March 19, 2024

New from the Institute for Free Speech

Free Speech Arguments – Episode 2: NRA v. Vullo

.....Question Presented: Does the First Amendment allow a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government’s own hostility to the speaker’s viewpoint or (b) a perceived “general backlash” against the speaker’s advocacy?

Spotify

Apple

Free Speech Arguments – Episode 3: Murthy v. Missouri

.....Questions Presented:

(1) Whether respondents have Article III standing;

(2) Whether the government’s challenged conduct transformed private social-media companies’ content-moderation decisions into state action and violated respondents’ First Amendment rights; and

(3) Whether the terms and breadth of the preliminary injunction are proper.

Spotify

Apple

Supreme Court

Wall Street Journal: When Local Officials Gag Dissenters With Handcuffs

By Anya Bidwell and Patrick Jaicomo

.....The First Amendment guarantees the right to criticize the government. We like to believe that we don’t arrest our political opponents in America. But sometimes we do. The Supreme Court will hear oral arguments Wednesday in Gonzalez v. Trevino, a case that considers whether government officials can be held accountable when they use arrests to punish critics for speech.

SCOTUSblog: Court sympathetic to NRA’s free speech claim

By Amy Howe

.....The Supreme Court on Monday appeared sympathetic to the National Rifle Association’s claim that a New York official violated the group’s right to freedom of speech when she urged banks and insurance companies that worked with the NRA to cut ties with the group. During just over an hour of oral arguments, justices of all ideological stripes seemed inclined to allow the NRA’s claim to go forward.

SCOTUSblog: Supreme Court skeptical of restricting government communications with social media companies

By Amy Howe

.....After nearly two hours of oral argument on Monday, a majority of the justices appeared sympathetic to the Biden administration’s argument that a federal court in New Orleans went too far in an order that would limit the government’s ability to communicate with social media companies about their content moderation policies.

Reason (Volokh Conspiracy): Justice Jackson Seems to Be Charting a More Speech-Restriction-Tolerant Approach

By Eugene Volokh

.....In recent decades, the Court has been extremely skeptical when the government, acting as sovereign (as opposed to employer, subsidizer, educator, etc.) tries to suppress speech based on its content. But of course there has also long been a tradition of Justices arguing in favor of allowing restrictions when the government's needs appear especially urgent…

Yesterday's Murthy v. Missouri argument suggests that Justice Ketanji Brown Jackson may take a similar approach. Recall that the heart of the case is about two related but conceptually separate issues: (1) whether the government coerced platforms into restricting certain user speech; (2) whether, if the government merely substantially encouraged platforms to restrict such speech rather than coercing them, that would itself be subject to First Amendment scrutiny. Most of the Justices asked the lawyers about these two matters, and about related procedural questions.

But several of Justice Jackson's questions raised the possibility that the government may indeed be allowed even to coerce platforms into restricting speech—including speech that doesn't fall within the familiar First Amendment exceptions (such as for true threats or solicitation of crime). Some excerpts (emphases added):

AP News: Supreme Court rejects appeal by former New Mexico county commissioner banned for Jan. 6 insurrection

By Morgan Lee, Nicholas Riccardi, and Mark Sherman

.....The Supreme Court on Monday rejected an appeal from a former New Mexico county commissioner who was kicked out of office over his participation in the Jan. 6, 2021, insurrection at the U.S. Capitol.

Former Otero County commissioner Couy Griffin, a cowboy pastor who rode to national political fame by embracing then-President Donald Trump with a series of horseback caravans, is the only elected official thus far to be banned from office in connection with the Capitol attack, which disrupted Congress as it was trying to certify Joe Biden’s 2020 electoral victory over Trump.

Congress

Reporters Committee for Freedom of the Press: House TikTok divestment bill is a ban, but it’s more than that

By Gabe Rottman

.....Last Wednesday, the U.S. House of Representatives passed H.R. 7521, a bill that would prohibit U.S. entities — most importantly, app stores — from “distribut[ing], maintain[ing], or updat[ing]” TikTok unless TikTok’s Chinese corporate owner, ByteDance, sells the social media platform to a buyer acceptable to the president.

Proponents of the bill say it’s not a “ban.” They argue that the legislation is “narrowly tailored” in that TikTok is free to operate in the U.S. under the proposal, it just can’t do so while controlled by China. Opponents have said that the bill is “censorship — plain and simple” and that the divestiture requirement is a ban on TikTok by another name.

Looking closely at the bill, the opponents probably have the better part of the argument, as the president would have to approve any sale. Under section (g)(6) of the bill, a “qualified divestiture” is one where the president “determines” that there is no longer any control or operational relationship between the relevant entity and the foreign owner. To effectively bar the platform from the U.S., the president could just reject any buyer.

But, while Congress banning TikTok entirely from the U.S. would present independent First Amendment concerns, what has flown somewhat under the radar is that the bill could sweep beyond TikTok to other social media platforms, and, indeed, possibly to news websites.

The States

Politico: Some states are fighting to protect voters from doxxing. They’re losing.

By Alfred Ng

.....[Recent lawsuits] also highlight the unusual status of voter registration records in the U.S: they’re among the few pieces of personal information required by federal law to be publicly available. For decades, this has been useful mostly to political campaigns and other groups hoping to reach likely voters directly. But with the advent of online access, web scraping and bulk data sales, voter records have also become a loophole in privacy regulations — allowing access not only for civic reasons, but to potential bad actors.

Even for people who aren’t actively doxxed, voter privacy concerns are a meaningful drag on civic participation. A Pew Research poll in 2016 found that 11 percent of unregistered voters chose not to register to vote because of privacy and security concerns. With 77 million unregistered voters in 2020, that’s potentially more than 8 million Americans who aren’t voting because of worries about their data being leaked…

“I’m deeply concerned about the future of voter privacy and safety in an era of online harassment and targeting,” Maine’s secretary of state, Shenna Bellows, told POLITICO.

“We know from experience that publication of addresses of voters online can be utilized and has been utilized to harass, dox and even harm people,” she said.

Her effort to fix that ended in federal court in February, when the U.S. Court of Appeals for the First Circuit ruled that Maine’s publishing ban on voter information was inconsistent with federal election transparency laws. The decision allows groups to obtain and publish the state’s voter records online.