“The Chinese government and Chinese companies do not enjoy the benefits of free speech guaranteed by our Constitution. But American citizens still do, including the often forgotten right to hear and receive information, even from the most suspicious sources. In his seemingly reluctant and “admittedly tentative” concurring opinion in TikTok v. Garland, Justice Neil Gorsuch alluded to the principle and its history while acknowledging the unique technical and security challenges presented by TikTok: “Speaking with and in favor of a foreign adversary is one thing. Allowing a foreign adversary to spy on Americans is another.””
“Multiple lawsuits he’s filed against media operations are “chilling attempts to convert Trump’s complaints about press coverage into causes of action are legally baseless and blatantly unconstitutional,” notes Reason’s Jacob Sullum. He used as an example Trump’s recent social-media post after MSNBC cancelled a TV show: “Fake News is an UNPARDONABLE SIN! The whole corrupt operation is nothing more than an illegal arm of the Democrat Party. They should be forced to pay vast sums of money for the damage they’ve done to our Country.”
Trump, who calls the media the “enemy of the people,” is all for a free press as long as it’s parroting his political line. He recently booted the Associated Press—which despite its biases provides mostly nuts-and-bolts reporting—from presidential events after it refused to start calling the Gulf of Mexico the Gulf of America, following our Chief Mapmaker’s childish edict. This is bullying.
The New York Times reported that the administration “would start handpicking which media outlets were allowed to participate in the presidential press pool, the small, rotating group of reporters who relay the president’s day-to-day activities to the public.” This is not just an assault on protocol, but a glaring attempt to punish outlets that don’t bend the knee. A California Assembly speaker once denied my reporting team press passes for dubious reasons. It’s hard to do one’s job as a journalist if the government denies you access to its activities.
Trump’s interim U.S. attorney for the District of Columbia, Ed Martin, recently threatened criminal investigations of members of Congress and the media who have criticized Elon Musk and his team of DOGE budget-cutters. It’s preposterous for prosecutors to treat feisty comments as “threats,” which is the justification used by Martin’s office. And, as a letter from various civil-rights groups points out, it is certainly not a crime “to identify individuals openly conducting government work that is of the utmost public concern.”
A Trump executive order relating to anti-Israel protests called on universities to “monitor for and report activities by alien students and staff.” It’s fine to deport visiting students who engage in violence and law-breaking—but the highly respected and non-ideological rights group, the Foundation for Individual Rights and Expression (FIRE), argues that this edict “would make universities monitor students’ constitutionally protected speech.”
There are plenty of other examples to belie MAGA’s boast that it champions free-speech absolutism.”
“Trump’s anti-DEI orders have—mostly—stuck to signaling that the Education Department would enforce existing civil rights laws and Supreme Court precedents banning racial discrimination. But Martin’s attempt to go after a private religious institution on such vague grounds indicates the Trump administration will attempt to censor speech they perceive as left-wing or “woke,” rather than simply attacking illegal discrimination.”
“In a previously unreported interview, Khalil also told Reason about his life story. “I was born in a refugee camp in southern Damascus. My grandparents were ethnically cleansed from Palestine in 1948,” he said. “They stayed in the closest camp to Palestine, and they lived and died in that refugee camp.”
As Syria fell into civil war, Khalil moved to neighboring Lebanon. He worked as a local manager for two British government programs, the Chevening Scholarship and the Conflict, Stability, and Security Fund, according to his LinkedIn profile. In 2023, he enrolled in a master’s program at Columbia’s School of International Public Affairs.
Khalil told Reason that he was not worried about the political repercussions of being such a high-profile activist, because he wasn’t planning to go back to Lebanon and Syria. Nor was he worried about how it would affect his career prospects in America, because “I wouldn’t work for an institution that doesn’t value Palestinian lives. So if they don’t want to employ someone who is standing for Palestine, that’s my gain,” he said.
The prospect that he might be arrested by the U.S. government seemed so remote that it didn’t come up.
It’s not clear exactly which legal authorities the Trump administration used to revoke Khalil’s green card, nor how that will hold up in court. The Department of Homeland Security did not immediately respond to a request for comment.”
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“”The Trump administration’s detention of Mahmoud Khalil—a green card holder studying in this country legally—is targeted, retaliatory, and an extreme attack on his First Amendment rights,” the New York Civil Liberties Union Executive Director Donna Lieberman declared in a statement. “Ripping a student from their home, challenging their immigration status, and detaining them solely based on political viewpoint will chill student speech and advocacy across campus. Political speech should never be a basis of punishment, or lead to deportation.””
“In an interview with Rep. Nancy Mace (R–S.C.) on ABC’s This Week last March, host George Stephanopoulos repeatedly and inaccurately asserted that Donald Trump, now the president-elect, had been “found liable for rape.” A week later, Trump sued ABC and Stephanopoulos for defamation in the U.S. District Court for the Southern District of Florida, noting that a jury had deemed Trump civilly liable for “sexual abuse,” not “rape.” Over the weekend, ABC News announced that it had reached a $15 million settlement with Trump in the form of a contribution to Trump’s presidential library. ABC also agreed to cover $1 million in Trump’s legal expenses.
The settlement is highly unusual in the annals of Trump’s many lawsuits against news outlets, which typically feature claims with a much weaker legal and empirical basis. Some Trump critics explicitly or implicitly faulted ABC for folding, saying its decision is apt to have a chilling impact on journalism. But any such threat can be mitigated by applying normal standards of journalistic care—standards that Stephanopoulos conspicuously failed to uphold in this case.
In his interview with Mace, Stephanopoulos was talking about two cases involving the journalist E. Jean Carroll’s allegation that Trump sexually assaulted her in a department store dressing room in the mid-1990s. In one case, a New York jury last year concluded that Carroll had proven, by a preponderance of the evidence, that Trump had “sexually abused” her. The jurors also agreed that Trump had defamed Carroll by calling her a liar and awarded her $5 million in damages. But they expressly concluded that Carroll had failed to prove Trump had “raped” her.”
“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.'””
“Trump has repeatedly re-upped the idea that broadcast licenses should be contingent on whether they are used to air content that offends him. Last November, for instance, he complained that MSNBC “uses FREE government approved airwaves” to execute “a 24 hour hit job on Donald J. Trump and the Republican Party for purposes of ELECTION INTERFERENCE.” He declared that “our so-called ‘government’ should come down hard on them and make them pay for their illegal political activity.”
That jeremiad was nonsensical in at least two ways. First, there is nothing “illegal” about MSNBC’s anti-Trump content; to the contrary, the criticism to which Trump objects is constitutionally protected speech. Second, MSNBC is a cable channel, so it does not use “government approved airwaves” to transmit its programming and therefore does not need a broadcast license to operate.”
“The law, Assembly Bill 2839 makes it illegal for an individual to produce “knowingly distributing an advertisement or other election communication, as defined, that contains certain materially deceptive content,” within 120 days of an election and up to 60 days after. Affected candidates can file for a civil action enjoining distribution of the media, and seek damages from its creator.”
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“content creator Christopher Kohls filed a lawsuit arguing the law was overbroad, violating his First Amendment rights to make parody content. Kohls has a YouTube channel with more than 300,000 subscribers, and his videos often consist of political parodies featuring political candidates seemingly mocking themselves.”
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“Judge John A. Mendes, a judge on the United States District Court for the Eastern District of California, sided with Kohls, ruling that the law doesn’t pass constitutional muster because it does not use “the least restrictive means available for advancing the State’s interest.”
“Counter speech is a less restrictive alternative to prohibiting videos such as those posted by Plaintiff, no matter how offensive or inappropriate someone may find them,” Mendez’s opinion reads. “AB 2839 is unconstitutional because it lacks the narrow tailoring and least restrictive alternative that a content based law requires under strict scrutiny.”
Mendez’s ruling argues that the law, which is aimed at cracking down on “deepfakes” and other forms of false speech intended at misrepresenting an opponent’s views and actions, ends up making illegal a much wider range of speech than these specific statements.
“While Defendants attempt to analogize AB 2839 to a restriction on defamatory statements, the statute itself does not use the word ‘defamation’ and by its own definition, extends beyond the legal standard for defamation to include any false or materially deceptive content that is ‘reasonably likely’ to harm the ‘reputation or electoral prospects of a candidate.'”
While the law did contain a provision exempting parody content that contains a disclosure, the requirement was onerous, mandating that it be “no smaller than the largest font size of other text appearing in the visual media.”
Just one part of the law was found to pass constitutional muster—a requirement audio-only media be disclosed at the beginning at the message, and every two minutes during the duration of the content.
“While the Court gives substantial weight to the fact that the California Legislature has a ‘compelling interest in protecting free and fair elections,’ this interest must be served by narrowly tailored ends.” Mendez writes. “Supreme Court precedent illuminates that while a wellfounded fear of a digitally manipulated media landscape may be justified, this fear does not give legislators unbridled license to bulldoze over the longstanding tradition of critique, parody, and satire protected by the First Amendment.””