Given George Stephanopoulos’ Carelessness, ABC’s Defamation Settlement With Trump Seems Prudent

“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.”

https://reason.com/2024/12/16/given-george-stephanopoulos-carelessness-abcs-defamation-settlement-with-trump-seems-prudent/

‘It’s the First Amendment, Stupid’: Federal Judge Slams Florida for Threatening TV Stations

“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.”

” 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.'””

https://reason.com/2024/10/18/its-the-first-amendment-stupid-federal-judge-slams-florida-for-threatening-tv-stations/

Trump Thinks News Outlets Should Lose Their Broadcast Licenses, Even When They Have None

“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.”

https://reason.com/2024/10/28/trump-thinks-news-outlets-should-lose-their-broadcast-licenses-even-when-they-have-none/

Judge Stops California Law Targeting Election Misinformation

“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.”

“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.”

“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.””

https://reason.com/2024/10/03/judge-stops-california-law-targeting-election-misinformation/

How To Yell ‘Fire’ in a Crowded Theater

“there are scenarios in which intentionally lying about a fire in a crowded theater and causing a stampede might lead to a disorderly conduct citation or similar charge.”

“Although the Supreme Court has never had the occasion to adjudicate an actual dispute involving a person yelling “fire” in a crowded theater, the Court did at least narrow its “clear and present danger test” in 1969, setting a higher standard for imminent incitement of lawless action.””

https://reason.com/2023/10/24/how-to-yell-fire-in-a-crowded-theater/

Legal Mythbusting Series: Yelling “FIRE” in a crowded theater

“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.”

“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”

https://www.whalenlawoffice.com/blog/legal-mythbusting-series-yelling-fire-in-a-crowded-theater/

The Supreme Court hands an embarrassing defeat to America’s Trumpiest court

“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.”

https://www.vox.com/scotus/357111/supreme-court-murthy-missouri-fifth-circuit-jawboning-first-amendment

The Supreme Court also handed down a hugely important First Amendment case today

“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.”

“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.”

https://www.vox.com/scotus/358326/supreme-court-netchoice-moody-paxton-first-amendment