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The last few years have seen a flurry of efforts from both right and left to regulate how social media platforms police their users. These laws and proposed laws have raised a key constitutional question: Is a platform's power to moderate user-created content protected by the First Amendment?

So far, courts have consistently held that platforms do have such protection. A critical case to be decided by the Eleventh Circuit in the new year will be the most important yet to address that question.

The law at issue is Florida's SB 7072, a sweeping measure ostensibly enacted to stop censorship by big tech. SB 7072 forces platforms to host all content from registered political candidates and "journalistic enterprises," even if that content would violate the platforms' terms of service. The law also imposes a consistency provision, which forces a platform to take down (or leave up) content if a judge rules that the platform has previously taken down (or left up) similar content. The law imposes penalties of up to $250,000 for each instance of noncompliance.

Florida Republicans argue that their "freedom of speech as conservatives is under attack by the 'big tech' oligarchs in Silicon Valley" and that SB 7072 "is about the 22 million Floridians and their First Amendment rights." By calling the bill a defense of free speech and by calling the platforms' content moderation "censorship," these supporters obscure the critical fact that editorial choices by private actors are categorically different from the abridgement of free speech by the state.

This distinction is crucial because the government is, and always will be, a monopoly; when it bans speech, citizens have no recourse. Private speech platforms, by contrast, have competition. Whether they are new social media companies or traditional newspapers, these platforms can only decide what speech they host and present. Those unsatisfied with their choices can choose to read or contribute elsewhere.

That difference is why the Supreme Court unanimously struck down a similar Florida law in 1974. By compelling newspapers to run editorials written by politicians they had criticized, the high court explained, the law infringed the papers' editorial right to choose what speech they print. Private citizens have the right to respond to criticism, but not the right to force others to host their speech.

So when Florida argued nearly 50 years later that SB 7072 is on the side of free speech, a federal district court correctly and unsurprisingly deemed those arguments "wholly at odds with accepted constitutional principles."

Florida nonetheless claims that social media platforms are not protected by these traditional First Amendment principles. The state argues that a social media site does not present a sufficiently "unified speech product" and that platforms have not engaged in enough content moderation in the past to merit a right to do so in the future. But as explained in a recently filed amicus curiae brief on behalf of the Cato Institute (which one of us co-wrote), the First Amendment's protections are not contingent on either of these criteria.

Private actors have a First Amendment right to choose what they say, what speech they host, and how they arrange it, regardless of the coherence of the speech they host or the extent to which they have edited that speech in the past.The First Amendment protects the editorial rights of all platforms, not just a privileged class of institutional media that have already engaged in heavy content moderation.

When he signed 7072, Florida Gov. Ron DeSantis likened social media platforms' content moderation to the "tyrannical behavior" of Fidel Castro and Hugo Chavez. If DeSantis is really concerned about free speech and authoritarianism, he should think twice before giving the government more control over private communications platforms.

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The First Amendment Protects Everyone, Even Facebook and Twitter - Reason

A first-in-the-nation Oregon law restricting love letters between buyers and sellers, set to begin in January, is being challenged in court by the conservative-leaning Pacific Legal Foundation.

A libertarian legal group is backing an Oregon real estate firms effort to strike down a first-in-the-nation ban on so-called love letters from homebuyers to sellers.

The group, Pacific Legal Foundation, filed a lawsuit Friday that claims Oregons new law which requires real estate agents to reject these letters represents a violation of the agents and clients First Amendment rights. The suit was filed on behalf of Total Real Estate Group in Bend, Oregon.

Guesswork is not adequate grounds for suppressing truthful speech, the group said in its filing. Nor can the Legislature broadly prohibit expression because a small portion of it might theoretically prompt some people to violate the law.

Advocates of the law say that the letters often contain personal information that can be used to discriminate against homebuyers based on their race, sex, religion or family situation.

This type of discrimination is already banned under the Fair Housing Act, but the laws advocates argue that love letters provide the seller with more than enough information to discriminate unconsciously or otherwise.

We are limiting transmission of communications that are not relevant and could potentially be breaking fair housing laws, Democratic state Rep. Mark Meek, who sponsored the legislation in Oregon, recently told USA Today.

But in its lawsuit, the group alleges that theres no evidence the letters have led to actual discrimination. It points to a statement from the National Association of Realtors that the trade group was unaware of any legal action that resulted from a love letter.

This censorship is based on mere speculation that sellers might sometimes rely on information in these letters to discriminate based on a protected class, the lawsuit reads.

Love letters can also give first-time buyers a leg up over investors, the lawsuit reads.

In its statement from earlier this year, NAR also advised its members to only consider non-discriminatory criteria when helping a client sell a home. Failing to do so could leave agents in a compromised position, NAR spokesman Wesley Shaw said in July.

Oregon became the first state in the nation to ban love letters earlier this year. No other state has yet taken the same step, according to the USA Today report.

The ban requires a sellers agent to reject any communication other than customary documents from a potential homebuyer, including letters, photographs and video. Its language does not ban a buyer from submitting the same type of material directly to the seller themselves.

[Total Real Estate Group] is concerned that the love letter ban, if anything, increases the likelihood of discrimination because it allows buyers to send love letters to sellers without the intermediary of a broker to protect against that risk, the lawsuit reads. Likewise, the love letter ban may make it more likely that problematic communications simply occur over the phone rather than in writing, making it more difficult to police against possible discriminatory conduct on the part of sellers.

In previous conversations with Inman, agents in Oregon had a range of experiences with love letters. Some said they saw how the information in the letters could be used by sellers to play on biases. Others said the strength of the offer was usually what won the day, not the emotional appeals from the buyer.

Barring a successful legal challenge, the law is set to go into effect in January throughout the state of Oregon.

Email Daniel Houston

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Love letter ban to see day in court thanks to First Amendment group - Inman

An FBI raid on Project Veritas leader James OKeefes home in early November 2021 has sparked an unusual demonstration of support from the very establishment media that OKeefe has spent his career targeting and trashing.

The raid was conducted on the suspicion that OKeefe and former Project Veritas staffers were implicated in the theft of President Joe Bidens daughter Ashleys diary before the 2020 election. The Department of Justice said the cellphones sought in the raid would reveal evidence of aiding and abetting the transport of stolen property worth $5,000 or more across state lines, and of failure to report the theft to law enforcement in violation of federal law.

Project Veritas says that the phones contain attorney-client privileged information and newsgathering materials protected by the First Amendment.

OKeefe is the self-described progressive radical and founder and CEO of Project Veritas. His organization has a long history of conducting undercover sting operations, frequently targeting progressive nonprofits, politicians and the news media with the stated aim of disclosing bias, hypocrisy and illegal activity.

Many journalists repudiate Project Veritas and its methods, contending that the organization is ideologically driven and routinely violates established norms of media ethics.

As a professor of media ethics and law, Ive been grappling with how to think about Project Veritas and its escapades for years. Like many media lawyers, I wish it would just go away.

Nevertheless, media organizations and their supporters, such as the American Civil Liberties Union, the Committee to Protect Journalists and the Reporters Committee for Freedom of the Press, of which I served as executive director from 1985 to 1999, rallied to protest the searches and seizures as a possible violation of the First Amendment right of a news organization to gather information. They demanded answers about why Project Veritas was targeted in the investigation. And they made clear that they were concerned about more than just Project Veritas, whose methods they have often decried.

Project Veritas bills itself a nonprofit journalism enterprise, and its website touts its many efforts to achieve a more ethical and transparent society.

But its work doesnt look much like traditional journalism. One of its more notorious undertakings involved making secret recordings at various offices of the Association of Community Organizations for Reform Now in 2009, purporting to show ACORN staffers advising OKeefe and his associate how to evade taxes and engage in human trafficking.

Although a subsequent investigation by the California Attorney General concluded that the videos had been severely edited, their release prompted Congress to freeze federal funding to ACORN. ACORN was eventually exonerated by the Government Accountability Office, but Project Veritas continues to brag about its takedown of the organization as one of its successes.

Project Veritas also revels in exposs of what it calls political bias in the mainstream media, including CNN, ABC, National Public Radio and The Washington Post. Recently, it sued The New York Times in state court in Westchester County, New York, claiming that the newspaper defamed it by calling its videos alleging voter fraud in Minneapolis misinformation. It has now used that case as the means to obtain a court order to compel the Times to curtail its reporting about the investigation, which Project Veritas claims came from government leaks an extraordinary request for prior restraint unprecedented since the Supreme Courts Pentagon Papers case in 1971, and hardly consistent with support of the First Amendment.

The Supreme Court has said that the First Amendment provides some protection for newsgathering, although it does not permit the news media to violate laws that apply to everyone. Because the government does not issue licenses to journalists, anyone who gathers and disseminates information to the public can claim to be the press. Thats why the FBI raid concerns members of the news media. They fear they could be next.

For their part, the attorneys representing Project Veritas say that two anonymous individuals, who claimed they had legally acquired the diary after Ashley Biden abandoned it at a house in Florida, offered to sell it to Project Veritas for possible publication. After the lawyers for both parties negotiated an arms length agreement, Project Veritas took delivery of the diary.

Project Veritas claims that it couldnt authenticate the diary to its satisfaction and after trying unsuccessfully to return it to Bidens lawyer, sent it back to local law enforcement officials.

If this version of events is true, U.S. Supreme Court precedent established in a 2001 press-related case, Bartnicki v. Vopper, should apply. There, the high court ruled that a media organization can disclose important information illegally obtained by a third party, as long as the organization itself was not involved.

A strangers illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern, Justice John Paul Stevens wrote.

If Project Veritas was not involved in the theft of the diary, it could also be covered by the Privacy Protection Act of 1980, which bars both federal and state law enforcement from seizing journalists work product and documentary materials except in very limited circumstances.

In fact, the Justice Department has been prohibited from even subpoenaing journalists by Attorney General guidelines that date back to 1974 although investigations into leaks of classified information led to notable exceptions to this rule during the Obama and Trump administrations.

Earlier this year, Biden said it was simply, simply wrong to compel journalists to reveal their sources, and Attorney General Merrick Garland promised in July to beef up the guidelines and make them law to ensure that future administrations would also be bound by them, though he has yet to do so.

Project Veritas says it is covered by the Privacy Protection Act, which protects those engaged in public communication, as well as the guidelines.

But in defending the FBI raid on OKeefes home, the government contends that it has followed all applicable regulations and policies regarding what it calls potential members of the news media suggesting that they think Project Veritas isnt one.

Until the underlying affidavits supporting the warrants are unsealed, we wont know whether the U.S. Attorney thinks that Project Veritas committed a crime, or that it isnt a news organization. Either possibility has serious ramifications for all media.

If Project Veritas is found guilty of a crime, any journalist who transports leaked or stolen information across state lines could be charged with violation of the law. Its unclear what that means today when so many documents are transmitted electronically.

Or, if the government narrowly defines the press based on its political outlook or ethics, then no news organization is safe from attacks by future administrations.

Either way, the mainstream media are holding their collective noses and supporting Project Veritas in its fight. Its a matter of principle, but also of self-preservation.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Project Veritas and the mainstream media: Strange allies in fight for press freedom | Commentary - Minnesota Reformer

Given that this column is being published on Black Friday, Im guessing that some of you gentle readers stumbled across these words when you were actually looking for a good deal on a flat screen TV. Im not offended, but as long as you are here, perhaps you like to hear about a guy named Hugo Black? This wont take long, and then you can get back to shopping.

I was recently reminded of the late US Supreme Court Justice Hugo Black of Alabama. Black was born in 1886 and was appointed to the nations highest court by FDR in 1937 and served for a then-record 35 years. He would retire in 1971 and sadly died just weeks later. But what I want to draw your attention to, given a recent Colorado Politics story, is what Justice Black didnt do and why.

For a time, mostly in the 1960s and 1970s, the US Supreme Court was called upon to adjudicate on the question of whether certain allegedly dirty movies were as the law then required for censorship utterly without redeeming value. And so, in the basement of the Court building a tiny movie theater was set up so that the various justices could come down and, well, watch the movies in question to render a judgment on their merit or lack thereof. All the Courts members watched the movies, except for one.

Hugo Black was an absolutist on the First Amendment. He argued that (with very few exceptions think fire in a crowded theater) all speech is protected, so he didnt need to check out the movies. Regardless of merit, the content was protected. He believed that free speech, freedom of the press, of assembly, and the whole lot of First Amendment rights are absolute and we are only truly free when virtually everything is protected.

And I agree.

I call myself a Hugo Black absolutist. As others have said, sunlight is the best disinfectant, and our society is best protected from demagogues when everything is out in the open (I could make a reference here to a certain former presidents quips about reducing freedom of the press, but I digress).

Therefore, I read the CP story with interest from the perspective of a HB absolutist (hey, I just realized Justice Black and I share the same initials, cool) and from the point of view of a former military cop duty that I very much enjoyed during my last two years of active duty.

It seems a gentleman who refers to himself as a YouTube journalist (which I admit, from my biased point of view seems a bit contradictory) is upset about police officers interfering with his efforts to make video recordings of their work at a traffic stop. He was recording the actions of the officers when a couple of them took umbrage and physically blocked his camera as well as shining flashlights into the lens to disrupt the recording. The Denver-based US Court of Appeals is being asked to review the case, and to rule on how and when a private person can record the police as they carry out their duties. There have been mixed messages sent by a number of courts on this issue, and I expect it to end up in the Supreme Court someday.

Admittedly, it is a complicated issue. Such factors as qualified immunity (which shields police officers from liability when discharging their public duties) and other legal principles will be considered and decided on by far smarter legal minds than mine.

But I can almost hear Hugo Blacks voice calling across the decades that the First Amendment (the free press part in particular here) is absolute. Sunlight is better than darkness when it comes to government actions.

Im quite sure that no one would have been convicted of the murder of George Floyd had video records not been made. And frankly, given that an overwhelming percentage of police/citizen interactions are handled professionally and legally by the cops, Im actually in favor of body cams being mandatory as well as videos shot by others being legal. Heck, I used to carry a small digital voice recorder with me when I was on patrol, and when I stopped a car for, say, a traffic violation, I recorded our interaction just in case that person later tried to claim I had violated their rights or had been unprofessional.

There are certainly limits of course no one should think that the First Amendment allows them to directly interfere with a police action, just as you cant get in the way of firefighters who are trying to pull someone from a burning car just to get a great YouTube video. But in general, I hope the court rules in favor of the videographer. We should want to get rid of the handful of bad cops and we should want to protect the good ones. Video recordings of police actions (within reason, as noted above) will help us do both those things. Had they been available when I was on patrol, I would have welcomed a body cam.

Hugo Black was right the freer we are the safer we are from oppression.

Hal Bidlack is a retired professor of political science and a retired Air Force lieutenant colonel who taught more than 17 years at the U.S. Air Force Academy in Colorado Springs.

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BIDLACK | Sunlight is the best disinfectant | Opinion | coloradopolitics.com - coloradopolitics.com

Stephen Kulp, Thomas Ude, Jr., Rebecca Levin Nayak, Gregory Yorgey-Girdy (Philadelphia Gay News photo collage).

By Victoria Brownworth

The import and impact of lawyers like those working under the rubric of the Philadelphia LGBTQ Bar Association is integral in the continuing fight for LGBTQ equity. This has never been more apparent nor more critical than now.

In the past decade, monumental legal cases have challenged and changed discriminatory policies and laws affecting LGBTQ people at all levels of society.

Among them have been landmark U.S. Supreme Court cases on same-sex marriage United States v. Windsorin 2013,Obergefell v. Hodgesin 2015, andBostock v. Clayton County, the 2020 anti-discriminationcasein which the Court held that Title VII of the Civil Rights Act of 1964 also protects gay and trans employees against employment discrimination.

More recently, in the case of Fulton v. City of Philadelphia, the U.S. Supreme Court found the City of Philadelphiaviolatedthe First Amendment rights to religious freedom of Catholic Social Services (CSS) when the City demanded CSS agree to certify same-sex couples as foster parents.

In2021, discrimination, hate crimes, custody issues, divorces and a plethora of other legal wrangles face LGBTQ people. The pandemic has heightened awareness of biases against LGBTQ people in healthcare, employment, housing and other venues. But where and how do queer and trans people search out an attorney if they need one sympathetic to their case and understanding of the problems and perils they face?

The plethora of issues that LGBTQ people face underscores the vital need for a group such as the Philadelphia LGBTQ Bar Association.

The history and growth of the group over the 35 years since its inception in 1986 runs parallel to the changes in the Philadelphia LGBTQ community as a whole. When the Philadelphia LGBTQ Bar Association was founded, it was as a group of 25 attorneys. As Philadelphia Attorneys for Human Rights (PAHR), the group advocated for the rights of the LGBTQ community in the greater Philadelphia area.

The group chose the ambiguity of that acronym during the apex of the AIDS crisis to protect the identities of its members, some of whom refused to receive communications from PAHR lest they be accidentally outed.

In 1992, PAHRs membership changed the organizations name to the Gay and Lesbian Lawyers of Philadelphia (GALLOP) and the group formally incorporated in 1997. The organizations role expanded quickly. GALLOP wrote, helped to write or co-signed amicus curiae briefs advocating for equal rights for LGBTQ people, including parental rights and marriage equality throughout the 1990s and 2000s.

In 2002 the National LGBT Bar Associations Lavender Law Conference was hosted by GALLOP, and now-judge Tiffany Palmer organized the first-ever Lavender Law Career Fair for students. That first career fair attracted 30 employers and around 200 students, but has since become a staple of Lavender Law that attracts over 175 employers annually.

In 2019 GALLOP changed its name to the Philadelphia LGBTQ Bar Association to fully include the diverse identities of its members. These name changes reflect the Philadelphia LGBTQ Bar Associations ongoing commitment to being forward-thinking and encouraging a diverse and inclusive group of LGBTQ+ leaders for tomorrow.

Diverse and inclusive it now is. In 2021, the Philadelphia LGBTQ Bar Association leadership is young, progressive and racially, ethnically and gender diverse, led by a millennial gay man of color, Stephen Kulp, who has chaired the organization since January 2021.

I am overwhelmed with gratitude to our members and our community for the privilege of serving as Chair of the Philadelphia LGBTQ Bar Association, Kulp told The Philadelphia Gay News.

But, says Kulp, there is hard and relentless work involved, as exemplified by the enumeration of recent legal battles.

As lawyers, we have a responsibility to be leaders in society, and as LGBTQ+ lawyers, we have a special responsibility to advocate for the entire LGBTQ+ community, Kulp said.

He added that although the organizations membership is now wholly out to the community, that carries its own burden. Kulp asserted, This work takes courage, bravery and a bit of grit. Our organizations success is a credit to the strength we have when we work together with purpose.

That advocacy is apparent in the work of the organizations Secretary, Gregory Yorgey-Girdy, who justwonhis judicial race on Election Day, becoming the first openly gay man in history elected as a judge on the Philadelphia Municipal Court.

For Yorgey-Girdy, his role at Philadelphia LGBTQ Bar Association has been part of a journey culminating in that election. He told PGN, Im honored to have received the number of votes I did in both the primary and general election, and if you voted for me I again thank you. I owe so much of this win to my husband, my kids, and a close circle of friends who supported me.

Yet many would argue Yorgey-Girdy owes that win primarily to the work he has done over years in Philadelphia work that has helped make the community a safer space to be someone like himself: a Black gay man with a husband and children.

Yorgey-Girdy said, As a board member and current Secretary, it has been my privilege to help the Philadelphia LGBTQ Bar Association grow as a highly respected voice in the legal community. It is an incredible responsibility to help lead our organization in achieving its goals and purpose.

As Legal and Public Policy Director for the Mazzoni Center, Thomas Ude, Jr., Vice-Chair of the Philadelphia LGBTQ Bar Association, is dealing with the healthcare aspects of LGBTQ discrimination that have impacted the community since the inception of then-PAHR. Ude told PGN, I have been excited to see the Bar Association continue to grow and develop programs to help attorneys and law students across Philadelphias LGBTQ+ communities connect with one another.

Ude said, I have been excited to work with Stephen, Becca [Levin Navak, Treasurer] and Greg on the executive board this year.

Yorgey-Girdy echoed Ude, noting, Our Chair, Stephen Kulp, has inspired folks to believe in the power our community holds and the limitless potential in the sum of us.

Kulp has taken that dictate very seriously and is, with the help of the executive board, propelling the organization forward. He said, When my peers elected me to lead this organization, I promised to advance diversity and inclusion in the profession to promote and celebrate our members so that everyone is valued and has equal opportunity to participate and succeed as LGBTQ+ law students, lawyers and judges.

Kulp asserted that his work and that of the organization has also been to create access for growth. He notes, Our organization provided our members access to diverse CLE (Continuing Legal Education) programs focusing on policy, advocacy, health and wellness, and DEI (Diversity, Equity and Inclusion) in the past year at no charge.

Among the things Kulp says the organization has done this year is create an atmosphere of support by supporting newly admitted LGBTQ+ lawyers at a ceremonial swearing-in ceremony with Hon. Idee Fox, presiding and Hon. Ann Butchart, Hon. Abbe Fletman and Hon. Daniel Anders celebrating these young lawyers from the bench.

Kulp said making people aware of the organization and its myriad goals is also key. Kulp said, We hosted town halls to hear from candidates running for Municipal Court, Court of Common Pleas and District Attorney. We are expanding new legal pathways for LGBTQ+ rights that honor the trailblazers that formed our organization in 1986. We have collaborated with the other affinity bar associations in Philadelphia and Pennsylvania and expanded our work with National Bar Associations to ensure LGBTQ voices had a seat at the table.

For Yorgey-Girdy, there is yet more to accomplish. He notes that less than a year ago I wasnt seriously considering a run for public office. But with the encouragement of my family, friends and the grace of God, I decided that Id launch a campaign.

Now Yorgey-Girdy represents another achievement of the organization by being elected a judge. He said, I look forward to serving all Philadelphians as a judge, and I will uphold my campaign promise of doing what I can internally within the First Judicial District to be an agent of change from within.

Kulp says, Our diversity makes our organization unique. We give back to our community through pro bono initiatives that seek to protect those at the intersection of sexuality, race, age and gender.

He adds that it is essential to ensure we speak on behalf of the minorities within a minority. All of this is building blocks towards advocacy.

To learn more about the Philadelphia LGBTQ Bar Association visit:philalgbtqbar.org/.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site.

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Giving back and speaking up: Meet the Philadelphia LGBTQ Bar Association - Pennsylvania Capital-Star