Tag: freedom of expression

Montana’s Porn Age Verification Law Is Headed to Court

It seems that a puritanical wave is sweeping the country as state governments increasingly try to make it more difficult to access pornography from within their borders. A lawsuit is challenging one of those laws, and this week, a federal judge allowed it to continue.

Montana is one of multiple states in recent years to pass a law requiring pornographic websites to verify users’ ages. Under Senate Bill 544, any website that “knowingly and intentionally publishes or distributes material harmful to minors” must “perform reasonable age verification methods to verify the age of individuals attempting to access the material,” so long as the site in question “contains a substantial portion of the material.”

The statute defines “material harmful to minors” as, essentially, the depiction of any sexual acts, covering everything from straightforward pornography all the way up to and including “bestiality.” It further notes that “reasonable age verification methods” can take the form of “a digitized identification card” or some other system that either checks a user’s “government-issued identification” or otherwise “relies on public or private transactional data.”

While perhaps well-intended, the law is a civil liberties nightmare: First of all, as a general rule, pornography is free speech protected by the First Amendment. And as Elizabeth Nolan Brown wrote in the April 2024 issue of Reason, the sort of age verification law that some states now favor “creates a record, permanently attaching real identities to online activity that many people would prefer stay private,” and “even the best verification methods would leave people vulnerable to hackers and snoops.”

The law also stipulates that it applies when the material in question constitutes “more than 33 1/3% of total material on a website,” meaning a site could be forced to enact an onerous age-verification scheme even if well over half of its hosted content does not meet the state’s definition of disallowed material. One imagines that porn sites could simply load up their servers with enough inoffensive content to stay on the right side of that ratio, but instead, sites like Pornhub have simply blocked access in Montana, as they have in many other states that have passed these laws.

In May 2024, a group of organizations and individuals led by the Free Speech Coalition filed a federal lawsuit seeking an injunction against the enforcement of the law. Per the lawsuit, S.B. 544 “operates as a presumptively-unconstitutional prior restraint on speech” since it requires “the use of some particularized approval method as a condition to providing protected expression.”

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Freedom of Expression Under Attack Amid Israel’s Genocide in Gaza: UN Official

A newly released UN report raises the alarm about the risks of freedom of expression around the world as Israel carries out its effort to ethnically cleanse Gaza.

The report should come as no surprise to subscribers to The Trends Journal.

We have been reporting on the crackdown in the U.S. on college protesters and anyone who speaks out against the atrocities playing out in Gaza. There is only one position accepted in Washington and in the mainstream news, which could be summed up in the phrase: Israel has the right to defend itself.

But Israel’s rights have trumped individual freedoms across the world, Irene Khan, the UN’s special rapporteur on the promotion and protection of the right to freedom of opinion and expression, said in the report, which was, predictably, largely ignored in the media.

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Colorado’s Supreme Court dismisses suit against baker who wouldn’t make cake for transgender woman

Colorado’s Supreme Court on Tuesday dismissed on procedural grounds a lawsuit against a Christian baker who refused to bake a cake for a transgender woman. Justices declined to weigh in on the free speech issues that brought the case national attention.

Baker Jack Phillips was sued by attorney Autumn Scardina in 2017 after his Denver-area bakery refused to make a pink cake with blue frosting to celebrate her gender transition.

Justices said in the 6-3 majority opinion that Scardina had not exhausted her options to seek redress through another court before filing her lawsuit.

“We express no view on the merits of these claims,” Justice Melissa Hart wrote for the majority.

Phillips’ attorney, Jake Warner with the Arizona-based firm Alliance for Defending Freedom, had argued before the high court that the baker’s actions were protected free speech and that whatever Scardina said she was going to do with the cake mattered for his rights.

Warner said Tuesday that his client had been pursued and mocked for years by those who disagreed with him.

“Enough is enough,“ Warner said. ”Jack has been dragged through courts for over a decade. It’s time to leave him alone.”

Scardina’s attorney, John McHugh, expressed disappointment and said he was evaluating if there were any remaining legal options.

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American Hurricane Victims Forced to Support Israel for Govt Aid

Texans applying for relief from Hurricane Harvey faced an unusual stipulation to receive aid. Over 20,000 people in Dickinson, Texas, had their lives affected by the storm. The US federal government is offering to provide some form of aid, but first, residents must agree to support Israel.

The “Verification not to Boycott Israel” clause states that by signing the agreement, “the Applicant verifies that the Applicant: (1) does not boycott Israel; and (2) will not boycott Israel during the term of this Agreement.”

This is absolutely outrageous as once again our government places its boot on the neck of the people to force them to abide by their agenda. There is absolutely no correlation between Israel and the hurricane as this measure is simply all about power and forcing the people to submit.

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Minnesota ‘Acting as a Ministry of Truth’ With Anti-Deep Fake Law, Says Lawsuit

A new lawsuit takes aim at a Minnesota law banning the “use of deep fake technology to influence an election.” The measure—enacted in 2023 and amended this year—makes it a crime to share AI-generated content if a person “knows or acts with reckless disregard about whether the item being disseminated is a deep fake” and the sharing is done without the depicted individual’s consent, intended to “injure a candidate or influence the result of an election,” and either within 90 days before a political party nominating convention or after the start of the absentee voting period prior to a presidential nomination primary, any state or local primary, or a general election.

Christopher Kohls, a content creator who goes by Mr. Reagan, and by Minnesota state Rep. Mary Franson (R–District 12B) argue that the law is an “impermissible and unreasonable restriction of protected speech.”

Violating Minnesota’s deep fake law is punishable by up to 90 days imprisonment and/or a fine of up to $1,000, with penalties increasing if the offender has a prior conviction within the past five years for the same thing or the deep fake is determined to have been shared with an “intent to cause violence or bodily harm.” The law also allows for the Minnesota attorney general, county or city attorneys, individuals depicted in the deep fake, or any candidate “who is injured or likely to be injured by dissemination” to sue for injunctive relief “against any person who is reasonably believed to be about to violate or who is in the course of violating” the law.

If a candidate for office is found guilty of violating this law, they must forfeit the nomination or office and are henceforth disqualified “from being appointed to that office or any other office for which the legislature may establish qualifications.”

There are obviously a host of constitutional problems with this measure, which defines “deep fake” very broadly: “any video recording, motion-picture film, sound recording, electronic image, or photograph, or any technological representation of speech or conduct substantially derivative thereof” that is realistic enough for a reasonable person to believe it depicts speech or conduct that did not occur and developed though “technical means” rather than “the ability of another individual to physically or verbally impersonate such individual.”

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Student Wearing Black Paint On Face Isn’t Protected By First Amendment: Judge

A middle school student who wore black paint on his face during a California football game is not protected by the U.S. Constitution’s First Amendment, according to a federal judge.

The student, dubbed J.A. in court papers, his parents, and his lawyers have not shown that wearing the black paint is expressive conduct shielded by the First Amendment, U.S. District Judge Linda Lopez said in a Sept. 30 ruling.

J.A. said he put on the paint during the game to show team spirit, but that doesn’t meet the bar established in other rulings, including a 2019 decision that found “First Amendment protection is only granted to the act of wearing particular clothing or insignias where circumstances establish that an unmistakable communication is being made,” Lopez wrote.

“Based on the current record, it is not likely that [the] plaintiff can prevail on the merits of his First Amendment claim, nor are there serious questions about it. It ‘is possible to find some kernel of expression in almost every activity a person undertakes,’ such as ‘walking,’ ’meeting one’s friends,‘ or ’coming together to engage in recreational dancing‘ and other sports, ’but such a kernel is not sufficient to bring the activity within the protection of the First Amendment,’” she added later, citing from other rulings.

J.A. was suspended for two days by Muirlands Middle School, which said he was wearing blackface despite the black paint being used often by athletes, and accused him or his friends of uttering racial slurs during the October 2023 game.

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Arizona Cardinals Ripped for Forcing Woman to Throw MAGA Hat in Trash Before Entering Stadium

The Arizona Cardinals are taking heat for forcing a season ticket holder to throw away her MAGA hat to get into State Farm Stadium last weekend.

Susan Rosener, who has owned season tickets for 34 years, told KPNX-TV that on Sunday, stadium security flagged her down and told her she could not enter the facility with her “Make America Great Again” hat.

Rosener said the security officials told her that political gear is not allowed in the stadium.

The long-time fan said she asked the security worker why the hat was prohibited.

“She’s like, ‘no political hats or shirts.’ And I said I haven’t heard that at all. And I said that doesn’t make sense to me. And she goes, ‘I said, Take your hat off,’” Rosener told the station.

The security official asserted that Rosener could enter the stadium if she threw the hat in the garbage. And so, she did just that, though she has since regretted the choice.

“In retrospect, I wish I would have stood my ground a little bit, but I wasn’t sure what the repercussions would be, and my husband would kill me if I did something with the season tickets or that jeopardizes them somehow,” Rosener explained.

“I am super freedom of speech,” Rosener added. “I could care less if someone had a Kamala Harris hat or T-shirt on. I do feel like part of the problem was this security woman definitely had a bias with my hat.”

However, since Rosener went to the media with her story, the Arizona Cardinals and State Farm Stadium Stadium officials have stated that the security workers “misunderstood a policy on prohibited items.”

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Man Kicked Off Flight For Wearing Pro Trump T-Shirt

Delta Airlines removed a passenger from one of its flights this past weekend for wearing a pro Donald Trump t-shirt.

The shirt featured a design of Trump wearing sunglasses adorned with the US flag, while flipping a double ‘up yours’.

The airline had flagged the shirt before boarding at Sarasota Bradenton International Airport following a complaint from one other passenger.

The man was allowed to board after he agreed to turn the shirt inside out, but then reversed it back once inside the plane.

A staff member then asked the man to leave and escorted him from the plane.

In video of the incident, the man can be heard saying, “I’m getting kicked off because of my shirt,” and calls the flight attendant “stupid-ass Wendy” after reading her name tag.

The passenger who captured footage of the incident noted “Crazy day in Sarasota airport, I was sitting next to a young man before boarding that had on a Trump shirt with middle fingers and a red coat came over and told him some lady complained and he had to change his shirt or he could not get on the plane.”

The other passenger continued, “He turned his shirt inside out, and we all boarded. Next thing I know, right before takeoff, a Delta employee comes on the plane and escorts him off the flight, he had flipped his shirt back to the decal side. IDK but I’ve seen way worse….girl half naked boarded and left alone.”

Delta guidelines note that the company reserves the right to remove anyone if their “conduct, attire, hygiene or odor creates an unreasonable risk of offense or annoyance to other passengers.”

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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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