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The Supreme Court term that ended today once again showed the power of the First Amendment to shape American life. The court invoked the First Amendment in cases regulating social media platforms, prayer at public schools, state funding of religious schools, campaign finance restrictions, billboard advertisements, and religious exemptions to COVID-19 vaccine mandates.

The court decided three government speech cases, holding that a Christian flag flown outside Bostons City Hall and a coachs public prayers on the 50-yard line after high school football games represented private, not government, speech. In a unanimous decision, the court also held that an elected official had no First Amendment retaliation claim against a government board for censuring him. The boards censure was not a penalty, but its own protected speech.

In two cases, the court also elevated religious liberty rights under the free exercise clause over concerns about the separation of church and state under the establishment clause of the First Amendment. It held that Maine could not discriminate against religious schools by excluding them from a tuition assistance program open to nonsectarian schools. It also abandoned the Lemon test, holding that public schools do not offend the establishment clause by permitting school employees to engage in private, publicly visible prayer on campus.

At the same time, the court signaled that some members were open to weakening First Amendment protections for the media. Three justices would have preliminarily let a Texas law go into effect regulating the content of social media platforms. The court will likely hear a test case of the Texas law and a similar Florida law next term. The court also turned away a challenge to its landmark defamation decision, New York Times Co. v. Sullivan, but Justice Thomas continued to press the court to revisit the precedent.

The courts decisions continue to show the tension between incremental change and more decisive reversals of precedent. The court, for example, declined to recognize an implied claim against federal officials for damages for First Amendment retaliation under Bivens. But it did not join Justice Gorsuchs call to overturn Bivens altogether.

The justices also continue to struggle with how to frame tests to evaluate whether government action violates the First Amendment. The court unanimously ruled against the city of Boston for excluding a Christian flag from a flag-flying program at City Hall, but it split 63 on the test for evaluating whether speech constitutes government speech. Three justices also dissented from a case holding that an off-premise billboard ordinance was not a content-based regulation. The three justices argued that the court had retreated from a stricter, bright-line test for content-based laws set out in Reed v. Town of Gilbert just seven years ago.

Here are summaries of the Supreme Courts major First Amendment decisions this term:

The Supreme Court agreed to keep a preliminary injunction of Texas social media law in place, preventing the law from going into effect pending a full review of the laws constitutionality. The law would prohibit platforms from censoring users based on viewpoint, require procedures for users to appeal content removal, and require disclosures of the social media companies policies.

Three justices, including Justice Kagan, would have let the law take effect now. Justice Alito wrote that the case concerns issues of great importance that will plainly merit this Courts review but concluded that whether the First Amendment challenge is likely to succeed under existing law is quite unclear.

In a 63 opinion written by Justice Gorsuch, the court held that the First Amendments free speech and free exercise clauses protect a high school football coachs right to pray on the 50-yard line of the school football field after a game in a quiet, publicly visible religious observance.

The case arose when high school football coach Joseph Kennedy refused a directive from the Bremerton School District to stop publicly praying with students after games. The school district placed Kennedy on administrative leave and did not renew his contract when he continued to pray after games, and Kennedy sued. The court described Kennedy as engaging in a quiet prayer of thanks while his students were otherwise occupied. But the dissent by Justice Sotomayor included photographs of Kennedy praying with a crowd of students and adults, and described his history of inviting students from the opposing team to pray, leading vocal religious motivational speeches to students after games, and praying in the locker room with the team.

The court held that the school district had violated both his free speech and religious liberty rights by suspending him. The coach was engaged in private speech, not government speech in his capacity as a school employee, by leading the prayers on the 50-yard line after games. The court also held that the school districts tolerance of Kennedys prayers did not violate the establishment clause, and cast aside the courts Lemon test for evaluating whether government acts appear to endorse religion. Instead, Justice Gorsuch wrote that the court should look to historical practices and understandings to evaluate whether conduct offends the establishment clause.

Justice Sotomayor accused the majority of setting aside years of establishment clause precedents and ignoring the coercive effect of the coachs public prayers on students, who may feel social pressure to participate in the coachs prayer circle. [T]he Court sets us further down a perilous path in forcing States to entangle themselves with religion, with all of our rights handing in the balance, Justice Sotomayor wrote. As much as the court protests otherwise, todays decision is no victory for religious liberty.

In a 63 decision, Chief Justice Roberts wrote that the free exercise clause prohibited Maine from discriminating against religious schools by excluding those schools from a tuition assistance program open to nonsectarian schools in rural areas without free-standing public schools.

Because the Maine Constitution requires that every town provide children with free public education, the state offered tuition assistance to private, nonsectarian schools in rural Maine towns lacking the funds and population to support a free public school. Two families who wanted to use the state tuition payments to send their children to Christian schools sued when the state refused to provide the state tuition assistance to the schools.

The court held that Maine had discriminated against religious schools by excluding them from the program. Chief Justice Roberts wrote that Maine could not promote stricter separation of church and state than the Federal Constitution requires while penalizing parents for the free exercise of their religion by denying them tuition payments available to every other parent.

Justice Breyer dissented, explaining that states needed leeway to balance the purpose of the establishment clause to prevent a state religious orthodoxy with the individual religious rights protected by the free exercise clause. Justice Sotomayor was blunter: This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.

The court unanimously held that the city of Boston did not engage in government speech when it let groups raise a flag of their choosing on a city flagpole outside City Hall during community events. Because the city was not itself speaking by letting groups fly flags outside City Hall, it could not discriminate against a Christian flag based on the flags religious viewpoint.

The case arose when the city refused to let a group called Camp Constitution fly a Christian flag as part of an event, involving local clergy, to recognize the contributions of the Christian community in Boston. For years, the city had allowed private groups to fly a flag of their choosing on a flagpole during community events and had never denied a group use of the flagpole or even closely reviewed the flags flown.

Although the court ruled unanimously for the challengers, it split 63 on the proper test to determine whether expression constituted government speech. Writing for the court, Justice Breyer applied a three-part test considering the speechs history, the publics likely perception about who was speaking, and the extent of government control of the speech. The last two factors favored the view that the Christian flag represented private, not government, speech.

Justice Alito disagreed, arguing that the courts test obscures the real question in government-speech cases: whether the government is speaking instead of regulating private expression. He proposed a two-part test. First, Alito would look at whether the speech involved purposeful community of a government message by a person acting within his or her powers to speak for the government. Second, Alito would require the government to establish that it had not abridged the speech of persons acting in a private capacity.

With only Justice Thomas dissenting, the court denied certiorari in a case brought to overturn or limit the Supreme Courts landmark decision in New York Times v. Sullivan. Sullivan protects speech about public figures and officials from defamation lawsuits without proof of actual malice.

Coral Ridge Ministries sued the Southern Poverty Law Center for designating the evangelical Christian group as an anti-LGBT hate group because, among other things, it described homosexuality as lawless, an abomination, and against nature. The Eleventh Circuit held that Coral Ridge had failed to plead actual malice in its lawsuit and affirmed the cases dismissal.

Coral Ridge came to the Supreme Court last year, asking the justices to either reconsider the actual malice standard or limit it to public officials. But the justices turned down that request. Justice Thomas dissented. New York Times and the courts decisions extending it were policy-driven decisions masquerading as constitutional law, he wrote.

The court invalidated a federal law and FEC regulation that prohibited a campaign from using more than $250,000 in contributions made after election night to repay a candidates personal campaign loan. Sen. Ted Cruz loaned his reelection campaign $260,000 and sued when the campaign could not repay him more than $250,000 from post-election contributions.

Chief Justice Roberts wrote that the First Amendment offers the fullest and most urgent protection to political campaigns and that the restrictions inhibited candidates from loaning money to their campaigns, burdening political speech. The court also doubted the governments rationale for the restrictions, claiming it had not proven quid pro quo corruption and that campaign contribution limits already worked to prevent corruption.

Justice Kagan dissented, writing that the court had overstated the laws First Amendment burdens and understated the laws value to prevent corruption value. The law regulated loans, not campaign spending. And the government did not need to prove corruption to regulate what everyone knows to be true people (including politicians) will often do things for money.

The court upheld Austins off-premise billboard ordinance and receded from a bright-line rule for content-based restrictions set out in Reed v. Town of Gilbert. Justice Sotomayor wrote that though the billboard ordinance required a person to read the billboards content to determine whether the billboard advertised an on-premise or off-premise business, the ordinance was actually agnostic as to content. A signs location, rather than its content, mattered most.

Justice Breyer concurred but favored a balancing test weighing a regulations First Amendment harms against the regulatory objectives that it serves.

Justice Thomas wrote a bitter dissent, joined by Justices Gorsuch and Barrett, warning that the court had replaced Reeds bright-line rule with an incoherent and malleable standard that was results-driven and created the potential for invidious discrimination of disfavored subjects.

The court unanimously held that the First Amendment permits a government board to censure a member for his or her actions and that the censure does not create a claim for First Amendment retaliation.

The case arose after the Houston Community College System censured an elected trustee, Dave Wilson, for disrespecting members after Wilson criticized and campaigned against his colleagues, sued the board, and hired a private investigator to look into one of his fellow trustees.

The boards censure constituted the governments own speech, equally protected by the First Amendment as Wilsons speech, Justice Gorsuch wrote for the court.

The court unanimously held that the Constitution does not permit a person to bring a First Amendment retaliation claim for damages against a federal official under Bivens v. Six Unknown Federal Narcotics Agents. Justice Thomas wrote that the court would not enlarge implied constitutional torts where there is any reason to think that Congress might be better equipped to create a damages remedy.

The case occurred after Robert Boule, the owner of the Smugglers Inn on the Canadian border in Washington state, complained that a Border Patrol agent had thrown him to the ground after demanding to see the papers of a Turkish national at the inn. In response, the agent contacted the IRS, triggering an audit, and notified the state that Boules license plate, SMUGLER, referenced illegal activity. Boule sued for First Amendment retaliation under Bivens.

The court did not recognize a Bivens claim for First Amendment retaliation but held back from overruling Bivens entirely, as Justice Gorsuch urged the court to do in a concurrence that no other justice joined. I would only take the next step and acknowledge explicitly what the court leaves barely implicit, Justice Gorsuch wrote. [W]e should exercise the truer modesty of ceding an ill-gotten gain, and forthrightly return the power to create new causes of action to the peoples representatives in Congress.

Last term, after Justice Amy Coney Barrett joined the court, the court, in a series of orders on the emergency or shadow docket, prevented California and New York from enforcing limits on, among other things, the size of religious services and indoor gatherings. The court sided with challengers seeking to block lockdown restrictions to slow the spread of COVID-19.

But this term, a majority of the court voted for the government in emergency applications involving religious challenges to COVID-19 vaccine mandates.

In two New York cases, We the Patriots USA Inc. v. Hochul and Dr. A v. Hochul, the court declined to enjoin a regulation requiring all health care workers to get the COVID-19 vaccine regardless of religious objections.

The challengers asserted they could not receive the vaccines, which they said were developed with decades-old aborted fetal cells, without violating their religious beliefs. A different group also challenged the rule for allowing a medical exemption, but not a religious exemption. Justices Thomas, Alito, and Gorsuch would have granted injunctive relief in both cases.

In Austin v. U.S. Navy Seals 1-26, the court blocked an injunction against a Department of Defense rule requiring all active-duty personnel to get the COVID-19 vaccine. A group of Navy Seals challenged the rule on religious grounds. Justices Thomas, Alito, and Gorsuch would have allowed the injunction against the regulation to go into effect.

David Karp is an appellate lawyer at Carlton Fields and moderator of the Florida Bars Annual Seminar on the First Amendment cases of the U.S. Supreme Court term.

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Top 10 First Amendment Cases of the Supreme Court Term - JD Supra

Gender identity has been an issue of intense debate over the past couple of years. Courts are still grappling with the U.S. Supreme Courts decision inBostock v Clayton County, 140 S. Ct. 1731 (2020), which held that the 1964 Civil Rights Act protects gay, lesbian and transgender employees from discrimination based on sex. Although it has been two years sinceBostock,public and private universities are continuing to reform their discrimination policies to comply with this new law.InMeriwether v. Hartop, 992 F.3D 492 (6th Cir. 2021), the Sixth Circuit Court of Appeals determined whether a university professor who refuses to use transgender pronouns is afforded First Amendment protections.

Nicholas Meriwether was a philosophy professor at Shawnee State University. At the start of the 2016 school year, the university emailed faculty informing them they had to refer to students by preferred pronouns; professors who refused would be disciplined.

One day Meriwether referred to a student, Jane Doe, as sir instead of using a feminine pronoun. According to Meriwether, no one would assume Doe was a female based on Does outward appearance. Doe demanded that Meriwether use feminine pronouns when he addressed her. Meriwether believed his religious beliefs prevented him from communicating messages about gender identity that he believes are false.

He reported the incident to senior university officials, and the Acting Dean of the College of Arts and Sciences met with him. The Dean advised Meriwether to stop using all sex-based references in his class. In response, Meriwether stated hewould refer to most of the students using pronouns and refer to Doe by her name. The Dean accepted the compromise.

Doe remained unsatisfied and complained to university officials. The Dean informed Meriwether that if he did not address Doe as a woman, he would be violating the universitys policy. Meriwether accidently referred to Doe as sir on another occasion. Doe reported the incident to the universitys Title IX Coordinator, and Meriwether met with the Dean again. He offered a second compromise. He asked whether he could use preferred pronouns but place a disclaimer in his syllabus noting that he was doing so under compulsion and setting forth his personal and religious beliefs about gender identity. His compromise was rejected.

Doe complained again, and a Title IX investigation ensued. The investigation concluded that Meriwethers disparate treatment[of Doe] [had] created a hostile environment. The Dean later brought a formal charge against Meriwether under the collective bargaining agreement. The Dean also recommended placing a formal warning in his file. The Provost approved the Deans request even though Meriwether maintained that he began referring to Doe without pronouns and used Does last name as an accommodation. The Provosts decision remained unchanged.

Merriweather grieved the discipline but was unsuccessful. Left with no other option, he filed suit alleging several claims, including a free speech claim. The district court dismissed his lawsuit, so Meriwether appealed.

The Sixth Circuit first addressed Meriwethers free speech claim and held the First Amendment protects the academic speech of university professors. In reaching its decision, the court looked to the U.S. Supreme Courts ruling inGarcetti v.Ceballos, 547 U.S. 410 (2006). There, the Court held that speech by a public official is only protected if it is engaged in as a private citizen not if it is expressed as part of the officials public duties. But theGarcetticourt did not address speech related to scholarship or teaching. The court decided that prior Supreme Court decisions notGarcetti held that professors at public universities retain First Amendment protections when engaged in scholarship and teaching.

In response, the university argued that the court should not apply Supreme Court decisions that precededGarcetti. The court found this argument unpersuasive because its job is to apply existing Supreme Court precedent unless it is expressly overruled.

The university also argued that any academic freedom exception toGarcettidoes not apply to Meriwethers use of titles and pronouns in the classroom. The court rejected this argument. The court opined that gender identity is a matter of public concern and often arises in classroom discussions. Silencing Merriweathers viewpoint on the matter halted potential robust and insightful in-class discussions. The court concluded:

Thus, the academic-freedom exception toGarcetticovers all classroom speech related to matters of public concern, whether that speech is germane to the contents of the lecture or not. The need for the free exchange of ideas in the college classroom is unlike that in other public workplace settings.

Next, the court had to determine whether Meriwether plausibly alleged his in-class speech was protected by the First Amendment. This analysis posits two questions: (1) was Meriwether speaking on a matter of public concern and (2) was his interest in doing so greater than the universitys interest in promoting the efficiency of the public services it performs through him?

The court held that Meriwether spoke on amatter of public concern because his speech involved gender identity, which has been the recent contention of many passionate political and social debates.

Determining whether this interest outweighed the universitys interest in promoting the efficiency of public services was a taller task. Nonetheless, the court concluded it was.Academic freedom is paramount to the First Amendment, the court said, and that was especially the case here given that Meriwether spoke on a matter of public concern.

The university argued that it has a compelling interest in stopping discrimination against transgender students. But the court rejected this argument because the government does not always have a compelling interest in regulating employees speech on matters of public concern. If it did, the analysis is left meaningless. The court went on:

A schools interest in limiting a teachers speech is not great when those public statements are neither shown nor can be presumed to have in any way either impeded the teachers proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally.

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Meriwether v. Hartop and Meriwether v. Hartop and LGBTQ Rights - The National Law Review

A freedom of speech advocacy organization has called for a public apology this week after it says Kern County government threatened legal action against a Bakersfield man who had accused local officials of withholding public information.

Eddy Laine, who has lived in Bakersfield for 35 years, had sought information about the Kern County Park Rangers program by requesting documents through the California Public Records Act, but mistakenly claimed he never got a response.

The County Counsels Office sent Laine a letter June 21 stating it had provided most of the documents Laine requested, but that he should be aware of the California False Claims Act, which imposes liability for damages totaling thousands of dollars for spreading falsehoods.

Ive never had a letter like that ... threatening legal action. Never, Laine said Wednesday, adding he has used the records act to request documents over the years. I found (it) highly unusual.

The county cited the False Claims Act after learning Laine had sent a letter to the California Attorney Generals office accusing Kern County of failing to respond to his CPRA letter. He sent copies to entities such as the American Civil Liberties Union of Southern California, the Dolores Huerta Foundation and this newspaper.

The First Amendment Coalitionsent a letter Tuesday to the County Counsels Office asking that it apologize to Laine and ensure threats about seeking financial liability never recur. The county's statements, FAC Legal Director David Loy wrote in the letter, violated Laine's freedom of speech and the right to petition the government for redress of grievances, which are enshrined in the First Amendment.

First Amendment rights are intrinsic to democracy they are the oxygen of civil society, Loy said in a phone interview Wednesday.

County Counsel Margo Raison wrote in an email that the county has not threatened Laine or initiated any investigation into him. It also does not intend to commence legal action, she added.

I believe the First Amendment Coalitions reading of the letter is overbroad, Raison wrote.

The request

Laine sent a CPRA request May 2 for information such as the number of filled park ranger positions, number of park rangers assigned to Kern River Parkway area and contact information for park rangers. He also sought records on how the county plans to use $5 million it received from the American Rescue Plan Act of 2021 a federal stimulus bill passed to help counties recover from the COVID-19 pandemic and how the community could provide input to designate those funds.

Laine then sent a letter to the California Attorney Generals office stating the county did not respond to these requests.

FACs scrutiny arose from a letter the county penned to Laine in response to his complaint to the state Attorney General office. The county wrote it provided complete responses to some of Laines requests, while partially responding to others. In addition to making reference to the California False Claims Act, the county counsel noted anyone held liable for making false statements faces triple damages and civil penalties between $5,500 and $11,000 for each violation.

The coalition took no position on whether the county had properly responded to the CPRA request or whether the county had properly engaged with Laine. The County Counsels emailed responses to Laines CPRA request were inadvertently diverted to his spam folder, which gave Laine the impression he received no response, FAC noted in its letter.

The problem, FAC said, lies with the county citing the False Claims Act. Loy said this kind of invocation, sent on county letterhead, serves to intimidate citizens and prevent them from speaking when being threatened with financial costs. Laines First Amendment right was to speak out on a topic of public concern, and to petition the Attorney General, he said.

Loy added the threat of the False Claims Act against Laine was baseless because it does not apply to speech protected by the First Amendment, which Laines statements were. Even if Laine made a mistake, Loy noted, it does not mean he should be sued.

That should just never have happened, Loy stated.

Raison added that her office, and other county departments, has worked to ensure Laine gets information he requests. When pressed on whether her office will apologize publicly, Raison did not respond.

In fact, we have previously offered to assist him in crafting his public records requests so the County is able to respond more expeditiously, Raison wrote. We have again renewed our offer to work with him to obtain the records he seeks.

Laine said he was taken aback when he read the countys letter. The public should know how money is being spent, he added.

He said he hopes FACs letter results in one change.

Transparency in the future, Laine said. Regarding this and other potential issues that arise in the future.

You can reach Ishani Desai at 661-395-7417. You can also follow her at @_ishanidesai on Twitter.

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First Amendment Coalition accuses County Counsel of threatening Bakersfield man, violating First Amendment rights - The Bakersfield Californian

The states efforts in the absence of federal action could test governments ability to regulate speech, while forcing some of the nations wealthiest tech companies to fight an array of legal battles against laws that could upend their business models. These fights will also present courts with a fundamental debate about how the First Amendment plays out in the online age, including the companies own rights to decide what content they host on their platforms.

Many legal scholars see glaring flaws in some states approaches. The government cannot tell a private company what speech it can or cannot carry, provided that speech is constitutionally protected, said Jeff Kosseff, a cybersecurity law professor at the U.S. Naval Academy who has written two books about online speech.

Industry groups have warned that some of the laws especially the ones in Texas and Florida could wreak havoc on how they handle content worldwide.

You cannot have a state-by-state internet, Kosseff said. When you step back and look at the possibility of having 50 different state laws on content moderation some of which might differ or might conflict that becomes a complete disaster.

The bills fall into four major categories: More than two dozen, pushed by Republicans, seek to prevent companies from censoring content or blocking users. Others, pushed by Democrats, aim to require companies to provide mechanisms for reporting hate speech or misinformation. Lawmakers of both parties support proposals to protect children from addiction to social media. A fourth, also with bipartisan support, would impose transparency requirements.

Here is POLITICOS look at the state of play:

Conservatives efforts to ban social media from restricting users content ramped up last year, after the major social media platforms booted then-President Donald Trump following his supporters Jan. 6 attack on the Capitol.

Since then, legislatures in more than two dozen states the vast majority Republican-led have introduced bills aimed at preventing social media companies from censoring users viewpoints or kicking off political candidates.

Two of those have become law: Florida Gov. Ron DeSantis signed a bill (SB 7072) into law in March 2021, later updated this past April, prohibiting tech platforms from ousting political candidates. Texas followed suit last September with a law (HB 20) banning social media companies from restricting online viewpoints.

Now those laws are going through the courts, where tech companies have succeeded so far with arguments that the measures infringe on their First Amendment right to decide what to content to host. The 11th U.S. Circuit Court of Appeals ruled in May that Floridas law was largely unconstitutional, and the Supreme Court blocked the Texas law while an appellate court considers an industry challenge against the statute.

Proponents of the laws say they protect individuals free speech rights to share their views on the platforms. But Scott Wilkens, a senior staff attorney at the Knight First Amendment Institute at Columbia University, said the Texas and Florida laws are pretty clear violations of the platforms First Amendment rights to speak themselves by actually deciding what they will and wont publish.

Social media companies have argued that if the Texas law goes back into effect, it may make it harder to remove hate speech, such as a racist manifesto allegedly posted online by the perpetrator of a mid-May mass shooting in Buffalo, N.Y. The major platforms eventually removed that posting after the shooting.

Additionally, the Texas and Florida laws had they been in effect could have left Facebook open to lawsuits for their decision in June to remove an ad from Missouri Republican Senate candidate Eric Greitens calling for the hunting of so-called Republicans In Name Only. Facebook took down the ad because the company said it violated policies prohibiting the incitement of violence. Twitter labeled the ad as violating its policy against abusive behavior, but left it visible to users due to the publics interest.

Other Republican-led legislatures have introduced similar bills in Ohio, Georgia, Tennessee and Michigan that would prohibit social media companies from censoring religious or political speech, or would ban platforms from removing political candidates.

Democrats have long pushed social media companies to do more to take down misinformation and disinformation, as well posts attacking people along lines of race, gender or sexual orientation. Legislatures in primarily Democratic-run states including New York and California have introduced bills requiring social media companies to establish mechanisms for users to report hate speech to the platforms.

New York is the only state where such a proposal has successfully been enacted. Democratic Gov. Kathy Hochul signed S. 4511 in early June as part of a package of 10 bills aimed at curbing gun violence after the Buffalo shooting. The new law requires social media networks to make it possible for individuals to report hate speech on the platforms in a publicly accessible way and says the companies must directly respond to anyone who reports such speech. Companies could face fines of up to $1,000 a day if they dont comply.

The law takes effect in December.

New York Gov. Kathy Hochul attends a press conference on August 26, 2021, in New York City.|Michael M. Santiago/Getty Images

Democratic New York state Sen. Anna Kaplan introduced the bill last year in hopes of curbing the radicalizing effects of social media. We are not in any way telling social media what policy to put in, she said in an interview. Its not about violating the First Amendment. Its about just empowering the users to be able to report hateful content.

But NetChoice and the Computer and Communications Industry Association, lobbying groups representing tech companies such as Facebook, Twitter and Google, are analyzing whether the new Texas law could lead to First Amendment infringements. Both groups filed lawsuits against the Florida and Texas laws.

Were concerned about the laws constitutionality, and are raising those concerns with state lawmakers, said Chris Marchese, NetChoices counsel, said in an interview after the New York law was signed.

He said the New York law could violate the First Amendment because its definition of hateful conduct is too broad, and covers speech thats protected by the Constitution. He added that even though New York is different from Texas and Florida, the temptation for the government to step in is incredibly high no matter where you live.

In California, Democratic Assemblyman James Gallagher of Yuba City introduced a bill (AB 1114) that would require social media companies to explain how they handle content that involves obscenity, threats and incitements of violence that are not constitutionally protected. The bill failed to advance this session.

New York also has several pending bills that would require social media companies to provide ways to report election- and vaccine-related misinformation.

Legislation addressing childrens safety on social media platforms has some bipartisan support. Several bills have been introduced following last years revelations from Facebook whistleblower Frances Haugen that Instagrams algorithms were pushing unhealthy body images on young girls.

Legislators from both parties in California and Minnesota have introduced bills to address the addictive nature of social media.

The California Assembly passed a bipartisan bill (AB 2408) in late May aiming to protect kids from addictive social media features by making the platforms liable to lawsuits and fines if their products knowingly harm children under the age of 18. A child user or their parent or guardian would be able to sue a platform if the child becomes addicted to a platform. Penalties in a successful class action brought under the bill would be at least $1,000 per individual, potentially adding up to very large sums given the number of children using social media in California.

The bill advanced through a California Senate committee in June and is expected to go to the floor in August.

Tech advocates are raising free-speech objections about the measure.

This has really serious First Amendment problems, said David Greene, the civil liberties director of the digital rights nonprofit Electronic Frontier Foundation.

Dylan Hoffman, a California lobbyist for tech trade group TechNet, said the bill goes directly after platforms algorithms which are used to moderate user content and therefore infringes on their First Amendment speech rights.

Its clearly about the content and seeking to regulate any feature that you claim as addictive well, whats more addictive than showing good content? he said. Thats the inherent problem with this bill because you cant divorce those two ideas.

The bills sponsor, Republican state Rep. Jordan Cunningham, disputed that argument. It doesnt touch or regulate content at all, he said in an interview. Nothing in the bill tells any social media company what they can or cannot allow users to post on their platform.

Kosseff said ultimately he doesnt believe that going after algorithms gets rid of the free speech issue. He added, If youre restricting the ability for speech to be distributed, then youre restricting speech.

However, Wilkens, of the Knight First Amendment Institute, said that while the bill may implicate the First Amendment, it doesnt mean that it violates the First Amendment. He said that while its still up for interpretation, the legislation if it became law may be held constitutional because the states interest here in protecting young girls seems to be a very strong interest.

A bill (HF 3724) in Minnesotas Democratically controlled House also would bar social media companies from using algorithms directed at children, but it failed to advance this session. It would ban social media platforms with more than 1 million users from using algorithms directed at individuals under the age of 18. Companies could face fines of up to $1,000 per violation.

Legislators in Mississippi, Tennessee, New York and California have introduced bills this year requiring platforms to provide transparency reports on their content moderation decisions. Both the Florida and Texas social media laws have provisions requiring such reports. The 11th Circuit upheld disclosure and transparency disclosure requirements in Floridas social media law in its May decision striking down other parts of the law.

We have made the argument that there is room for government regulation in disclosure requirements, Wilkens said. He said he thinks those bills may very well be constitutional under the First Amendment.

This bipartisan approach on the state level is one federal legislators are contemplating emulating. Sens. Chris Coons (D-Del.) and Rob Portman (R-Ohio) have drafted a bill to mandate that companies disclose some of their data and explain how algorithms amplify certain content.

It wont solve the problem, but it will help us identify what the problem might actually be, and increase the chances that Congress might responsibly legislate, Coons said in an interview.

Link:
Push to rein in social media sweeps the states - POLITICO

from the fix-the-damn-bill dept

Over the last few weeks, weve written quite a bit about the American Innovation and Choice Online Act (AICOA), which has become the central push by a bunch of folks in Congress to create a special antitrust bill for big tech. There are some good ideas in the bill, but, as weve been highlighting, a major problem is that the language in the bill is such that it could be abused by politically motivated politicians and law enforcement to go after perfectly reasonable content moderation decisions.

Indeed, Republicans have made it clear that they very much believe this bill will enable them to go after tech companies over content moderation decisions they dislike. Most recently, theyve said that if the bill is clarified to say that it should not impact content moderation, that they will walk away from supporting the bill. That should, at the very least, give pause to everyone who keeps insisting that the bill cant be abused to go after content moderation decisions.

We recently wrote about four Senators, led by Brian Schatz (with Ron Wyden, Tammy Baldwin, and Ben Ray Lujan), suggesting a very, very slight amendment to the bill, which would just make it explicit that the law shouldnt be read to impact regular content moderation decisions.

In response to that Schatz letter, Rep. David Cicilline (who is spearheading the House version of the bill, while Senator Amy Klobuchar is handling the Senate side), sent back a letter insisting that Section 230 and the 1st Amendment already would prevent AICOA from being abused this way. Heres a snippet of his letter.

Moreover, even if a covered platforms discriminatory application of its terms of servicematerially harmed competition, the Act preserves platforms content-moderation-relateddefenses under current law. Section 5 of S. 2992 states expressly that [n]othing in this Act maybe construed to limit ... the application of any law.

One such law is Section 230(c) of the Communications Decency Act. Under thatprovision, social-media platforms may not be treated as the publisher or speaker of anyinformation provided by another information content provider. They also may not be heldcivilly liable on account of any action voluntarily taken in good faith to restrict access to oravailability of material that the provider or user considers to be obscene, lewd, lascivious, filthy,excessively violent, harassing, or otherwise objectionable, whether or not such material isconstitutionally protected. Accordingly, as with other liability statutes enacted since thepassage of Section 230, Section 230 provides an affirmative defense to liability under [the Act]for ... the narrow set of defendants and conduct to which Section 230 applies. Another stillapplicable law is the First Amendment to the U.S. Constitution, which the Act does notandindeed, cannotabrogate.

He then goes on in more detail as to why he believes the bill really cannot be abused. And while he does note that that he remains committed to doing what is necessary to strengthen and improve the bill and that he is happy to keep working with these Senators on it, the very clear message from his letter is that hes pretty sure the bill is just fine as is, and that Section 230 and the 1st Amendment already protect against abuse.

Finally, your proposed language for the Actalthough well intentionedis alreadyreflected in the base text of the bill. As detailed above, among other things, section 5 of S. 2992preserves the continued applicability of current laws, including 47 U.S.C. 230(c), that protectsocial-media platforms from liability for good-faith content moderation. Although I agree thatlegislation is necessary to address concerns with misinformation and content-moderationpractices by dominant social-media platforms, I have consistently said that this legislation is notthe avenue for doing so. As such, this legislation is narrowly tailored to address specificanticompetitive practices by dominant technology firms online. And as the Department of Justicehas noted, it is a complement to and clarification of the antitrust laws as they apply to digitalmarkets. As such, it does not supersede other laws.

Except Cicilline is wrong. Very wrong. We at the Copia Institute this week signed onto a letter from TechFreedom and Free Press (two organizations that rarely agree with each other on policy issues) along with some expert academics explaining why.

The letter explains why Cicillines faith in Section 230 and the 1st Amendment is misplaced. It walks through, step by step, ways in which motivated state AGs (or even the DOJ) might get around those concerns, by claiming that moderation decisions were not actually content-based decisions, but business conduct, focused on anti-competitive behavior.

We dont have to look far to see how that played out: the Malwarebytes case was an example of that in action. That was a case where a company was able to avoid Section 230 by claiming that a moderation decision (calling an app malware), was actually done for anti-competitive reasons. But with AICOA, we could get that on steroids. As the letter notes:

There is a substantial risk that courts will extend the Malwarebytes reasoning to exclude AICOA claims from Section 230 protectionincluding politically motivated claims aimed at content moderation. Specifically, courts may try to harmonize the two statutesi.e., strive to give effect to bothby accepting some showing of anticompetitive results as sufficient to circumvent Section 230(c)(2)(A) in non-discrimination claims.

Anticompetitive animus is not required by the plain text of AICOA 3(a)(3). Allowing only AICOA claims that allege (and, ultimately, prove) anticompetitive motivation to bypass Section 230s protection would infer an intent requirement where Congress chose not to include one. While courts do sometimes infer intent requirements, they may reasonably conclude that doing so here would effectively read Section 3(a)(3) out of the statute. How could a platform with no direct stake in the market where competitive harm is alleged ever have an anticompetitive intent? Thus, how could any plaintiff ever bring a Section 3(a)(3) claim regarding harm to competition between downstream business users that would survive Section 230(c)(2)(A)? For Rep. Cicillines presumptions about Section 230 to be correct, courts would have to effectively render Section 3(a)(3) a nullity by holding that only claims of self-preferencingbut not discrimination between other business usersare actionable. This is an implausible reading that clearly contradicts what the present draft of AICOA says.

The Malwarebytes court relied heavily on Section 230s history and purpose as evincing Congressional intent to protect competition. Here, there is explicit statutory language and legislative history from which a court could conclude that AICOAs purpose is to prohibit anticompetitive results, regardless of motiveand thus to carve those claims out from Section 230. This result would apparently be statutorily required if another bill co-sponsored by Sen. Klobuchar becomes law: The SAFE TECH Act (S. 299) would amend Section 230 to exempt any action brought under Federal or State antitrust law.

Theres a lot more in the letter, but the point is clear. The idea that 230 will magically stop the abuse of this bill seems contradicted by the way the law is currently drafted, and actual cases on the books.

Filed Under: 1st amendment, aicoa, amy klobuchar, ben ray lujan, brian schatz, content moderation, david cicilline, ron wyden, section 230, tammy baldwin

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Do Not Expect Section 230 And The 1st Amendment To Save Antitrust Bills From Abuse - Techdirt