“The arrest of Mohsen Mahdawi was a test of just how far President Donald Trump’s power over immigrants could go. Mahdawi, a ten-year legal U.S. resident and a student at Columbia University, was at his interview to become a U.S. citizen earlier this month. But because he wasn’t a citizen yet, the Trump administration argued that it could deport Mahdawi for his protest activity, and had Immigration and Customs Enforcement (ICE) agents pick him up at the immigration center.
On Wednesday, however, a federal judge ordered ICE to free Mahdawi, who was born in a refugee camp in the Palestinian territories, while his case proceeded. “The two weeks of detention so far demonstrate great harm to a person who has been charged with no crime,” U.S. District Judge Geoffrey Crawford said at the hearing, according to ABC News. “Mr. Mahdawi, I will order you released.””
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“”Noncitizen residents like Mr. Mahdawi enjoy First Amendment rights in this country to the same extent as United States Citizens,” he emphasized. “If the Government detained Mr. Mahdawi as punishment for his speech, that purpose is not legitimate, regardless of any alleged First Amendment violation. Immigration detention cannot be motivated by a punitive purpose. Nor can it be motivated by the desire to deter others from speaking.””
“In defending its actions, the Trump administration is citing a 2005 amendment to a 73-year-old law giving the secretary of State the power to deport anyone whose continued presence in the United States would have potentially “serious adverse foreign policy consequences.” Whatever adverse consequences Ozturk may have on American foreign policy, the consequences of her being targeted for deportation based on nothing more than her words are far worse. Now, every immigrant and visa holder, no matter their status, must be especially vigilant when discussing American politics, international affairs — conceivably any subject — in a way that upsets the government.
This is obviously bad for immigrants, many of whom fled societies where expressing an unpopular viewpoint can land one in prison, or worse. But it’s also bad for American citizens, living in a country where the government feels ever more emboldened to clamp down on free expression.
While the arrest and deportation of legal immigrants for expressing opinions has clear First Amendment implications, the exclusion of foreigners on the basis of their statements and beliefs does not. Rather than deporting people who come to this country legally only to espouse extremist views and endorse violence, the U.S. government should do a better job preventing their entry in the first place.”
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“if a disproportionate number of the people prevented from coming to Europe and the United States as a result of ideologically exclusive immigration policies are Muslim, then that signifies the oppressive orthodoxies of the Islamic world, not Western intolerance. These are societies in which the predominant attitudes regarding Jews, the rights of women, the equality of sexual minorities, liberal democracy and secularism are decades if not centuries behind those of the West.”
“The law defined the term “controlled by a foreign adversary” to include not only companies owned wholly by Chinese entities but also one in which a citizen of an adversarial nation “directly or indirectly own[s] at least a 20 percent stake.” In other words, even if the overwhelming majority of a company’s shares were owned by Americans, it could be banned or forced to divest so long as the remaining shares were held by Chinese, Russian, or Iranian citizens.
In order to continue operating within the United States, the only recourse would be to sell TikTok to an American company by January 19, 2025—Joe Biden’s last full day in office.
TikTok and ByteDance sued, asking courts to declare the law unconstitutional. “For the first time in history, Congress has enacted a law that subjects a single, named speech platform to a permanent, nationwide ban,” the lawsuit argued. Lawmakers’ “speculative concerns fall far short of what is required when First Amendment rights are at stake.”
The plaintiffs claimed that the law’s restrictions were subject to strict scrutiny—the highest standard of review that a court can apply to an action, reserved for potential burdens on fundamental constitutional rights. “The Act represents a content- and viewpoint-based restriction on protected speech,” the lawsuit said, and the law’s divest-or-be-banned provision constitutes “an unlawful prior restraint.”
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“a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled against the plaintiffs, finding “the Government’s justifications are compelling” and that it did not violate the First Amendment for the state to single out one company for disfavored treatment.
“We conclude the portions of the Act the petitioners have standing to challenge, that is the provisions concerning TikTok and its related entities, survive constitutional scrutiny,” Senior Judge Douglas Ginsburg wrote for the majority. “We therefore deny the petitions.”
Ginsburg notes that while the law does require “heightened scrutiny,” it satisfies the requirements of strict scrutiny because of how narrowly tailored it was: “The Act was the culmination of extensive, bipartisan action by the Congress and by successive presidents. It was carefully crafted to deal only with control by a foreign adversary, and it was part of a broader effort to counter a well-substantiated national security threat posed by the PRC.”
In fact, that “national security threat” was not very “well-substantiated” at all—but the court didn’t seem to mind.
“TikTok contends the Government’s content-manipulation rationale is speculative and based upon factual errors,” Ginsburg wrote, referring to lawmakers’ concerns that Beijing could manipulate content on TikTok to promote Chinese propaganda. “TikTok fails, however, to grapple fully with the Government’s submissions. On the one hand, the Government acknowledges that it lacks specific intelligence that shows the PRC has in the past or is now coercing TikTok into manipulating content in the United States.” But “the Government is aware ‘that ByteDance and TikTok Global have taken action in response to PRC demands to censor content outside of China'” and “‘have a demonstrated history of manipulating the content on their platforms, including at the direction of the PRC.'”
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“It may be that the PRC has not yet done so in the United States or, as the Government suggests, the Government’s lack of evidence to that effect may simply reflect limitations on its ability to monitor TikTok,” Ginsburg shrugs. “In any event, the Government reasonably predicts that TikTok ‘would try to comply if the PRC asked for specific actions to be taken to manipulate content for censorship, propaganda, or other malign purposes’ in the United States.”
The court’s decision is yet another instance where vague claims of “national security” trump individuals’ First Amendment rights. Claiming that Congress has the authority to force a company to sell one of its holdings—not through an established power like antitrust, but simply because they don’t like how it could be used in the future—is not only a weak justification; it is a plainly unconstitutional one.”
“Floridians this fall will vote on a constitutional “Amendment to Limit Government Interference with Abortion.” So authorities decided to interfere with free speech in an attempt to thwart voters from limiting the government’s right to interfere in reproductive decisions. The state threatened TV stations with criminal penalties for running an ad supporting the abortion initiative (known as Amendment 4).
A federal judge isn’t impressed. “To keep it simple for the State of Florida: it’s the First Amendment, stupid,” wrote U.S. District Judge Mark E. Walker in an October 17 opinion.”
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” The ad in question is “political speech—speech at the core of the First Amendment,” notes Judge Walker. “And just this year, the United States Supreme Court reaffirmed the bedrock principle that the government cannot do indirectly what it cannot do directly by threatening third parties with legal sanctions to censor speech it disfavors. The government cannot excuse its indirect censorship of political speech simply by declaring the disfavored speech is ‘false.'””
“There’s a slight of hand when people declare the United States is a Christian nation. The nation was clearly founded on enlightenment principles that included freedom of religion and separation of church and state. These principles were put into the Constitution, and we know their meaning because we have the writings of the founders. At the same time, the country was a mostly Christian populace whose culture evolved from a Europe that had been Christian for many hundreds of years. Of course much of the ethos of such a society is going to be infused with Christian ideas, which themselves had been infused with Jewish, Roman, and Greek ideas. The country was and is majority Christian; in this sense it was a Christian nation. The country is and has always been heavily influenced by Christian culture, so also in that sense it is a Christian nation. But, at the nation’s founding, the founders explicitly created a government that was not supposed to implement Christianity upon its people, so in that sense it is not a Christian nation. As the country’s religious diversity grows, it becomes less of a Christian nation unless it can maintain some underlying Christian culture that goes beyond religious belief.”
“You can’t yell fire in a crowded theater. I’m sure you’ve heard somebody say that before when discussing free speech and limitations on free speech and the First Amendment. Well, it’s actually one of the most widely misunderstood quotes in American law. It’s routinely parroted as the status of why there can be or are limitations on free speech, but it is a big fat myth. I will explain here in just a moment, so stick around.”
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“the interesting about it is the Schenck case wasn’t about fires, it wasn’t about theaters, it kind of wasn’t even about free speech. It was in a way, but it was really about a guy that was being charged with violations of the Espionage Act because he was a member of the socialist party and he was speaking out against the draft. And the other bizarre thing about why this quote gets attributed to why it’s okay to limit free speech is, the Schenck case, which has now actually been overturned and has been for like 60 years, actually stood for the exact opposite. The Schenck case was applying a pretty large degree of censorship on free speech. That’s why it was overturned is because it was actually found to be completely contrary toward what the First Amendment stood for.
So, the idea that you can’t yell fire in a crowded theater, Justice Holmes was using that as an analogy to simply say that free speech can’t go completely unchecked. And that idea has maintained it’s truth throughout the years. That’s still true. There are limitations on what is considered protected speech and what is not considered protected speech, and that’s a topic for a different video. But it’s just always been interesting to me that this quote, which is just dicta, it’s not the holding of the case, it’s not really the law of the land, and it’s not Justice Holmes saying that’s what the law of the land should be, has somehow withstood the test of time and is still, to this day”
“The Supreme Court handed down a stern rebuke to some of the most right-wing judges in the country.., holding that no, judges do not get to micromanage how the Biden administration speaks to social media companies.
The vote in Murthy v. Missouri was 6-3, with Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett joining the Court’s three Democratic appointees in the majority. Justice Samuel Alito dissented, joined by Justices Clarence Thomas and Neil Gorsuch.
As Barrett’s majority opinion lays out, this lawsuit never should have been filed in the first place, and no federal court should have entertained it. Her opinion holds that the Murthy plaintiffs, who raised vague allegations that the government tried to censor them, could not even show that the government did anything to harm them in the first place.
Murthy involves a wide range of communications among the White House, various federal agencies, and major social media platforms like Facebook and X (the website formerly known as Twitter). Some of these communications urged platforms to remove content, such as speech seeking to recruit terrorists, to spread election disinformation, or to promote false and potentially harmful medical advice — including false claims about Covid-19 and vaccines.
The plaintiffs in Murthy are two red states plus an array of individuals who had content removed or suppressed by at least one of the social media platforms. They claimed that platforms censored them because of pressure from the government, and that this pressure violates the First Amendment.
That is a highly dubious claim. While the First Amendment forbids the government from coercing media outlets into removing content, nothing prevents the government from asking a platform to do so. Indeed, at oral arguments in Murthy, both Justices Elena Kagan and Kavanaugh recounted times when, during their service as White House officials, they pressured journalists to remove or correct editorials or other content that contained factual errors.
Nevertheless, the far-right US Court of Appeals for the Fifth Circuit did not simply embrace this claim, it issued a vague and sweeping injunction forbidding the Biden administration from having “consistent and consequential” communications with social media companies — whatever that means. As a practical matter, this difficult-to-parse injunction made it virtually impossible for the administration to have any communications whatsoever with the platforms.
But the Supreme Court held that the Fifth Circuit was wrong to even consider these plaintiffs’ dubious First Amendment arguments, ruling that federal courts lack jurisdiction over this case.”
“So, on the same day that the Supreme Court appears to have established that a sitting president can commit the most horrible crimes imaginable against someone who dares to speak out against him, the same Court — with three justices joining both decisions — holds that the First Amendment still imposes some limits on the government’s ability to control what content appears online.
Chief Justice John Roberts and Justice Brett Kavanaugh joined both decisions in full. Justice Amy Coney Barrett joined the Netchoice opinion in full, plus nearly all of the Trump decision.”
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“That’s such a sweeping restriction on content moderation that it would forbid companies like YouTube or Twitter from removing content that is abusive, that promotes violence, or that seeks to overthrow the United States government. Indeed, Kagan’s opinion includes a bullet-pointed list of eight subject matters that the Texas law would not permit the platforms to moderate, including posts that “support Nazi ideology” or that “encourage teenage suicide and self-injury.”
In any event, Kagan makes clear that this sort of government takeover of social media moderation is not allowed, and she repeatedly rebukes the far-right US Court of Appeals for the Fifth Circuit, which upheld the Texas law.
As Kagan writes, the First Amendment does not permit the government to force platforms “to carry and promote user speech that they would rather discard or downplay.” She also cites several previous Supreme Court decisions that support this proposition, including its “seminal” decision in Miami Herald Publishing Co. v. Tornillo (1974), which held that a newspaper has the right to final control over “the choice of material to go into” it.
Nothing in Kagan’s opinion breaks new legal ground — it is very well-established that the government cannot seize editorial control over the media, for reasons that should be obvious to anyone who cares the least bit about freedom of speech and of the press. But the Court’s reaffirmation of this ordinary and once uncontested legal principle is still jarring on the same day that the Court handed down a blueprint for a Trump dictatorship in its presidential immunity case.
It’s also worth noting that Kagan’s decision is technically a victory for Texas and Florida, although on such narrow grounds that this victory is unlikely to matter.”
“Texas and Florida’s Republican legislatures both passed similar, but not identical, laws that would effectively seize control of content moderation at the “big three” social media platforms: Facebook, YouTube, and Twitter (the platform that Elon Musk insists on calling “X”).
These laws’ advocates are quite proud of the fact that they were enacted to prevent moderation of conservative speech online, even if the big three platforms deem some of that content (such as insurrectionist or anti-vax content) offensive or harmful. Florida Gov. Ron DeSantis (R) said his state’s law exists to fight supposedly “biased silencing” of “our freedom of speech as conservatives … by the ‘big tech’ oligarchs in Silicon Valley.” Texas Gov. Greg Abbott (R) said his state’s law targets a “dangerous movement by social media companies to silence conservative viewpoints and ideas.”
At least five justices — Chief Justice John Roberts, plus Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett — all seemed to agree that the First Amendment does not permit this kind of government takeover of social media moderation. There is a long line of Supreme Court cases, stretching back at least as far as Miami Herald v. Tornillo (1974), holding that the government may not force newspapers and the like to publish content they do not wish to publish. And these five justices appeared to believe that cases like Tornillo should also apply to social media companies.”
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“the Supreme Court appears likely to reinstate the Texas and Florida laws. This is not because the Court thinks they are constitutional, and not because the Court thinks that they are constitutional with respect to the three companies that Texas and Florida actually wanted to regulate. But the ham-handedly drafted laws at issue in the NetChoice cases sweep so broadly that they may have some ancillary effects that are permitted by the First Amendment.
That’s probably the right outcome under existing law, but good Lord, it’s an unsatisfying one. This litigation has been ongoing for a very long time, and the Texas law already reached the Supreme Court once in 2022, when a majority of the Court voted to temporarily block it. A decision reinstating the laws because they are not vulnerable to a facial challenge would start that process all over again. And it would create at least some risk that, should the personnel of the Court change while this case is being relitigated, that these clearly unconstitutional laws could actually be upheld.”
“freedom of expression is crucial and central to the American project. It’s also not a force field by which people are shielded from other rules. If I want to get people’s attention by, say, driving 120 miles an hour while sporting a Palestinian flag, I cannot tell the officer who pulls me over for reckless driving that I’m simply exercising my free speech rights. The First Amendment does not give carte blanche to violate the law.”