The Supreme Court appeared lost in a massive case about free speech online

“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.”

“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.”

https://www.vox.com/scotus/2024/2/26/24083652/supreme-court-netchoice-paxton-moody-texas-florida-first-amendment-social-media-facebook-youtube

No, Blocking Traffic Is Not Protected by the First Amendment

“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.”

https://reason.com/2024/01/26/no-blocking-traffic-is-not-protected-by-the-first-amendment/

Pro-Palestinian Speech Is Still Free Speech

“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.”

https://reason.com/2024/01/11/pro-palestinian-speech-is-still-free-speech/

How a Judge in India Prevented Americans From Seeing a Blockbuster Report

“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.”

““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.”

https://www.politico.com/news/magazine/2024/01/19/india-judge-reuters-story-00136339

Hong Kong Police Targeting Overseas Activists and Speech

“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 Backpage Defendants Never Stood a Chance

“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.”

https://reason.com/2023/11/29/the-backpage-defendants-never-stood-a-chance/

‘It Feels Like the New McCarthyism’: How the Israel-Hamas War Is Redefining the Limits of Free Speech

“So far, most of the firings appear to have been for expressing pro-Palestinian views — the U.S.-based advocacy organization Palestine Legal reports that they’ve responded to over 260 cases of people’s “livelihoods or careers” being targeted. But the fact that these firings have been due in large part to social media posts and the widespread broadcasting of personal political beliefs means that the trend may not stay on one issue or one side of a dispute for long; Lakier says that we are watching the relationship between free expression and employment shift in real time.
Currently, regulations concerning speech and private employment oscillate wildly from state to state — about half of states have no protections for private employees who express political beliefs, while others have laws that vary in terms of scope. Many of the employment laws that do exist find their roots in the 19th century and are little use in navigating the 21st century workplace. Meanwhile, ideas about protected speech are constantly shifting in the culture: After 9/11, for example, the war on terror brought with it new examinations into what kind of speech promulgates terrorism. More recently, debates over “cancel culture” on campuses and in the workplace have brought up similar questions of what speech is permissible — and when consequences are justified.

“The First Amendment has always had exceptions, but those exceptions can expand under pressure,” Lakier told me. Since the Israel-Hamas war began, “people are interpreting the category of hate speech or the incitement of violent speech very, very broadly to include speech that in my view is totally legitimate, often pro-peace speech.””

https://www.politico.com/news/magazine/2023/11/04/israel-hamas-cease-fire-free-speech-00125333

Ron DeSantis Is Violating Pro-Palestinian Students’ Free Speech Rights

“Florida Gov. Ron DeSantis, a candidate for the 2024 GOP presidential nomination, has ordered pro-Palestinian student groups at Florida universities to shut themselves down. While the stated rationale is that these activists are providing “material support” for terrorism, the governor’s order is a direct violation of free speech principles, as well as the First Amendment.
State University System of Florida Chancellor Raymon Rodrigues announced the order on Tuesday, citing the on-campus activism of National Students for Justice in Palestine (SJP), a student group that is active at both the University of Florida and the University of Southern Florida.”

“Conservatives who claim to oppose censorship on college campuses—and call it out whenever right-leaning students and faculty are the victims and leftwing activists are the aggressors—are engaged in obvious hypocrisy if they do not criticize DeSantis for this. The answer to bad speech is more speech; it is not state action.”

https://reason.com/2023/10/25/ron-desantis-palestinian-students-censorship-free-speech-israel/

Denmark May Ban Burning the Quran

“The bill criminalizes the “improper treatment of objects of significant religious importance to religious communities.” The prohibition marks a sea change in a country where no one has been convicted of blasphemy since 1946, and successive governments have defended freedom of expression following newspaper Jyllands-Posten’s publication of cartoons depicting the prophet Muhammad in 2005.
The Danish change of heart can mostly be traced to Rasmus Paludan, an anti-Muslim bigot and far-right activist, whose favorite pastime consists of burning Qurans around the country. These Quran burnings have not only led to violence and terrorist threats from religious extremists but also concerted intimidation from the 57 member states of the Organisation of Islamic Cooperation (OIC), which has worked to protect Islam from what they term “defamation” since the publication of Salman Rushdie’s The Satanic Verses in 1988.

A plurality of Danes support the bill. After all, why should they risk terrorist attacks and economic sanctions due to the antics of a widely despised extremist whose ideas and actions are off-putting even to secular non-muslims? Many Danes feel there are better and more sophisticated ways to criticize a religion than torching books.

But it is precisely the tolerance of the most offensive ideas put forth by the individuals most despised by polite society that is the true measure of the civic commitment to free speech. Once you abandon principle for expediency, it establishes a precedent that incentivizes demands for further concessions.

Using violence and diplomatic coercion, religious extremists and the OIC have established that even in liberal democracies, religions and their followers are entitled to special legal protection that trumps individual freedoms. No doubt the Danish prohibition will form the tip of the spear in the OIC’s global campaign to purge “blasphemous” content.”

https://reason.com/2023/08/30/denmark-may-ban-burning-the-quran/