“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.”
“One challenge of free speech advocacy is holding the line even when the speech in question is vile. Then you must make distinctions between acceptable forms of expression and those that violate the rights of others. That’s why it’s important to have clear, firm principles applied equally to all points of view. In the absence of clarity, you find yourself making things up as you go along—like too many institutions of higher learning at a moment of campus unrest.”
“On April 1, Israeli lawmakers passed a law that would allow the government to shut down foreign news networks deemed a threat to national security. The Times of Israel reported that the law was specifically intended to target Al Jazeera, the Qatar-based news network that has often been accused of anti-Israel or pro-Hamas bias.
“The terrorist channel Al Jazeera will no longer broadcast from Israel,” Netanyahu pledged in an April 1 post on X (formerly Twitter). “I intend to act immediately in accordance with the new law to stop the channel’s activity.” Netanyahu charged that the network had “harmed Israel’s security, actively participated in the October 7 massacre, and incited against [Israel Defense Forces] soldiers.”
The move was broadly denounced. “Such slanderous accusations will not deter us from continuing our bold and professional coverage,” Al Jazeera said in a statement.”
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“On May 5, Israel forcibly closed Al Jazeera’s satellite office in Tel Aviv, seized its broadcast equipment, and blocked access to its websites and broadcasts from within the country, after the government unanimously approved a proposal to do so.
Then on Tuesday, Israel did the same to the A.P.
The country’s communications ministry had ordered the A.P. to cease its live broadcast of footage from Gaza last week, which the outlet refused to do. As a result, officials seized broadcast equipment, saying in a statement that “the communications ministry will continue to take whatever enforcement action is required to limit broadcasts that harm the security of the state.”
“The AP complies with Israel’s military censorship rules, which prohibit broadcasts of details like troops movements that could endanger soldiers,” the outlet noted. “Al Jazeera is one of thousands of AP customers, and it receives live video from AP and other news organizations.””
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“Hours after the seizure, the A.P.’s story was updated to say that “Israel’s communications minister ordered the government to return a camera and broadcasting equipment it had seized from The Associated Press, reversing course hours after blocking the news organization’s live video of Gaza.” It noted that this came after “the Biden administration, journalism organizations and an Israeli opposition leader condemned the government of Prime Minister Benjamin Netanyahu and pressured it to reverse the decision.””
“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.”
“One need not agree with those students’ slogans, their tactics, or their goals to recognize that provocative political speech is protected by the First Amendment. Republican political figures who have spent years railing against censorship and cancel culture would do well to remember that.”
“the news agency Reuters published an eye-opening cybersecurity investigation bylined by Washington-based reporters and full of news of interest to Americans. But Americans aren’t allowed to read the story anymore — by order of a court in India.
It’s a disturbing turn of events that couldn’t have happened in the pre-internet era, when publishing — and censorship — were largely local affairs.”
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““If you are the Iowa Daily Beagle, and you publish a story that upsets some company in India, that company can go to an Indian court and get whatever injunction they want,” said Charles Glasser, who spent 12 years as the global media counsel for Bloomberg News and is the author of a book on international libel law. “But if the Iowa Daily Beagle has no assets in India and does no business in India, they can’t do much. It becomes more of an issue for international publishers, like Reuters. They certainly have resources there, and they are subject to the jurisdiction of the Indian court.”
Of course, Glasser notes, publishers have the ability to geofence content, making it so that an American reader can access a certain page while an Indian reader cannot. But that can backfire. Particularly in a country with historic reasons to be prickly about Western condescension, a judge is likely to take it as a sign of disrespect if an order is ignored beyond the border — not a good move if you are facing trial.
The upshot: Readers in America, where prior restraint is forbidden and where courts won’t enforce foreign rulings that violate the First Amendment, are blocked from reading a story based on a legal complaint that would be tossed out of most American courts.”
“Hong Kong is using its national security law to arrest and prosecute critics residing in the United States. The Hong Kong police recently announced cash bounties of HK$1 million ($128,000) for information leading to the arrest of five young activists. The targets—Frances Hui, Joey
“The Department of Justice claimed this was about “keeping women and children across America safe” from sex trafficking. But behind that bravado, the government’s actual case was clearly something less noble. A performance of protection. A publicity stunt. A massive scapegoating set against the backdrop of a moral panic. And a politicized prosecution against people who engaged in and defended the most dangerous thing to any government: free speech.
Ultimately, the Backpage prosecution was a small-scale tragedy that upended individual lives as well as something much bigger. Its effects were wide-reaching and devastating for many sex workers. And yet—it wasn’t ultimately about sexual commerce or sexual crimes, not at its core. This was a warning shot fired at entities that enable all sorts of digital communication and a test bed for further legal attacks on tech companies that won’t suppress speech as politicians see fit.
That Lacey was convicted of “international concealment money laundering” is bizarre, since the money transfer was not concealed: His lawyer informed the IRS about it, as required by law. And it was not made for nefarious purposes, according to Scottsdale lawyer John Becker’s trial testimony. Lacey had needed some place to park his savings after U.S. banks, scared by a years-long propaganda crusade against Backpage, had decided doing business with the company or its associates was a reputational risk. So Becker and another lawyer advised Lacey to deposit the money—$17 million, on which taxes had been paid—with a foreign bank.
It’s hard to see how Lacey conducted a financial transaction “to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity,” even if you accept the government’s premise that this money was derived from unlawful activity. And, to be clear, I don’t accept that premise, since Backpage’s business should have been protected by the First Amendment (not to mention Section 230 of federal communications law).
But Backpage made money from adult ads, and the government alleges that some of those ads were illegal enticements to prostitution. Therefore, the case alleged, anything done with money made from Backpage was de facto illegal. That’s how Lacey—and former Backpage executives Jed Brunst and Scott Spear—wound up facing money laundering charges for merely moving money around.”