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Earlier this month, the Ninth Circuit held that Twitter did not act as the government by banning a user months after a government agency flagged for Twitter one of his tweets on alleged election fraud. OHandley v. Weber is the latest decision rejecting social media users attempts to hold platforms liable for deleting, demonetizing, and otherwise moderating their content.

Twitter is a private entity, so the government and the courts cannot tell it what speech it must remove or what speech it must carry. The First Amendment restricts censorship only by the government, not private entities, unless those entities are using government power or otherwise effectively acting as the government. But in OHandley, even if Twitter and the government were generally aligned in their missions to limit the spread of misleading election information[, s]uch alignment does not transform private conduct into state action.

Moreover, as we argued in our amicus brief in the case, holding Twitter liable for content moderation would likely violate the platforms own First Amendment rights. For example, when Twitter took down plaintiff Rogan OHandleys tweets and then his account, it made an editorial decision about what content it would publish.

OHandleys lawsuit, relied on the fact that the California Office of Election Cybersecurity flagged one of OHandleys tweets for supposedly violating Twitters misinformation policy. But as the Ninth Circuit explained, Twitter developed and applied that policy at its discretion, and the government did not order Twitter to take any action. The court said, and we argued in our brief, that Twitter is not a state actor unless it ceded control over its content moderation process to the government. In general, the government is free to talk to Twitter, and Twitter is free to listen (or not listen).

The Ninth Circuit pointed specifically to Twitters user agreement with OHandley as justifying the content moderation, and declined to say whether the First Amendment also protects that moderation. But many other courts have dismissed these must carry lawsuits under the First Amendment, including the lower court in this case. OHandley is the Ninth Circuits second published decision rejecting a must carry lawsuitthe first being Prager v. Googleand provides clear precedent for other courts considering these cases.

Finally, the court said OHandley had standing to sue the California government for flagging his tweet, but that it ultimately did not violate his First Amendment rights because flagging a tweet was mere government speech and not coercion.

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Victory at the Ninth Circuit: Twitter's Content Moderation is Not State ... - EFF

Frances Madeson| Louisiana Illuminator

TikTok influencers visit Washington amid possible ban

A heavy public relations campaign involving TikTok influencers has come to the nation's capital as U.S. officials are considering banning the hugely popular video-sharing app over worries it poses risks to cybersecurity and data privacy. (March 22)

AP

ALEXANDRIA Louisiana Attorney General Jeff Landry has declined to weigh in on the constitutionality of an amendment to the Rapides Parish Librarys collection development policy, as requested in January. He offered no reason in his offices March 2, 2023, letter to the parishs Library Board of Control.

At issue is a policy change the Rapides Library Control Board considered in January. Board member James Morgan suggested the amendment after his 4-year-old son came across a copy of Pride Puppy in the childrens section of the library. Its an alphabet book that tells the story of a family losing then finding their puppy after it runs off the leash at a Pride parade.

Morgan, who the Rapides Police Jury appointed to the board in September, authored the proposed update to the librarys collection development policy.It reads: [Children and teen] collections shall not include materials containing obscenity, sexual content (including content regarding sexual orientation and gender identity), or any other material that is unsuitable for the children and teen collections. Library events and displays for children and teens shall be held to the same standard.

Library board counsel Greg Jones, experts at the Tulane First Amendment Law Clinic, and three local attorneys who weighed in during public comments at the December and January board meetings, all cautioned that Morgans language was unconstitutional. The parish library and elected leaders would not be able to defend themselves against the exposure to lawsuits to follow if the amendment is adopted , they said.

Storyteller, writer teaches Alexandria children the power of F-words

Tulane law professorKatie Schwartzmann, who directs the First Amendment Law Clinic, confirmed that position in an email to the Illuminator. The clinic also provides guidance to the Illuminator.

Its unfortunate that Attorney General Landry chose not to provide the guidance requested by Rapides Library Board of Control, Schwartzmann said. Rapides proposed book ban would be unconstitutional, but the Attorney General chose not to advise them as such. Louisianians (and local government bodies) need to be able to rely upon Landrys office to provide clear-eyed legal guidance.

The proper guidance would be to advise the library board that its proposed restrictions on books would violate the U.S. Constitution, she said. Landry has acknowledged previously that the First Amendment is broad and protects controversial books, evensexual content, Schwartzmann added.

Louisiana already has laws that criminalize obscenity and material harmful to minors, she said. If officials reach beyond those limits, they will be censoring protected speech and violating the Constitution.

Landry established a Protecting Minorstip linelast year for the public to report the taxpayer-subsidized sexualization of children at libraries. Through a public records request, the Illuminator reporter the line wasflooded with spam complaints.

At the January library board meeting, president LeAnza Jordan lamented that the troublesome verbiage had not been vetted by a board committee. Her comments came after hours of public comments from religious leaders and parents decrying nonexistent pornography in the childrens section.

Alexandria hospitals fail to comply with price transparency law, patient advocates say

At that meeting, in addition to seeking permission to contact the attorney generals office on the boards behalf, Jones suggested the members consider creating a board Policies and Reconsideration Committee. It could be dually charged with scrutinizing proposed amendments for lawfulness and redundancy, and it could serve as another layer in the librarys review procedures for reconsideration of material patrons find objectionable.

Morgan, in an email to the Illuminator at the time, stood behind his proposed changes.

I continue to believe that it is practical, legal and consistent with our current policy, and I think it would be a great addition to our librarys development policy, he said.

The board was to consider the new committee at Tuesdays meeting, but it was tabled until after the Louisiana Legislatures session in case relevant state policy is enacted. In his letter, Landry suggested the board monitor the session for bills enforcing library restrictions. Lawmakers will convene April 10 and must adjourn no later than June 8.

Sen. Heather Cloud, R-Turkey Creek, and Rep. Julie Emerson, R-Carenco, havepre-filed billsto restrict materials available to minors at libraries.

Jones advised it could be July before any legislation reaches the governors desk, where his options include a veto.

Morgan stunned attendees at Tuesdays library board meeting when he asked for a copy of its reconsideration procedures, saying he had never seen it.

Library patron Loren Ryland, who has attended and spoken at library board meetings since December, told the Illuminator after the meeting her communitys libraries are under attack by members of its board.

The only thing that I can consider, and Ive thought about this a lot, is that it seems like their ultimate goal is to gut the library from the inside, Ryland said.

TheLouisiana Illuminatoris an independent, nonprofit, nonpartisan news organization driven by its mission to cast light on how decisions are made in Baton Rouge and how they affect the lives of everyday Louisianians, particularly those who are poor or otherwise marginalized.

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AG Landry offers no opinion on Rapides library children's book policy - The Town Talk

The News Corp. and Fox News headquarters building is seen on January 25, 2023 in New York City.

A courtroom showdown between Fox News and Dominion Voting Systems over the networks coverage of the 2020 election is putting a spotlight on protections for journalists that typically insulate them against defamation claims, including the neutral report privilege and the actual malice standard. Both sides argue their loss would have a devastating impact. Fox News claims no outlet would be able to cover newsworthy allegations without fear of a lawsuit and Dominion says siding with the network would give broadcasters free rein to knowingly spread lies. Despite their apparent alarm, or maybe because of it, First Amendment experts expect that theyll settle their fight and soon.

The legal battle began in March 2021 when Dominion sued Fox News for $1.6 billion. The company claims the cable channel knowingly amplified radioactive falsehoods about election fraud made by Donald Trump and his supporters because it was worried about losing its audience to Newsmax and OAN.

Fox sold a false story of election fraud in order to serve its own commercial purposes, several injuring Dominion in the process, states the complaint. If this case does not rise to the level of defamation by a broadcaster, then nothing does.

Dominion alleges that Fox experienced backlash for accurately reporting on the results of the election including a Twitter tirade from Trump himself and opted to knowingly disregard facts to try to win back viewers.The election technology supplier argues this damaged the companys reputation, subjected its employees to harassment and death threats and undermined the credibility of U.S. elections.

In order to succeed on its defamation claim, Dominion would need to prove actual malice meaning that Fox either knew the statements to be false or acted with reckless disregard for the truth. The standard was established in 1964 in The New York Times Co. v. Sullivan. Knight First Amendment Institute Senior Counsel Katie Fallow says the elevated requirement ensures free speech and the ability of the media to report on public officials and figures without the fear of lawsuits based on a mere mistake.

Generally, the standard makes it an uphill battle to successfully sue a media outlet for defamation. Its become somewhat of a political football as critics mostly politically conservative figures including U.S. Supreme Court justices Clarence Thomas and Neil Gorsuch and Florida Gov. Ron DeSantis say Sullivan and the current landscape of U.S. libel law effectively let the media operate unchecked.

Currently a lot of conservatives are arguing that the actual malice standard should be overturned based on this theory that the mainstream media has an agenda and is out to mislead and defame people who dont share its agenda, says Fallow, noting that Florida lawmakers have introduced bills that would considerably lower the bar. I would think conservative commentators would be subject to more defamation lawsuits, and would lose more of them, if First Amendment protections were rolled back.

In this case, its those very protections that Fox News is relying upon, under both Sullivan and New Yorks anti-SLAPP law, as the company argues that Dominion cant prove malice.

Argues Fox News in a reply brief, When Dominion finally turns to the evidence of what the relevant hosts actually knew and believed at the time, instead of what Dominion thinks they should have known and believed, it identifies nothing that comes close to clear and convincing evidence rebutting their uniform testimony that they did not know whether the Presidents claims were true or false.

Court filings over the past few months have generated no shortage of headlines especially after Dominion unleashed a trove of communications including private messages among Fox News talent and staff in support of its motion for summary judgment. The voting machine supplier argues that inside the network there was widespread knowledge of the truth and claims those messages prove that Tucker Carlson, Sean Hannity, Lou Dobbs and others knew there was no election fraud but felt it would be bad for business to shut down the claims. One message written by the networks former managing editor noted, Its remarkable how weak ratings make good journalists do bad things.

This appears to be a relatively unusual case where Dominion has presented a remarkable array of statements by Foxs own executives, on air hosts and producers showing that the knew the claims were false but they continued to air them because they knew they would lose their audience, says Fallow.

Fox argues that the messages Dominion is sharing have been cherrypicked and insists that it did present both sides of the story. The network argues that Dominion has not even identified any defamatory statement of fact as opposed to newsworthy allegations or opinions attributable to Fox News, let alone identified any such statement published with actual malice.

And Fox says holding the network liable for repeating allegations made by the then sitting President of the United States would chill free speech.

There is some merit to that in the abstract, says Fallow. It is newsworthy that theyre making these false claims, but there is a difference between reporting on that and essentially acting as a mouthpiece for the false statement.

So, much of the debate centers on whether Fox News was merely reporting on newsworthy events or if it was endorsing lies about Dominion pushed by Rudy Giuliani and Sidney Powell by continuing to air them after becoming aware that they were false.

The amount of facts that they have that show that Fox executives, producers and hosts all subjectively believed that these claims about Dominion and the election were false using words like nuts thats pretty unusual, says Fallow.If Fox were to be held liable based on this level of facts I dont think it would create a bad precedent for other news organizations.

Media law specialist Daniel Novack isnt so sure. As a media lawyer, Im worried about the neutral report privilege getting stomped on, he says, pointing to an adage that bad facts create bad law. Its extremely irritating to watch Fox cloak itself in neutral reportage and First Amendment protections when this has the potential to destroy those protections because the facts are so bad.

Loyola Law School professor Aaron Caplan sees it a different way. There are some cases that are important because they might change the law, and there are others that are important because of what happened, he says. I dont think this Fox case is going to change the law any. Whats important about it is the underlying facts. Getting the truth about the election is tremendously important, getting the information about the machines our country uses for elections is important, whether one of our major news networks routinely lies is important. I think the facts of the case are important and thats why theres attention being paid to it.

But, based on how disputes of this nature usually go, theres a solid chance there wont be a definitive finding either way.

Most civil cases between two corporations end up settling before trial, says Caplan. Most corporations would rather know for sure its going to be X dollars than take the risk that it might be $1.6 billion. Its a business judgment about how much risk they want to take and how much money they have on hand.

So, why hasnt this fight settled? Surmises Fallow, I assume that it hasnt settled yet because theyre waiting to see how the judge rules on the motion for summary judgment.

The ruling could give one side or the other more leverage and affect how much money is on the table. Experts think its unlikely that either Fox News or Dominion will prevail on its motion for summary judgement, but are eager to see what judge Eric M. Davis says in a Tuesday hearing in Delaware Superior Court.

I dont think either side is going to win their motion, says Novack. Im expecting this to go to trial if nobody blinks and settles.

But, Novack thinks ultimately Fox will write a check to avoid a trial, which is currently set to begin April 17. There is an obvious endgame here, he says, and is it to settle for a few hundred million dollars and walk away and never discuss it again.

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Why First Amendment Experts Think Fox News Will Settle Its Dominion Dispute - Hollywood Reporter

Jack Greiner| Columnist, Simply Legal

Ive written on several occasions about the fact that the First Amendment doesnt apply to private parties even tech giants.

The First Amendment is a check on the government only. This means that if a private entity interferes with someones right to speak, thats too bad, but it doesnt give rise to a viable case.

Unfortunately, Marshall Daniels either doesnt read my column or doesnt pay much attention to it. He recently brought a suit against Alphabet, Inc., Google and YouTube alleging that they deprived him of his First Amendment rights. Daniels alleged that the three defendants violated 42 USC 1983, which allows people to sue state actors for depriving them of their constitutional rights. The court threw out the case, but that was arguably the least of Daniels problems, as the court also decided that Daniels would need to pay YouTubes legal fees.

Daniels has uploaded videos and live commentary concerning social, political and educational issues to YouTube since July 2015. On April 21, 2020, Daniels live-streamed a video entitled, Fauci Silenced Dr. Judy Mikovits from Warning the American Public. And on May 28, 2020, Daniels live-streamed a video entitled, George Floyd, Riots & Anonymous Exposed as Deep State Psyop for NOW. Both videos were removed in the weeks following their upload by Google and YouTube for purportedly violating YouTubes Community Guidelines or its policies on harassment and cyberbullying.

Daniels attempted to avoid the dismissal of his suit by arguing that two members of Congress Adam Schiff and Nancy Pelosi coerced YouTube and Google into removing the content. According to Daniels, this constituted sufficient state action to haul the private actors into court.

There were two problems with this approach. First, as the court noted, Section 1983 claims may be asserted against state actors, not federal officials. Reps. Schiff and Pelosi, as anyone with a rudimentary knowledge of Civics knows, are part of the United States Congress.

But perhaps more importantly, the court found that statements by Schiff and Pelosi generally cautioning social media providers to avoid spreading misinformation do not transform those providers into state actors. There was simply no state action here on which to base a 1983 case.

So Daniels lost the case. But that didnt end the matter. YouTube submitted a claim for $38,576 representing the attorney fees it incurred in fending off the claim. In the courts view, YouTube was entitled to a fee award because Daniels' case was frivolous.

Daniels argued that his claims were novel but not frivolous. For example, he argued that Reps. Schiff and Pelosi were state actors because they represented the state of California. The court was unimpressed, noting this argument lacks merit and is not supported by either of the cases on which Mr. Daniels relies, neither of which concerns a member of Congress being treated as a state actor by virtue of representing a state in Congress. . . . None of his arguments are persuasive, as he articulated no plausible legal theorynovel or otherwisefor holding private entities liable as government actors in the circumstances presented.

Daniels is no doubt a creative litigant. But as he learned the hard way, there is a fine line between novel and frivolous. He crossed it and it cost him.

Jack Greiner is a partner at Faruki PLL law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues.

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Strictly Legal: Does First Amendment apply to YouTube, Google - The Cincinnati Enquirer

If a television network could cry crocodile tears, that would be Fox News wailing that the $1.6 billion defamation lawsuit it faces for spreading lies about the 2020 presidential election is an attempt to trample on free speech and freedom of the press. Fox is being sued by Dominion Voting Systems for airing false allegations that the companys machines were linked to widespread election fraud; another suit, by the electronic voting company Smartmatic, is close on its heels. So you can see why network honchos would be clinging to First Amendment protections. A generous interpretation of the nations laws regarding libel the written or broadcast form of defamation is the only thing that can save Fox news from itself now.

A trial in the Dominion case is slated for next month in Delaware, and I hope the parties resist the temptation to settle out of court. Fox should be brought to justice, not just because the networks outrageous behavior is a blot on all responsible journalism but because a finding against the media giant would, paradoxically, vindicate Times v. Sullivan, the bedrock First Amendment case that has protected the press from frivolous libel claims for nearly 60 years.

To review: The 1964 Times v. Sullivan case establishes the circumstances under which the media can be held responsible for libel of a public figure (or in this case, a public company). These include deliberately and knowingly reporting damaging falsehoods with a reckless disregard for the truth.

Antagonists of a robust free press have had Times v. Sullivan in their crosshairs for years, saying the protections it offers are too sweeping. In 2019 Supreme Court Justice Clarence Thomas issued a broadside against the decision, saying it sets an impossible standard for aggrieved plaintiffs to meet. Justice Neil Gorsuch also has opined that it has evolved into an ironclad subsidy for the publication of falsehoods.

But recently unsealed court filings suggest Fox News practiced reckless disregard with abandon in the weeks after the 2020 election. The trove of documents show that Fox officials, from chairman Rupert Murdoch on down, knew that the election fraud claims pushed by allies of former president Donald Trump were false but broadcast them anyway. On-air celebrities privately derided the claims and their sources Rudy Giuliani, Sidney Powell, and other conspiracy mongers as nonsense and mind-blowingly nuts while giving them ample airtime. The programming continued even as the theories were debunked by fact-checkers. Fox reporters in the news division who held on to a shred of ethics were scolded for casting doubt on the Big Lie.

Fox defends its broadcasts as merely relaying what newsworthy individuals were saying about the election, even if the statements were outlandish. And some Fox hosts did express skepticism about the fraud claims on the air. But the documents show that Fox executives were reeling from the backlash among their viewers for having called Arizona (correctly) for Joe Biden on election night. The actions Fox News took to placate Trump allies and stop the hemorrhaging of viewers to competing networks are just the sorts of behaviors Times v. Sullivan identifies as not defensible.

The argument has been that New York Times v. Sullivan has gone too far and the liberal press has no limits, Harvards constitutional law professor Laurence Tribe said in an interview. If Fox loses the defamation case, he said, it would demonstrate the utter falsity of the narrative that Times v. Sullivan is an unfettered license to spread libelous lies. A finding against Fox, in other words, would prove the system works and Times v. Sullivan need not be weakened or overturned.

It may be too much to hope for, but a loss for Fox also could be a warning to other media outlets about the risks of circulating disinformation, possibly tamping down the contagion of lies and conspiracy theories that have so poisoned the public discourse in this country.

In a 2016 campaign speech in Texas, then-candidate Donald Trump pledged to gut constitutional protections for the news media.

Were going to open up the libel laws, he said to cheers, so when they write purposefully negative and horrible and false articles, we can sue them and win lots of money. The irony is rich because in this case it is Trump and his allies at Fox News who are charged with saying negative and horrible and false things about Dominion. And recovering lots of money may not require changing the libel laws at all.

Rene Loths column appears regularly in the Globe.

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A loss for Fox would be a win for the First Amendment - The Boston Globe