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Just released, Netchoice v. Paxton; I'm traveling and likely won't have time to digest the 113 pages of opinions for a while, but here's the opening from Judge Andrew Oldham's opinion, which is a majority on most points:

A Texas statute named House Bill 20 generally prohibits large social media platforms from censoring speech based on the viewpoint of its speaker. The platforms urge us to hold that the statute is facially unconstitutional and hence cannot be applied to anyone at any time and under any circumstances.

In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment. That Amendment, of course, protects every person's right to "the freedom of speech." But the platforms argue that buried somewhere in the person's enumerated right to free speech lies a corporation's unenumerated right to muzzle speech.

The implications of the platforms' argument are staggering. On the platforms' view, email providers, mobile phone companies, and banks could cancel the accounts of anyone who sends an email, makes a phone call, or spends money in support of a disfavored political party, candidate, or business. What's worse, the platforms argue that a business can acquire a dominant market position by holding itself out as open to everyoneas Twitter did in championing itself as "the free speech wing of the free speech party." Then, having cemented itself as the monopolist of "the modern public square," Packingham v. North Carolina(2017), Twitter unapologetically argues that it could turn around and ban all pro-LGBT speech for no other reason than its employees want to pick on members of that community, Oral Arg. at 22:3922:52.

Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say. Because the district court held otherwise, we reverse its injunction and remand for further proceedings.

Judge Edith Jones joined this in large part; an excerpt:

Functioning as conduits for both makers and recipients of speech, the platforms' businesses are closer analytically to the holdings of the Supreme Court in PruneYard and FAIR than to Miami Herald, Pacific Gas & Electric, and Hurley. It follows from the first two cases that in arbitrarily excluding from their platforms the makers of speech and preventing disfavored speech from reaching potential audiences ("censoring," in the comprehensive statutory term), they are not themselves "speaking" for First Amendment purposes.

Another way to look at this case, however, is through the Turner I decision, in which the Supreme Court held that cable TV companies are to some extent engaged in First Amendment-covered "speech" when, as they "operate" their systems, they determine which cable channels to host. Using intermediate scrutiny, the Court did not reject federal must-carry regulations requiring hosting of certain preferred channels. Instead, the Court distinguished both Pacific Gas & Electric and Miami Herald for three reasons. First, the must-carry regulations were content neutral. Second, they did not force cable operators to modify their own speech, nor were viewers likely to associate the mandatory hosted speech with that of the operators. And third, a cable operator's selection of channels controlled the flow of information into subscribers' households, and could "thus silence the voice of competing speakers with the mere flick of a switch." I find all of these points compellingly applicable to analyzing the regulations imposed on large social media platforms by the Texas statute before us.

Judge Leslie Southwick largely dissented; again, a short excerpt:

Yes, almost none of what others place on the Platforms is subject to any action by the companies that own them. The First Amendment, though, is what protects the curating, moderating, or whatever else we call the Platforms' interaction with what others are trying to say. We are in a new arena, a very extensive one, for speakers and for those who would moderate their speech. None of the precedents fit seamlessly. The majority appears assured of their approach; I am hesitant. The closest match I see is caselaw establishing the right of newspapers to control what they do and do not print, and that is the law that guides me until the Supreme Court gives us more.

When the Platforms curate their users' feeds, which are the behaviors prohibited in Section 7 of HB 20, they are exercising their editorial discretion. That is a type of First Amendment-protected activity recognized in Miami Herald, PG&E, Turner, and Hurley. [T]here may be more than one type of First Amendment activity occurring by the same speaker when, for instance, an article is selected and printed in a newspaperor, in our context, a tweet posted or video listed. First Amendment protections attend the publishing process as well as the actual published content.

For my thoughts on this general subject, seeTreating Social Media Platforms Like Common Carriers?

Read more here:
Fifth Circuit Rejects First Amendment Challenge to Texas Social Media Common Carrier Law - Reason

On Wednesday, September 14, 2022, at 10:00 a.m. ET, Rep. Jamie Raskin, Chairman of the Subcommittee on Civil Rights and Civil Liberties, will hold a hybrid hearing to examine how the fossil fuel industry is weaponizing the law to stifle First Amendment protected speech and stymie efforts to combat climate change by abusing Strategic Lawsuits Against Public Participations (SLAPPs) and anti-protest laws.

Since the 1980s, SLAPPs have been used by powerful entities and individuals to silence critics through costly, lengthy, and often meritless litigation. These lawsuits have recently been employed by the fossil fuel industry to target environmental activists and non-profits by claiming defamation, trespass, and even racketeering to deter them from speaking out against proposed fossil fuel pipelines and other projects that contribute to climate change.

In response to increased protest activity surrounding fossil fuel pipelines, 17 states have enacted anti-protest laws as of June 2022, labeling them critical infrastructure protection laws. These laws are selectively enacted and enforced to target environmental activists and protect corporate interests.

The fossil fuel industrys use of SLAPPs and support for anti-protest laws not only stifles free speech, but also serves as another form of disinformation about climate change. After years of spreading denial and disinformation, fossil fuel companies now acknowledge the existence of climate change but are attempting to ensure their greenwashing narrative dominates by silencing opposing views.

Read more:
Free Speech Under Attack (Part III): The Legal Assault on Environmental Activists and the First Amendment - House Committee on Oversight and Reform |

Massachusetts Attorney General Maura Healey's office is reviewing a letter from a group of so-called "crisis pregnancy centers" that accuses her office of taking unconstitutional action against them.

The letter asks Healey to rescind an advisory her office issued this summer saying the centers may mislead patients about abortion. The centers offer pregnancy consultations and are accused of concealing their goal of trying to steer patients away from abortion.

The letter, sent on behalf of a newly formed coalition of five operators of crisis pregnancy centers in Massachusetts, says Healey's office isinfringing on their right to express their religious beliefs.

"Your offices hostility against our clients religious beliefs raises serious concerns that you intend to take legal action against our clients in violation of their constitutional rights," the letter reads.

The letter is signed by attorneys from First Liberty Institute, a conservative legal group that litigates First Amendment cases involving religion, and the Massachusetts Family Institute, a nonprofit that advocates for conservative causes. The groups are representing the coalition of centers, which they refer to in the letter as "pregnancy resource centers."

The coalition includes Boston Center for Pregnancy Choices, Abundant Hope Pregnancy Resource Center in Attleboro, Clearway Clinic in Worcester and Springfield, Bethlehem House in Easthampton and Your Options Medical Centers in Revere, Sturbridge, Fall River and Brookline. There are an estimated 30 crisis pregnancy centers currently operating in Massachusetts.

In her July consumer advisory, Healey warned patients to research where they seek reproductive health care. The advisory said that while crisis pregnancy centers may appear to be reproductive health care clinics, they do not offer contraception, abortion services or referrals, despite what they may advertise.

"While crisis pregnancy centers claim to offer reproductive healthcare services, their goal is to prevent people from accessing abortion and contraception, Healey wrote. In Massachusetts, you have the right to a safe and legal abortion. We want to ensure that patients can protect themselves from deceptive and coercive tactics when seeking the care they need.

Also in July, Healey's office wrote to Abundant Hope Pregnancy Resource Center in Attleboro warning that her office may seek sanctions against the center for violating people's civil rights by "interfering, or attempting to interfere, with the exercise of the constitutionally protected right to access abortion care in Massachusetts."

Healey, who is also the Democratic nominee for governor of Massachusetts, said her office received complaints that the center misled patients about abortion services, delayed appointments for pregnant people beyond the point at which they could legally obtain an abortion, and followed patients who intended to go to a nearby abortion clinic, yelling, "Do not kill your baby."

Andrew Beckwith, president of the Massachusetts Family Institute, said Healey should withdraw that letter because any sanctions against the center would be unconstitutional. Beckwith also called on the attorney general to protect crisis pregnancy centers from property damage and threats that some have experienced since the U.S. Supreme Court overturned the federal constitutional right to an abortion this summer. Vandalism and threats havebeen reported at five Massachusetts crisis pregnancy centers since the Supreme Court ruling, Beckwith said.

"This has all the hallmarks of really just a politically and ideologically motivated hit job on an entity that symbolizes the pro-life movement," Beckwith said. "These are typically small nonprofit organizations run by women and men who are trying to help women who are in crisis and trying to give them options other than abortion and help them to navigate a crisis pregnancy. So they should be protected by our chief law enforcement officer, not attacked. "

A spokesperson for Healey's office said it is important to protect a patient's constitutional right to make decisions about a pregnancy, and pregnant people should not be misled or coerced.

'While we respect efforts by CPCs to support women who have chosen to carry their pregnancies to term, our office will continue to ensure that all patientswho want access to abortion services or medically accurate information about abortion services are able to do so without interference or unwanted delay," Healey's spokesperson said.

The letter, dated September 12, asks Healey's office to respond in 14 days and outline steps she will take to protect the clinics.Beckwith said the coalition is considering further legal action.

" We're looking into whatever we need to do to make sure that these organizations get to continue to carry out their mission of helping women and children," Beckwith said.

The rest is here:
Pregnancy centers warn that sanctions could violate their First Amendment rights - WBUR News

Two of the nations leading bar associations recently issued warnings about attorneys who mislead the public, make baseless charges, or blatantly lie about highly charged matters to be resolved in court. Both associations were responding to false claims made by attorneys for former President Donald Trump about the search of his Mar-a-Lago resident, challenging its lawfulness and the integrity of the federal government.

Some of the statements have been shown to be verifiably false, while the rest lacked a scintilla of evidence. Yet confronted with contrary facts, none of those attorneys provided support for their statements or corrected the record. Words are consequential, the associations underscoredthey can invoke violence directed at judges, FBI agents, and everyone involved in law enforcement.

Such lies by lawyers are nothing new. They continue a rampant pattern of lies offered in court and in the public sphere by election deniers.

The New York City Bar Associations report starkly reiterated that attorneys should not make claims of wrongdoing against officers of the court for which they have no factual basis, or which they know to be incorrect. Nor should attorneys, especially in a highly charged environment of public interest, make comments about the judicial processes or judicial officers that they know to be demonstrably misleading or palpably false.

A week earlier, the New York County Lawyers Association called out the danger of threats and antisemitic slurs aimed at the federal magistrate judge who issued the Mar-a-Lago warrant, as well as the identification of two FBI agents involved in the search, and the subsequent armed attack on the FBIs Cincinnati office.

Such warnings implicitly raise a crucial First Amendment question: Do lawyers lies have the same First Amendment protections as lies by others?

As I explained in A Right to Lie? Presidents, Other Liars, and the First Amendment, the Speech Clause impedes the states power to punish most lies. Long-standing exceptions to that principle include regulation of defamation, exemplified in current lawsuits brought by Dominion Voting Systems and Smartmatic against Fox News and others.

However, First Amendment protection for knowing falsehoods does not amount to an affirmative right to lie. The state violates the Constitution when it punishes speech simply because a court believes it to be false. The US Supreme Court has indicated that the government may only punish verifiable false statements of fact that harm others or unjustly benefit the liar.

The First Amendment may create an insuperable obstacle to state regulation of lies attorneys tell about pending proceedings, but it does not apply to private discipline by professional organizations. Arguably, as the New York City Bar suggested, attorneys waive some of their First Amendment rights to lie about public events and submit to the jurisdiction of the bar association as a condition of their license to practice law.

It is important to distinguish several settings in which lawyers might knowingly misrepresent the facts.

First, lawyers who represent clients in the dispute must be truthful in all statements to a court as well as to third parties, including the public. The ABA Model Rules of Professional Conduct prohibits attorneys from making false statements of fact or law before a legal tribunal as well as to the public.

A federal judge in Michigan explained in sanctioning Trump attorney Sidney Powell for her lies about the 2020 election and referring her to the Texas bar for professional discipline that conjecture and speculation are neither permitted nor welcomed in a court of law.

Referencing a 1991 Supreme Court opinion, she added, it is well-established that an attorneys freedom of speech is circumscribed upon entering the courtroom. In court, attorneys do not retain personal First Amendment rights because they are just doing their jobs. The legal definition of lies does not include conjecture, opinion, and the like, but courts require more of attorneys than not technically lyingassertions must be backed by evidence.

Of course the Michigan court did not mean to suggest that lawyers representing clients can lie outside of judicial proceedings. Powell carefully limited her fabrications to extrajudicial settings. She was cautious in court filings, and even asked the court to disregard her public statements as too incredible to be taken seriously.

Indeed, a New York appellate court upheld the suspension of Rudy Giulianis law license in part because of his false statements of material fact or law to third persons, that is, the general public. Giuliani communicated demonstrably false and misleading statements to courts, lawmakers and the public at large while trying to overturn the 2020 presidential election results.

A third and more nuanced situation involves lawyers who are not involved in the controversy. The Model Rules of Professional Conduct generally apply to attorneys in the course of representing a client, and the Supreme Courts conclusion that lawyers doing their jobs in court lack First Amendment rights does not seem to apply to attorneys without a client who speak about matters of public concern.

But the New York City Bar exhorted all attorneys to refrain from falsehoods. The specific setting and the lawyers choice of hat may matter. If speaking as myself, a concerned citizen, or as a legal opinion commentator, the scope for prevarication may be wider than if the lawyer speaks as the chair of the judiciary committee.

On what ground can we demand lawyers stay within the boundaries of professional propriety? This brings us to the quintessential features of the legal profession.

Upon admission to practice each lawyer is considered a public citizen having special responsibility for the quality of justice. As the Model Rules of Professional Conduct explain, Lawyers play a vital role in the preservation of society. That is why we hold ourselves to high aspirational standards, even when we may lack effective means of enforcement.

The New York bar associations were right to rebuke flagrant falsehoods that target the very rule of law. We should all take those warnings seriously.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Catherine J. Ross is Lyle T. Alverson Professor of Law at the George Washington University Law School. She specializes in constitutional law with particular emphasis on the First Amendment, and family law. She is the author of A Right to Lie? Presidents, Other Liars, and the First Amendment.

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Does the First Amendment Protect Attorneys Who Lie? - Bloomberg Law

Alabama Attorney General Steve Marshall led 21 attorneys general in filing abriefopposing the Hillsborough County Florida transit authoritys policy denying the First Amendment rights of a religious group to advertise on public transportation. The case of Young Israel of Tampa, Inc. v. the Hillsborough Area Regional Transit Authority is currently in a federal appeals court.

Whenever a violation of religious speech occurs, it is of serious concern to all who are dedicated to the preservation of the First Amendment, stated Marshall. When a government-run transit authority allows advertising on its public buses but specifically bans any advertising the government deems too religious, the government clearly violates the First Amendment. We rightfully support the plaintiff, Young Israel of Tampa, Inc., in their challenge of the unconstitutional practice of the Hillsborough Area Regional Transit Authority (HART) prohibiting religious advertising on its buses.

Marshall and the 20 other attorneys general claim in their brief that HARTs policy of banning religious speech violates the First Amendment of the U.S. Constitution and previous Supreme Court precedents.

First, HART lumps in religious affiliation advertising with other forms of advertising it forbids: ads for tobacco, alcohol, or related products and ads containing profane language, obscene materials, images of nudity, or depiction[s]of graphic violence, among others, Marshall et. al. wrote in their brief. But one of these things is not like the others. By treating them alike, HART sends the perverse message that religious speech is too controversial, too taboo, and too dangerous for public discussiona notion that flies in the face of our nations history and tradition celebrating religious discourse and the First Amendments dual guarantee of the freedoms of speech and religious exercise.

The conservative AGs brief continued, Second, HARTs policy defies a trilogy of Supreme Court cases holding that blanket bans on religious messaging is unconstitutional viewpoint discrimination. That remains true even if the advertising space on HARTs buses is considered a nonpublic forum as HART contends. No matter the forum, religious viewpoint discrimination is never permitted.

Third, even if HARTs policy were not viewpoint discriminatory, it fails as an unreasonable content-based restriction, the brief added. HART presented no evidence that allowing religious advertisements will impact its goals of maximizing revenue or operating a safe transit system. And there is no reasonable way it can conduct the line drawing necessary to implement its policy without running afoul of the Constitutiona fact this case demonstrates.

Marshall was joined by the attorneys general from Alaska, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, New Hampshire, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, and Virginia in their brief that was filed on September 14, 2022, in the U.S. Court of Appeals for the 11th Judicial Circuit.

Young Israel of Tampa is an Orthodox Jewish synagogue that submitted an ad to the Hillsborough Area Regional Transit Authority (HART) seeking to advertise its annual celebration of Chanukah. HART rejected the ad because it was religiousand it has a policy banning all ads that promote alcohol, tobacco, illegal drugs, obscenity, nudity, pornography, politics, and religion. After Young Israel appealed to HARTs CEO, HART said it would run the ad only if it censored all references to a central feature of the Jewish celebration of Chanukah: the menorah. Young Israel refused the demand that it strips its religious symbol from the ad, so HART refused to run it.

TheBecket Fundis representing Young Israel in its lawsuit against HART.

Becket argued that HARTs Advertising Policy is not only religiously offensive but also violates the First Amendment. On February 5, 2021, Young Israel of Tampa filed a lawsuit against HART in the United States District Court for the Middle District of Florida. On January 26, 2022, the federal district court granted summary judgment to Young Israel. The court found that HARTs ban on religious advertisements was both discriminatory and standardless. The court also ordered that HARTs religious-ad ban should be permanently prevented from being enforced.

HART has appealed that judgment to the Eleventh Circuit Court of Appeals.

To connect with the author of this story, or to comment, emailbrandonmreporter@gmail.com.

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Steve Marshall leads opposition to transit authority denying religious group's First Amendment rights - Alabama Today