“Publicly, President Joe Biden accused the platforms of “killing people” by failing to suppress speech that discouraged vaccination against COVID-19. Murthy likewise said that failure was “costing people their lives.” White House Press Secretary Jen Psaki declared that social media companies “have a responsibility related to the health and safety of all Americans to stop amplifying untrustworthy content, disinformation, and misinformation, especially related to COVID-19, vaccinations, and elections.” If they failed to meet that responsibility, Murthy said, “legal and regulatory measures” might be necessary. Psaki floated the possibility of new privacy regulations and threatened social media companies with “a robust anti-trust program.” White House Communications Director Kate Bedingfield said the platforms “should be held accountable,” which she suggested could include reducing their legal protection against civil claims based on users’ posts.
Privately, administration officials pressed Facebook et al. to delete or downgrade specific posts and banish specific speakers, to take action against content even when it did not violate the platforms’ rules, and to expand those rules so that any speech federal officials viewed as dangerous to public health could be deemed a violation. Their “requests” were sometimes phrased as demands.”
“Flaherty emphasized that he was acting on the president’s behalf, that his concerns were “shared at the highest (and I mean highest) levels of the [White House].” White House officials invoked previous perceived failures at content moderation, which they said had been disastrous. “When Facebook did not take a prominent pundit’s ‘popular post’ down,” the 5th Circuit notes, senior White House COVID-19 adviser Andrew Slavitt “asked ‘what good is’ the reporting system, and signed off with ‘last time we did this dance, it ended in an insurrection.'” In another exchange, Flaherty “demand[ed] ‘assurances’ that [Facebook] was taking action” and “likened the platform’s alleged inaction to the 2020 election, which it ‘helped increase skepticism in,'” adding that “an insurrection…was plotted, in large part, on your platform.'”
When social media companies failed to do what the administration wanted, White House officials reacted angrily. Flaherty noted that a flagged Facebook post was “still up,” asking, “How does something like that happen?” Facebook was “hiding the ball,” Flaherty complained. “Are you guys fucking serious?” he said in another email to Facebook. “I want an answer on what happened here and I want it today.” Because Facebook was “not trying to solve the problem,” Slavitt said, the White House was “considering our options on what to do about it.””
“By and large, especially after Biden and Murthy accused social media companies of killing people, the platforms did what the White House wanted. They were eager to appease the president, repeatedly asking how they could work together to address his concerns. In this context, the 5th Circuit says, it is likely that the pressure campaign amounted to “coercion” and that the White House unconstitutionally shaped moderation decisions.”
“The establishment clause provides simply that there can be no law “respecting an establishment of religion.” It does not explain what an “establishment of religion” is. Nor does it lay out in any detail when the government can and cannot provide benefits to a religious institution.
Armed only with this vague text, the Supreme Court has offered several competing explanations for why the establishment clause exists and what it was intended to prevent. At times, the Court has said that it exists to prevent the government from coercing nonbelievers into acts of devotion they find objectionable. At other times, the Court has described the establishment clause as a nod to pluralism — something that allows many religious traditions to thrive in the United States by forbidding the government from taking sides in religious debates.
Everson was rooted in the first of these two rationales, the belief that the government may not coerce others into religious exercise. As Justice Hugo Black wrote in that case, the clause is intended to universalize a Virginia statute, authored by Thomas Jefferson, which provided that “no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief.”
Everson read this prohibition on coerced religious activity expansively to include not just direct use of force against nonbelievers, but also the use of taxes collected from the general public to fund religion. As Black wrote, “individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or group.””
“Fifteen years later, in Engel v. Vitale (1962), Black laid out a different theory of why the establishment clause exists.
In Engel, the Court struck down a school district’s policy of requiring teachers to begin each school day by reciting a prayer authored by the school board. “One of the greatest dangers to the freedom of the individual to worship in his own way,” Black warned, “lay in the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services.”
The central idea animating Engel was that, if the government is allowed to write prayers or otherwise put its seal of approval on particular religious practices, then US politics will inevitably be consumed by religious believers from competing faiths, all lobbying elected officials to make sure that their religion receives the government’s blessing.
The Court reached this conclusion after considering 16th-century English history, when Parliament approved a Book of Common Prayer that “set out in minute detail the accepted form and content of prayer and other religious ceremonies to be used in the established, tax-supported Church of England.” This led to perpetual lobbying, and frequent strife, over just what prayers the government should endorse and which ones it should reject. Powerful religious groups “struggled among themselves to impress their particular views upon the Government,” while less powerful religious believers literally fled the country — many of them becoming early American colonists.
According to Engel, the First Amendment was drafted in large part to prevent this kind of strife among religious factions from occurring in the United States. The founding generation, Black wrote, was not willing “to let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box.”
Thus, while Everson read the establishment clause as a shield against the government coercing nonbelievers into participating in religion, Engel saw it more as a safeguard for pluralism. The idea behind the later decision was that, for multiple faith traditions to coexist peacefully in the United States, the government had to be hyper-cautious about picking favorites among them.
Of course, these two theories of the establishment clause are not mutually exclusive”
” before the Roberts Court started dismantling the establishment clause’s safeguards, the Court recognized two values implicit in this clause: 1) the right to be free from coerced religious activity, and 2) the right to live in a pluralistic society where the government does not favor one person’s religion over the other. The right against coercion extended not just to direct pressure by the state, but also to more subtle forms of pressure such as a public school ceremony that effectively forces a student to choose between participating in a prayer or risking ostracizing themselves from their classmates. Meanwhile, the pluralistic right prevented the government from endorsing a particular religious viewpoint above others.
All of that went by the wayside, however, in Kennedy v. Bremerton School District (2022).”
“Bremerton is a mystifying decision, in part because the six Republican-appointed justices in the majority took great liberties with the case’s facts. It involved a high school football coach who would pray at the 50-yard line following games — in full view of students, players, and spectators, and sometimes surrounded by many of them as he was praying. There are photographs of crowds surrounding this coach as he prayed, some of which were included in Justice Sonia Sotomayor’s dissent.
Yet Justice Neil Gorsuch, who wrote the Court’s opinion, falsely claimed that this coach only wanted to offer a “short, private, personal prayer.””
“while the Bremerton opinion is not a model of clarity, two lessons can be extracted from it. One is that the ban on government endorsements of religion — the mechanism the Court used to ensure that a plurality of faiths would thrive in the United States — is now dead. The other is that, while the Court still recognizes that some forms of government coercion into religious behavior are not allowed, its Republican majority appears eager to narrow the definition of “coercion.” There may even be five votes for Scalia’s position — that the government may actively promote religion so long as it does not use force or the threat of penalty to do so.”
“One form of coercion that the current Court permits is the government may now take taxes from a nonbeliever — taxes that the nonbeliever must pay to avoid criminal sanctions — and use them to fund religious education.”
“Read together, the Roberts Court’s establishment clause cases suggest that the Court probably will not neutralize this clause altogether. But they have already neutralized many of its modern applications, and they appear likely to endorse government behavior that would not have been tolerated even in the recent past.”
“contrary to the city’s insistence, drag shows are clearly protected speech. “There is no question that governments have a legitimate interest in protecting children from genuine obscenity. But the City has not provided a shred of evidence that would implicate that legitimate interest. Moreover, that legitimate interest ‘does not include a free-floating power to restrict the ideas to which children may be exposed. Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.'”
Attempts at banning drag shows have become increasingly popular across the country, often with public officials citing the apparent “obscenity” of the performances, especially those that allow children to attend. However, this latest injunction shows yet again that drag performances are protected speech and that local governments, public colleges, and other state actors have no legal basis for attempting to restrict them.”
“” Professors are not mouthpieces for the government. For decades, the Supreme Court of the United States has defended professors’ academic freedom from governmental intrusion,” Joe Cohn, legislative and policy director at the Foundation for Individual Rights and Expression (FIRE), tells Reason. “As the Supreme Court wrote in Keyishian v. Board of Regents: ‘Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.'”
“Unfortunately, Rufo’s ideas aren’t hypothetical. In recent months, several legislative efforts—most notably in Florida—have attempted to quash professors’ academic freedom. “Legislative initiatives like the STOP Woke Act and HB 999 seek to use the power of the state to shut down speech and scholarship on politically disfavored views,” adds Cohn. “These efforts cannot be squared with our longstanding national commitment to academic freedom.”
An argument supporting censorship in the name of “the pursuit of truth as the telos of America’s public universities,” as Rufo claimed, is ultimately shortsighted. Not only does Rufo fail to see how the powers he would give the government could be wielded against his ideological allies, but he also fails to see how censorship ultimately runs counter to the same American values he claims to support.
“Professors must be able to teach, conduct research, and publish scholarship without fear of viewpoint-based retribution from the government,” says Cohn. “And students must be able to learn from faculty who are not muzzled by the state.””
“Signed into law by Republican Gov. Ron DeSantis in April 2022, the law prohibits private employers and university professors from endorsing certain concepts related to race and other categories of identity. The statute drew lawsuits almost immediately. A number of employers and a diversity consultant challenged a provision that says private employers may not require employees to attend a training or activity that promotes any of eight listed concepts.
Chief U.S. District Judge Mark E. Walker, writing for the U.S. District Court of the Northern District of Florida, Tallahassee Division, then issued an injunction against enforcing that provision. “Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely,” Walker wrote. “But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely.”
In November, Walker issued another injunction, this one blocking a similar section of the law that applies to university professors. He accused the state of essentially arguing that “professors enjoy ‘academic freedom’ so long as they express only those viewpoints of which the State approves,” a position Walker described as “positively dystopian.”
“The First Amendment does not permit the State of Florida to muzzle its university professors, impose its own orthodoxy of viewpoints, and cast us all into the dark,” he concluded.
It is this November injunction the 11th Circuit just left in place.
“Conservatives who cheer on the Florida law should consider what liberal states—or, for that matter, a Democratic-controlled Congress—could do if allowed to engage in similar regulation,” Ilya Somin, a law professor at George Mason University, warns at The Volokh Conspiracy. “The same powers that Florida uses to target ‘woke’ employer speech can just as easily be used against conservative employers.””
“At the governor’s urging, Florida’s Republican-dominated Legislature is pushing to weaken state laws that have long protected journalists against defamation suits and frivolous lawsuits. The proposal is part DeSantis’ ongoing feud with media outlets like The New York Times, Miami Herald, CNN and The Washington Post — media companies he claims are biased against Republicans — as he prepares for a likely 2024 presidential bid.
Beyond making it easier to sue journalists, the proposal is also being positioned to spark a larger legal battle with the goal of eventually overturning New York Times v. Sullivan, the landmark 1964 U.S. Supreme Court ruling that limits public officials’ ability to sue publishers for defamation, according to state Rep. Alex Andrade, the Florida Republican sponsoring the bill.”
“the proposed bill goes further than simply decrying media bias. Free-press advocates call the measure unconstitutional and suggest it could have far-reaching consequences beyond major media outlets.
“I have never seen anything remotely like this legislation,” said Seth Stern, director of advocacy for the Freedom of the Press Foundation. “I can’t say I have seen every bill ever introduced, but I’d be quite surprised if any state Legislature had seriously considered such a brazen and blatantly unconstitutional attack on speech and press freedoms.”
He added: “This bill is particularly remarkable since its provisions have the vocal support of a governor and likely presidential candidate.”
DeSantis’ office said he “will make a decision on the merits of the bill in final form if and when it passes and is delivered to the governor’s office.””
“Andrade’s proposal incorporates many of the elements DeSantis called for during the roundtable, including:
— allowing plaintiffs who sue media outlets for defamation to collect attorneys fees;
— adding a provision to state law specifying that comments made by anonymous sources are presumed false for the purposes of defamation lawsuits;
— lowering the legal threshold for a “public figure” to successfully sue for defamation;
— repealing the “journalist’s privilege” section of state law, which protects journalists from being compelled to do things like reveal the identity of sources in court, for defamation lawsuits.
Stern said 49 states and several appellate circuits recognize a reporter’s privilege against court-compelled disclosure of source material and stressed that it’s essential for people to be able to speak to reporters without risking their jobs or freedoms.
“Journalists do not work for the government and it’s none of the government’s business how journalists gather news,” he added.
Andrade, however, said the privilege language in his bill would not allow a judge to force a journalist to reveal an anonymous source, but removes existing protections if they decide not to.”
““The law protects journalists from being ‘compelled’ by judges to disclose anonymous sources, but if a journalist has been sued for defamation, and wants to avoid liability, this section makes clear that they cannot claim a special privilege to avoid disclosing the source of the defamatory information and also avoid liability,” Andrade said.
Critics of the bill took issue with the section about attorneys fees, saying it could add a financial incentive to file defamation lawsuits and erode the laws preventing retaliatory lawsuits filed to silence criticism. Florida, like other states, has anti-SLAPP (strategic lawsuits against public participation) laws designed to help stop frivolous lawsuits.
“One of my largest concerns with the bill is the rolling back of the anti-SLAPP protection for defamation defendants,” said Adam Schulman, a senior attorney with the Hamilton Lincoln Law Institute, which advocates for free markets, free speech and limited governments. ”That’s just moving in the wrong direction.”
He said beyond large media companies, some of which have legal teams, the changes could affect the “ordinary guy” who leaves an “unfavorable Yelp review.”
“At one time, it was not considered ‘conservative’ to advocate for turning on the spigot to all sorts of troll-like civil litigation that will line the pockets of bottom-feeding plaintiffs’ lawyers,” Schulman said.
Stern said the new bill would leave those protections “toothless.” Under most anti-SLAPP laws, individuals can recover attorneys’ fees if they can show they were sued in retaliation for criticizing the government.”
“the Republican appointed Chris Rufo, the architect of the 2021 moral panic over “critical race theory,” to the board of a public liberal arts school in Florida. As Rufo told New York Times columnist Michelle Goldberg, his goal — and the goal of several other DeSantis appointees to the New College of Florida’s board — is to transform New College, a liberal bastion in the South, into something more like Hillsdale College, a conservative school in Michigan with close ties to former President Donald Trump.
The one positive thing that can be said about this appointment is that it is, at least, legal — something that cannot be said about many of the governor’s attempts to sic the government on institutions he deems too liberal. DeSantis isn’t just determined to use his public office to suppress dissenting voices and promote his own reactionary views; he’s also quite willing to thumb his nose at the Constitution in order to do so.
Indeed, DeSantis often seems to revel in his contempt for the First Amendment, even fundraising off of it. Shortly before DeSantis signed unconstitutional legislation punishing the Walt Disney Company for criticizing one of his policies, the governor sent a fundraising email to supporters touting the fact that he was doing so. The company, DeSantis said, was being punished after it “tried to attack me to advance their woke agenda.”
DeSantis signed legislation imposing speech codes on university professors, as well as legislation attempting to seize control of content moderation at sites such as YouTube, Twitter, and Facebook. He attacks classroom teachers with vague, unconstitutional laws stigmatizing LGBTQ people. His administration threatens drag performers with criminal charges.
In his victory speech shortly after winning reelection in his increasingly conservative state, DeSantis pledged to “fight the woke in the legislature,” “fight the woke in the schools,” and to “fight the woke in the corporations.”
One of his lawyers later clarified that the word “woke” means “the belief there are systemic injustices in American society and the need to address them.”
As a constitutional matter, a governor is allowed to give speeches arguing that the United States is somehow miraculously immune from systemic injustice. He may sign legislation repealing programs intended to cure these injustices. He may appoint officials to public school boards that share his belief that the US is immune to these injustices. And he may even enact policies that help perpetuate these injustices, assuming that those policies violate neither the state nor federal constitution.
But DeSantis goes much further. He wields the government’s sovereign powers to sanction speech he does not like, and to punish institutions that criticize him. DeSantis, in other words, does not seem content to simply enact policies that hew to a right-wing economic or social vision. He wishes to use the sovereign powers of government to shape public discourse itself — punishing some ideas, rewarding others, and conscripting public schools and universities into his culture war.
To be fair, DeSantis is hardly unique among Republican state governors in this regard — Texas Gov. Greg Abbott (R), for example, signed legislation targeting social media companies that is even more aggressive than Florida’s. But DeSantis is also widely viewed as a leading contender for the GOP presidential nomination in 2024, so he is uniquely positioned to take his speech war national if elected president.”
“Among other provisions, FOSTA created the new federal crime of owning, managing, or operating an “interactive computer service” with “the intent to promote or facilitate the prostitution of another person.”
In court last week, U.S. attorneys still clung to the argument that FOSTA merely targets illegal conduct, not protected speech.
The government has “essentially made a single argument, which is that FOSTA is essentially just an aiding and abetting statute, despite the language that it uses—it doesn’t use the terms and abetting—and as a result of that, it’s constitutional,” explains Greene. And last week in court, “they got a lot of pushback against that from at least two of the judges,” he says.
“In my mind, it’s not an aiding-and-abetting law. We know how to write ’em when we want to,” Harry Edwards, one of the three judges on the panel, said during the hearing. “This doesn’t look like anything that I understand to be an aiding-and-abetting law.”
“That immediately tells me the government’s got great concern that the statute, as actually written, has problems—so let’s make it something that it’s not,” Edwards continued. He characterized U.S. attorneys’ reasoning as “let’s call it aiding and abetting, and maybe we can cause the court to believe that the reach of the statute is limited because we’ve called it something that it’s not.””
“Greene and his team argue that FOSTA violates the First Amendment “because it’s overbroad [and] can apply to a substantial amount of protected speech,” he explains. “And that’s principally because the language that it uses includes not just things that are in themselves the commission of illegal acts of sex trafficking or prostitution.” Rather, “it uses language like ‘promote or facilitate the prostitution of another person’ without being clear on what that means.”
The language of FOSTA “can be reasonably read to include protected [speech]—and not just protected speech, but speech that’s really highly important, like providing harm reduction, health and safety information to sex workers, to advocating on particular sex workers’ behalf, to advocating for decriminalization, and things like that,” Greene says.
During last week’s hearing, Judge Patricia Millett pushed back on the government’s claims that FOSTA didn’t criminalize advocating for legal prostitution.
“If someone actively promotes on their website the legalization of prostitution … how is that not [promoting prostitution]?” she asked.”
“While college campuses are chock full of particularly mind-numbing misunderstandings of the First Amendment—from students and administration alike—the example that takes the cake this year comes from Yale Law School, where student activists disrupted a Federalist Society event discussing civil liberties.
As Foundation for Individual Rights and Expression (FIRE) attorney Zach Greenberg wrote, “Protesters banged on walls, stomped on the ground, chanted ‘Fuck you FedSoc,’ and screamed at the panelists…. The cacophony persisted for the majority of the event, and though panelists struggled to project their voices over the noise, the audience remained largely unable to hear them.”
The activists’ actions comprised a “heckler’s veto”—a form of unprotected speech where the heckler prevents someone from exercising their free speech rights by physically preventing them from being heard. However, the activists didn’t seem to care. When students were told their actions violated Yale’s free expression policies, a chorus of students insisted that “This is free speech.””
“The erroneous idea comes from the 1919 case Schenk v. United States. The case concerned whether distributing anti-draft pamphlets could lead to a conviction under the Espionage Act—and had nothing to do with fires or theaters.
In his opinion, Justice Oliver Wendell Holmes wrote that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” However, this idea was introduced as an analogy, meant to illustrate that, as Trevor Timm wrote in The Atlantic in 2012, “the First Amendment is not absolute. It is what lawyers call dictum, a justice’s ancillary opinion that doesn’t directly involve the facts of the case and has no binding authority.” The phrase, though an oft-repeated axiom in debates about the First Amendment, is simply not the law of the land now, nor has it ever been—something made all the more apparent when Schenk v. United States was largely overturned in 1969 by Brandenburg v. Ohio.
“Anyone who says ‘you can’t shout fire! in a crowded theatre’ is showing that they don’t know much about the principles of free speech, or free speech law—or history,” Foundation for Individual Rights and Expression President Greg Lukianoff wrote in 2021. “This old canard, a favorite reference of censorship apologists, needs to be retired. It’s repeatedly and inappropriately used to justify speech limitations.””