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After several years of litigation across the federal appellate courts, the U.S. Supreme Court in a unanimous opinion has finally crafted a test that lower courts can use to determine whether a government official engaged in state action such that censoring individuals on the officials social media pageeven if also used for personal purposeswould violate the First Amendment.

The case, Lindke v. Freed, came out of the Sixth Circuit and involves a city manager, while a companion case called O'Connor-Ratcliff v. Garnier came out of the Ninth Circuit and involves public school board members.

The First Amendment prohibits the government from censoring individuals speech in public forums based on the viewpoints that individuals express. In the age of social media, where people in government positions use public-facing social media for both personal, campaign, and official government purposes, it can be unclear whether the interactive parts (e.g., comments section) of a social media page operated by someone who works in government amount to a government-controlled public forum subject to the First Amendments prohibition on viewpoint discrimination. Another way of stating the issue is whether a government official who uses a social media account for personal purposes is engaging in state action when they also use the account to speak about government business.

As the Supreme Court states in the Lindke opinion, Sometimes the line between private conduct and state action is difficult to draw, and the question is especially difficult in a case involving a state or local official who routinely interacts with the public.

The Supreme Court announced a fact-intensive test to determine if a government officials speech on social media counts as state action under the First Amendment. The test includes two required elements:

Although the courts opinion isnt as generous to internet users as we had asked for in our amicus brief, it does provide guidance to individuals seeking to vindicate their free speech rights against government officials who delete their comments or block them outright.

This issue has been percolating in the courts since at least 2016. Perhaps most famously, the Knight First Amendment Institute at Columbia University and others sued then-president Donald Trump for blocking many of the plaintiffs on Twitter. In that case, the U.S. Court of Appeals for the Second Circuit affirmed a district courts holding that President Trumps practice of blocking critics from his Twitter account violated the First Amendment. EFF has also represented PETA in two cases against Texas A&M University.

There is some ambiguity as to what specific authority the Supreme Court believes the government official must have. The opinion is unclear whether the authority is simply the general authority to speak officially on behalf of the public entity, or instead the specific authority to speak officially on social media. On the latter framing, the opinion, for example, discusses the authority to post city updates and register citizen concerns, and the authority to speak for the [government] that includes the authority to do so on social media. The broader authority to generally speak on behalf of the government would be easier to prove for plaintiffs and should always include any authority to speak on social media.

We will urge the lower courts to interpret the first element broadly. As we emphasized in our amicus brief, social media is so widely used by government agencies and officials at all levels that a government officials authority generally to speak on behalf of the public entity they work for must include the right to use social media to do so. Any other result does not reflect the reality we live in.

Moreover, plaintiffs who are being censored on social media are not typically commenting on the social media pages of low-level government employees, say, the clerk at the county tax assessors office, whose authority to speak publicly on behalf of their agency may be questionable. Plaintiffs are instead commenting on the social media pages of people in leadership positions, who are often agency heads or in elected positions and who surely should have the general authority to speak for the government.

At the same time, the Supreme Court cautions, courts must not rely on excessively broad job descriptions to conclude that a government employee is authorized to speak on behalf of the government. But under what circumstances would a court conclude that a government official in a leadership position does not have such authority? We hope these circumstances are few and far between for the sake of plaintiffs seeking to vindicate their First Amendment rights.

If, on the other hand, the lower courts interpret the first element narrowly and require plaintiffs to provide evidence that the government official who censored them had authority to speak on behalf of the agency on social media specifically, this will be more difficult to prove.

One helpful aspect of the courts opinion is that the government officials authority to speak (however thats defined) need not be written explicitly in their job description. This is in contrast to what the Sixth Circuit had, essentially, held. The authority to speak on behalf of the government, instead, may be based on persistent, permanent, and well settled custom or usage.

We remain concerned, however, that if there is a narrower requirement that the authority must be to speak on behalf of the government via a particular communications technologyin this case, social mediathen at what point does the use of a new technology become so well settled for government officials that it is fair to conclude that it is within their public duties?

Fortunately, the case law on which the Supreme Court relies does not require an extended period of time for a government practice to be deemed a legally sufficient custom or usage. It would not make sense to require an ages-old custom and usage of social media when the widespread use of social media within the general populace is only a decade and a half old. Ultimately, we will urge lower courts to avoid this problem and broadly interpret element one.

Another problematic aspect of the Supreme Courts opinion within element one is the additional requirement that [t]he alleged censorship must be connected to speech on a matter within [the government officials] bailiwick.

The court explains:

For example, imagine that [the city manager] posted a list of local restaurants with health-code violations and deleted snarky comments made by other users. If public health is not within the portfolio of the city manager, then neither the post nor the deletions would be traceable to [his] state authoritybecause he had none.

But the average constituent may not make such a distinctionnor should they. They would simply see a government official talking about an issue generally within the governments area of responsibility. Yet under this interpretation, the city manager would be within his right to delete the comments, as the constituent could not prove that the issue was within that particular government officials purview, and they would thus fail to meet element one.

In our brief, we argued for a functional test, where state action would be found if a government official were using their social media account in furtherance of their public duties, even if they also used that account for personal purposes. This was essentially the standard that the Ninth Circuit adopted, which included looking at, in the words of the Supreme Court, whether the accounts appearance and content look official. The Supreme Courts two-element test is more cumbersome for plaintiffs. But the upside is that the court agrees that a social media accounts appearance and function is relevant, even if only with respect to element two.

Another problematic aspect of the Supreme Courts discussion of element two is that a government officials social media page would amount to state action if the page is the only place where content related to government business is located. The court provides an example: a mayor would engage in state action if he hosted a city council meeting online by streaming it only on his personal Facebook page and it wasnt also available on the citys official website. The court further discusses a new city ordinance that is not available elsewhere, except on the officials personal social media page. By contrast, if the mayor merely repeats or shares otherwise available information it is far less likely that he is purporting to exercise the power of his office.

This limitation is divorced from reality and will hamstring plaintiffs seeking to vindicate their First Amendment rights. As we showed extensively in our brief (see Section I.B.), government officials regularly use both official office accounts and personal accounts for the same official purposes, by posting the same content and soliciting constituent feedbackand constituents often do not understand the difference.

Constituent confusion is particularly salient when government officials continue to use personal campaign accounts after they enter office. The courts conclusion that a government official might post job-related information for any number of personal reasons, from a desire to raise public awareness to promoting his prospects for reelection is thus highly problematic. The court is correct that government officials have their own First Amendment right to speak as private citizens online. However, their constituents should not be subject to censorship when a campaign account functions the same as a clearly official government account.

One very good aspect of the Supreme Courts opinion is that if the censorship amounted to the blocking of a plaintiff from engaging with the government officials social media page as a whole, then the plaintiff must merely show that the government official had engaged in state action with respect to any post on which [the plaintiff] wished to comment.

The court further explains:

The bluntness of Facebooks blocking tool highlights the cost of a mixed use social-media account: If page-wide blocking is the only option, a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts. A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.

We are pleased with this language and hope it discourages government officials from engaging in the most egregious of censorship practices.

The Supreme Court also makes the point that if the censorship was the deletion of a plaintiffs individual comments under a government officials posts, then those posts must each be analyzed under the courts new test to determine whether a particular post was official action and whether the interactive spaces that accompany it are government forums. As the court states, it is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts. This is in contrast to the Sixth Circuit, which held, When analyzing social-media activity, we look to a page or account as a whole, not each individual post.

The Supreme Courts new test for state action unfortunately puts a thumb on the scale in favor of government officials who wish to censor constituents who engage with them on social media. However, the test does chart a path forward on this issue and should be workable if lower courts apply the test with an eye toward maximizing constituents First Amendment rights online.

Read more:
U.S. Supreme Court Does Not Go Far Enough in Determining When Government Officials Are Barred from Censoring ... - EFF

On the night of March 31, 1964, the Brazilian military deposed the legitimate president, the leftist Joo Goulart, in a bloodless coup. A dictatorship began that would last more than two decades. In the midst of the Cold War, the elites were furiously anti-communist and Goulart promised agrarian reform and public policies for the working class. Four years later, the generals closed Congress and toughened repression through Institutional Act number 5. Brazil would not return to democracy until 1985.

For the many supporters of the coup, it was a revolution so that Brazil did not fall into the clutches of communism, in an interpretation of the constitutional breakdown backed by far-right ex-president Jair Bolsonaro. During his presidency, the 1964 coup was officially celebrated in the military. The current president, the leftist Luiz Incio Lula da Silva, wants the events of 60 years ago to be marked with a low-key anniversary so as not to ruffle any feathers in the Armed Forces. The president is treading carefully, as Bolsonaro and several military officials have been accused of plotting a coup in the most serious attack on democracy since the end of the dictatorship. Their alleged actions indirectly resulted in the assault on the headquarters of the three branches of government in Braslia in January 2023.

This is a review of some of the key moments from the military regime and the transition to democracy.

The Truth Commission published the official account of the dictatorship in 2014 after listening to victims and witnesses and holding public hearings. The report holds the regime responsible for 434 deaths and missing persons, in addition to documenting the systematic practice of arbitrary detentions, torture, executions, and forced disappearances. And it also left for posterity the names of 377 instigators and participants in the repression. The amnesty law that exempted them from sitting on the bench freed thousands of political prisoners. One of the most infamous torture centers in So Paulo was converted into the Memorial da Resistncia center.

The 1,300 pages of the final report include shocking passages such as the testimony of Isabel Fvero: On the third or fourth day of being imprisoned I began to feel like I was having a miscarriage I was two months pregnant. I was bleeding a lot, I had no way to clean myself. I used toilet paper, and I already smelled bad. I was dirty, so I think Im almost certain that they didnt rape me because they constantly threatened me. I disgusted them. () Surely it was that. They got angry when they saw me dirty, bleeding, and smelling bad, and that made them even more angry, and they hit me even more.

The Truth Commission did not include Indigenous people in the official number of those murdered by the dictatorship, but it did record that at least 8,350 died due to the acts or omissions of state agents between 1946-1985. They killed them to plunder their lands or to evict them. They died from contracting diseases they had not been vaccinated against and from torture and mistreatment in prison. With thousands of deaths each, the towns of Cinta-Larga and Waimiri-Atroari were the most affected.

The most detailed information about the ruthless persecution of Indigenous people at that time is an official report prepared in 1967 and which was missing for almost half a century. The Figueiredo Report concluded that withholding assistance is the most effective way to commit murder. Hunger, plague, and mistreatment are decimating brave and strong people.

After traveling nearly 10,000 miles, prosecutor Jader de Figueiredo prepared a chilling document of more than 5,000 pages that took his name. The Indian Protection Service has degenerated to such an extent that it persecutes them to the point of extermination, he wrote. The militarys policy to clear the Amazon included machine-gunning from the air, launching explosives, smallpox inoculation, and donations of sugar mixed with strychnine. In 2013, a researcher, Marcelo Zelic, rescued the report from oblivion in the government archives and disclosed its brutal content.

Dilma Rousseff went down in history as the first female president of Brazil in 2011, but what is not usually mentioned is that she was the first head of state that was also a survivor of state-sponsored torture during the dictatorship. It was she who created the Truth Commission in 2012, a decision for which the military did not forgive her.

A far-left militant, she never fired a single shot, but that did not save her from going to prison for three years in her early twenties (between 1965 and 1968). She suffered torture sessions that marked her forever, both physically and psychologically. They beat her so severely that her jaw was dislocated and several of her teeth were knocked out. The torture marks are part of me. They are me, she testified in 2001 before a commission that managed compensation for those who were retaliated against. The worst thing about torture was the waiting. Waiting to be beaten, she revealed.

At the worst moment of her political career, when Congress was voting on her impeachment, then-deputy Jair Bolsonaro, a historical revisionist and retired military man himself, voted in favor of impeachment in honor of Rousseffs torturer, Colonel Carlos Alberto Brilhante Ustra.

The biography Lula, by Fernando Morais, recalls that the current president did not think badly of the military when they came to power in 1964 to restore order. But he was not spared from going to jail either. When he stood for election for the first time in 1989 while the country was in its transition to democracy the Air Force intelligence service developed a glossary, published recently by the newspaper Estado. In it, authorities had gathered statements from Lula, so that those in the barracks knew who this unionist was who had fought against the dictatorship. The confidential report concludes that the charismatic union leader has acquired a political personality in the [Workers Party] and, leading a fierce and noisy party, has drawn up more daring plans. Lula lost three presidential elections before winning in 2002.

In 1972, censors arrived at the Estado editorial office. They reviewed the news and editorial content that would go into the next days print edition. They erased anything that bothered the regime. As usual in dictatorships, what was striking was the newspapers reaction. Its staff refused to change the design and resorted to ingenuity. Every time a news item or an opinion column was censored and, therefore, left a gap in the printed paper, they would fill it with verses from Os Lusadas, by the celebrated Portuguese poet Lus de Cames. The idea was put forward by Antnio Carvalho Mendes, the journalist in charge of the papers film and obituaries sections.

The first verse replaced a news story about the episcopal conference and Pedro Casaldliga, the so-called bishop of the forgotten and preacher of liberation theology. They published verses from the great epic of Cames 655 times.

When Jair Bolsonaro won the elections in 2018, Caetano Veloso released a list of songs on Spotify that included Proibido Proibir (Forbidden to Forbid), composed half a century earlier in the wake of the May 1968 protests and in the leaden years of the Brazilian dictatorship. Brazilian popular music and the guitar rock that came from the United States fought a tough duel when Caetano sang it at a concert in So Paulo that ended with loud boos. The composer and singer burst out with a you dont understand anything! followed by a speech against the conservatism of the public.

At the end of that year, President-General Artur Costa e Silva passed Institutional Act Number 5, known in Brazil as AI5, which shuttered Congress and consolidated the dictatorship. Days later, Caetano Veloso and Gilberto Gil were arrested, banished to Bahia months later, and then sent into exile that took them to London.

In 2013, the newspaper O Globo part of Grupo Globo, Brazils largest media group published an editorial titled Editorial support for the 1964 coup was a mistake. It recalled the text that O Globo agreed with the intervention of the military along with other large newspapers, such as O Estado de So Paulo (known as Estado) and Folha de S.Paulo, among others. A large part of the population did the same, with express support in demonstrations. The editorialist concludes that in light of history, there is no reason not to recognize explicitly today that the support was a mistake (). Democracy is an absolute value. () Only [democracy] can save herself.

The newspaper claimed that this conclusion was the result of years of internal discussions, but the definitive decision to publish it, specifically in August 2013, was the massive demonstrations against everyday politics and a chorus that shouted: The truth is hard, Globo supported the dictatorship.

On July 29, 1985, at eight in the evening, some 700 artists and intellectuals gathered at the Casa Grande Theater in Rio de Janeiro to hold a funeral for censorship. The new civil government had been in office for three months. The Minister of Justice had called them to make it official that the persecution of culture that displeased the military was at an end. The fearsome censor Solange Hernandes, who silenced 2,500 songs, would have to focus her ire on something else because the minister declared censorship extinct and announced that from then on a council in defense of freedom of expression would study books, records, plays, and soap operas to classify them by the age of their intended audience.

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Brazils dictatorship: Repression, torture, slaughter of Indigenous people and censorship - EL PAS USA

In a rare display of bipartisan unity, the House of Representatives overwhelmingly passed HR 7521, Protecting Americans from Foreign Adversary Controlled Applications Act, by a vote of 352-65.If passed by the Senate and President Joe Biden, the implications of this bill are far-reaching, serving as a tool for censorship and limiting free speech and expression.

This legislation, proposed by Rep. Mike Gallagher and Rep. Raja Krishnamoorthi, targets the popular social media app, TikTok, and could potentially lead to its ban.

The bill seeks to compel ByteDance, TikToks parent company, to sell the app to a U.S.-approved entity within six months, citing concerns over national security threats due to ByteDances Chinese-based ownership.

Government officials worry about potential exploitation by the Chinese Communist Party, fearing TikTok could be used to gather sensitive user data and disseminate propaganda, though the U.S. government has failed to provide any proof of such happenings.

TikTok refuted these allegations and asserted its independence from any government entity and highlighted its efforts to safeguard user data through initiatives like Project Texas.

Through Project Texas, TikTok will create a new special-purpose subsidiary called TikTok U.S. Data Security, which will handle TikTok U.S. separately from the rest of the companys operations.

All USDS leaders and employees would be thoroughly vetted and only report to an independent board of directors, each with a strong background in U.S. national security and highly respected in their field.

TikTok claims Project Texas would provide full transparency and accountability to the U.S. government, while not forcing diversion from ByteDance.

However, this plan has been under review for years by the Committee on Foreign Investment in the United States.

Nevertheless, while there are still debates about TikToks connection to China and the validity of national security and data privacy concerns, the economic and political implications of this bill are of more significance.

According to a report from New Economics, TikTok contributed $24.2 billion to the U.S. economy in 2023.

Moreover, it was found that small or midsized businesses that marketed or advertised on TikTok generated nearly $15 billion in revenue in 2023, thus allowing them to grow organically and support over 224,000 jobs.

Likewise, through content creation opportunities on TikTok, several Americans have been able to generate new income streams and build wealth.

Most notably, it is important to consider the broad language of this bill and how it sets a dangerous precedent that not only threatens free speech but also empowers the U.S. government to ban any app they deem to be a threat, due to its connections to a foreign adversary.

Though this language is geared toward TikTok, it can be applied to so much more. This can be Chinese-owned apps, like AliExpress or WeChat, or even American-owned apps such as Instagram, Netflix, Snapchat and Google Maps, if foreign investment or relations concerns come into play in the future.

One of the key differences between us and those adversaries is the fact that they shut down newspapers, broadcast stations, and social media platforms. We do not, Rep. Jim Himes said. We trust our citizens to be worthy of their democracy. We do not trust our government to decide what information they may or may not see.

With the current global issues, social media apps, like TikTok, have become powerful communication tools through which Americans can voice their opinions, educate, advocate and rally for change.

If there were a ban, while this rhetoric would still transfer onto a new platform, the language of this bill allows Congress to target these platforms as well.The answer to authoritarianism is not more authoritarianism, Rep. Tom McClintock said. The answer to CCP-style propaganda is not CCP-style oppression. Let us slow down before we blunder down this very steep and slippery slope.

Read more here:
Bipartisan push to ban TikTok is a dangerous move toward censorship - The Ticker

I have just signed the petition against the recent Nikon photo of the year.

https://chng.it/LKBfY8D5Rt

It displays the corpse of Shani Louk shortly after she was murdered on October 7th.

Shanis body was then driven through Gaza on the back of the same truck.

She remains in death, a captive.

Recently I listened to the interview with Yehuda Kurtzer and Ron Hassner, the Berkeley professor who staged a sit-in against the universitys refusal to challenge the rise of antisemitism on campus. (The university has now accepted his requests).

In the discussion Ron states his preference that the antisemitic graffiti that is commonly displayed around the campus is not removed or covered-up. He believes it should remain as a demonstration to others, now and in the future of the reality of student life in 2024 America.

I am not sure how universities in the UK behave, whether they get-out the paint stripper or choose to ignore what has been written.

You could argue that the photograph should be placed on the cover of every newspaper to demonstrate the reality of what happened on October 7th, however, to me that feels a desecration.

There is a split between those who show-off the bodies of their dead and those who hide the images of the terrorists and missile-launchers.

The images from Israel of the 10/7 victims are pixilated. This a reflection of the Israeli values, dignity in death (and, more appositely, life).

Over recent years in media, particularly in movies on TV or on the news, trigger warnings have become a norm this video depicts images of offering the faint of heart the opportunity to turn-away or switch off.

I never really understood the utility of these alerts surely for most people, it is the not knowing that is the true horror whatever we create in our imagination is surely worse than any reality. And then, there is the essential human curiosity, What can be so awful that a warning is required, I had better look.

Triggering comes in many forms, either something that precipitates a flashback or even for some with epilepsy, a seizure. It arrives with enough time for the person to switch-off and move on to other things.

For me, a Jew living in the UK every news item has become a trigger.

I am faced with the options of either not accessing any media or defaulting to only that on the Right which is against everything I have ever believed.

The term for this, much loved by my dad was stuck between a rock and a hard place, meaning, there isnt much we can do, stick, or budge, you lose.

I am just now reading Dan Harris book Ten Percent Happier. Although I have not reached the reveal, my suspicion is that his answer is to read the facts then switch off the thoughts. Move into mindfulness.

This, I struggle to achieve.

Does anyone have an answer?

Dr Rod Kersh is a Consultant Physician working in Rotherham, South Yorkshire. He blogs at http://www.almondemotion.com

Excerpt from:
Censorship | Rod Kersh | The Blogs - The Times of Israel

North Korea deleted a large portion of its online presence in January 2024, with eight of its websites going offline along with most of its social media accounts. This followed a speech by North Koreas leader Kim Jong-un during an important party plenum in late December 2023 where he declared that unification with South Korea was impossible.

The scope of this deletion only slowly made headlines in South Korea due to the comprehensive censorship of North Korean websites and social media accounts. This was underlined by the piecemeal fashion in which journalists realised what was missing. Yonhap News quickly noticed the disappearance of sections on unification on two websites on 4 January 2024, but it took a full week for a journalist at News1 to figure out that content had also disappeared from a third website. The same was repeated several days later when whole websites disappeared.

Despite his initial campaign pledge, South Korean President Yoon Suk-yeol has refused to lift censorship of North Korean media, which is currently enforced through the National Security Law. Though he has repeatedly criticised fake news and anti-intellectualism, he continues to ignore the question of how journalists and analysts are supposed to accurately report on and understand North Korea without access to basic information.

His government has also refused to explain why censorship has not been lifted even slightly after almost two years, pointing only to a lack of public support. Not surprisingly, right-wing activists had showered the government with protests hoping to stop the plan to relax censorship.

The vast censorship has led to the bizarre phenomenon that South Korean journalists frequently learn about major news from international outlets. They only noticed that scenes from the movie Frozen were being used in North Korean schools when NK News reported on it five days after being shown on North Korean television in May 2023.

Weeks before, major outlets only learned of an actor being scrubbed from movies aired on North Korean television after a scholar released her analysis through NK News. In this case, the scholar and journalists had missed domestic reports on the actor being cut from movies three times since May 2021.

This underlined how little access South Korean journalists have to North Korean television footage. If outlets cannot afford an expensive satellite dish and recording equipment, the only option is to access footage through the Ministry of Unifications library, which releases recordings only after a two week delay.

Between 18 and 21 October 2023, North Korea revealed in state-run newspaper Minju Chosun two central pillars of its 2023 electoral reform that would be applied in Novembers local elections separate ballot boxes for dissenting votes and two-person competitions for candidate nominations. This made it obvious that North Korea would give up on its alleged 100 per cent approval rates, which eventual election results confirmed.

But this time even after an analysis was published on NK Pro a sister site of NK News on October 23, South Korean journalists did not report on this information for weeks. The fact that all access points to the Minju Chosun newspaper are censored certainly played a role.

The Ministry of Unifications library claims to have found no outlet selling print Minju Chosun issues since 2020, while a Japan-based service providing almost immediate access to a digital version online is censored. The newspaper is shown in full on North Korean television in the afternoon, but there are no public channels available to access it and the only YouTube channel that uploads those newspaper sections daily is also censored.

The progressive online outlet Tongil News was the first to write about the electoral reforms on 5 November 2023, citing the newspaper Choson Sinbo, run by the North Korea-friendly Association of Koreans in Japan and censored by South Korea. Yonhap News, South Koreas quasi-public news agency, only released a report on 8 November, following a Radio Free Asia piece from the day before that only commented on the two-person competitions.

But the problem becomes even more obvious when South Koreans have no foreign outlets to rely on. While South Korean journalists now pay a lot of attention to disappearing content on North Korean websites or the halt on usage of certain terms, they missed the fact that major websites stopped publishing unification-related content earlier in 2023. The unification sections in Minju Chosun and Ryomyong did not publish new content after early May 2023 when inter-Korean relations had hit a new low.

This silence should have alarmed South Korean journalists and hinted that North Korea was set to cancel agreements including the 15 June NorthSouth Joint Declaration. But due to censorship, none of the South Korean public noticed this sign.

Naturally, foreign journalists take their clues from South Korean media about what is newsworthy. The fact that much goes unreported in South Korea or is reported late and with only shallow analysis thereby also diminishes the quality of global coverage.

This could be blamed on the generally low quality of South Korean journalism or its lack of interest in North Korea. But a major factor hindering constructive reporting has been the vast censorship by the South Korean state. This censorship keeps not just South Korean journalists but also their audiences, domestic and international, from exploring the facts.

Martin Weiser is an independent researcher based in Seoul.

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South Korean censorship obscures vital information - East Asia Forum