoted, totalitarian and unconstitutional policies” for the entire nation, “should he be elected vice president.”

The report from the publication’s executive editor, Joy Pullmann, explains the state has new teacher licensing rules that will take effect in July 2025, and they will “ban practicing Christians, Jews, and Muslims from teaching in public schools.”

It’s because under the plans of the leftist governor, the state will demand that teacher license applicants “affirm transgenderism and race Marxism.”

No license? No job for anyone to teach in the state’s public schools. Or private schools if they require that certification.

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North Carolina Threatened To Prosecute Her for Taking a ‘Ballot Selfie.’ Now, She’s Suing.

There’s a pretty good chance you’ve taken a “ballot selfie”—a picture of or with your completed ballot. Around one in 10 Americans say they have, and pictures of filled-in ballots are common on social media during election season. However, taking a picture of your ballot is a crime in 14 states, leading to possible fines and jail time.

A North Carolina woman is challenging her state’s ban on ballot selfies, arguing that she has a First Amendment right to take a picture of her own ballot—and to post it online. 

“Ballot selfie bans turn innocent Americans into criminals for nothing more than showing their excitement about how they voted, or even just showing that they voted,” said Jeff Zeman, an attorney for the Foundation for Individual Rights and Expression (FIRE), the First Amendment group that filed the suit. “That’s core political speech protected by the First Amendment.”

According to the lawsuit, North Carolina resident Susan Hogarth took a photo this March with her completed primary ballot. She posted the photo to X, with the caption: “Laws against #ballotselfie are bullshit.”

Just a week after the primary election, Hogarth received a letter from the North Carolina State Board of Elections threatening prosecution for her post, demanding that she take down the post or face legal action. As of the filing of the suit, Hogarth’s post had received less than 3,000 views—hardly a viral post. Hogarth has refused to take down the post and says that she will continue to take ballot selfies.

“Between March 2016 and March 2024, the State Board investigated at least 50 reports of voters photographing completed ballots from primary and general elections,” reads FIRE’s suit. “During election cycles from November 2018 through March 2024, officials from at least eight different North Carolina county boards sent reports of voters photographing completed ballots to the State Board.”

The lawsuit argues that these investigations—and the multiple North Carolina laws justifying them—obviously violate the First Amendment.

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After CrowdStrike Computer Catastrophe, Will Kamala-Microsoft Alliance Inflict Blue Screen of Death on Free Speech?


It is a testament to how utterly extraordinary the past couple weeks have been that the Microsoft-CrowdStrike computer catastrophe was not even the second most important story in the news cycle. On Friday, July 19th, the cybersecurity company CrowdStrike implemented a botched update that crashed Microsoft devices on which it was installed, ultimately inflicting the dreaded “blue screen of death” on over 8.5 million devices worldwide. Banks, businesses, hospitals, and airlines were hit particularly hard, and to this day, some of these institutions are having difficulty restoring functionality to their systems.

Video compilations such as the one below offer arresting images to give the reader a sense of just how globally catastrophic the Microsoft-CrowdStrike crash really was. It was a bit like what people imagined the Y2K scare would have been in the year 2000.

What kind of sense can we make of this? And who is at fault? Given that the botched update in question was implemented by the cybersecurity firm CrowdStrike, a great deal of responsibility would seem to lie there. Readers might be familiar with Russiagate-stained CrowdStrike, as it was the cybersecurity firm the DNC hired to investigate the alleged “hack” of its servers leading to the exposure of highly incriminating and embarrassing emails during the 2016 election between Hillary Clinton and Donald Trump. The recent CrowdStrike-Microsoft outage raises additional troubling questions in light of this history, which others have explored.

For now, we would like to turn the spotlight on Microsoft. As a simple matter of security, Microsoft holds a fair share of the blame for Friday’s catastrophe. Microsoft enables Crowdstrike’s software to exist within the most sensitive layer of its devices, and one would think a tech behemoth such as Microsoft would have stop-gaps and redundancies in place to prevent such global outages from occurring in their systems. A more troubling and important aspect the Crowd-Strike-Microsoft collapse draws attention to, however, is the utter ubiquitousness of Microsoft’s systems globally. A 2021 study revealed that Microsoft’s systems have achieved a whopping 85 percent of market share in public sector software, with an especially acute concentration in the Pentagon.

Elon Musk bemoaned the effect of the Microsoft-Crowdstrike crash on the global automotive supply chain and took to X to express his displeasure with Microsoft in characteristically suggestive and memetic fashion.

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Louisiana’s New Law Sparks First Amendment Showdown

Under Louisiana’s new, recently enacted law (HB 173), journalists and other citizens are limited in their right to film the police.

Anyone who finds themselves within 25 feet of an on-duty officer doing that – after being warned to stop or retreat – could face misdemeanor charges.

Now a group of Louisiana-based media companies is challenging the new legislation by suing the state – Attorney General Liz Murrill and two other officials – on First Amendment grounds, seeking an injunction.

The plaintiffs behind the Deep South Today v. Murrill case, brought before the US District Court for the Middle District of Louisiana, go into the importance of the media being able to cover police activity to ensure public scrutiny and avoid miscarriage of justice.

HB 173, the filing continues, “has grave implications for the ability of reporters and news organizations, including plaintiffs, to exercise their First Amendment rights.”

Although the lawsuit does not specifically mention the consequence the law could have on speech online, given that a majority of videos showing police at work get posted on the internet, the restrictions imposed by the act could also have indirect implications for that form of freedom of expression.

According to the plaintiffs, the law is unconstitutional and enables the police to prevent both journalists and the public from being close enough to document their work.

At the same time, officers are allowed to stop those filming them from approaching, either providing a reason or not, and that includes public gatherings, arrests, and reporting from the scene of an accident.

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