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Photo illustration by Slate. Photos by Victoria Labadie - Fotonomada/iStock/Getty Images Plus, TikTok, andSoftulka/iStock/Getty Images Plus. This article is part of the Free Speech Project, a collaboration between Future Tense and the Tech, Law, & Security Program at American University Washington College of Law that examines the ways technology is influencing how we think about speech.

On Sunday evening, TikTok was granted another temporary reprieve when a judge blocked the Trump administration from banning it from app stores. But the app is still in a fight for its life as its Chinese owner, ByteDance, faces a deadline of Nov. 12 to either sell or spin off the U.S. arm of TikTok.

The Trump administrations Aug. 6 executive order banned TikTok and another Chinese app, WeChat, as a supposed national security threat. But as courts review the order, they arent paying much attention to the First Amendment speech rights of TikTok users.Thats a major oversight, because the First Amendment should save TikTok. We just need the courts to agree.

TikTok first sought to fight back against the executive order in federal court in Los Angeles, where it is headquartered. But its arguments centered around the Fifth Amendment due process violationsthe government was demanding a sale of the company, with some part of the proceeds going to the U.S. Treasury, without giving it a chance to defend itself from the charge that it was a national security threat. A minor argument included at the end said that the action violated First Amendment rightsbut only those of the company in its computer code. The company dropped the suit last week as it sought to negotiate with U.S. buyers, including Oracle and Microsoft.

Then a similar suit popped up in federal court in San Francisco, brought by a TikTok employee, Patrick Ryan, who worried that cashing his paycheck could be an act of treason under the broad language of the presidents order. (Disclosure: Im the executive director of the First Amendment Clinic at the Sandra Day OConnor College of Law at Arizona State University, which wrote a friend-of-the-court brief with the Electronic Frontier Foundation in this case; ASU is a partner with Slate and New America in Future Tense.) Again, the case relied on the Fifth Amendment, with no reference to the users rights. But after the government promised not to enforce the order against employees for being paid by the company, the suit was rendered moot.

At least WeChat users saw a little respect from the federal court examining the similar attempt to shut down that service. On Sept. 20, the court was persuaded that because the service is the primary source of communication and commerce for its Chinese-American usersit provides news and social media activities in Chinese and allows contact with users in China, where other American social media platforms are restrictedthe users had demonstrated serious First Amendment concerns that are the equivalent of censorship of speech or a prior restraint on the service..

But then again, that decision was just a preliminary injunction. And the Trump administration is now back in court to convince the judge to overturn the WeChat injunction, promising a secret filing this week to make the case that the service is a national security threat. So the First Amendment interests are still on thin ice.

But TikTok came back to court last week, this time in Washington, D.C., to again argue against the presidents ban. This time, TikTok expanded the First Amendment interests to include not just the companys code, but the companys role as a user and speaker on its own service, thus giving it a hook to argue for all users First Amendment rights. TikTok argued that the executive order functions as a prior restraint of users speech and must be subject to strict scrutinymeaning it is only valid if it is justified by a compelling government interest. As a fallback, TikTok argued that because it affects speech, it must at least be subject to intermediate scrutiny justified by a substantial government interest. (The difference between a substantial and a compelling interest is just the sort of question that keeps lawyers employed.)

And while the court granted the preliminary injunction Sunday evening after a rare weekend hearing, it didnt mention the First Amendment in its decision, instead relying on an exception to the International Emergency Economic Powers Act, which was the basis of the authority for the executive order, for informational materials and personal communications.

These disputes over TikTok and WeChat come amid a much bigger conversation over the legal rights and obligations of social media companies, even as courts have made clear in recent years that these forums deserve strong legal protections. The U.S. Supreme Court in 2017 struck down a North Carolina law barring registered sex offenders from using the internet and social media platforms in Packingham v. North Carolina. But that decisions First Amendment findings were firmly rooted in a case from 20 years before, Reno v. American Civil Liberties Union, when social media as we know it today did not exist.

Partially quoting Reno, the court stated that, While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspacethe vast democratic forums of the Internet in general, and social media in particular. The court continued: In short, social media users employ these websites to engage in a wide array of protected First Amendment activity on topics as diverse as human thought.

And TikTok takes things a step further. Posts made to the platform are widely shared and often connected by themes. In fact, its the algorithm that chooses what to show a user that is credited with TikToks popularity, and its the ultimate ownership of that algorithm that is the sticking point in the sale of the company. With posts being view by thousands, if not millions, of strangers, the service has, as the New York Times reported, become an information and organizing hub for Gen Z activists and politically-minded young people. Another Times article said it has has amplified footage of police brutality as well as scenes and commentary from Black Lives Matter protests around the world, with videos created and shared on the platform frequently moving beyond it.

Much of the highest-profile political activism on TikTok has focused on President Trump. Most notably, a group of TikTok teens claim to have launched a campaign to inflate the attendance expectations at Trumps Tulsa, Oklahoma, rally in June. Another TikTok user, Sarah Cooper, has gained notoriety for her satirical posts about the president, where she points out what she sees as the absurdities of some of his statements merely by lip-synching short audio clips of his speeches.

So if the fight over TikTok involves politically controversial and socially active speech, but the legal battle centers on the Fifth Amendment claims and other statutory limits on presidential powers, the way to elevate the First Amendment interests is to emphasize to courts that the freedoms of the Bill of Rights are all tied together.

This means that when the court is considering a due process claim, but that claim has a fundamental and drastic effect on First Amendment rights, the speech interests supercharge the other constitutional interests and demand the highest standard of scrutiny under the law. This takes us back to the difference between strict and intermediate scrutiny, and the nature of the interest that must be demonstrated by the government. And thus, when the First Amendment is so clearly implicated, courts must always apply the strictest scrutiny, which generally means that the speech-restrictive law will fail this difficult test. So a law that completely shuts down a social media platform should never be tolerated.

The Supreme Court has most clearly recognized this interplay in the context of the

Fourth Amendment, in the 1965 case Stanford v. Texas. When a search warrant implicates First Amendment interests, the warrant requirement to particularly describe the things to be seized is to be accorded the most scrupulous exactitude when the things are books. No less a standard could be faithful to the First Amendment freedoms.

These rights also require limited activity by the government, not sweeping decisions to shut down an entire social media platform. The high court held in 1963 that because the First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity. The court will not presume that the statute curtails constitutionally protected activity as little as possible.

If theres a national security threat due to access to users information by foreign powers, that access can be regulated consistent with the First and Fifth Amendmentsby imposing controls on monitoring or reporting on user data, for instance. But the social media platform cannot be silenced.

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.

Original post:
TikTok and the First Amendment - Slate

Yesterday's Minnesota Voters Alliance v. Walz, decided by Judge Patrick J. Schiltz (D. Minn.), correctly rejects the argument that the Minnesota mask mandate "violates the First Amendment because it does not permit them to enter indoor public spaces without face coverings as a way to protest the requirement that they wear face coverings when they enter indoor public spaces":

The Supreme Court has recognized that expressive conduct may be entitled to a measure of First Amendment protection. In general, courts evaluate the validity of a law that regulates expressive conduct under the standard articulated in United States v. O'Brien (1968). This does not mean, however, that every law regulating conduct is subject to scrutiny under O'Brien whenever an individual decides to violate the law for the purpose of sending a message.

If combining speech and conduct were enough to create expressive conduct, a regulated party could always transform conduct into "speech" simply by talking about it. For instance, if an individual announces that he intends to express his disapproval of the Internal Revenue Service by refusing to pay his income taxes, we would have to apply O'Brien to determine whether the Tax Code violates the First Amendment. Neither O'Brien nor its progeny supports such a result.

To merit First Amendment protection under O'Brien, then, the conduct regulated by the challenged law must be "inherently expressive." Here, the conduct at issue is not inherently expressive. [A]n observer would have no idea why someone is not wearing a face covering. Absent explanation, the observer would not know whether the person is exempt from EO 20-81, or simply forgot to bring a face covering, or is trying to convey a political message. That fact takes the conduct outside of the First Amendment protection afforded by O'Brien.

Even if wearing or not wearing a face covering was inherently expressive, EO 20-81 is clearly constitutional, whether analyzed under O'Brien or Jacobson. Under O'Brien,

a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

There is no question that Minnesota has the constitutional authority to enact measures to protect the health and safety of its citizens. Likewise, there is no question that EO 20-81 furthers the substantial government interest in controlling the spread of a deadly and highly contagious disease. As discussed above, federal health officials recommend face coverings as an effective way to slow the spread of COVID-19, and this recommendation finds support in recent studies.

Finally, EO 20-81 is unrelated to the suppression of free expression and has at most an incidental effect on First Amendment freedoms that is no greater than necessary; plaintiffs are free to express their opinions about EO 20-81 in every conceivable way except by violating its provisions and putting at risk the lives and health of their fellow citizens.

Likewise, EO 20-81 is constitutional under the standard established in Jacobson v. Massachusetts (1905), which requires courts to examine whether a measure adopted to address a public-health crisis has a "real or substantial relation" to the crisis and, assuming that it has such a relation, whether it is "beyond all question, a plain, palpable invasion" of a constitutional right.

Link:
Mask Mandate Doesn't Violate the First Amendment - Reason

Editor,

I find myself writing another letter to our community newspaper. No, Im not mad, angry, nor riding a high horse pushing a candidate for elective public office. Believe it or not, it is because of a small, square white sticker tag attached to front of my Saturday newspaper.

For simplicity, Ill refer to it as the civility tag. Yes, a call for civility in the wild, one could say. That being wilderness of discontent we find ourselves in today, I presume. Asking for or suggesting the signing of a civility pledge of a local group promoting civility.

Yes, I believe the tag, as well as the group, are well intentioned.

Freedom of speech, as granted in our Constitution with few if any restrictions on ways of expression, does not include civility as a stipulation or requirement. Civility is an ambiguous term anyway. Meaningful in different ways to different folks.

Speaking for myself, I found it to be a Trojan horse of censorship.

This time of discontent we find ourselves in a period of history in the making and, I believe, most exercises of our inherited freedoms have been reasonably presented.

I understand others may disagree, but there is the value in freedom of speech, discussion and debate.

Thomas Strang

Coupeville

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Letter: 'Civility' is not mentioned in the First Amendment - South Whidbey Record

A federal judge has authorized an immediate appeal of herdecision to allow PEN America to proceed with claims that President Trump violated the First Amendment by retaliating against journalists based on their critical coverage.

In a decision issuedThursday, U.S. District Court Judge Lorna Schofield in New York ruled that the dispute presented legal questions that lent themselves to appellate review -- including whether a judge could issue adeclaratory judgment against a sitting President over his discretionary conduct.

Schofield said that question implicates constitutional considerations, and that its resolutionwould materially advance the ultimate termination of the litigation.

The ruling paves the way for the Department of Justice to as the 2nd Circuit Court of Appeals to intervene inthe matter.

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The fight dates to 2018, when the organization PEN America sought a declaratory judgment that Trump violated the constitution by retaliating against journalists based on theirviewpoints, and by threatening the media in a way that could chill free speech.

PEN America also sought an injunction prohibiting the federal government from taking action against mediaorganizations and journalists for their criticism of the White House.

Among other claims, PEN Americaalleged that the administration wrongly revoked the press credentials of CNN's JimAcosta after a contentious November 2019 press conference. (A federal judge in Washington, D.C. subsequently ordered the government to restore Acosta's press pass.)

Schofield ruled in March that PEN America was entitled to pursue its request for adeclaratory judgment. But she said the organization couldn't proceed with its request for an injunction, given that Trump has discretionary authority over matters like securityclearances.

The Department of Justice then asked Schofield for permission to appeal to the 2nd Circuit.

The administration said it wanted to raise several arguments, including whetherTrump can be subjected to a lawsuit seeking a declaratory judgment based on non-ministerial actions he performed in an official capacity.

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Judge Authorizes Appeal In PEN America's First Amendment Fight With Trump 10/05/2020 - MediaPost Communications

On Thursday, U.S. District Court Judge Stephen Wilson ordered the City of Los Angeles to pay the National Rifle Association (NRA) close to $150,000 over a 2019 ruling on a city ordinance aimed at negatively affecting some city workers who are members of the NRA.

City Ordinance 186000 specifically requires that any prospective contractor with the city must disclose all contracts or sponsorships with the NRA. The ordinance noted several mass shootings, including the Sandy Hook School shooting in 2012, the Las Vegas Mandalay Bay shooting of 2017, and both the Pittsburgh and Thousand Oaks shootings of 2018, and tried to tie them to the NRA by showing how their support for less strict gun laws led to those incidents. The ordinance also noted how many of those cities would later enact greater gun control methods.

It concluded that since Los Angeles enacted ordinances and position in favor of greater gun control, it would make sure city funds wouldnt go those with ties to the organization and would halt city contractor business with NRA members and supporters.

The Citys residents deserve to know if the Citys public funds are spent on contractors that have contractual or sponsorship ties with the NRA, read the ordinance. Public funds to such contractors undermines the Citys efforts to legislate and promote gun safety.

The NRA immediately sued Los Angeles after the ordinance went into effect in April 2019. While the city, as well as ordinance sponsors Mayor Eric Garcetti and Councilman Mitch OFarrell, had expected to win, the NRA made a hard case for the ordinance being in violation of First Amendment rights, mainly freedom of speech.

In December, Judge Wilson agreed with the NRA and ruled against Los Angeles, halting the ordinance for good and allowing contractors who are members of the NRA to once again be freely allowed to get contracts with the city.

The text of the ordinance, the ordinances legislative history, and the concurrent public statements made by the ordinances primary legislative sponsor evince a strong intent to suppress the speech of the NRA, Judge Wilson wrote in his ruling. Even though the Ordinance only forces disclosure of activity that may not be expressive, the clear purpose of the disclosure is to undermine the NRAs explicitly political speech.

The City has no interest in the suppression of political advocacy regardless of how distasteful it finds the content. The Ordinance is therefore incompatible with the Constitution, and Plaintiffs are likely to be successful on the merits of their First Amendment speech claims.

Los Angeles stayed quiet after the ruling, neither giving a statement on the ruling nor attempting to pass an altered ruling in 2020.

Free speech advocates, affected contractors, and the NRA had the opposite reaction and celebrated the ruling.

It was essentially a blacklisting for believing in a constitutional amendment, Charles Rogers, an NRA supporter and contractor with several cities in Southern California, told the Globe. I didnt even attempt anything in Los Angeles last year.

But its my belief and Im with a group that shares that belief. I shouldnt be shunned for it. But the city really did do it. Thank God for that lawsuit.

The NRA also responded: This is an important win for the NRA, our members, and all who believe in Americas constitutional freedoms. The ruling sends a powerful message to those government officials who would take any actions that are adverse to the NRA because they dislike its political speech.

However, a question lingered throughout much of 2020 over the matter of the NRAs legal fees, which came in close to $150,000.

Los Angeles, which is currently going through a fiscal emergency due to COVID-19 closings and the economic downturn, had long avoided paying the NRA, going as far as saying that the NRA had to pay it themselves.

But earlier this week Judge Wilson sided with the NRA again, ordering the city to give the NRA all money owed and finally closing the last remnant of the case for good.

I know the city is hurting, but its good to see a First and Second Amendment victory like this in a big city like LA, added Rogers. And that court ordered payment the other day? It will make them think twice about doing something like this in the future.

Evan V. Symon is the Senior Editor for the California Globe. Prior to the Globe, he reported for the Pasadena Independent, the Cleveland Plain Dealer, and was head of the Personal Experiences section at Cracked. He can be reached at evan@californiaglobe.com.

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Los Angeles Ordered To Pay NRA $150000 Over First Amendment Ordinance Violation - California Globe