Monthly Archives: March 2024

The most important First Amendment cases of the internet era, to be heard by the Supreme Court on Monday, may turn on a single question: Do platforms like Facebook, YouTube, TikTok and X most closely resemble newspapers or shopping centers or phone companies?

The two cases arrive at the court garbed in politics, as they concern laws in Florida and Texas aimed at protecting conservative speech by forbidding leading social media sites from removing posts based on the views they express.

But the outsize question the cases present transcends ideology. It is whether tech platforms have free speech rights to make editorial judgments. Picking the apt analogy from the courts precedents could decide the matter, but none of the available ones is a perfect fit.

If the platforms are like newspapers, they may publish what they want without government interference. If they are like private shopping centers open to the public, they may be required to let visitors say what they like. And if they are like phone companies, they must transmit everyones speech.

It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies, Justice Samuel A. Alito Jr. wrote in a 2022 dissent when one of the cases briefly reached the Supreme Court.

Supporters of the state laws say they foster free speech, giving the public access to all points of view. Opponents say the laws trample on the platforms own First Amendment rights and would turn them into cesspools of filth, hate and lies. One contrarian brief, from liberal professors, urged the justices to uphold the key provision of the Texas law despite the harm they said it would cause.

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Supreme Court to Decide How the First Amendment Applies to Social Media - The New York Times

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For nearly four hours on Monday, the U.S. Supreme Court heard arguments in a pair of cases that challenge how far states can go to limit the content social media companies allow on their platforms.

The lawsuits, which were brought by two tech trade groups, challenge whether Texas and Florida can legally prohibit large social media companies from banning certain political posts or users. Both states passed laws in 2021 to stop what Republican state leaders considered censorship of conservative viewpoints.

The laws came on the heels of the Jan. 6, 2021 attack on the U.S. Capitol, which led Facebook, Twitter and other social media platforms to suspend former president Donald Trumps social media accounts because his posts were thought to glorify violence.

The Florida and Texas laws are similar in that they both limit social media companies content moderation. But they differ in their details. Texas law is broader in that it prohibits companies from removing content based on their authors viewpoint, whereas Floridas law bars companies from removing politicians from their site.

NetChoice and the Computer & Communications Industry Association brought lawsuits in which they argued both laws are unconstitutional because they conflict with the First Amendment, which protects against government infringement of speech.

On Monday, attorneys for NetChoice argued that social media companies should be treated the same as newspapers or bookstores, which are free to choose what to publish or which books to sell without government interference. Paul Clemente, arguing on behalf of NetChoice, said social media companies are not censoring certain users but are exercising editorial discretion.

Texas Solicitor General Aaron Nielson meanwhile argued that internet platforms should be considered common carriers like telecommunications companies or mail services that are required to transmit everyones messages.

The Supreme Court Justices appeared conflicted. Most justices noted that the laws posed free speech challenges, but they seemed hesitant to strike down the laws entirely. They questioned both sides on whether the laws may be legal in some respects but unconstitutional in others. For example, some large social media companies, including Facebook, offer direct messaging. The justices indicated that the laws applications on direct messaging would not implicate free speech and therefore should not be struck down.

At one point, Justice Sonia Sotomayor said her inclination would be to remand the case back to the lower courts for more discussion, a view that several justices appeared to favor. The Court is expected to issue a decision by the end of June.

The Supreme Courts review of the laws represents the first major examination of if and how free-speech laws apply to social media companies. Legal experts say that the high courts decision could have significant implications for statehouses across the country as they begin writing laws to address misinformation online.

The stakes for free speech online are potentially enormous, said Scott Wilkens, senior counsel at the Knight First Amendment Institute at Columbia University. The court here is being presented with diametrically opposed interpretations of the law, and what the court does could, on the one hand, allow the government free rein to regulate social media platforms, or, on the other, prohibit the government from regulating them at all.

The free speech provisions included in the First Amendment do not mean that private companies are forced to allow certain speech. Instead, the Constitution states that the government cannot compel or prohibit speech from private actors.

Willkens said he believes the Court should take a middle ground and rule that while the platforms have a right to make editorial judgements, states can still regulate the platforms in ways that would promote democracy. For example, he said the platforms should be required to disclose how they curate their content.

That is a view that Solicitor General Elizabeth Prelogar, representing the Biden administration, took on Monday. She sided with tech industry groups and argued that the laws should be struck down. But she emphasized that the government could still regulate social media companies by other legal means, such as through antitrust, consumer protection or privacy laws.

I want to be very clear that we are not suggesting that governments are powerless, Prelogar said. One natural place to go is disclosure, to ensure that if you think a platform has Orwellian policies, you at least make sure users have information about how they are acting, what their policies are.

Texas social media law, referred to as House Bill 20, would mandate that tech companies publicly disclose how they curate their content. The Supreme Court is not considering the legality of that portion of the law. They are focusing on other provisions of law, including its prohibition on social media companies with more than 50 million active monthly users from banning users based on their viewpoints. The Court will also consider the laws requirement that platforms produce regular reports of removed content and create a complaint system to allow users to raise flags about removed content.

The laws also have political implications. President Joe Bidens administration has backed the tech companies legal challenge while former President Donald Trump filed an amicus brief in support of Florida and Texas.

Tech companies argue that giving the government any control over their content opens the door to a flood of misinformation that would be harmful to users.

What could end up happening is that websites are flooded with lawful but awful content, Carl Szabo, vice president and general counsel at NetChoice, said prior to oral arguments in an interview with The Texas Tribune. That renders our ability to access the information we want and not see the information we dont want, impossible.

Szabo said social media companies remove billions of pieces of content from their platforms each month, including sexually explicit material, spam, or other content that violates their terms of services.

Gov. Greg Abbott, who made the bill a priority during a special legislative session in 2021, said after the law was passed that it was intended to protect individuals freedom of speech.

Allowing biased social media companies to cancel conservative speech erodes America's free speech foundations, Andrew Mahaleris, a spokesperson for Abbott, said in a statement to The Texas Tribune. Social media websites are a modern-day public square. They are a place for healthy debate where information should be able to flow freely but there is a dangerous movement by social media companies to silence conservative viewpoints and ideas.

Disclosure: Facebook has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

We cant wait to welcome you to downtown Austin Sept. 5-7 for the 2024 Texas Tribune Festival! Join us at Texas breakout politics and policy event as we dig into the 2024 elections, state and national politics, the state of democracy, and so much more. When tickets go on sale this spring, Tribune members will save big. Donate to join or renew today.

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U.S. Supreme Court to weigh in on Texas social media law - The Texas Tribune

COLUMBIA Using lawsuits to silence public criticism would be more difficult under a bill advancing in the South Carolina House.

Legislation sponsored by House Judiciary Chairman Weston Newton would allow people slapped with a lawsuit in an attempt to shut them up to file a motion within 60 days asking the court to dismiss it.

This protects the little guy the guy who wants to speak out and then is going to be completely silenced by some entity or some cause, this protects the little guys First Amendment rights, Newton, R-Bluffton, told the SC Daily Gazette.

He and other supporters pointed to cases where lawsuits alleging defamation were filed in South Carolina to tie up critics in litigation and mounting legal fees, even when the case was unlikely to succeed.

Nationwide, 33 states already have laws making these so-called strategic lawsuits against public participation, or SLAPP, cases more difficult. New Jersey was the latest state, with a law taking effect in October, according to the Reporters Committee for Freedom of the Press.

Newton told a House panel Thursday he learned about the issue when Kevin Hennelly of Beaufort County was sued for defamation after making critical comments about a developer working on the Hilton Head National Golf Course. The case was eventually dismissed but not before Hennelly racked up over $75,000 in legal fees, Newton said.

Under his bill, if a lawsuit is legitimate, the person suing must prove it, Newton said.

And if its not a legitimate lawsuit and they cant demonstrate it, then theres also a provision where the defendant can recover their attorney fees, he said.

Thursdays vote sent the bill to the full Judiciary Committee. Since its the chairmans bill, its almost certain to advance to the House floor.

Nobody spoke against the bill to the subcommittee.

Taylor Smith, an attorney who represents the S.C. Press Association, was among those who testified in favor of it, citing some of his own clients who have faced these lawsuits.

Its the South Carolinians, not necessarily the press, who are bearing the burden of the cost associated with defending these suits, he said.

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Bill aimed at protecting free speech rights advancing in SC House - News From The States

Margaret Talev discusses the mission and vision for the Institute for Democracy, Journalism and Citizenship, how distrust in election results and politicians is at an all-time high and the challenges artificial intelligence poses.

Margaret Talev can vividly recall the specific moment she knew journalism had failed to properly inform and educate a large portion of the American voting electorate.

It was Jan. 6, 2021. More than 1,000 citizens were protesting at the U.S. Capitol in Washington, D.C. Talev was working as managing editor at Axios, overseeing the outlets political coverage. During the events, one of her reporters became trapped in the chambers of the House of Representatives, while another was trapped in the Senates chambers.

A decorated and accomplished national political journalist, Talev prided herself on helping people understand the news, both in the short-term and big picture. Talev covered American politics and the White House for 30 years, including working the campaign trail for presidential elections in 2008, 2012 and 2016 as a White House correspondent for Bloomberg News and McClatchy Newspapers.

Talev watched the events unfold and was left wondering how thousands of her fellow citizens could stage a protest based on misinformation.

Unsure of her future in journalism, Talev wanted to focus her career efforts on the relationship between the news that was being produced and consumed by voters and how that was impacting their views on democracy and governance.

Margaret Talev

She was immediately interested in serving as the Kramer Director of the Institute for Democracy, Journalism and Citizenship (IDJC), a joint effort of the S.I. Newhouse School of Public Communications and the Maxwell School of Citizenship and Public Affairs. Based in Washington, the institute promotes nonpartisan, evidence-based research and dialogue in the public interest, striving to create new knowledge, foster a more informed and engaged citizenry and better equip students for success.

I cared about focusing on the governance and the information piece of this, which is, how is democracy working for people? What do people believe democracy is? And why are a segment of Americans so upset with the process that theyre willing to resort to violence or willing to believe conspiracy theories? That became the central question that I was interested in reporting on, and the chance to build an institute that would really be dedicated to looking at the connection between news and government, between journalism and politics, between how people perceive the way their country is working and the news theyre ingesting, Talev says of the IDJC, which will formally open its headquarters in Washington later this spring.

On this Cuse Conversation, Talev discusses the mission and vision for the IDJC, how distrust in election results and politicians is at an all-time high, the role citizens can play to address issues facing our democracy and the challenges artificial intelligence poses.

Check out episode 158 of the Cuse Conversations podcast featuring Talev. A transcript [PDF] is also available.

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Champion of Free Speech and Journalism Margaret Talev Leads Institute for Democracy, Journalism and Citizenship ... - Syracuse University News

A Friends of Kinsey member said an IU administrator infringed on free speech rights by demanding the group move their table from Sample Gates.

Following the IU Board of Trustees decision to table discussions Nov. 10 to form a separate nonprofit to manage some of the institutes functions, Kinsey students formed Friends of Kinsey, an organization advocating against the proposed separation of the institute from the university. Over the past two weeks, as the fate of the institute remains uncertain, members have demonstrated in front of Sample Gates handing out flyers, candy and condoms.

On Feb. 13, Zoe Moscovici, a doctoral student and member of Friends of Kinsey, demonstrated in front of Sample Gates, when she was approached by Mary Waggoner, who identified herself as a member of IU administration. Waggoner told Moscovici she was not permitted to demonstrate at that location.

Moscovici drafted a written statement detailing the interaction with Waggoner, which was sent to Kinsey Institute Executive Director Justin Garcia.

According to the statement, Waggoner, who is the IU Office of Student Life Services Assistant for Space Reservations, told Moscovici she was not allowed to be at Sample Gates without IU approval. Moscovici responded that she was not in charge of the demonstration, but she believed Friends of Kinsey had the proper permission. Waggoner replied that she oversaw space reservation, and she had not approved a demonstration at Sample Gates.

Waggoner also said, according to the statement, that Friends of Kinsey needed to be an approved student organization with permission to demonstrate there and that tabling is never permitted for Sample Gates. Waggoner did not say where these rules were posted.

Moscovici said Waggoner demanded she move the table immediately. However, Moscovici had not set up the table, and she said she was watching other peoples possessions, so she told Waggoner that she did not want to move it. At this point, Waggoner grabbed materials from the table and began packing them up herself.

The main tone I was getting was condescending, Moscovici said.

The boards next meeting is Feb. 29-March 1.

Meanwhile, a man accompanying Waggoner began filming the incident on his phone, according to Moscovicis statement. He did not identify himself to Moscovici.

Moscovici said she called Melissa Blundell, a Kinsey Institute doctoral student and Friends of Kinsey member, who had coordinated the tabling effort and was at the demonstration but left prior to Waggoners arrival. According to the statement, Waggoner asked to speak to Blundell on the phone, but Moscovici refused. Blundell said she could return to campus in 20 minutes to speak to Waggoner, but Waggoner said she had a meeting in 20 minutes and Moscovici would have to move immediately.

Through the phone, I could hear Mary Waggoner being very aggressive and very angry, Blundell said.

Moscovici said she offered to compromise by temporarily stopping the demonstration, but Waggoner called IUPD to report that Moscovici had resisted her demands and would likely return to Sample Gates even if she moved.

Moscovici agreed to move the table across Indiana Avenue in an attempt to de-escalate the situation, according to the statement. Waggoner and the man helped her carry the materials across the street.

After moving the table across the street, Moscovici said Waggoners attitude changed, and she stopped yelling. She said Waggoner told her it was just the rules and had nothing to do with the topic of the demonstration.

Waggoner and the man then left together, Moscovici said. Blundell and Moscovici said there have been no further incidents with Waggoner or IU administration, and Friends of Kinsey have continued to table at that location.

Jessica Hille, assistant director for education at the Kinsey Institute, learned about the incident from Cynthia Graham, Moscovicis direct supervisor.

After reviewing the IU Office of Student Lifes page about planning an event, Blundell, Moscovici and Hille do not believe the demonstration violated the rules. Hille said that the regulations are somewhat unclear.

The page states that registered student organizations may request indoor and outdoor campus spaces, and that student groups must be registered on beINvolved. Friends of Kinsey is not registered on beINvolved.

The Office of Student Life requires all events to submit the Space Reservation Request Form. Small events and meetings, which are events with 1-49 attendees, are supposed to request a space 10 business days in advance. They are not, however, required to submit a request to the University Event Registration committee.

Blundell said Friends of Kinsey did not fill out the Space Reservation Request Form. However, Blundell, Moscovici and Hille point to a different section titled Demonstrations and counterdemonstrations, which they say implies a reservation is not necessary.

While not required, students are encouraged to reserve appropriate space and seek event approval through the UERC process to help ensure public health, and to gain access to helpful infrastructure such as stages and sound equipment, the page reads.

The page does not outline procedures for unofficial student organizations.

The page also specifically mentions Sample Gates as a location available for expressive activity. There is no mention of tabling being prohibited at Sample Gates tabling is referenced as an example of a small event.

Moscovici said Waggoners behavior was unacceptable, regardless of the policies.

I was maybe expecting some locals or students who had heard misinformation arguing with me or something, but I was not expecting a professional at IU to do that, Moscovici said.

In her statement, Moscovici also said she believes Waggoner infringed on her free speech rights as a student at IU.

It is my hope that, in the future, I and other students at IU will be able to voice our opinions and advocate for important causes on campus without fear of retaliation, the statement read.

The rally comes after several controversies on campus.

Hille said although Kinsey Institute students have been brave acting on behalf of the institute, they shouldnt have to face this kind of opposition.

Our grad students have been wonderful and incredibly brave in light of whats been going on and the sort of opposition that Kinseys been facing, Hille said. And from a policy standpoint, Im concerned that something like this would have a chilling effect on students ability to exercise their rights to free speech on campus.

Waggoner did not respond to a request for comment by the time of publication.

The encounter on February 13 was the result of a miscommunication regarding tabling policies in certain areas on campus, an IU spokesperson said in an email. IU encourages the civil and free exchange of ideas. Our freedom of speech policy is available at freespeech.iu.edu.

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Kinsey student says IU administrator infringed on free speech rights at demonstration - Indiana Daily Student

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Should Honking Your Horn Be Considered Free Speech? - The Autopian

Join us for a webinar exploring the free expression implications of the case initiated by South Africa against Israel before the International Court of Justice (ICJ) under the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention).

In December last year, South Africa instituted proceedings against Israel before the ICJ under the Genocide Convention. On 26 January 2024, the ICJ issued a legally-binding order for Israel to implement a number of provisional measures, including to take all measures within its power to prevent breaches of the Genocide Convention and to take immediate and effective measures to allow humanitarian assistance into Gaza.

While experts around the world have extensively debated various aspects of the case and the provisional measures order such as whether the ICJ should have issued a ceasefire order or what the implications of the order on third-party States with a duty to prevent breaches of the Genocide Convention are the freedom of expression issues raised in South Africa v. Israel have received less attention. Yet, South Africas application did highlight many of Israels freedom of expression violations since Hamass attack on 7 October 2023, such as the killings of journalists, stringent censorship measures, and communication blackouts enforced by Israel. The ICJ also ordered Israel to prevent and punish direct and public incitement to commit genocide and to take effective measures to prevent the destruction and ensure the preservation of evidence.

Join us for the event where the panellists will delve into the various freedom of expression issues of the case; in particular

When: Wednesday 6 March 2024, 2pm GMT (check your local time here)

Where: Online

Panellists:

Moderator: Chantal Joris, Legal Officer, ARTICLE 19

Please confirm your participation by registering here.

Information about the speakers

Mai El-Sadany is the Executive Director of the Tahrir Institute for Middle East Policy, which brings the insights and expertise of advocates from and in the MENA region in the policy discourse to foster transparent, accountable, and just societies. She has previously worked at organisations such as the International Center for Not-for-Profit Law, Robert F. Kennedy Human Rights, or the Carnegie Endowment for International Peace. Mai writes about legal and constitutional issues in Egypt, human rights issues in Syria, transitional justice in the Middle East, and the split between Sudan and South Sudan.

David Kaye is a professor of law at the University of California, Irvine, and the former UN Special Rapporteur on freedom expression. He is the 2023-2024 Fulbright Distinguished Scholar in Public International Law at Lund University, Sweden, and the U.S. Independent Expert to the Venice Commission. He regularly lectures and has published widely in academic and non-speciali st journals on issues related to human rights at domestic and international levels, accountability for serious human rights abuses, international humanitarian law, and the international law governing use of force. For Davids commentary on the ICJ ruling, see for example his articles in The Atlantic or Foreign Affairs.

Yuval Shany is the Hersch Lauterpacht Chair in International Law and former Dean of the Law Faculty of the Hebrew University of Jerusalem. In 2013-2020, he was a member of the UN Human Rights Committee, where he served as a Chair for one year. Currently, he is a senior research fellow at the Israel Democracy Institute, co-director of the Facultys International Law Forum and transitional justice program, the head of the CyberLaw program of the Hebrew University CyberSecurity Research Center and the Chair of the Hebrew Universitys Minerva Center for Human Rights academic committee. His research focuses on international human rights law, international humanitarian law, international courts and tribunals and international law in cyberspace. For Yuvals commentary on the ICJ ruling, see for example his article in Just Security.

Jiries Saadeh is an English-qualified lawyer and solicitor-advocate (higher courts civil proceedings). He also sits as a Deputy District Judge. Both Chambers and Partners and The Legal 500 have recognised Jiries as a leading public international law practitioner. Alongside his experience in private practice, Jiries has worked as a Legal Officer at the United Nations in New York, where he litigated before the United Nations Dispute and Appeals Tribunals.

Chantal Joris is a Legal Officer at ARTICLE 19 where she focuses on platform regulation, freedom of expression in armed conflicts, and freedom of expression issues relating to national security and privacy.

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Event: Free speech implications of the ICJ South Africa v. Israel case - ARTICLE 19 - Article 19

The Supreme Court heard arguments for nearly four hours on Monday on a pair of First Amendment cases challenging laws in Florida and Texas that seek to limit the ability of internet companies to moderate content on their platforms. Here are some takeaways:

As the public square has moved online in the 21st century and technology companies like Facebook, YouTube and X have grappled with objectionable content, new dilemmas have arisen over the scope and meaning of free speech.

Florida and Texas enacted laws limiting the ability of large internet companies to curate what appears on their platforms, in part in response to what some conservatives considered censorship of right-wing views by Silicon Valley in the name of combating hate speech and misinformation. One of the most notable examples: The decisions of some platforms to bar President Donald J. Trump after he repeatedly posted on social media to falsely claim that his loss in the 2020 election was the result of fraud, leading to the Jan. 6, 2021, Capitol riot.

An association of technology companies called NetChoice sued, arguing that platforms have a right to moderate content on their sites a practice that it said was crucial to keeping them attractive to users and advertisers. The coalition won preliminary injunctions blocking both states from enforcing the laws while broader First Amendment issues are litigated.

Both liberal and conservative justices signaled that they would prefer to have a more developed record about how the law would operate, raising the possibility that the Supreme Court could return the case to lower courts for more fact finding.

Justice Samuel A. Alito Jr., a conservative, pointed out that there were no lists of which platforms were covered by the Florida statute or of all the functions those services perform. He raised the possibility of sending the case back down for more discussion at lower-court levels on issues like whether and how the law applies to other tech services, such as direct messages and email. Justice Sonia Sotomayor, a liberal, indicated that she was inclined to do the same.

Solicitors general for Florida and Texas defended their states laws and argued that big internet companies operating social media platforms that are essentially public forums should not be allowed to discriminate based on political views. They portrayed content moderation as censorship.

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Takeaways From the Supreme Court Arguments on Social Media Laws - The New York Times

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Florida anti-free speech bill targets 'liberal media' but guess who's really mad at it? - KeysNews.com

The Supreme Court heard arguments Monday for two lawsuits about how social media giants should or should not be able to regulate speech on their platforms. Justices went back and forth with state solicitors general and their opposing party, making what may seem like far-fetched comparisons between social media and everything from bookstores to parade organizers and wedding planners.

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The two cases in question one from Florida, one from Texas were brought by NetChoice, a trade association that represents social media sites like Metas Facebook, X (formerly Twitter), TikTok, and more. NetChoice said two state laws in Florida and Texas that ban companies from censoring content on their platforms are actually forms of censorship themselves. Paul Clement, the attorney for NetChoice, argued that the laws violate the First Amendment because they compel speech, forcing platforms to host posts that violate their policies.

At the heart of NetChoices argument is that social media platforms are like newspapers, so editorializing content is their First Amendment right.

But Florida solicitor general Henry Whitaker said social media is more like a telephone company (pdf): If Verizon asserted a First Amendment right to cancel disfavored subscribers at a whim, that claim would fail.

The design of the First Amendment is to prevent the suppression of speech not to enable it. That is why the telephone company and the delivery service have no First Amendment right to use their services as a chokepoint to silence those they disfavor, he said.

Texas solicitor general Aaron Nielson had a similar argument (pdf), but likened social media to a public square. [I]f platforms that passively host the speech of billions of people are themselves the speakers and can discriminate, there will be no public square to speak of.

One concern of justice Amy Coney Barrett is that the state laws would consider algorithms to be editors, meaning that states could ban how algorithms are applied by online sites or other businesses that sell content. Florida solicitor general Whitaker said algorithms are just a means of sites organizing content, not editorializing it.

That led to more concern, though. Could Florida enact a law telling bookstores that they have to put everything out by alphabetical order? Coney Barrett asked.

Whitaker said, no, the state laws prevent social media sites from censorship, not how they organize their content.

But NetChoices Clement argued that algorithms are editors: These algorithms dont spring from the ether. They are essentially computer programs designed by humans to try to do some of this editorial function. That means that a Supreme Court ruling allowing the state laws to remain would open the door for lawsuits against how algorithms function.

Were not quite sure who it covers,justice Ketanji Brown told Whitaker about the Florida law.

So Whitaker said the Florida law would apply to sites like Etsy and Uber, meaning those sites couldnt ban user-generated content unless they provide thorough rationale. Meanwhile, Nielson said the Texas state law, which is narrower than Floridas in scope, wouldnt apply to platforms outside of classic social media sites.

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Supreme Court arguments over social media laws and free speech are defining social media itself - Quartz